By Mike Brest
The Senate Judiciary Committee convened today for the first of four days where both Democrats and Republicans took turns asking President Trump’s nominee Judge Neil Gorsuch questions. In the past, these hearings for Supreme Court nominee have been largely procedural with little contention, but this is shaping up to be a hard fought battle after the Republicans refused to hold hearings for former President Obama’s nomination, Merrick Garland, last year.
Senator Charles Grassley (R-IA) the Chairman of the Senate Judiciary Committee led the hearing. Senator Dianne Feinstein (D-CA) also had a large role as the ranking member of the committee. Senator Grassley opened the hearing with criticisms of the Obama Administration, while then praising Judge Gorsuch’s previous rulings. Then during Senator Feinstein’s opening remarks, she was significantly more blunt and direct.
The contrast in approach by party became a theme of the hearing where republicans appeared more calm and at ease, whereas democrats appeared to be more fearful of the future. Almost every democrat who spoke referenced the senate republicans’ refusal to hold even a hearing for Judge Merrick Garland. Conversely, many republicans sought to debunk the negatives the democrats brought up without addressing Gartland.
Senator Patrick Leahy (D-VT), like the other democrats, used this opportunity to express their displeasure with the events that have taken place since Justice Scalia’s death. In regards to the Senate’s decision not to hold any hearings for Judge Gartland, he said it was, “an extraordinary blockade” adding it was “one of the greatest stains in the of the 200 year history of this committee.” The Senator from Vermont added that Gorsuch was “selected by interest groups” because “these groups are obviously confident they’ll share the agenda.”
One of the biggest knocks liberals have had against Judge Gorsuch so far has been his unwillingness to denounce President Trump’s strong criticism towards judges that have ruled against him. Both of President Trump’s immigration bans have been halted via injunction. Both times, the leader of the country has taken to Twitter to express his frustrations saying, “The opinion of this so-called judge, which essentially takes law-enforcement away form our country, is ridiculous and will be overturned!” While Judge Gorsuch reportedly privately denounced the comments, he was unwillingly to on the record or say it in front of the Judiciary Committee.
“I need to know that you can be an independent check and balance on the administration that has nominated you, and on any administration that follow,” Senator Leahy said.
The death of Justice Scalia thirteen months ago, created a vital open seat on the bench. The bench has four liberals and four conservatives, so the only opening could potentially be the deciding vote in a number of cases the court could hear. With the impending addition of Gorsuch, the bench will remain tied with Judge Kennedy often being the tiebreaker.
“I firmly believe the Constitution is intended to evolve as our country evolves,” Senator Dianne Feinstein stated. “We’d still have segregated schools, women wouldn’t be entitled to rights, and discrimination for LBTQ people would be allowed. That’s why it bothers me when I hear [that] Neil Gorsuch is an originalist.”
Senator Feinstein added, “Our job is to assess how nominees and decisions will impact the people. The Supreme Court has the final say on whether a woman will continue to have control over her own body… it is the Supreme Court that will have the ultimate say on where employers will be accountable for discrimination.”
Many former nominees deflected questions of personal opinion in the way Gorsuch did yesterday. It has been a common practice for the Judicial Committee to ask similar questions. During the Clinton administration, current Justice Ginsburg famously told the committee that a judge should not share their opinion but her opinion was not relevant to whether or not it was constitutional.
Gorsuch has been very tightlipped and has let his record do the talking. When discussing Gorsuch’s silence, Senator Orrin G. Hatch (R-UT) said, “you know who said ‘A judge sworn impartially could offer no forecast, no hands for the specifics of the case it would be the entire process?’ – Ruth Bader Ginsberg.”
Senator John Cornyn (R-TX) referenced the same quote as a way to delegitimize and criticize the demand on Judge Gorsuch to admit his personal opinions. It also acknowledging that a judge’s personal feelings are irrelevant in regards to their decision on the constitutionality of a law. But it’s also a meaningful quote because it was from Justice Ruth Bader Ginsberg, arguably the most liberal justice on the Supreme Court.
Many democrats are conflicted on how much of a fight they should put up against Gorsuch confirmation. Senator Chuck Schumer (D-NY) has previously said that the democrats plan on filibustering the confirmation. Should that happen, it would require 60 votes to end it. With only 52 conservatives in the Senate, that would require eight democrats to vote to end it – which would put democrats from red states in a difficult position facing reelection in 2018.
While liberal groups have referenced former cases that have been troubling to them, there are multiple judges that could vacate their seats under the Trump administration. If democrats fight this nomination, many believe it could spur the president to nominate an even stauncher conservative. It is worth noting that the Republicans did not fight either of President Obama’s first two Supreme Court nominees Sonia Sotomayor, 68-31 in favor, and Elena Kagan, 63-37 in favor, although they were replacing liberal justices as well.