Supreme Court nominee Neil Gorsuch moved toward Senate confirmation Tuesday [March 21] by repeating pledges of impartiality and independence and fending off Democrats' efforts to pin him down on legal issues or prove disqualifying ideological bias in his judicial record.
Gorsuch ably fielded questions from politically divided committee members for 10 full hours on Tuesday, hitting Republicans' softball questions for easy singles and fouling off Democrats' curve balls. Republicans repeatedly thanked a judge they openly described as conservative for his "patience" and "perseverance," while Democrats came up empty in trying to paint Gorsuch as a threat to abortion rights or a tool of corporate interests over workers' rights.
Gorsuch countered one line of Democrats' questions by using what he called an opening question from the Republican committee chairman Chuck Grassley to pledge independence from President Trump if confirmed. "That's a softball," Gorsuch replied amiably to Grassley's request that he describe judicial independence. "I have no difficulty ruling against or for any party," Gorsuch continued, "other than based on what the law and the facts and the particular case require."
Later, Gorsuch answered Democrats' questions about Trump's critical tweets with a generally phrased rebuke of attacks on judges' independence. "When anyone criticized the honesty or integrity or the motives of a federal judge, I find that disheartening," Gorsuch replied to Vermont Democrat Patrick Leahy. "I find that demoralizing."
Gorsuch also rejected Democrats' efforts to link him to Trump's campaign season pledges to appoint "pro-life" judge who would overrule the landmark abortion-rights decision in Roe v. Wade "automatically." Gorsuch said that Trump had mentioned abortion as a divisive political issue in their pre-nomination Trump Tower interview but that Trump had not asked him how he would vote on abortion cases.
Gorsuch acknowledged that he had heard campaign-season discussion of Trump's "litmus tests" for filling the Supreme Court seat now left vacant for more than a year after Justice Antonin Scalia's death in February 2016. But he flashed his professed independence for all to see when South Carolina Republican Lindsey Graham asked how he would have responded if Trump had asked him for a commitment to vote to overturn Roe. "I would have walked out the door," Gorsuch declared.
“I have offered no promises on how I’d rule in any case to anyone,” Gorsuch told Grassley earlier, “and I don’t think it’s appropriate for a judge to do so, no matter who’s doing the asking.”
Gorsuch avoided Democrats' efforts to pin him down on political issues, including the Senate Republicans' decision last year to refuse a hearing to President Obama's nominee for the vacancy, the veteran federal appeals court judge Merrick Garland. Gorsuch called Garland "a fine man," but he demurred when Leahy asked whether Garland had been treated fairly. "I can't get involved in politics," Gorsuch said. "It would be very imprudent for me to comment on a political dispute."
One by one, Gorsuch skirted Democrats' other efforts to ferret out his views on pending issues, including the litigation that so far has blocked Trump's executive order restricting immigration from seven or six majority-Muslim countries. Asked whether the government could impose a religious test for entry into the United States, Gorsuch hesitated before offering a generally phrased response.
"That looks an awful lot like a pending case," he said, but then added. "We have a Constitution and it does guarantee free exercise and it also guarantees equal protection of the law."
Gorsuch skirted questions about controversial Supreme Court decisions with a stock answer describing each one as "a precedent" entitled to the respect normally accorded prior high court decisions. He declined to answer a question from California Democrat Dianne Feinstein, the party's ranking member, on whether the gun-rights decision in Heller v. District of Columbia would allow states to ban military-style assault weapons.
Leahy had no better luck when he pressed Gorsuch about the court's decision in Shelby County v. Holder to strike down a major part of the federal Voting Rights Act. As with other decisions, Gorsuch volunteered no personal view about what he called the "recent" precedent. "What its reach will be remains to be seen," he concluded.
Outside judicial decisions, Feinstein sought to plumb Gorsuch's role in controversial issues while working on detainee interrogation and treatment policy during his year-long stint at the Justice Department under President George W. Bush. Feinstein, longtime member of the Senate Intelligence Committee, questioned Gorsuch's handwritten affirmation that the so-called enhanced interrogation techniques had produced actionable intelligence.
Gorsuch mostly neutralized the questioning by citing his role in helping to produce a bipartisan bill, the Detainee Treatment Act, that barred some of the practices. He acknowledged, however, that he had helped draft a provision barring habeas corpus review for inmates at the Guantanamo prison camps that the Supreme Court later struck down.
Rhode Island Democrat Sheldon Whitehouse also failed to pierce Gorsuch's shield with questions about the reported $10 million campaign being waged by conservative groups in support of his nomination. With Whitehouse calling the funds "dark money," Gorsuch said that he did not know who was funding the campaign. "If you wish to have more disclosure, pass a law," Gorsuch said.
Gorsuch's day on the witness stand ended well past the dinner hour after 30-minute rounds of questions from each of the 20 senators: 11 Republicans and nine Democrats. He faces a shorter day on Wednesday, with senators allowed 20-minute rounds. The committee moves on Thursday to public witnesses, with 28 witnesses in all scheduled to appear half of them selected by Republicans and half by Democrats.