Neil Gorsuch: Impartial Judge or Unsympathetic to Underdog?

Gorsuch hearings

There were no surprises in Supreme Court nominee Neil Gorsuch’s first day of confirmation hearings today, with Republican members of the Senate Judiciary Committee praising him as someone who would uphold the “rule of law” and not “legislate from the bench,” and Democrats casting doubts on his commitment to the rights of women, workers, and minority groups, including LGBT people.

Today’s hearing consisted mostly of statements from committee members, with Gorsuch making a statement at the end, when he portrayed himself as a judge who stays above politics. Gorsuch will face questions from the committee Tuesday, the second of four days of hearings. It may last as long as 10 hours.

Gorsuch, currently a judge on the U.S. Court of Appeals for the 10th Circuit, “decides cases based on what the law says, not who the parties are,” said Republican Sen. Jeff Flake of Arizona. “The judge has reminded us that while we as legislators may appeal to our own moral convictions in shaping the law, judges in a democratic society should not decide cases based on their own moral convictions or their policy preferences. With Judge Gorsuch, I think the record shows we can be confident he will read the law as written and not legislate from the bench.”

Many Republican senators made similar comments, usually without mentioning specific cases. But “legislating from the bench” is a complaint often made by conservatives when courts make decisions expanding rights, such as the 2015 Supreme Court marriage equality ruling.

Trump has characterized Gorsuch as a conservative constitutional originalist in the mold of the late Justice Antonin Scalia, who he would replace on the court. Scalia died in February 2016.

Some Democrats expressed worries about what Gorsuch’s reputation as an originalist would mean for marriage equality, abortion rights, and other matters, and they pointed out that the nation has changed greatly since the U.S. Constitution was written in 1787.

“If we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools and bans on interracial marriage,” said Sen. Dianne Feinstein of California, the top Democrat on the committee. “Women wouldn’t be entitled to equal protection under the law, and government discrimination against LGBT Americans would be permitted.”

Sen. Chris Coons, a Delaware Democrat, brought up the issue of religious freedom, which he said “must not be the freedom to push our beliefs into the public square” — possibly a reference to a push for “religious freedom” laws that would allow businesses or nonprofits to turn away LGBT customers or others who offend their religious beliefs, or some employers’ opposition to covering contraception in employee health insurance plans. In hearing cases at the 10th Circuit, Gorsuch sided with employers that objected to mandatory contraceptive coverage under the Affordable Care Act.

Democrats also voiced concern about Gorsuch’s tendency to side with employers over employees. Several brought up a case in which he held that a trucking company was within its rights to dismiss a driver who abandoned his cargo in dangerously cold weather out of consideration for his own safety. Gorsuch was in the minority on that ruling. Although the weather was frigid, it was “not as cold as your dissent, Judge Gorsuch,” said Sen. Dick Durbin of Illinois.

Some Democrats also noted that the Senate’s Republican leadership refused to even give a hearing to President Obama’s nominee to replace Scalia, Judge Merrick Garland, on the basis that it was Obama’s last year in office. Sen. Michael Bennet of Colorado, Gorsuch’s home state, said that it was “tempting” to deny Gorsuch a hearing, but “two wrongs never make a right.”

Republican Sen. Lindsey Graham of South Carolina contended that when Republicans refused to act on Garland’s nomination, they had no expectation that Trump would succeed Obama as president. “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. … Obviously, I didn’t believe that, saying all the things I said,” remarked Graham, who challenged Trump for the presidential nomination and has been highly critical of him on many occasions.

Republican Sen. Ted Cruz of Texas, who also sought the presidency and often clashed with Trump during the campaign, argued today that Gorsuch’s Supreme Court nomination has “super-legitimacy,” because Americans elected Trump knowing he would have to fill a vacancy on the court. “The American people played a very direct role in helping choose this nominee,” Cruz said — ignoring the fact that Trump actually lost the popular vote to Democrat Hillary Clinton.

Some of the Democrats, meanwhile, took the opportunity to criticize Trump. Sen. Richard Blumenthal of Connecticut said the president has made “vicious” attacks on federal judges who have blocked his executive orders, and that with the investigation of the Trump campaign’s ties to Russia, “the possibility of the Supreme Court needing to enforce a subpoena against the president is no longer idle speculation. … The independence of the judiciary is more important than ever, and your defense of it is critical.” And Durbin told Gorsuch, “You’re going to have your hands full with this president.”

Addressing the committee at the end of the day, Gorsuch asserted that he is an impartial arbiter of the law. “In my decade on the bench, I have tried to treat all who come to court fairly and with respect,” he said. “I have decided cases for Native Americans seeking to protect tribal lands, for class actions like one that ensured compensation for victims of nuclear waste pollution by corporations in Colorado. I have ruled for disabled students, prisoners, and workers alleging civil rights violations. Sometimes, I have ruled against such persons too. But my decisions have never reflected a judgment about the people before me — only my best judgment about the law and facts at issue in each particular case. For the truth is, a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.”

You can find video of the full day's proceedings plus a searchable transcript at C-SPAN.

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