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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 FrankenAlan (Al) Stuart FrankenElection Countdown: Takeaways from heated Florida governor's debate | DNC chief pushes back on 'blue wave' talk | Manchin faces progressive backlash | Trump heads to Houston rally | Obama in Las Vegas | Signs of huge midterm turnout Dem holds single-digit lead in race to replace Franken GOP lawmaker once belittled sexual harassment: 'How traumatizing was it?' 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 CoonsChristopher (Chris) Andrew CoonsDem senators urge Pompeo to reverse visa policy on diplomats' same-sex partners 15 Saudis identified in disappearance of Washington Post columnist The Senate needs to cool it 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 DurbinRichard (Dick) Joseph DurbinFarm bill negotiators should take advantage of the moment The Hill's 12:30 Report — Trump says he is cutting foreign aid over caravan | Lawmakers point fingers at Saudi crown prince | DNC chair downplays 'blue wave' talk The Hill's Morning Report — Presented by PhRMA — Early ballots pouring in with 15 days to the midterms MORE (D-Ill.) called Gorsuch’s position in that case “cold.”

Democrats remain incensed over Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellElection Countdown: Takeaways from heated Florida governor's debate | DNC chief pushes back on 'blue wave' talk | Manchin faces progressive backlash | Trump heads to Houston rally | Obama in Las Vegas | Signs of huge midterm turnout Sanders: Democrats ‘absolutely’ have chance to win back rural America  Trump privately ready to blame Ryan and McConnell if Republicans lose midterms: report 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 Blumenthal (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 GrassleyCharles (Chuck) Ernest GrassleyGOP plays hardball in race to confirm Trump's court picks Trump officials ratchet up drug pricing fight Dems angered by GOP plan to hold judicial hearings in October MORE (R-Iowa) said in his prepared remarks.

Sen. Mike LeeMichael (Mike) Shumway LeeCongress raises pressure on Saudi Arabia Senators pledge action on Saudi journalist’s disappearance Bernie Sanders: US should pull out of war in Yemen if Saudis killed journalist 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 Farrand BennetEagles player sits out national anthem Trump administration denied it has ‘secret’ committee seeking negative information on marijuana: report Overnight Health Care: Senators target surprise medical bills | Group looks to allow Medicaid funds for substance abuse programs | FDA launches anti-vaping campaign for teens 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 Scott GardnerElection Countdown: Small-donor donations explode | Russian woman charged with midterm interference | Takeaways from North Dakota Senate debate | O'Rourke gives 'definitive no' to 2020 run | Dems hope Latino voters turn Arizona blue Democrats must end mob rule GOP senators praise Haley as 'powerful' and 'unafraid' 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 (Chuck) Ellis SchumerManchin wrestles with progressive backlash in West Virginia The Hill's Morning Report — Presented by the Coalition for Affordable Prescription Drugs — Health care a top policy message in fall campaigns McConnell says deficits 'not a Republican problem' 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 Emiel FeinsteinPoll: Feinstein holds 18-point lead over challenger Durbin to Trump: ‘We’re the mob? Give me a break’ Sen. Walter Huddleston was a reminder that immigration used to be a bipartisan issue 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.