(Jenny Starrs/The Washington Post)
Democratic senators more aggressively questioned Judge Neil Gorsuch on Wednesday in hopes of drawing him out on his potential independence from President Trump, while Republicans began congratulating him signaling they anticipate his successful confirmation to the Supreme Court.
Senators completed two days of questioning Gorsuch with repeated inquiries about abortion rights, money in politics and a Supreme Court ruling issued on Wednesday that reversed a decision of his appeals court. The hearings will continue Thursday with testimony of those who support and oppose the nomination of the 49-year-old judge on the Denver-based U.S. Court of Appeals for the 10th Circuit.
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Democrats on the Senate Judiciary Committee became increasingly frustrated by Gorsuchs bland answers. You have been very much able to avoid any specificity like no one I have ever seen before, said Sen. Dianne Feinstein (D-Calif.), the ranking Democrat on the Senate Judiciary Committee.
When pressed by Sen. Amy Klobacher (D-Minn.) on various noncommittal answers, Gorsuch said it would be wrong for him to be more candid about what he would do on the bench. Its like a campaign promise for office, it seems to me, Gorsuch said.
(Video: Reuters / Photo: Ricky Carioti/The Washington Post)
Klobacher responded: We have to figure out what your philosophy is.
Both Democrats and Republicans seemed pretty sure that Gorsuch would be a conservative very much in the mold of the justice he would replace, Antonin Scalia, who died in February 2016.
The politics of the nomination again were at center stage. When Gorsuch said he did not think of judges as Democrats or Republicans, Sen. Mazie K. Hirono (D-Hawaii) responded if that were true, the committee would be considering the man President Barack Obama nominated, Judge Merrick Garland. Senate Republicans denied Garland a hearing and a vote on his nomination.
Sen. Sheldon Whitehouse (D-R.I.), pressing Gorsuch on the issue of campaign finance, said commentators now describe the Supreme Court as instruments of the Republican Party.
Gorsuch put both hands to his chest and responded he was distressed that you think that judges or the Supreme Court is an organ of a party.
But partisan rancor over Supreme Court nominations is not new, and Republicans were less interested in questioning Gorsuch than congratulating him.
Sen. Orrin G. Hatch (R-Utah), who has participated in 14 Supreme Court confirmation hearings, told Gorsuch, I've seen an awful lot of great people in the law come before this committee. And I haven't seen anybody any better than you.
(Jenny Starrs/Photo: Ricky Carioti/The Washington Post)
Why anybody in this body would vote against you, I'll never understand, Hatch said later.
Sen. Ted Cruz (R-Tex.) credited Gorsuch for enduring the marathon hearings and said he was passing the test with flying colors.
Trump again was frequently mentioned.
Sen. Patrick J. Leahy (D-Vt.) questioned Gorsuch onthe Constitutions emoluments clause, which states the president cannot accept gifts from foreign agents without approval from Congress. Given ongoing litigation involving that clause, Gorsuch said, I have to be very careful about expressing any views.
Leahy also noted Gorsuch has strong support from Trump senior counselor Stephen K. Bannon, whom the senator accused of giving a platform to extremists and misogynists and racists. Another senior Trump aide, Reince Priebus, had said Gorsuch could potentially change 40 years of law, Leahy said.
What vision do you share with President Trump? the senator asked.
Respectfully, none of you speaks for me, said Gorsuch. I am a judge. I am independent. I make up my own mind.
At one point, Gorsuch seemed to reject a Feb. 13 comment from senior White House policy adviser Stephen Miller that Trumps actions on national security will not be questioned, which some interpreted as a signal that Trump could ignore judicial orders.
You better believe I expect judicial decrees to be obeyed, Gorsuch said.
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Gorsuch also declined to give his view on Scalias characterization of the Voting Rights Act as a perpetuation of racial entitlement.
I dont speak for Justice Scalia. I speak for myself, he told the committee.
You have been very hesitant to even talk about various Supreme Court precedents, Leahy told Gorsuch, noting that Justices John G. Roberts Jr. and Samuel Alito took positions on specific cases during their confirmation hearings.
The latest hearing produced an emotional exchange between Gorsuch and Feinstein on the subject of womens rights.
You are pivotal in this, she told Gorsuch, saying that the originalist interpretation of the Constitution to which he adheres has been used in the past to say that the Constitution does not cover women and gays.
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No one is looking to return us to horse-and-buggy days, Gorsuch responded. Supreme Court precedent has established that the Constitutions Equal Protection Clause is wide enough to encompass those who were not recognized when it was written.
A good judge starts with precedent and doesnt reinvent the wheel, Gorsuch said, adding that it matters not a whit that some who wrote the Constitution were racists or sexists, because they were. What matters, Gorsuch said, were what the words on the page mean.
The two also discussed a book that Gorsuch wrote in which he opposed physician-assisted suicide and said any taking of a human life was wrong.
Feinstein mentioned the death of her father and a close friend, which she said were agonizing. She mentioned Californias recent physician-assisted suicide law.
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My heart goes out to you, Gorsuch said, and then appeared to choke up when he mentioned the death of his own father. He said his personal views would have no role in his duties as a judge and noted the Supreme Court has ruled that states may allow laws such as Californias.
Democratic senators also raised questions about a decision that had just been issued across the street from the hearing room at the Supreme Court.
The eight sitting justices decided unanimously on Wednesday to boost the standards of education that public schools provide to learning-disabled students, rejecting an earlier ruling from the U.S. Court of Appeals for the 10th Circuit the one that Gorsuch serves on saying that it had set the bar too low for students.Gorsuch had ruled similarly in a different case.
At issue was whether schools must provide disabled children some educational benefit which several lower courts have interpreted to mean just more than trivial progress or whether students legally deserve something more.
In response to questions from Sen. Richard J. Durbin (D-Ill.), Gorsuch defended his courts decision, saying that they were applying what the 10th Circuit had decided in a 1996 case, which adopted the standard that the services have to be more than de minimis .
I was bound by circuit precedent, Gorsuch said, saying that ruling against an autistic child and his parents was heartbreaking.
Republicans are hoping to refer Gorsuch to the full Senate by April 3 and Majority Leader Mitch McConnell has said that the judge will be confirmed to the Supreme Court before Easter.
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Senate Minority Leader Charles E. Schumer (D-N.Y.) said this week that it would be unseemly for the Senate to confirm Gorsuch while the FBI is investigating whether Trumps presidential campaign was swayed by Russian interference.
But Sen. Joe Manchin III (D-W. Va.), a key moderate and a member of Schumers leadership team, said on Wednesday that the ongoing FBI investigation shouldnt have any bearing on Gorsuchs confirmation.
I want to get a working court, okay? What they did to Merrick Garland was wrong. I dont want to do the same. Two wrongs dont make a right, Manchin said at a Washington Post Live event on Trumps early weeks in office.
Manchin later visited the Judiciary Committee room to watch the proceedings for a few minutes a notable appearance given that he is one of several moderate Democrats facing reelection next year who are the targets of a multimillion-dollar ad campaign bankrolled by conservative groups in hopes of securing Gorsuch a filibuster-proof vote tally. Sen. Angus King (I-Maine), another potential vote for Gorsuch, made a similar visit on Tuesday.
Manchin said at the Post event that he plans to meet again with Gorsuch before deciding how to vote.
If Gorsuch is the right person or not, I cant say that as of yet, he said. Is there 60 votes as of yet, I dont think, I dont see it. Can it happen? Anything can happen.
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Democrats continue to press Gorsuch for answers, but Republicans' confidence of confirmation grows - Washington Post