High court confirmation hearings have, for decades, seen senators probe for hints at how a nominee might rule. But not since the hearings for President Ronald Reagan’s pick Robert Bork — who was torpedoed after his candid testimony — have nominees been particularly forthcoming.
“A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process,” said Ruth Bader Ginsburg, a nominee of Democratic President Bill Clinton, during her confirmation hearings in the summer of 1993.
This time around, however, Democrats argue Gorsuch is compelled to share his beliefs for two specific reasons: the litmus tests set forth by President Donald Trump during the campaign, and the involvement of conservative special interest groups in the selection and promotion of Gorsuch.
On the trail, Trump promised to appoint a judge in the mold of the late Justice Antonin Scalia, one who would vote to overturn the abortion protections in Roe v. Wade. Trump’s chief of staff, Reince Priebus, suggested a more wholesale overhaul of court precedent in February, asserting that the selection of Gorsuch would bring about a “change of potentially 40 years of law.”
Although Gorsuch has not ruled specifically on abortion, his writings have included language contending that “the intentional taking of human life by private persons is always wrong.” Gorsuch is being backed by anti-abortion groups as well as a flurry of other conservative organizations, including the National Rifle Association and the U.S. Chamber of Commerce.
On Tuesday, Gorsuch said he has always put politics aside as a judge, and he assured committee Chair Chuck Grassley, R-Iowa, that he would be “rigidly neutral” and “scrupulously fair” if confirmed.
While Gorsuch gave no hints at how he would rule to overturn Roe, he said as a judge “you start with a heavy, heavy presumption in favor of precedent.”
In deciding whether to overrule a decision, Gorsuch said he would analyze the age of the precedent and whether the case has been reaffirmed over the years.
“Precedent is a very important thing,” Gorsuch said. “We don’t go reinvent the wheel every day, and that’s the equivalent point of the law of the precedent.”
Gorsuch said that if Trump had demanded in a closed door meeting that he rule against Roe v. Wade, “I would have walked out the door.”
“No one in the process — from the time I was contacted with an expression of interest for a potential interview to the time I was nominated — no one in that process, Mr. Chairman, asked me for any commitments, any kind of promises for how I’d rule, in any kind of case,” Gorsuch continued.
Democrats also expressed worry that Gorsuch would rule in favor of right-wing groups because two conservative think tanks — the Heritage Foundation and the Federalist Society — provided Gorsuch’s name to the president.
According to The Washington Post, corporate interests are funneling millions of dollars through dark money groups to support his nomination.
U.S. Sen. Patrick Leahy, D-Vt., said Tuesday that the interests promoting Gorsuch “have an agenda.”
“They’re confident you share their agenda,” Leahy told Gorsuch. “In fact, the first person who interviewed you for this nomination said they saw in you a nominee who ‘understands things like we do.’”
Leahy then submitted two investigative reports from The New York Times and the Wall Street Journal documenting Gorsuch’s support from the corporate class. The reports investigate the backing from various business figures, including the oil tycoons Charles and David Koch and Robert Mercer, a hedge fund manager.
Vermont’s senior senator went on to press Gorsuch about his thoughts on Citizens United v. Federal Election Commission, the controversial U.S. Supreme Court decision that has allowed more business and union money to flow into politics.
Gorsuch suggested that the ruling in Citizens United was settled law but that the ruling “made clear that quid pro quo corruption remains a vital concern.”
“I think there is ample room for this body to legislate, even in light of Citizens United — whether it has to do with contribution limits, whether it has to do with expenditure limits or whether it has to do with disclosure requirements,” Gorsuch said.
U.S. Sen. Sheldon Whitehouse, D-Rhode Island, acknowledged that congressional action is important in campaign finance regulations, but pointed out that Citizens United actually invalidated parts of the Bipartisan Campaign Reform Act. He suggested Gorsuch could demand the dark money donors supporting him reveal themselves for the benefit of transparency.
Gorsuch contended that speaking his thoughts on campaign finance law would constitute an improper political statement and that the Supreme Court is a nonpartisan body.
“Do you really think that a Supreme Court that decided Citizens United doesn’t get involved in politics?” Whitehouse responded.
Whitehouse went on to declare that the Supreme Court “changed the entire political environment, the entire political ecosystem, with one decision. You must recognize that.”
Gorsuch remained cagey in his response to Whitehouse, again refusing to comment on the impacts of Citizens United.
Committee members asked Gorsuch to comment on a few of the more controversial opinions among the 2,700 he has written over the last 10 years on the 10th Circuit, including his opposition to the Chevron Doctrine. They also asked about his contribution to defending President George W. Bush’s post-9/11 terror policies.
Senators asked Gorsuch to respond to the constitutionality of a number of Trump’s policy prescriptions, from his remarks encouraging torture to his ban on U.S. entry by residents of six Muslim majority countries, which is currently tied up in the courts.
“Do you ban someone solely on their religion?” Leahy asked.
While declining to speak to Trump’s so-called travel ban, Gorsuch pointed to the religious protections in the First and 14th amendments. He added that the Religious Freedom Restoration Act imposed even more protections for religious observance in America.
“If there’s any sincerely held religious belief — earnestly held religious belief — the government must meet strict scrutiny before it can regulate on that basis,” Gorsuch said.
After Leahy pushed him on other controversial Trump policies, Gorsuch tersely responded, “No man is above the law.”
In an interview with VTDigger on Tuesday evening, Leahy said Gorsuch’s testimony had done little to assuage his various concerns.
“Is he charming and all? Yes,” Leahy said. “It’s obvious that his preparation has worked out well.”
But Leahy had plenty more questions for Gorsuch, and he promised to continue prodding as the week continues.
“I still want to know why did these conservative groups pick him,” Leahy said. “Why are they so confident he’s the man they need? Why do the president and (top aide Steve Bannon) want him? Will he overturn Roe? I want to know what he did in the Bush era overreach and how he interpreted the law then.”
Asked if Gorsuch’s confirmation process was reminiscent of any of the 16 other Supreme Court confirmation hearings he has sat through, Leahy saw few parallels.
He then alluded to Republicans’ refusal to hold a hearing for the person President Barack Obama had nominated for the same high court seat a year ago.
“No nominee has come in under quite this cloud,” Leahy concluded. “One of the biggest black marks on the Judiciary Committee is not giving Merrick Garland a hearing and a vote.”
