Neil Gorsuch’s mission is straightforward: Don’t mess up.
President Donald Trump’s U.S. Supreme Court nominee goes before a Senate committee starting Monday as a heavy favorite, given Republican control, to win confirmation to a lifetime seat on the nation’s highest court.
All Gorsuch, 49, has to do is stick to what’s mostly a well-worn script for nominees. He’ll in all likelihood try to avoid saying anything controversial and resist Democratic attempts to pin him down on the most contentious legal issues that might come before the court.
“They’re going to ask him to give his view on cases, and he’s going to try to not give his view on any case,” said Brian Fitzpatrick, a Vanderbilt University law professor who previously worked on Supreme Court nominations for Republican Senator John Cornyn of Texas.
Democrats and liberal interest groups are trying to make the case that Gorsuch’s decade on a federal appeals court in Denver has shown him to favor powerful institutions at the expense of average people.
“His record and his career clearly show he harbors a right-wing, pro-corporate, special-interest agenda,” Senate Democratic leader Chuck Schumer of New York said last week.
Democrats plan to ask about the case of Alphonse Maddin, a truck driver fired for abandoning his trailer on the side of a road after waiting several hours in subzero temperatures for a repair truck. In a dissenting opinion, Gorsuch said the trucking company didn’t violate federal law.
He’ll also face questions about Grace Hwang, a college professor whose employer wouldn’t extend the six months of paid leave she had taken during cancer treatment. Writing for a unanimous three-judge panel, Gorsuch said Kansas State University had abided by a federal disabilities law that requires employers to make reasonable accommodations so that disabled workers can do the job.
In defending his appellate record, Gorsuch will get help from Republicans who say the only pattern is his adherence to what the law requires.
“Sometimes it’s the individual who will win, sometimes it’s the little guy, sometimes it’s not,” Republican Senator Mike Lee of Utah said on the Bloomberg Law radio show Thursday.
Democrats also want Gorsuch to give a fuller explanation of his work as a Justice Department lawyer in support of the anti-terror policies of President George W. Bush in 2005-06. And they say they’re troubled by a 2013 opinion that said corporations have religious rights.
Gorsuch “needs to project an even-tempered demeanor in the face of critical comments and questions,” said Mark Disler, a consultant at Prime Policy Group and formerly the Judiciary Committee’s chief Republican counsel. “He would be well-advised to express sympathy and concerns about some of the parties he ruled against as he explains to the committee that he had to apply the law as written, as he saw it.”
What Gorsuch almost certainly won’t do is share his views on hot-button issues that could come before him on the Supreme Court — including abortion, transgender rights, and Trump’s travel ban.
In ducking such questions, Gorsuch will be able to point to what has become known as the “Ginsburg rule.” During her 1993 confirmation hearing, Ruth Bader Ginsburg told senators she would offer “no forecasts, no hints” about issues that might come before the court. Doing so, Ginsburg said, “would display disdain for the entire judicial process.”
Gorsuch also will be able to use the hearings of John Roberts and Samuel Alito a decade ago as a guide for the inevitable questions about whether he would overturn precedents, including the landmark Roe v. Wade abortion-rights ruling.
‘Settled as a Precedent’
Both future justices said they would respect past Supreme Court rulings without specifically pledging not to overturn them. Roberts said Roe was “settled as a precedent of the court.” Alito said that “there needs to be a special justification for overruling a prior precedent.”
The last Supreme Court nominee to talk expansively about his judicial philosophy was Robert Bork, who was defeated 58-42 in 1987. Bork, who had previously criticized Roe v. Wade, called for interpreting the Constitution according to the words’ original meaning, and said at his hearing that serving on the high court would be an “intellectual feast.”
Trump complicated the task for Gorsuch by saying during his presidential campaign that his Supreme Court nominees would be “pro-life,” and that Roe would “automatically” be overturned once he had made enough appointments.
Another issue sure to come up is judicial independence and Trump’s disparagement of judges who’ve ruled against him. Days after his nomination by Trump, Gorsuch told lawmakers in private meetings he found the comments “disheartening” and “demoralizing.”
“He’s going to win a lot of points by standing up for the independence of the judiciary,” Fitzpatrick said. “I don’t think he loses anything by subtly distancing himself from the president.”
Senator Richard Blumenthal, a Connecticut Democrat on the Judiciary Committee, said the judge should expect pressing questions on worker protections, consumer rights, access to women’s health care and judicial independence.
“So far he has failed to be clear and forthcoming to any of us who have asked those questions,” Blumenthal said.
Republicans control 52 of the Senate’s 100 seats, so they’ll need the support of eight Democrats to reach the 60-vote threshold required under current rules to bring Gorsuch’s nomination up for a vote. If they fall short, Republicans could eliminate the 60-vote requirement with a rule change known as the “nuclear option,” though some in the GOP could be reluctant to take such a step.
No Kabuki Theater
No Democrat is backing Gorsuch yet, although a handful — including Joe Manchin of West Virginia and Jon Tester of Montana — say they have an open mind on the matter.
While the outcome is largely assured, some legal scholars say they’re eager to hear what Gorsuch has to say about the law’s finer points.
“I’m kind of a fan of Supreme Court hearings,” said Jeffrey Rosen, president of the National Constitution Center in Philadelphia. “I don’t accept the view that they are kabuki theater. If you go back to the transcripts of past Supreme Court hearings, there’s lots of wonky but very substantive stuff that you can find.”
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