WASHINGTON – Democrats on the Senate Judiciary Committee showed that they have not forgotten – nor are most in the mood to forgive – the treatment accorded erstwhile U.S. Supreme Court nominee Merrick Garland by the Republican majority, and it might spell trouble for the man chosen by President Trump to fill the still open high court slot: Appeals Court Judge Neil Gorsuch.
During the opening day of Gorsuch’s confirmation hearing, Democrats consistently noted the GOP’s refusal to provide Garland due consideration. While several expressed their intent to keep an open mind regarding the Gorsuch nomination, several cast a shadow over his prospects because of the handling of Garland, a judge on the U.S. Court of Appeals in Washington, D.C., nominated by then-President Obama to replace the late Justice Antonin Scalia.
The Scalia seat has been vacant for more than 13 months as a result of the Garland snub. Sen. Patrick Leahy (D-Vt.), the former committee chairman, said the “unprecedented obstruction” by Republicans of the Garland nomination “is one of the greatest stains on the 200-year history of this committee.”
“This was an extraordinary blockade and one backed by then-candidate Donald Trump,” Leahy said. “Committee Republicans met behind closed doors and declared that they would surrender the independence of this committee to do the majority leader’s bidding, and they ignored the Constitution in the process.”
Leahy further noted that the Judiciary Committee once opposed a court-packing scheme by President Franklin D. Roosevelt to get his New Deal initiatives past high court objections.
“That was a proud moment,” he said. “Now, Republicans on this committee are guilty of their own ‘court un-packing scheme.’ The blockade of Chief Judge Merrick Garland was never grounded in principle or precedent.”
Sen. Al Franken (D-Minn.) characterized the Garland brush-off as “a truly historic dereliction of duty of the body, and a tactic as cynical as it was irresponsible.”
The views of Democrats are pertinent since the Gorsuch nomination is open to filibuster. He undoubtedly will garner the votes necessary to get out of committee, but he will likely need 60 votes for confirmation. With Republicans holding a relatively slight 52-46 edge in the upper chamber, with two independents caucusing with the Democrats, the GOP either has to find eight votes in the minority or change Senate rules to ensure Gorsuch can assume his spot on the high court bench.
Senate Republican Leader Mitch McConnell, of Kentucky, has expressed confidence that the Gorsuch nomination will slide through and has consistently expressed a distaste over invoking what has come to be known as the nuclear option – changing rules by a simple majority vote, freeing the nomination from a potential filibuster.
It may be the only solution. While Democrats remain chagrined over Garland’s treatment, they also aren’t taken with Gorsuch’s judicial history on the U.S. 10th Circuit Court of Appeals in Denver.
Sen. Dianne Feinstein (D-Calif.), the committee’s ranking member who also noted that Gorsuch is only being considered because of the “unprecedented treatment” of Garland, further expressed concern over the nominee’s reputation as a constitutional originalist – a philosophy that essentially means the meaning of the Constitution has remained stable since its enactment.
Feinstein, and other Democrats, maintain the Constitution is a living document.
“If we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools and bans on interracial marriage,” Feinstein said. “Women wouldn’t be entitled to equal protection under the law, and government discrimination against LGBT Americans would be permitted.”
Several Democrats set the stage for what promises to be rough questioning. Feinstein said she intends to quiz Gorsuch on his views regarding abortion and gun rights. Sen. Dick Durbin (D-Ill.) expressed curiosity over Gorsuch’s legal position on religious freedom and Sen. Amy Klobuchar (D-Minn.) wants to know where he stands on campaign finance.
Gorsuch was, naturally, more warmly greeted by Republican lawmakers. Sen. Chuck Grassley (R-Iowa), the committee chairman, said the nation needs a Supreme Court justice who is independent, and who respects the separation of powers. Gorsuch, he said, fits that description.
“Fortunately, for every American, we have before us today a nominee whose body of professional work is defined by an unfailing commitment to these principles,” Grassley said. “His grasp on the separation of powers – including judicial independence – enlivens his body of work.”
Sen Ted Cruz (R-Texas) also stressed Gorsuch’s embrace of judicial restraint.
“Like the renowned justice he is set to replace, Judge Gorsuch is brilliant and immensely talented,” Cruz said. “His record demonstrates a faithful commitment to the Constitution and the rule of law. He has refused to legislate his own policy preferences from the bench, while recognizing the pivotal role the judiciary plays in defending the fundamental liberties recognized in the Bill of Rights.”
Sen. Lindsey Graham (R-S.C.), a regular Trump critic, nonetheless said “no one could have chosen better than Neil Gorsuch to represent conservatism on the Supreme Court.”
In his opening statement – questioning will proceed on Tuesday – Gorsuch attempted to position himself above politics.
“Sitting here, I am acutely aware of my own imperfections,” Gorsuch said. “But I pledge to each of you and to the American people that, if confirmed, I will do all my powers permit to be a faithful servant of the Constitution and laws of our great nation.”
Gorsuch, 49, sought to assure detractors that he hails from the judicial mainstream, noting that 97 percent of the 2,700 cases he’s been involved in at the 10th Circuit Court of Appeals were decided unanimously and that he has been in the majority 99 percent of the time.
Echoing Grassley, he emphasized his commitment to the separation of powers doctrine, asserting that “it is for this body, the people’s representatives, to make new laws, for the executive to ensure those laws are faithfully enforced and for neutral and independent judges to apply the law in the people’s disputes.”
Gorsuch also sought to preempt potential lines of questioning regarding what some critics view as his rulings that support corporate interests.
“I’ve ruled for disabled students, for prisoners, for the accused, for workers alleging civil rights violations and for undocumented immigrants,” he said. “Sometimes, too, I’ve ruled against such persons.”
His decisions, Gorsuch said, have “never reflected a judgment about the people before me, only a judgment about the law and the facts at issue in each particular case.”
“A good judge can promise no more than that,” he said. “And a good judge should guarantee no less.”
Sen. Michael Bennet (D-Colo.), who represents Gorsuch’s home state and presented him to the committee along with Sen. Cory Gardner (R-Colo.), freely complimented the nominee but ultimately acknowledged he doesn’t know how he’ll vote on the nomination.
Bennet did, however, offer Republicans a ray of hope, saying that while it might be tempting for Democrats to turn their back on Gorsuch given the treatment offered to Garland, “two wrongs never make a right.”