Gor­such hear­ings will test the GOP

NO DEMOCRATS HAVE PLEDGED SUP­PORT Repub­li­cans see him as able suc­ces­sor to Scalia

The Washington Post - - FRONT PAGE - BY ED O’KEEFE AND ROBERT BARNES

When Judge Neil Gor­such ar­rives on Capi­tol Hill on Mon­day morn­ing to be­gin his con­fir­ma­tion hear­ings for a seat on the Supreme Court, he will give Pres­i­dent Trump his first chance to make a last­ing im­print on the fed­eral ju­di­ciary — and Repub­li­cans a fresh test to work their will now that they con­trol all of Wash­ing­ton’s levers of power.

Gor­such, a fed­eral ap­peals court judge from Colorado, was pro­moted by con­ser­va­tive le­gal ac­tivists be­cause of his ster­ling cre­den­tials, a decade of right-of­cen­ter rul­ings and his al­le­giance to the same brand of con­sti­tu­tional in­ter­pre­ta­tion em­ployed by the late jus­tice he would re­place, An­tonin Scalia.

“Sin­gle best thing the pres­i­dent’s done,” said Sen. Lind­sey O. Graham (R-S.C.), a fre­quent Trump foil who pre­dicted Repub­li­can unity on the mat­ter and an easy vic­tory for the pres­i­dent fol­low­ing the string of con­tro­ver­sies that Trump has wrought since he took of­fice.

All of that also sets up a stark dilemma for Se­nate Democrats. Mon­day brings their new­est op­por­tu­nity since the con­fir­ma­tion hear­ings of Trump’s Cab­i­net to take a stand against a young ad­min­is­tra­tion that has hor­ri­fied lib­eral Amer­i­cans with ef­forts to strip away pro­vi­sions of the Af­ford­able Care Act, im­pose an en­try ban on some im­mi­grants and deeply cut fed­eral agen­cies’ bud­gets.

The left also re­mains an­gry about a Supreme Court seat that has been va­cant since Scalia died 13 months ago, af­ter which Se­nate Ma­jor­ity Leader Mitch McCon­nell (R-Ky.) de­cided to block a hear­ing for Pres­i­dent Barack Obama’s se­lec­tion for the seat, Judge Mer­rick Gar­land of the U.S. Court of Ap­peals for the D.C. Cir­cuit.

Gor­such seemed to fore­cast what might await him from Democrats in a 2002 col­umn he wrote la­ment­ing the state of the Supreme Court nom­i­na­tion process: “When a fa­vored can­di­date is voted down for lack of suf­fi­cient po­lit­i­cal sym­pa­thy to those in con­trol, grudges are held for years, and re­tal­i­a­tion is guar­an­teed.”

Yet Democrats are di­vided about how to take on a ge­nial ju­rist who has made few waves in the weeks since Trump nom­i­nated him and he be­gan meet­ing with law­mak­ers on Capi­tol Hill.

Gor­such “is a bit of a puz­zle,” said Sen. Dianne Fe­in­stein (Calif.), the top Demo­crat on the Se­nate Ju­di­ciary Com­mit­tee. “We’re go­ing to try to put those pieces to­gether so that the puz­zle is com­plete and we have an un­der­stand­ing of what kind of a fifth vote will be go­ing on the court.”

Asked about what more she hopes to learn about Gor­such’s stances, Fe­in­stein said: “Vot­ing rights. Right to choose. Guns. Cor­po­rate dol­lars in elec­tions. Worker safety. Abil­ity of fed­eral agen­cies to reg­u­late. All of the en­vi­ron­men­tal is­sues — water, air.”

Sen­a­tors and their staffs are also ex­am­in­ing Gor­such’s role as a high-rank­ing of­fi­cial in the Jus­tice De­part­ment at the time the Ge­orge W. Bush ad­min­is­tra­tion was deal­ing with Guan­tanamo Bay de­tainees, re­ports of tor­ture and anti-ter­ror­ism poli­cies.

