Gorsuch rewrites playbook for confirmation hearings

Gorsuch rewrites playbook for confirmation hearings
© Greg Nash

Neil Gorsuch has rewritten the playbook for Supreme Court nominees by refusing to share his personal views on even the most widely accepted landmark cases during his Senate confirmation hearing.  

His strict adherence to a game plan of dodging questions on his personal views or legal philosophy on even the most accepted rulings that desegregated schools and established the right to use contraception allowed him to sidestep a variety of political landmines that could have given centrist Democrats a reason to oppose his nomination.

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In nearly 20 hours of grilling over the course of two days, Gorsuch declined to answer questions on issues ranging from the Second Amendment, to President Trump’s authority to defy congressional bans on warrantless wiretapping and enhanced interrogation, to whether the constitutional ban on accepting gifts from foreign powers would apply to the president’s real-estate empire.

The strategy left Senate Democrats frustrated as they repeatedly failed to draw out answers on hot-button political issues.

But Gorsuch’s strategy may backfire — Democrats are beginning to point to his lack of candor and transparency as a potential reason to filibuster his nomination.

“He looked like he was playing dodgeball with the Senate Judiciary Committee, bending over backwards to avoid revealing anything that might constitute a judicial philosophy or give hints about how he’d approach the legal issues of our day,” Senate Democratic Leader Charles SchumerCharles (Chuck) Ellis SchumerAmerica isn't ready to let Sessions off his leash Schumer celebrates New York Giants firing head coach: ‘About time’ GOP should reject the left's pessimism and the deficit trigger MORE (N.Y.) said from the floor Wednesday.

While Supreme Court nominees going back to Justice Ruth Bader Ginsburg in 1993 have drawn a line against sharing personal views on legal issues to avoid the appearance of prejudice in future cases, Gorsuch took it to a new level this week.

Supreme Court nominees have become increasingly cautious in their testimony to the Senate since Robert Bork’s unguarded and candid remarks before the Judiciary Committee helped sink his nomination in 1987.

Chief Justice John Roberts appeared to set a new standard for blandness 11 years ago that Gorsuch now seems to have surpassed. 

He refused to comment on his personal views of three landmark cases: Brown v. Board of Education, which overturned school segregation; Griswold v. Connecticut, which established the right of married couples to use contraception; and Eisenstadt v. Baird, which established the right of unmarried couples to use contraception.

When Sen. Richard Blumenthal (D-Conn.) asked Tuesday if Gorsuch agreed with the result of Brown v. Board of Education, the nominee would only say it’s “a correct application of the law of precedent.”

But more than 10 years ago, when the late Sen. Ted Kennedy (D-Mass.) asked Roberts whether he agreed with the court’s conclusion in that case, Roberts unequivocally responded, “I do.”

And in 2010, Elena Kagan, a nominee under President Obama, warmly embraced the Brown v. Board of Education decision.

“I hope and I know that the principles of Brown v. Board are still relevant today,” Kagan told the Judiciary panel at the time. “The idea of equality under law is a fundamental American constitutional value.”

Blumenthal continued to press Gorsuch during a second round of questioning Wednesday on the landmark desegregation decision, demanding to know, “Why will you not say you agree with the result?”

Gorsuch finally relented, saying, “We’re on the same page on Brown v. Board of Education, senator. It’s a great and important decision.”

He also criticized the court’s 1896 decision in Plessy v. Ferguson, which established the doctrine of “separate but equal” and was overturned by Brown, as “a dark, dark stain” on the court’s history.

Sen. Dianne FeinsteinDianne Emiel FeinsteinGrassley blasts Democrats over unwillingness to probe Clinton Avalanche of Democratic senators say Franken should resign Blumenthal: ‘Credible case' of obstruction of justice can be made against Trump MORE (Calif.), the ranking Democrat on the Judiciary Committee, said she doesn’t understand why Gorsuch would criticize Plessy but not endorse Brown, labeling him less forthcoming than other recent nominees.

“You can carry that too far,” she warned.

She argued that speaking about his judicial philosophy “would help people understand that he is open for the ability for growth to happen in the law.”

At least one Republican said he, too, wanted Gorsuch to share his thoughts on specific cases. 

“Some have criticized my friends on the other side for asking you how you would rule in specific cases, and I don’t think that’s an appropriate question,” Sen. John Kennedy (R-La.) said.

“But if I’m going to be honest, I have to say I’d love to know the answer to that, too, because we live in a real world.” 

Kennedy said a number of his constituents voted for Trump because of the type of judge he promised to name to the Supreme Court. If Gorsuch is confirmed and starts siding with the more liberal members of the court, Kennedy said those voters won’t be pleased.

“I don’t want the fact that I’m still asking you questions to be misunderstood, but this is a big deal,” he said. 

Other Republicans, however, said Democrats were demanding answers from Gorsuch that they did not seek from nominees of past Democratic presidents.

The Judicial Crisis Network, a conservative group running a $10 million advertising campaign in support of Gorsuch, seized on that and has launched a video highlighting 70 times Ginsburg, who was nominated by President Clinton, declined to answer questions.

Panel Republicans argued that it would be wholly improper for Gorsuch to reveal any personal views.

“If we’re going to vote against a nominee because they won’t tell us things that we want to hear about issues important to us, then the whole nominating process has become a joke,” Sen. Lindsey GrahamLindsey Olin GrahamGOP and Dems bitterly divided by immigration We are running out of time to protect Dreamers US trade deficit rises on record imports from China MORE (R-S.C.) argued.

But Gorsuch’s strategy may become a liability with Democrats as Republican leaders try to round up the needed votes.

Senate Democratic Whip Dick DurbinRichard (Dick) Joseph DurbinDemocrats turn on Al Franken Minnesota's largest newspaper calls on Franken to resign Democratic senator predicts Franken will resign Thursday MORE (Ill.), a member of the Judiciary Committee, told CNN on Wednesday that “we have no idea where Judge Gorsuch is on Roe v. Wade, on women’s healthcare and critical issues.”

When asked if he agreed with the result of Griswold and Eisenstadt, Gorsuch said those cases have “been settled for 50 years” and he did not “see a realistic possibility that a state would pass a law attempting to undo that.”

But when asked simply if he agrees with the results, Gorsuch would only say: “I give you the same answer.”

But a decade ago, Roberts said he agreed with the court’s conclusion in Griswold. And Justice Samuel Alito similarly told the Judiciary Committee that there is a constitutional basis for the finding in Griswold and explained he felt “an ability to comment” because the right to contraception was unlikely to be relitigated.

Alito plainly said 10 years ago, “I do agree with the result in Eisenstadt.”

Gorsuch further declined to personally embrace the ruling in Lawrence v. Texas that struck down laws that made sex between gay couples illegal, only acknowledging it as “the precedent of the United States Supreme Court.”

Blumenthal said those answers leave doubt in a lot of minds.

“Your declining to be more direct and give the same answer about these cases as you did Brown leaves doubt in the minds of millions of Americans that rely on privacy rights,” he warned.

Gorsuch argued that stating agreement with even a widely accepted decision would trample on his impartiality as a judge.

“My personal views have nothing to do with my job as a judge,” he said, his voice rising as he debated with Blumenthal.

“I’ve drawn a line that I think is required of a good judge to be fair and respect the separation of powers,” he added.