The first of four scheduled days of hearings for Supreme Court nominee Judge Neil Gorsuch began Monday with a heavy dose of politics injected by the Democrats, but it featured a promise from the nominee to replace Justice Antonin Scalia to consider the “law and the facts at issue in each particular case.”
Reminiscing about driving his daughter’s debate team “eight hours through a Wyoming snowstorm,” Gorsuch, now on the 10th U.S. Circuit Court of Appeals in Denver, told the Senate Judiciary Committee that family, friends and colleagues are important.
He also mentioned his faith, recalling a grandfather who, as a physician, would kneel by patients’ bedsides to pray with them.
President Trump nominated Gorsuch to fill Scalia’s seat, which has been vacant since the Senate exercised its constitutional authority and declined to take up Barack Obama’s nominee, Merrick Garland.
The GOP holds a 52-48 majority in the U.S. Senate, which must approve the appointment. By tradition, such nominations must obtain a 60-vote threshold, although the Democrats during Obama’s tenure employed the so-called “nuclear option,” changing the rules so lower-court judges could be approved by a simple majority.
That option also is open to the Republicans for the Gorsuch nomination.
Gorsuch told the committee that people of all persuasions, “liberals and conservatives and independents from every kind of background and belief,” had already declared their support.
He described looking up to the late Justice Byron White and to Justice Anthony Kennedy, who showed him “judges can disagree without being disagreeable.”
As a judge, he noted: “Sometimes the answers aren’t the one we personally prefer. Sometimes the answers follow us home at night and keep us up.”
But he said the judiciary is not “about politics, but the law’s demands.”
Democrats apparently disagreed with even that statement, as Sen. Dianne Feinstein, D-Calif., the ranking member of the committee, said she was “deeply disappointed” Garland wasn’t given a hearing.
Feinstein said she is disturbed by Gorsuch being an “originalist” and warned that originalism would allow segregation and unequal rights for women and LGBT people.
The Constitution is “a framework on which to build,” she said.
“I firmly believe the Constitution is a living document that evolves as our country evolves.”
She contends Gorsuch poses a threat to the Roe v. Wade decision and the right to abortion because he believes that the “intentional taking of a human life by private person is always wrong.”
“President Trump repeatedly promised that his judicial nominees would be pro-life, and ‘automatically’ overturn Roe v. Wade,” Feinstein said. “Judge Gorsuch has not had occasion to rule directly on a case involving Roe. However, his writings do raise questions. Specifically he wrote that he believes there are no exceptions to the principle that ‘the intentional taking of a human life by private persons is always wrong.’ This language has been interpreted by both pro-life and pro-choice organizations to mean he would overturn Roe.”
The Roe v. Wade decision, however, was not the unqualified support for abortion that many believe it to have been.
It was the Roe author, Harry Blackmun, who concluded: “(If the) suggestion of personhood [of the preborn] is established, the [abortion rights] case, of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [14th] Amendment.”
Many pro-life activists believe that comment forms the basis for overturning Roe. Several states have considered bills to grant legal “personhood” to the unborn.
Science and the knowledge of life have changed since the opinion was written in 1973, pro-lifers agree.
Gorsuch explained that a judge’s job is decide what the law says, not what he or she would like the law to say.
Sen. Chuck Grassley, R-Iowa, agreed that changes to the law are beyond the limited role of the courts.
“That’s not their job. That power is retained by the people, acting through their elected representatives,” Grassley said.
Gorsuch noted that Justice Clarence Thomas, regarded as an originalist, and Obama appointee Justice Sonia Sotomayor, actually agree 60 percent of the time.
His own record, he said, shows he was in the majority 99 percent of the time in more than 2,700 appeals cases he considered.
The Democrats’ concern is that if Gorsuch is confirmed, it will restore the 5-4 conservative majority in many cases.
Three other justices are over 78 years of age, and it’s possible another vacancy could be created during Trump’s time in the White House.
Democrats also were taking to social media to try to tarnish Gorsuch.
Sen. Ed Markey posted on Twitter:
Now more than ever we need a Supreme Court Justice who is independent and not beholden to ideology. Judge Neil #Gorsuch is not that Justice.
— Ed Markey (@SenMarkey) March 20, 2017
Grassley has said senators’ questions will be allowed beginning Tuesday, with several rounds. A vote could come within the next few weeks.
Some Democratic senators, including those from states Trump won, have said they are undecided. Other Democrats have said they will use every trick in the book to fight Gorsuch.
Gorsuch previously was confirmed in a voice vote by the Senate as a nominee to the 10th Circuit Court of Appeals.
Jay Sekulow of the American Center for Law and Justice said, “Judge Gorsuch is exceedingly qualified to fill the seat of the late Justice Antonin Scalia’s seat on the Supreme Court.
“Judge Gorsuch embraces the Constitution and the rule of law. The obstructionists are vowing to oppose this nominee because of his conservative judicial philosophy. It is time for this confirmation process to move forward and we’re calling on the Senate to confirm Judge Gorsuch without delay.”
Sekulow has argued numerous cases before the high court.
Sen. Ted Cruz, R-Texas, tweeted that judges must interpret, not write, the law:
For conservatives, we know the opposite to be true. Judges are not supposed to make law, they faithfully apply it. https://t.co/Vu0ZnCzp3X
— Senator Ted Cruz (@SenTedCruz) March 20, 2017