A new trove of ma­te­ri­als re­leased this week­end show Gor­such play­ing a cen­tral role in co­or­di­nat­ing le­gal and leg­isla­tive strat­egy, but por­tray­ing him­self as rec­on­cil­ing the many opin­ions of those in the ad­min­is­tra­tion rather than driv­ing pol­icy.

“I am but the scrivener look­ing for lan­guage that might please every­body,” he wrote in one email.

Four days of hear­ings are set to be­gin Mon­day, when Gor­such will sit and lis­ten for sev­eral hours as mem­bers of the Ju­di­ciary Com­mit­tee read open­ing state­ments. He is poised to de­liver his open­ing state­ment on Mon­day af­ter­noon, giv­ing sen­a­tors and the na­tion an early in­di­ca­tion of how he might serve on the court.

On Tues­day and Wed­nes­day, Gor­such is set to face at least 50 min­utes of ques­tion­ing by each mem­ber of the panel. The pro­ceed­ings are ex­pected to con­clude Thurs­day with a panel of wit­nesses speak­ing for or against Gor­such.

Some of the is­sues that nor­mally an­i­mate Supreme Court con­fir­ma­tion hear­ings won’t de­pend upon Gor­such. De­ci­sions from last term showed there was still sup­port on the court for lim­ited af­fir­ma­tive ac­tion in higher ed­u­ca­tion, for in­stance. The ma­jor­ity that found a con­sti­tu­tional right for same-sex cou­ples to marry re­mains. And what­ever Gor­such’s po­si­tion on abor­tion rights, Jus­tice An­thony M. Kennedy’s vote to strike down a Texas law last year reaf­firmed the court’s rul­ings that say gov­ern­ment may not pass re­stric­tions that un­duly bur­den a woman’s right to an abor­tion.

But Gor­such would prob­a­bly re­in­force the court’s pro-busi­ness im­age and skep­ti­cism about some sig­nif­i­cant en­vi­ron­men­tal pro­grams be­gun un­der Obama. His past de­ci­sions show him to be ex­tremely pro­tec­tive of the rights of those who ob­ject to even gen­er­ally ap­pli­ca­ble gov­ern­ment laws and reg­u­la­tions that they say vi­o­late their reli­gious be­liefs.

If Gor­such is ap­proved in time for the court’s April hear­ings, he could play a sig­nif­i­cant role in a sep­a­ra­tion-of-pow­ers case in which a church com­plains it was il­le­gally de­nied a state grant. A con­ser­va­tive move­ment to curb the power of la­bor unions — stalled last year by Scalia’s death — is sure to re­sume. Cases in­volv­ing le­gal pro­tec­tions for gay and trans­gen­der peo­ple are likely to ar­rive at the court soon.

Beyond their ques­tions about Gor­such’s record, Democrats plan to use his con­fir­ma­tion hear­ing to ques­tion the over­all di­rec­tion of Chief Jus­tice John G. Roberts Jr.’s court.

“When I hear my Repub­li­can col­leagues say, ‘ We want an­other judge like Scalia, who isn’t an ac­tivist,’ I say, ‘What are you talk­ing about? This has been an in­cred­i­bly ac­tivist court,’ ” said Sen. Al Franken (D-Minn.), a mem­ber of the Ju­di­ciary Com­mit­tee. “So I want to ask him” about that.

The fu­ture of the court was a sig­nif­i­cant fac­tor in Trump win­ning over con­ser­va­tive vot­ers who might oth­er­wise have been un­com­fort­able with the can­di­date’s ide­ol­ogy, val­ues and per­sonal his­tory.

“Even if peo­ple don’t like me, they have to vote for me,” Trump said at a rally in Vir­ginia last year. “You know why? Jus­tices of the Supreme Court.”

In Novem­ber exit polls, more than 1 in 5 vot­ers said that Supreme Court ap­point­ments were “the most im­por­tant fac­tor” in de­ter­min­ing their choice; of those vot­ers, 56 per­cent went to Trump.

