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 easing off — signaling they anticipate his successful confirmation.
On the third day of his confirmation hearing, Gorsuch faced more questions on abortion rights, money in politics and a Supreme Court ruling issued on Wednesday morning that reversed one of his recent decisions.
Early in the day, Gorsuch declined to answer several questions from Sen. Patrick J. Leahy (D-Vt.) on the Constitution’s “emoluments clause,” which states the president cannot accept gifts from foreign agents without approval from Congress. and the notion of “high crimes and misdemeanors” — inquiries designed to put distance between the judge and Trump.
Given “ongoing litigation,” 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 he accused of “giving a platform to extremists and misogynists and racists.” Another senior Trump aide, Reince Priebus, had said Gorsuch could change potentially 40 years of law, Leahy said.
“What vision do you share with President Trump?” the senator said.
“Respectfully, none of you speaks for me,” said Gorsuch. “I am a judge. I am independent. I make up my own mind.”
Channeling the frustrations of many Democrats, Senate Minority Leader Charles E. Schumer (D-N.Y.) criticized Gorsuch’s testimony as “pitifully short on substance.”
“The qualifications for Senate confirmation shouldn’t be skillful evasion of questions, it’s not how the process is supposed to work,” Schumer tweeted on Wednesday.
“If anyone doubts Judge Gorsuch could be an activist judge with strong conservative views, eschewing interests of average people, look how he was selected.”
Wednesday’s proceedings marked what is likely the last day of testimony for Gorsuch before the Senate Judiciary Committee, where he has made a particular effort to stress his independence from Trump and defend the integrity of the judicial system. If confirmed, Gorsuch would replace the late Antonin Scalia on the Supreme Court.
At one point, Gorsuch seemed to reject a Feb. 13 comment from senior White House policy adviser Stephen Miller that Trump’s 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. He quoted an unnamed judge he called one of his heroes: “The real test of the rule of law is [whether] the government could lose in its own courts and accept those judgments.”
Gorsuch also declined to give his view on Scalia’s characterization of the Voting Rights Act as a “perpetuation of racial entitlement.”
“I don’t 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.
Sen. John Cornyn (Tex.), the Republican whip, rejected Leahy’s characterization.
“I don’t know what they’ve been listening to, what they’ve been paying to, if that’s their conclusion,” he said.
“Over the last three days we’ve heard a description of your legal philosophy and the reasoning behind it time and time again,” he added later.
Other Republicans have used their allotted time to defend Gorsuch and begin pushing back against Democrats who are still mulling whether to try blocking the judge’s confirmation.
On Tuesday, Sen. Ted Cruz (R-Tex.) credited Gorsuch for enduring the marathon hearings and said he was passing the test “with flying colors.”
On Wednesday, Sen. Orrin G. Hatch (R-Utah), who has been a part of 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.”
“Why anybody in this body would vote against you, I’ll never understand,” Hatch said later.
Over the course of his hearings, Gorsuch also has refused to be pinned down on most of the issues that Democrats raised: his allegiance to Roe v. Wade, his views on money in politics, the extent of the Second Amendment. He portrayed what Democrats saw as controversial rulings in his 10 years on the Denver-based 10th Circuit as authentic attempts to interpret the laws that Congress writes.
“If we got it wrong, I’m very sorry, but we did our level best,” he said about a decision criticized by Durbin, but added: “It was affirmed by the Supreme Court.”
In an exchange with Sen. Sheldon Whitehouse (D-R.I.), Gorsuch said he was “distressed that you think that judges or the Supreme Court is an organ of a party.”
“I know you feel that way, and that distresses me,” Gorsuch said.
“It distresses me, too, quite a lot,” Whitehouse replied.
The latest hearing produced an emotional exchange between Gorsuch and Sen. Dianne Feinstein on the subject of women’s rights.
“You are pivotal in this,” Feinstein (D-Calif.) 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.
“No one is looking to return us to horse-and-buggy days,” Gorsuch responded. Supreme Court precedent has established that the Constitution’s Equal Protection Clause is wide enough to encompass those who were not recognized when it was written.
“A good judge starts with precedent and doesn’t 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.”
Feinstein’s concern was abortion rights, and Gorsuch was not forthcoming on that. She said previous Supreme Court nominees have promised to keep an open mind on the subject, and yet “every Republican judge is a no vote.”
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 California’s recent physician-assisted suicide law.
“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 California’s.
Democratic senators also raised questions about a decision that had just been issued across the street from the hearing room — literally — 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.
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. Gorsuch serves on the 10th Circuit Court of Appeals, which is among the majority of appeals courts that subscribe to the “some” benefit standard. A minority of circuit courts have set higher expectations for schools, and the Supreme Court used a case brought by the parents of a Colorado teenager with autism to set a uniform standard for the nation.
In response to questions by Sen. Richard J. Durbin (D-Ill.), Gorsuch defended his court’s 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.” He added that his circuit was unanimously taking the same position in all such cases. Now the Supreme Court has said that is the wrong standard: “Fine, I will follow the law.”
Durbin said Gorsuch had made the precedent worse by adding the word “merely” to the standard.
“To suggest I have some animus against children,” Gorsuch started, his voice trailing off.
“Please,” Durbin said, no one was suggesting that — just a wrong reading of the law.
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.
Schumer (D-N.Y.) said this week that it would be “unseemly” for the Senate to confirm Gorsuch while the FBI is investigating whether Trump’s presidential campaign was swayed by Russian interference.
But Sen. Joe Manchin III (D-W. Va.), a key moderate and a member of Schumer’s leadership team, said on Wednesday that the ongoing FBI investigation “shouldn’t’ have any bearing” on Gorsuch’s confirmation.
“I want to get a working court, okay? What they did to Merrick Garland was wrong. I don’t want to do the same. Two wrongs don’t make a right,” Manchin said at a Washington Post Live event on Trump’s 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 can’t say that as of yet,” he said. “Is there 60 votes as of yet, I don’t think, I don’t see it. Can it happen? Anything can happen.”