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Gorsuch Confirmation: Democratic Senators Express Doubts about Nominee

03/20/2017

Judge Neil Gorsuch’s confirmation hearing for a seat on the US Supreme Court began Monday with Democrats claiming he never should have been brought before senators in the first place.

Democrats, still divided over whether to block President Trump’s choice to serve on the high court, repeatedly expressed doubt about Gorsuch and vowed to use four days of scheduled confirmation hearings to draw him out on issues ranging from abortion rights to gun rights and environmental protection to whether he would ever rule against the White House if presented with cases challenging the administration.

“We’re here today under very unusual circumstances,” Senator Dianne Feinstein (D-California) told the Senate Judiciary Committee, saying that Gorsuch was nominated only because of the “unprecedented treatment” of US Appeals Judge Merrick Garland, who had been President Barack Obama’s choice to replace the late Antonin Scalia on the court.

Scalia’s seat has been vacant for 13 months because Senate Majority Leader Mitch McConnell (R-Kentucky) decided to block a hearing for Garland, saying that the next president should name the late justice’s successor.

Senator Patrick Leahy (D-Vermont) on Monday called that decision “an extraordinary blockade” and “one of the greatest stains on the 200-year history of this committee.” He noted that the judiciary panel had once defied President Franklin D. Roosevelt’s attempts to pack the Supreme Court with more Democratic appointments.

“Now, Republicans are guilty of their own court-unpacking scheme in that their blocking of Merrick Garland was never grounded in principle or precedent,” Leahy added.

Gorsuch’s nomination gives Trump his first chance to make a lasting imprint on the federal judiciary — and Republicans a fresh test now that they control all of Washington’s levers of power.

The 49-year old Gorsuch, a federal appeals court judge from Colorado, was promoted by conservative legal activists because of his sterling credentials, a decade of right-of-center rulings and his allegiance to the same brand of constitutional interpretation that Scalia followed.

The first day of hearings began with the panel’s chairman, Charles Grassley (R-Iowa), vowing to refer Gorsuch to the full Senate by April 3.

“This is quite a lot different than the last time I was here,” Gorsuch joked as he introduced his family to the committee, contrasting the large crowd seated behind him in the hearing room with that at a far less controversial hearing in 2006 for him to serve on the 10th Circuit Court of Appeals.

Republicans cheered Gorsuch on Monday, acknowledging the strong Democratic attacks to come, but adding that the nomination came with broad public support.

“This will be more of an ordeal than for your last appointment,” Senator Orrin Hatch (R-Utah) counseled Gorsuch as he read his opening statement.

Senator Ted Cruz (R-Texas) said that Gorsuch’s nomination comes with “super-legitimacy” because he was on a list of potential court nominees that Trump touted during his presidential campaign.

“The American people played a very direct role in helping choose this nominee,” Cruz added.

Senator Lindsey Graham (R-South Carolina) dismissed Democratic claims of a grand Republican plan to nominate someone with similar views to Trump.

“If you believe this has been a great plan to get a Trump nominee on the court, then you had to believe Trump was going to win to begin with,” he said.

The frequent Trump critic added: “Obviously, I didn’t believe that, saying all the things I said.” Some in the room erupted in laughter.

Given Gorsuch’s genial demeanor and strong record, Senate Democrats face a stark dilemma — whether to take yet another stand against Trump’s administration and satisfy liberals upset with his efforts to strip away provisions of the Affordable Care Act, impose an entry ban on some immigrants and deeply cut federal agencies — or allow enough moderate Democrats to join with Republicans to confirm him.

In recent days, many Democrats on the judiciary panel said they will wait until the end of the hearings before determining how to proceed.

Gorsuch “is a bit of a puzzle,” Feinstein, the top Democrat on the Senate Judiciary Committee, said in an interview last week. “We’re going to try to put those pieces together so that the puzzle is complete and we have an understanding of what kind of a fifth vote will be going on the court.”

Asked about what more she hopes to learn about Gorsuch’s stances, Feinstein said: “Voting rights. Right to choose. Guns. Corporate dollars in elections. Worker safety. Ability of federal agencies to regulate. All of the environmental issues — water, air.”

Gorsuch, looking tanned and interested, took notes Monday as some senators were speaking. He nodded his head at some of their statements, and smiled. When Senator Richard Durbin (D-Illinois) — after complaining about Garland’s treatment — said Gorsuch should nonetheless be judged on his own merits, Gorsuch silently mouthed, “thank you.”

Senators and their staffs also have been examining Gorsuch’s role as a high-ranking official in the US Justice Department at the time the George W. Bush administration was dealing with Guantanamo Bay detainees, reports of torture and anti-terrorism policies.

A new trove of materials released over the weekend show Gorsuch playing a central role in coordinating legal and legislative strategy, but portraying himself as reconciling the many opinions of those in the administration rather than driving policy.

“I am but the scrivener looking for language that might please everybody,” he wrote in one email.

Gorsuch is poised to listen for several hours as members of the Judiciary Committee read opening statements. He is expected to deliver his opening statement by midafternoon, giving senators and the nation an early indication of how he might serve on the court.

On Tuesday and Wednesday, Gorsuch is set to face at least 50 minutes of questioning by each member of the panel. The proceedings are expected to conclude Thursday with a panel of witnesses speaking for or against Gorsuch.

Some of the issues that normally animate Supreme Court confirmation hearings won’t depend upon Gorsuch. Decisions from last term showed there was still support on the court for limited affirmative action in higher education, for instance. The majority that found a constitutional right for same-sex couples to marry remains. And whatever Gorsuch’s position on abortion rights, Justice Anthony Kennedy’s vote to strike down a Texas law last year reaffirmed the court’s rulings that say government may not pass restrictions that unduly burden a woman’s right to an abortion.

But Gorsuch would probably reinforce the court’s pro-business image and skepticism about some significant environmental programs begun under Obama. His past decisions show him to be extremely protective of the rights of those who object to even generally applicable government laws and regulations that they say violate their religious beliefs.

If Gorsuch is approved in time for the court’s April hearings, he could play a significant role in a separation of powers case in which a church complains it was illegally denied a state grant. A conservative movement to curb the power of labor unions — stalled last year by Scalia’s death — is sure to resume. Cases involving legal protections for gay and transgender people are likely to arrive at the court soon.

The future of the court was a significant factor in Trump winning over conservative voters who might otherwise have been uncomfortable with the candidate’s ideology, values and personal history.

“Even if people don’t like me, they have to vote for me,” Trump said at a rally in Virginia last year. “You know why? Justices of the Supreme Court.”

Washington Post 3/20

   


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