Corey Uhden, Politics Contributor
For Supreme Court Justice confirmation hearings, day one goes to the politicians - Neil Gorsuch spoke only at the end of a long day of grandstanding from politicians on both sides of the dais.
The fireworks began on day two.
Senate Judiciary chairman Charles Grassley started the day with a type of rapid-fire prosecution in an attempt to head off questions from the Democrats on the panel. As Grassley noted, he didn’t expect the nominee to comment on pending cases or signal how he might rule on controversial matters. Gorsuch, poised and professional, lived up to that expectation, but he offered some clear insight into his view of the importance of an independent judiciary and the rule of law. He answered “no man is above the law” when asked by Senator Patrick Leahy about the president’s executive power and declared he would have “no difficulty” ruling against President Trump.
Despite Grassley’s best efforts, the Democrats were intent on pinning down the nominee on multiple issues. Echoing a talking point she had introduced a day earlier, Senator Dianne Feinstein, read into the record 40 abortion-related cases and then labeled Roe v. Wade (1973) a “super precedent.” Gorsuch might have used the occasion to explain to the committee’s ranking member that there is no such thing, but instead confirmed the proper legal context that Roe, Casey v. Planned Parenthood (1992), and Whole Women’s Health v. Hellerstedt (2016) are established precedent and he would not offer any indication on how he might consider future cases on the issue of abortion. That has some conservatives, including our own Nick Yanakas, sounding the alarm. The truth is that no one knows how Neil Gorsuch might rule on the issue of abortion rights, or other issues such as same-sex marriage. What we do know is that Gorsuch believes judges should “strive (if humanly and so imperfectly) to apply the law as it is...not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” And when asked by Senator Lindsey Graham if President Trump had asked that Gorsuch commit to overturning Roe, Gorsuch forcefully responded, “I would have walked out the door.”
Later, the ranking member returned to the Democrats’ favorite hobbyhorse and suggested Gorsuch was a tool of the rich and the powerful, that he had no sympathy for “the little guy.” Gorsuch embarassed her with a polite rebuke that he has, in fact, ruled in favor of individuals against corporations, government agencies, and other powerful entities. In fact, further pressed by Senator Dick Durbin on how he views the role of a judge in considering the cases of discrimination against marginalized people, Gorsuch offered what could only be described as a patriotic, principled, conservative treatise on how central it is to the character of America that the law be applied impartially, equally, to all individuals all of the time, that it is the birthright of every person to be seen equally, treated equally, and guaranteed equal justice under the law, “a radical promise,” he called it. Gorsuch, for instance, explained that voicing any of his personal views might send a “misleading signal” to the people in the cases before him.
Overall, Gorscuch’s confirmation hearings were nothing new. Members of presiding president’s party brought questions from a sincere examination of Judge Gorsuch’s judicial philosophy and members of the opposition attempted to corner him on his past statements and judgements. Asked about a controversial remark about maternity leave and discrimination in the workplace, Gorsuch sincerely explained how he used the issue to help law students understand the legal profession they were about to enter. Time and again, Gorsuch framed his answers about legal ethics by focusing on his role as an independent member of the judiciary, his responsibility to his students, and the difficulty of addressing access to legal assistance.
It’s been said that Judge Neil Gorsuch is a judge’s judge, a true believer in the central tenets of equal justice, fair access, and “agnostic” arbitration. If the Democrats thought they could prove otherwise, they failed. He politely, earnestly responded to every inquiry to the best of his abilities by pointing to matters of precedent, the facts of each case, and the importance of having an “open mind.” Still, Gorsuch confirmed that while he reserves the right to change his mind, “the Constitution doesn’t change,” and the important job of a Justice is to apply its principles, its “fixed meaning,” to the pertinent questions in the modern age. For that reason, he would be a most worthy addition to the United States Supreme Court.
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