The Senate Judiciary Committee ended its confirmation hearing on Supreme Court nominee Neil Gorsuch on Thursday [March 23] after hearing glowing testimonials from the judge's colleagues, ex-clerks, and conservative interest groups but continuing doubts from liberal groups about his commitment to along with rights-favoring legal precedents.
The committee's six-hour day began with leaders of the American Bar Association's Standing Committee on the Federal Judiciary detailing the committee's rating of the veteran federal appeals court judge as "well qualified" for elevation to the high court. The 15-member, nonpartisan committee has rated nominees for the federal bench since 1953 and gave the "well qualified" ratings to seven of the current justices and the middling rating of "qualified" to Clarence Thomas when he was nominated in 1991.
Nancy Scott Degan, a New Orleans lawyer and the ABA committee's chairwoman, said Gorsuch was found well qualified based on an assessment of his integrity, professional competence, judicial temperament, and judicial independence. The Senate committee's chairman, Iowa Republican Chuck Grassley, briefly endorsed the ABA panel's conclusions.
California's Dianne Feinstein, the committee's ranking Democrat, used the ABA witnesses' appearance to underscore that the lawyers' group had given the same "well qualified" rating to Judge Merrick Garland, President Obama's blocked nominee for the seat. Degan ducked Feinstein's question whether the committee found Gorsuch to be a "mainstream" judge, but when Feinstein asked whether Gorsuch was reasonable, Degan had a one-word reply: "Absolutely."
The final day of the hearings was barely under way when the Senate's Democratic leader, Chuck Schumer, went to the Senate floor to declare his opposition to Gorsuch's confirmation and vow to filibuster the nomination to prevent a vote. "Judge Gorsuch's nomination will face a cloture vote," Schumer said in a simultaneously posted tweet, "and as I've said, he will have to earn sixty votes for confirmation. My vote will be 'No.'"
Two of Gorsuch's colleagues on the Tenth U.S. Circuit Court of Appeals one appointed by the Republican president Ronald Reagan, the other by Democrat Bill Clinton followed with similarly effusive praise for Gorsuch's qualifications. The Reagan-appointed judge Darrell Reese Tacha, now a former dean at Pepperdine Law School, called Gorsuch "an elegant and exceptional writer" with a commitment to "originalism and textualism and precedent but not in a formalistic way." Robert Henry, the Clinton appointee and now president of Oklahoma City University, followed by praising Gorsuch for a "truly remarkable intellect," "his demonstrated mastery of rules and precedent," and "his fine judicial temperament."
Two witnesses invited by the comminttee's Democratic minority questioned Gorsuch's role while serving in the Bush administration Justice Department in 2005 and 2006 in the sharp legal and political debate over the post-9/11 treatment and interrogation of suspected enemy combatants. Elisa Massimino, president of Human Rights First, noted that Gorsuch was "directly involved" in defending Bush administration claims that the president could authorize torture-like interrogation techniques despite torture bans in U.S. law and international treaties. Jameel Jaffer, a former American Civil Liberties Union lawyer now executive director of the Knight First Amendment Institute at Columbia University, urged the committee to postpone action on the nomination pending further exploration of Gorsuch's role in the controversy.
At Democrats' urging, the committee received what Feinstein described as 150,000 pages of materials from the Justice Department on Gorsuch's work at the department. In their appearance, the ABA witnesses said their group had had no time to analyze the material. In his earlier appearance, Gorsuch had minimized his personal involvement in the controversy by saying that he acted as "a lawyer with a client." But Feinstein briefly remarked that government lawyers should be held to a higher standard for legal positions they take.
Interest group representatives followed with points corresponding to the one or the other party that had lined them up. Karen Hamed, executive vice president of the National Federation of Independent Business, praised Gorsuch's call to reconsider the so-called Chevron doctrine of deferring to administrative agencies' regulations. She criticized "the rising tide of regulations promulgated by unelected officials."
Hannah Smith, senior counsel with the Becket Fund, a religious-liberty advocacy group, praised Gorsuch for what she called "a commitment to protecting this vital freedom." She underscored Gorsuch's votes in the so-called Hobby Lobby and Little Sisters for the Poor cases to allow religiously-motivated exceptions to providing coverage for contraceptives in health insurance for employees or students.
From the other side, a labor union representative rehearsed one more time Gorsuch's dissent in the so-called frozen trucker case: the stranded trucker fired for leaving his trailer on the roadside to find warm shelter in subzero weather. Guerino Calemine, general counsel of the Communication Workers of America, said that Gorsuch's interpretation of the federal law at issue "would have made life a little more dangerous for truck drivers."
Other Democratic-invited witnesses faulted Gorsuch for tentative answers on reproductive rights, LGBT rights, and race-related civil rights issues. "We need judges who will oppose unnecessary restrictions on abortion rights," said Amy Hargstrom Miller, executive director of the clinic in the Supreme Court's decision last year to strike down a restrictive Texas law. Sarah Warbelow, senior litigation director for the Human Rights Campaign, criticized Gorsuch for what she called "a level of indifference to the LGBT community."
Among other Democratic witnesses, the Sierra Club's Pat Gallagher warned that Gorsuch's stance on the Chevron doctrine threatened regulatory protections for the environment. Heather McGhee, president of the political reform group Demos, said that Gorsuch could provide a "deciding vote" in favor of continuing the Roberts Court's trend of striking down laws regulating money in politics.
Grassley gaveled the hearings to a close after admonishing committee members to submit any written questions by Friday [March 24]. Grassley wants the committee to vote on the nomination on Monday [March 27], but Democrats are likely to exercise their right to call for laying the vote over for one week.