Gorsuch sails on day one, but real test is Tuesday

Gorsuch sails on day one, but real test is Tuesday
© Greg Nash

Neil Gorsuch, President Trump’s choice to sit on the Supreme Court, made it through his first day of confirmation hearings without a scratch, but Democrats will have more of a chance to land shots on Tuesday.

Senators stayed within party lines Monday as Democrats raised concerns over decisions they said disproportionately favored companies over workers and Republicans praised the federal judge’s originalist approach to the law.

The real fireworks are set for Tuesday, when every member of the Senate Judiciary Committee will get 30 minutes to grill Gorsuch, a 10-year veteran of the 10th U.S. Circuit Court of Appeals, on his judicial philosophy. 

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In many ways, Gorsuch’s hearing was overshadowed by FBI Director James Comey’s testimony before the House Intelligence Committee on Russian interference in the 2016 presidential election.

Roughly three hours after senators spoke, Gorsuch vowed to be an honest broker: “Long before we are Republicans or Democrats, we are Americans.”

If confirmed by the Senate, Gorsuch said he would be “a faithful servant of the Constitution and laws of our great nation.”

Democrats on Monday focused their attacks on Gorsuch’s skeptical view of the wide latitude courts usually give federal agencies to interpret laws.

Sen. Al FrankenAl FrankenFriends, foes spar in fight on Trump’s Supreme Court nominee Lawmakers share photos of their dogs in honor of National Puppy Day Franken challenges witness endorsement of Gorsuch MORE (D-Minn.), whose performance in other hearings of Trump nominees has fueled talk of a 2020 presidential bid, questioned whether Gorsuch was in line with senior Trump adviser Stephen Bannon’s strategy to deconstruct “the administrative state.”

Franken called that “shorthand for gutting any environmental or consumer protection measure that gets in the way of corporate profit margins.”

Democrats on Tuesday will press Gorsuch over his questioning of the “Chevron doctrine,” a principle in which the judiciary traditionally defers to the executive branch in interpreting ambiguous statutes. 

Sen. Chris CoonsChris CoonsSenators introduce new Iran sanctions Gorsuch sails on day one, but real test is Tuesday Live coverage: Supreme Court nominee hearings begin MORE (D-Del.) said it showed an activist streak and troubling tendency to “explore broader issues than necessary.”

Democrats are also expected to go after Trump’s travel ban and Gorsuch’s views on the president’s tweets about the judicial branch. They will also likely hammer his dissent in a 10th Circuit ruling that held a trucking company was wrong to fire a driver who disobeyed orders to wait for a repair truck in sub-zero weather.

Sen. Dick DurbinDick DurbinThe Hill’s Whip List: Where Dems stand on Trump’s Supreme Court nominee Gorsuch rewrites playbook for confirmation hearings Gorsuch: I'm 'sorry' for ruling against autistic student MORE (D-Ill.) called Gorsuch’s position in that case “cold.”

Democrats remain incensed over Senate Majority Leader Mitch McConnellMitch McConnellUnder pressure, Dems hold back Gorsuch support Overnight Healthcare: Trump threatens to leave ObamaCare in place if GOP bill fails Senate GOP hedges on ObamaCare repeal timeline MORE’s (R-Ky.) refusal to grant hearings to former President Obama’s nominee, Merrick Garland, a strategy that kept a vacancy on the court that Gorsuch is now positioned to fill.

“I feel a lot of anger, in fact continued outrage, and I’m going to say to him, ‘You wouldn’t be sitting here but for the denial of this committee’s constitutional duty that was obstructed by Republicans,’ “ Sen. Richard BlumenthalRichard BlumenthalSenators introduce new Iran sanctions Senators demand Pentagon action after nude photo scandal Gorsuch rewrites playbook for confirmation hearings MORE (D-Conn.) told reporters.  

But they kept their opposition toned down during the first day of hearings, a reflection of their pessimism about preventing Gorsuch from replacing the late Justice Antonin Scalia.

Gorsuch called Scalia a mentor and joked about the his fishing skills: “The justice fished with the enthusiasm of a New Yorker. He thought the harder you slapped the line on the water, somehow the more the fish would love it.”

Asked if he would bet against Gorsuch’s confirmation, Blumenthal said he’s in no mood to bet.

If Democrats were hoping to inflict any high-profile damage against Gorsuch, they fell short Monday.

Republicans rebutted Democrats’ criticism by extolling Gorsuch as a judge who would stand up to “executive overreach” and uphold the checks and balances envisioned by the nation’s Founders.

“His grasp on the separation of powers — including judicial independence — enlivens his body of work,” committee Chairman Chuck GrassleyChuck GrassleyFriends, foes spar in fight on Trump’s Supreme Court nominee Live coverage: Day three of Supreme Court nominee hearing Live coverage: Day two of Supreme Court nominee hearing MORE (R-Iowa) said in his prepared remarks.

