Supreme Court nominee Neil Gorsuch presented himself to a sharply divided Senate Judiciary Committee on Monday [March 20] as a consensus-minded judge, devoted to the law, free of partisan or ideological bias, and steeped in family, faith, and the common-sense goodness of his native Colorado.
Gorsuch broke from his unassuming pose long enough to boast that out of 2,700 appeals in which he has participated in his decade as a federal judge, 97 percent were decided unanimously and he was in the majority 99 percent of the time.
"In the West we listen to one another respectfully," Gorsuch said, "we tolerate and cherish different points of view, and we seek consensus whenever we can."
Gorsuch spoke for about 20 minutes at the end of a five-hour hearing that began with Republican and Democratic senators using their 10-minute opening statements to offer contrasting views about Gorsuch's record on the Tenth U.S. Circuit Court of Appeals.
Eleven Republican senators, beginning with committee chairman Charles Grassley of Iowa, all praised Gorsuch as eminently qualified and committed to applying the Constitution and laws as written. But nine Democratic senators, one by one, faulted Gorsuch for taking a narrow view of constitutional rights and siding too often with corporations over the interests of workers and consumers.
Gorsuch sat impassively as the senators laid the groundwork for what could be as much as 16 hours of questioning over the next two days. However embattled the senators, Gorsuch was genial and even folksy as he traced his upbringing and thanked his large extended family in Colorado, "united in love" despite holding "different political and religious views."
On substance, Gorsuch opened by affirming his commitment to the law. "I pledge to each of you and to the American people that, if confirmed, I will do all my powers permit to be a faithful servant of the Constitution and laws of our great nation," he said.
Later in the statement, Gorsuch echoed the Republican senators in depicting what he called "the modest station" for judges in the U.S. constitutional system. "If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk," he said.
The committee's ranking Democrat, California's Dianne Feinstein, used her opening statement to highlight a possible risk to abortion rights if Gorsuch were confirmed. Later, Rhode Island's Sheldon Whitehouse rattled off without naming them a long list of Roberts Court 5-4 decisions on campaign finance, voting rights, civil rights, and class actions all decided by five Republican appointees. "Will you saddle up with the other Republican appointees?" Whitehouse asked rhetorically.
Gorsuch gave an answer of sorts to the Democrats' complaints by noting that he had decided cases in favor of Native Americans seeking to protect tribal lands and in favor of class actions such as one seeking compensation for victims of nuclear waste pollution. He also said he had ruled for disabled students, prisoners, and workers alleging civil rights violations, while ruling against such persons in other cases.
"My decisions have never reflected a judgment about the people before me," Gorsuch said, "only my best judgment about the law and facts at issue in each particular case."
Democratic senators made clear they are smarting from the Republicans' refusal to hold hearings last year to consider the veteran judge Merrick Galand as President Obama's nominee to fill the vacancy left by the death of Justice Antonin Scalia. Vermont's Patrick Leahy, a former committee chairman, the tactic "an extraordinary blockade and totally unprecedented in our history."
Grassley made no reference to the Garland episode in his remarks, but Texas's junior Republican senator Ted Cruz defended the strategy. "If Obama had been allowed to fill the seat," Cruz said, "we would have had a new liberal activist court."
Cruz was among several Republicans who praised Gorsuch as an advocate, like Scalia, of originalism in constitutional interpretation. Feinstein had opened by saying that she was "troubled" by the philosophy. "I firmly believe that the Constitution is a living document that was intended to evolve as our people evolved," she said.
Scalia's seat has been vacant since his death on Feb. 13, 2016, just before the court was set to holds the fourth of its seven two-week calendars of arguments. With only eight justices, the term ended with four cases deadlocked on 4-4 votes and one other sent back to lower courts to resolve after the justices appeared in arguments to be split down the middle.
With a 52-48 majority, Senate Republicans appear to be in a position to confirm the 49-year-old Gorsuch for the life-tenured seat on the high court. Grassley outlined a schedule that could bring the nomination to a vote in early April in time for Gorsuch to join the court for its final two-week argument session late in the month.
Over the weekend, however, Connecticut's Democratic senator Richard Blumenthal vowed to use "every tool we have" to block Gorsuch's confirmation "if he is outside the mainstream." No Republicans have indicated any likelihood of breaking ranks on the nomination, but under current rules Republicans need to pick up eight Democratic votes to meet the 60-vote threshold needed to bring the nomination to a vote on the floor.