Judge Neil Gorsuch largely dodged controversial proposals peddled by Donald Trump from the campaign stump — proposals that have already prompted litigation and very well may end up at the Supreme Court — at his confirmation hearing Tuesday.
He said that he would have “no difficulty” ruling against Trump, but often deflected on getting into speculation on specific cases or issues. On Trump’s promise to ban Muslims — which has manifested in a travel ban against about a half dozen countries since he took office — Gorsuch would not comment on Trump’s latest version of the policy, and would only said that “government must meet strict scrutiny” before implementing a regulation based on religious belief.
When grilled on Trump’s comments about bringing back torture, Gorsuch pointed to existing statutes on detainee treatment and the Constitution’s ban on cruel and unusual punishment. Asked by Sen. Patrick Leahy (D-VT) if Trump had the right to “the right to authorize torture if it” violated those laws, Gorsuch said, “no man is above the law.”
Where the judge was most clear and definitive in his Trump-related answers Tuesday was in denying that there any sort of litmus test invoked while he was being vetted for his nomination by Trump.
On the campaign trail, Trump promised to select a judge for the Supreme Court who would be strong on gun rights and would overturn Roe v. Wade, the landmark 1973 abortion decision.
“I would have walked out of the door,” Gorsuch said, when asked by Sen. Lindsay Graham (R-SC) what he would have done if Trump asked for a commitment to overturn Roe.
Update 8:32 p.m.: Sen. Thom Tillis (R-NC) claimed that Republicans had “a moral high ground” when it came to Supreme Court confirmations that Democrats “should take note of,” seemingly to have forgotten about the time that GOP lawmakers refused to hold confirmation hearings for — or, in come cases, even meet with — President Obama’s nominee, Merrick Garland.
The comment came after Tillis went through a litany of issues Republicans could have raised with Justices Elena Kagan and Sonia Sotomayor, but didn’t — at least in terms of blocking their nominations — as a way to bash the lines of questions Democrats have employed during Gorsuch’s hearing.
Later on in his question period, Tillis urged Democrats to not filibuster Gorsuch — again, forgetting that Garland wasn’t even allowed to make it to that stage of the process — and said that Democrats should “respect the president’s right to seat somebody to the Supreme Court.”
Update 7:22 p.m.: Gorsuch revealed that he and Trump did discuss abortion, but said that Trump brought the issue up to note how “divisive” it was in the campaign, rather than to discuss it as a litmus test. Read more here.
Update 7:11 p.m.: Gorsuch said that attacks on the “integrity or honesty or independence” of the judiciary are “disheartening” and “demoralizing” no matter who they come from. Full write up here.
Update 6:18 p.m.: Gorsuch ducked on the classic Reddit duck question: would you rather fight a 100 duck sized horses or one horse sized duck?
“I’m very rarely at a loss for words,” Gorsuch said, when the question was posed to him by Sen. Jeff Flake (R-AZ), who had heard the question from his son.
It was just one of a number of unconventional queries Flake asked Gorsuch at the beginning of his question period: Does he ski? (yes) Where does his family vacation? (Winter Park, Colorado) What’s the biggest trout he’s caught? (unanswered, but the judge had plenty of warm words to say about fishing).
By the time Flake asked Gorsuch if he had ever served on jury duty, Sen. Al Franken (D-MN), the lone Democrat still on the dais, was laughing so hard that he interrupted the proceedings.
“I just thought it was very odd questions for this, but it’s great. It’s great,” Franken said.
Update 5:00 p.m.: Gorsuch refused to provide his personal views on gay marriage and how they may have changed from when he was volunteering for George W. Bush’s 2004 campaign. He acknowledged that the Supreme Court’s marriage equality decision was “settled law,” but added the the litigation its “impact” and “application” continues.
The questioning was came from by Sen. Al Franken (D-MN), who pointed to an email exchange about Gorsuch between two Republican political operatives, where one called Gorsuch a “true loyalist” and pointed to the work he did in the Ohio for the 2004 campaign. Franken noted an anti-gay marriage measure was on the ballot in that state that year, and asked Gorsuch how he felt about the issue then.
Gorsuch said he didn’t recall any involvement on that particular issue, and punted on the question on his personal views, relying on his go-to line that divulging his personal views would get in his way of his job.
That didn’t stop Franken from continuing down the path of questioning. He remarked that one of the previously mentioned political operatives, a colleague of Gorsuch’s from law school, later came out publicly as gay and said he wished he had been on the other side of the issue in 2004, when Republicans were using anti-gay sentiment to bring voters to the polls for Bush.