Sen. Ted Cruz (R-Tex.), Trump’s fi­nal op­po­nent in last year’s pres­i­den­tial cam­paign, de­scribed the Gor­such pick as “the most trans­par­ent Supreme Court se­lec­tion process in mod­ern times” be­cause Trump drew Gor­such from a list of 21 can­di­dates sup­plied to him by con­ser­va­tive le­gal groups dur­ing the cam­paign.

Gor­such’s nom­i­na­tion “is not the prod­uct just of or­di­nary Wash­ing­ton po­lit­i­cal de­ci­sion-mak­ing but rather a pres­i­den­tial elec­tion de­cided by the Amer­i­can peo­ple,” Cruz said.

Not a sin­gle Demo­crat, mean­while, has pledged sup­port for Gor­such. That is partly fu­eled by a lib­eral base ag­i­tat­ing for a win since Trump was in­au­gu­rated on Jan. 20. Un­able to block the large ma­jor­ity of Trump’s ex­ec­u­tive branch nom­i­na­tions, some Democrats want to draw blood and force Gor­such to clear pro­ce­dural hur­dles that re­quire 60 sen­a­tors to vote in his fa­vor. Repub­li­cans have only 52 mem­bers in the up­per cham­ber, so they would need eight Democrats to cross the aisle and vote with them.

Mount­ing a fil­i­buster to force such a vote could amount to a dec­la­ra­tion of war against Repub­li­cans that some Democrats, par­tic­u­larly those from con­ser­va­tive states that voted for Trump last year, may be un­will­ing to do.

“The re­al­ity is that there is po­lit­i­cal pres­sure on them,” Caro­line Fredrick­son, pres­i­dent of the lib­eral Amer­i­can Con­sti­tu­tion So­ci­ety, said of Democrats. The Supreme Court is dif­fer­ent from other choices Trump will make, she said, be­cause “this is for­ever, or at least for the rest of my life­time.”

Democrats have ex­pressed spe­cific con­cern about Gor­such’s record of in­de­pen­dence fol­low­ing Trump’s crit­i­cism of the ju­di­ciary, in­clud­ing his re­mark about the “so-called judge” who struck down his first en­try ban. Af­ter­ward, Gor­such called Trump’s at­tacks on the courts “de­mor­al­iz­ing.”

Se­nate Mi­nor­ity Leader Charles E. Schumer (D-N.Y.) said Repub­li­cans should ex­pect Democrats to ques­tion Gor­such ag­gres­sively be­cause “we’re in a new world” in which Trump is push­ing the lim­its of his con­sti­tu­tional author­ity. Know­ing where Gor­such stands on that is­sue is crit­i­cal, he said.

“I have deep, deep doubts about him and his ju­di­cial de­meanor, and the fact that he ap­pears to be a calm, eru­dite per­son is not the key is­sue here,” Schumer said. “There are lot of peo­ple like that. It’s what goes into how he de­cides cases.”

Sen. Richard J. Durbin (D-Ill.) said he will ask Gor­such to weigh in on Trump’s push to im­ple­ment an en­try ban on vis­i­tors from cer­tain ma­jor­ity-Mus­lim coun­tries, be­cause “the Supreme Court in the near fu­ture will be tested on con­sti­tu­tional ques­tions in­volv­ing sep­a­ra­tion of pow­ers.”

Franken and Sen. Amy Klobuchar (D-Minn.) said they want to press Gor­such on his cases in­volv­ing cam­paign fi­nance law, while Franken said he will also fo­cus on Gor­such’s record on vot­ing rights and women’s re­pro­duc­tive rights. Sen. Patrick J. Leahy (D-Vt.) said he plans to use doc­u­ments pro­vided by the Jus­tice De­part­ment to ask Gor­such about his years work­ing for Bush on such mat­ters as ex­ec­u­tive author­ity and the in­ter­ro­ga­tion of ter­ror­ism sus­pects.

Gor­such “is go­ing to have to es­tab­lish very much that he’d be in­de­pen­dent of any pres­i­dent and that he’s go­ing to up­hold the rights of all Amer­i­cans,” Leahy said. “He’s got a lot of work to do in that re­gard.”