Sen. Mike LeeMike LeeOvernight Finance: Senators spar over Wall Street at SEC pick's hearing | New CBO score for ObamaCare bill | Agency signs off on Trump DC hotel lease GOP senators offer bill to require spending cuts with debt-limit hikes Healthcare fight pits Trump against Club for Growth MORE (R-Utah) called Gorsuch’s nomination to the 10th Circuit “remarkably uncontroversial,” and other Republicans have pointed out that he passed the Senate in 2006 with unanimous consent.

Gorsuch, who spoke at length publicly for the first time since his nomination, rejected the portrait that he is a judge who favors the powerful over the little guy. He insisted he only follows the law.

“My decisions have never reflected a judgment about the people before me, only a judgment about the laws and facts at issue in each particular case,” he said. “A good judge can promise no more than that, and a good judge should guarantee no less.”

Sen. Michael BennetMichael BennetUnder pressure, Dems hold back Gorsuch support The Hill’s Whip List: Where Dems stand on Trump’s Supreme Court nominee Senators introduce new Iran sanctions MORE (Colo.), one of a handful of Democrats who could decide Gorsuch’s fate, praised the nominee in glowing terms while introducing his fellow Coloradan to the panel — a courtesy that Colorado’s other senator, Cory GardnerCory GardnerRepeal of Obama drilling rule stalls in the Senate Colorado Dem at the center of Gorsuch confirmation fight Gorsuch sails on day one, but real test is Tuesday MORE (R), also performed.

Bennet, who won’t announce his vote until after the hearings, touted the judge’s “outstanding integrity and intellect” and argued he would bring geographic diversity to the court by representing the Mountain West. Republicans targeted Bennet in his 2016 election, but he won a second term by nearly 6 points.

Heidi Hess, senior campaign manager at Credo Action, a liberal group, said she was “disappointed that Sen. Bennet contributed by adding a lighthearted tone to the day when this feels to us like one of the key fights.” 

Republicans now control 52 Senate seats and need eight Democrats to cross the aisle to defeat a filibuster that liberal senators have vowed to wage.

Grassley predicted after the hearing that Gorsuch would win confirmation before the Senate leaves for a two-week recess on April 7 and said the GOP conference is unified.

“Right now considering the fact that there are 52 Republicans, I haven’t heard any Republicans say that they have opposition at this point, assuming they’ve made up their mind, I’m sure he’s going to get Democrat votes as well,” he said. 

Ten Democrats are running for reelection in 2018 in states that backed Trump for president, and a vote for Gorsuch would create an easy argument for bipartisanship.

Polls show that many voters who cast their ballots for Trump had the Supreme Court on their mind in November. According to CNN exit polls, 56 percent of Trump voters said high court appointees were the most important factor and 46 percent said it was an important factor.

Senate Democratic Leader Charles SchumerCharles SchumerThe Hill’s Whip List: Where Dems stand on Trump’s Supreme Court nominee With no emerging leaders, no clear message, Democrats flounder Gorsuch hearings: A referendum on Originalism and corporate power MORE (N.Y.) has urged members of his caucus to hold off on saying whether they will vote for Gorsuch until after the hearings are finished.

Progressive groups led by NARAL Pro-Choice America, Credo Action and the Service Employees International Union are pressuring Democrats to put up more of a fight. And activists warn that Democrats who vote for Gorsuch could face primary election challengers. 

Overhanging the hearings — a subject of intense concern for liberal groups — is how Gorsuch will rule on abortion rights. Though he has never ruled directly on the issue, left-leaning advocacy groups say they will treat a vote for Gorsuch as a vote to overturn Roe v. Wade, the landmark 1973 case that legalized abortion nationwide.

Gorsuch is seen as hostile to abortion rights because of his support for the 10th Circuit ruling in Hobby Lobby Stores v. Sebelius that held the Affordable Care Act could not compel certain companies to provide health coverage for contraception if it violated their religious beliefs.  

Liberal groups have also seized on Gorsuch’s discussion in a book on euthanasia in which he came out strongly against assisted suicide, writing “all human beings are intrinsically valuable” and “the intentional taking of human life by private persons is always wrong.”

Sen. Dianne FeinsteinDianne FeinsteinDems get it wrong: 'Originalism' is mainstream, even for liberal judges Human rights leaders warn against confirming Gorsuch Feinstein sees slipping support among California voters: poll MORE (Calif.), the ranking Democrat on the Judiciary panel, sought to draw a clear line on abortion rights, declaring Roe v. Wade a “super-precedent.”

“The Supreme Court has repeatedly upheld Roe’s court finding, making it settled law for the last 44 years,” she said, citing 14 “key cases” where the high court upheld Roe’s core holding and 39 decisions where justices reaffirmed it.