Update 4:39 p.m.: Gorsuch refused to weigh in on how he felt about the Republicans’ refusal to consider President Obama’s nominee Merrick Garland, when asked by Sen. Al Franken (D-MN).
“This is about how a Supreme Court justice who was nominated by the president of the United States, this is, like, in the Constitution. I think you’re allowed to talk about what happened to the last guy who was nominated in your position,” Franken said.
“Senator, I appreciate the invitation. But I know the other side has their views of this, and your side has your views of it. That by definition is politics,” Gorsuch responded, adding that he thought the “world of Merrick Garland” and thinks “he’s an outstanding judge.”
Update 4:08 p.m.: A line of questioning from Sen. Amy Klobuchar (D-MN) about originalism digressed into Gorsuch divulging the big dreams he has for his daughters.
Klobucher brought up that the Constitution used male pronouns in its sections concerning the President, and asked whether the framers would have believed a woman could be President.
“Of course women can be President of the United States,” Gorsuch said. “I’m the father of two daughters. And I hope one of them turns out to be President of the United States.”
Update 3:39 p.m.: Gorsuch and Sen. Sheldon Whitehouse (D-RI) got into a testy exchange about the role of dark money in politics, and particularly the $10 million campaign supporting his nomination. Read more here.
Update 3:09 p.m.: Gorsuch declined to take a position on bringing cameras into the Supreme Court. He said he would “come to it with an open mind” and treat it as he “would any other case or controversy.”
Gorsuch said he had “no problem” with the ethics rules for federal judges but did not know “what the arguments are” for applying the same guidelines to Supreme Court justices.
He also declined to list any Supreme Court cases he thought were wrongly decided.
“You start with a strong presumption in favor of precedent,” he said. “But there are instances when a court may appropriately overrule precedent after considering a lot of factors.”
Update 2:03 p.m.: Gorsuch was asked to address an allegation that surfaced over the weekend that he suggested to a law school class that women use maternity leave to take advantage of employers. He said that an ethics hypothetical involving maternity leave and “directed to young women” lawyers was contained in a “standard textbook” he used while teaching legal ethics at the University of Colorado.
Here’s a full write up on how he explained the incident.
Update 2:01 p.m.: Gorsuch addressed the controversial “frozen trucker” case. Here’s the full write up.
Update 12:04 p.m. Gorsuch declined to comment on whether he would uphold the second iteration of Trump’s controversial travel ban. He said that the “government must meet strict scrutiny” before implementing any regulation based on religious belief.
“I’m not going to say anything here that would give anybody any idea how I would rule in any case like that,” he said.
Update 12:03 p.m. Gorsuch deflected when asked by Sen. Patrick Leahy (D-VT) if he would have ruled with the conservative bloc in Shelby v. County, the 2013 Supreme Court decision that gutted the Voting Rights Act.
He was willing to acknowledge it as “a precedent of the United States Supreme Court,” adding that it was a “recent one” and a “controversial one.”
“What its precedential reach will prove to be remains to be seen,” Gorsuch said.
He argued that the decision left room for Congress to pass a law responding to the ruling that would restore the parts of the VRA invalidated by the court, something that is unlikely under the Trump administration. Gorsuch added such legislative action “could yield further litigation, undoubtedly would.”
Update 11:50 a.m. Sen. Patrick Leahy (D-VT) grilled Gorsuch about Trump’s comments about torture as well as the judge’s own work as a Justice Department official under the George W. Bush administration on detention issues.
“Let me ask you this. Does the president have the right to authorize torture if it violates the laws that have been passed by Congress or any other ones you cited?” Leahy had asked.
“Senator, no man is above the law,” Gorsuch said.
Gorsuch had mostly dodged on questions on controversial cases as well as how he would rule on issues Trump campaigned on. On Trump’s torture comments, Gorsuch previously had pointed to various laws as well as the Constitution’s ban on cruel and usual punishment.
Update 11:31 a.m.: Ask about his time in the Department Justice under President George W. Bush, Gorsuch defended his work with Sen. Lindsey Graham (R-SC) drafting an amendment to the Detainee Treatment Act cutting off detainees at the U.S. detention center in Guantánamo Bay, Cuba, from access to federal courts.
“I’m proud of it because we managed to come up with a bipartisan bill that I think passed this body with over 80 or maybe 90 votes,” Gorsuch told Senate Judiciary Committee ranking member Dianne Feinstein (D-CA).