Many con­ser­va­tive ac­tivists and GOP law­mak­ers say that the laun­dry list of Demo­cratic con­cerns is ev­i­dence that they don’t quite know how to pin down Gor­such.

Ques­tions about Gor­such’s po­ten­tial in­de­pen­dence from the Trump White House or con­ser­va­tive causes will be “an ex­er­cise in self-con­tra­dic­tion for the Democrats,” said Leonard Leo, who has been ad­vis­ing Trump on ju­di­cial mat­ters and is on leave from his role as ex­ec­u­tive vice pres­i­dent of the con­ser­va­tive Fed­er­al­ist So­ci­ety, which helped ad­vise Trump on his list of po­ten­tial court nom­i­nees.

“They want Judge Gor­such to say, ‘I’m my own man, I’m in­de­pen­dent, I’m go­ing to eval­u­ate the ac­tions of the ex­ec­u­tive branch on their own mer­its with­out re­gards to the pres­i­dent or any po­lit­i­cal is­sue,’ ” he said. “And then 10 min­utes later they’re go­ing to ask him to prom­ise how he’s go­ing to rule on Roe v. Wade and ev­ery other case that comes be­fore the court.”

And there could be other is­sues to emerge. With only eight mem­bers and the threat of ide­o­log­i­cal dead­lock, the court has seemed re­luc­tant to ac­cept some con­tro­ver­sial cases.

Gor­such’s nom­i­na­tion to re­place Scalia, with whom he shares an “orig­i­nal­ist” phi­los­o­phy of con­sti­tu­tional in­ter­pre­ta­tion, is in some ways like other re­cent re­place­ments — by some mea­sures a zero sum, ide­o­log­i­cally speak­ing. Bush’s two nom­i­nees, Roberts and Sa­muel A. Al­ito Jr., also re­placed Repub­li­can nom­i­nees. Obama’s choices of So­nia So­tomayor and Elena Ka­gan took the places of lib­er­als.

But jus­tices’ ide­olo­gies are not pre­dictable purely by virtue of the party of the pres­i­dent who nom­i­nated them. Al­ito’s re­place­ment of the more mod­er­ate San­dra Day O’Con­nor moved the court to the right on sev­eral is­sues, in­clud­ing abor­tion, vot­ing rights and cam­paign fi­nance law.

“I don’t ac­cept the premise that it’s ‘Scalia’s seat,’ ” Durbin said. “I don’t know what the next seat will be or when it will be, so I take each of them se­ri­ously.”

Watch­ing how Gor­such fares will be the eight cur­rent mem­bers of the high court, who have said very lit­tle pub­licly in the past year about their di­min­ished ranks.

Weeks be­fore Scalia’s death, Roberts told an au­di­ence in Bos­ton that pub­lic skep­ti­cism con­cern­ing the court starts with the Se­nate con­fir­ma­tion process. Decades ago, two of the court’s most con­tro­ver­sial jus­tices — Scalia on the right and Ruth Bader Gins­burg on the left — were con­firmed prac­ti­cally unan­i­mously, he said.

But the three “ex­tremely wellqual­i­fied” nom­i­nees who fol­lowed Roberts — Al­ito, So­tomayor and Ka­gan — were ap­proved largely on party-line votes.

“That sug­gests to me that the process is be­ing used for some­thing other than en­sur­ing the qual­i­fi­ca­tions of the nom­i­nees,” Roberts said.

Skit­tish Repub­li­cans ac­knowl­edged that Trump could still spoil Gor­such’s chances. Graham said it could hap­pen “if the pres­i­dent tweets any more about judges.”

Said Sen. John Cornyn (R-Tex.), the cham­ber’s sec­ond-rank­ing Repub­li­can: “I think the best thing the White House could do is just let the Se­nate do its work.”

AARON BERN­STEIN/REUTERS

Supreme Court nom­i­nee Neil Gor­such will face ques­tions about vot­ing rights and en­vi­ron­men­tal is­sues from Democrats.

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