He said that the bill “was eventually litigated as all these things are” and that he respects the Supreme Court’s decision on the matter “no less than any other.”
Gorsuch also said that he does not believe the President has inherent and unchallengeable authority to intercept the communications of U.S. citizens.
Update 11:02 a.m.: Asked about the landmark abortion rights decision Roe v. Wade Judge Neil Gorsuch suggested he would consider the ruling as precedent and “worthy as treatment of precedent like any other”.
The initial question came from Grassley, but Sen. Dianne Feinsten (D-CA) returned to the case and Gorsuch’s views on precedent later on in the hearing.
“Part of the value of precedent, it has lots of value, it has value in and of itself because it’s our history, and our history has value intrinsically. But it also has an instrumental value in this sense: it adds to the determinacy of law,” Gorsuch said.
Update 10:29 a.m.: Judiciary Chair Chuck Grassley (R-IA) as Judge Neil Gorsuch asked series of questions about precedent and prior rulings that have been controversial to inoculate him from such questions from Democrats.
Grassley kicked off the line of question by suggesting that Gorsuch could be asked during the hearings about what he thought about certain rulings and precedents, and asked Gorsuch if he agreed that the judges should not make any promises or give any hints of how’d they ruled. Gorsuch agreed.
Grassley then asked about various controversial rulings, on gun rights, on abortion, on campaign finance and other issues. Gorsuch responded by commenting broadly on his views on precedent, while stressing that personal views should not get in the way of how a judge analyzes the law.
“If I were to start telling you which are my favorite precedents or which are my least favorite precedents, or if I viewed precedent in that fashion, I would be tipping my hand and suggesting to litigants I’ve already made up my mind about their cases,” Gorsuch said. He added that it would not make him a “fair judge” and that it would also create an “independence problem.”
“If it looks like I’m giving hints or previews or intimations about how I might rule, I think that’s the beginning of the end of the independent judiciary, if judges have to make effectively campaign promises for confirmation. “
Update 10:01 a.m.: Judge Neil Gorsuch told Judiciary Chair Chuck Grassley (R-IA) that litmus tests on certain issues were not a part of his interview process for his Supreme Court nomination.
“And I am here to report, you should be reassured because no one in the process, from the time I was contacted, with an expression of interest for potential interview, to the time I was nominated, no one in that process, Mr. Chairman, asked me for any commitments, any kind of promises about how I would rule in any kind of case,” Gorsuch said.
His nomination nonetheless was cheered on by anti-abortion organization, gun rights groups and other outside interests groups, who all saw his views as favorable to their causes.
Update 9:48 a.m.: Asked if he would be willing to rule against President Trump, Judge Neil Gorsuch called the query from Judiciary Chair Chuck Grassley (R-IA) — the first question of the hearing — a “softball” question.
“I have no difficulty ruling against or for any party, other than based on what the law and facts in the particular case require,” Gorsuch said. “And I’m heartened by the support I have received from people who recognize that there’s no such thing as a Republican judge or Democratic judge.”
Since he was named as Trump’s nominee, Gorsuch’s supporters have hailed him a someone who would act as a check on the executive branch. Democrats have been skeptical, however.Asked if he would be willing to rule against President Trump, Judge Neil Gorsuch called the query from Judiciary Chair Chuck Grassley (R-IA) — the first question of the hearing — a “softball” question.
“I have no difficulty ruling against or for any party, other than based on what the law and facts in the particular case require,” Gorsuch said. “And I’m heartened by the support I have received from people who recognize that there’s no such thing as a Republican judge or Democratic judge.”
Since he was named as Trump’s nominee, Gorsuch’s supporters have hailed him a someone who would act as a check on the executive branch. Democrats have been skeptical, however.
Original post:
President Donald Trump’s nominee for the Supreme Court, Judge Neil Gorsurch, appears in front of the Senate Judiciary Committee for a second day of confirmation hearings Tuesday. He will be answering the committee senators’ question in what is expected to be a marathon 10 hour-plus session.
The first day of hearings featured opening statements in which Judiciary Democrats slammed their Republican counterparts for blocking President Obama’s nominee for the vacancy from being considered last year. Some of the Republicans, without a bit of irony, spoke out against the politicization of the Supreme Court confirmation process in their remarks.
Gorsuch is a 49-year-old Colorado-based judge on the U.S. Court of Appeals for the 10th Circuit. He has a conservative legal approach oft-compared to the late Justice Antonin Scalia, whose death last February created the vacancy Gorsuch seeks to fill.
Follow along and watch the second day of hearings here, via PBS:
