WASHINGTON – Judge Neil Gorsuch told U.S. Senators during his Supreme Court confirmation hearing Monday that the judiciary must maintain its independence from political pressures.
“Under our Constitution, 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 told the Senate Judiciary Committee.
“These days we sometimes hear judges cynically described as politicians in robes, seeking to enforce their own politics rather than striving to apply the law impartially. If I thought that were true I’d hang up the robe. But I just don’t think that’s what a life in the law is about,” Gorsuch said.
Bitter partisanship marked the first of four days of confirmation hearings for President Donald Trump’s nominee to replace the late conservative Justice Antonin Scalia, who died 13 months ago.
Senate Democrats repeatedly attacked Republicans for refusing to consider President Barack Obama’s nominee to replace Scalia, Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit.
Gorsuch, seen by conservatives as a jurist very much in the mold of Scalia, would tilt the court’s ideological balance to 5-4 in some cases. But Gorsuch, 49, clerked for Justice Anthony Kennedy, who has sided with liberals in gay rights, abortion rights and race cases.
Some Democrats stressed the importance of judicial independence during the presidency of Trump, who has tested executive power, attacked federal judges and faced numerous legal challenges to his travel ban.
“The president has gravely undermined [judicial independence], and that is why I believe you have a special responsibility here this week, which is to advocate and defend the independence of our judiciary against those kinds of attacks,” said Sen. Richard Blumenthal, D-Conn.
As the Judiciary Committee opened the hearings, several Democrats questioned Gorsuch’s commitment to abortion rights, workers’ rights, environmental protection and gun control, and asserted he had favored corporations.
“For those of us on this side, our job is not to theoretically evaluate this or that legal doctrine or to review Judge Gorsuch’s record in a vacuum,” said California Sen. Dianne Feinstein, the committee’s top Democrat. “Our job is to determine whether Judge Gorsuch is a reasonable mainstream conservative or is he not.”
Despite the absence of Gorsuch’s rulings on abortion, Feinstein said, his writings “raise questions” about whether he would uphold Roe v. Wade, the landmark 1973 decision affirming a woman’s constitutional right to abortion.
Feinstein also raised concerns about Gorsuch’s constitutional “originalism,” saying it “ignores the intent of the framers.”
“I firmly believe the Constitution is a living document that evolves as our country evolves,” she said. When the Constitution was drafted, Feinstein noted, slavery was still an institution.
But Judiciary Chairman Chuck Grassley, the Iowa Republican, praised Gorsuch’s “exceptional record” as a federal judge on the 10th U.S. Circuit Court of Appeals in Denver.
“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,” Grassley said.
The conservative senator said Gorsuch “understands that any judge worth his salt will ‘regularly issue judgments with which they disagree as a matter of policy — all because they think that’s what the law fairly demands.’ ”
The committee will vote in early April on whether to recommend that Gorsuch be confirmed by the full Senate, Grassley said. Senate Majority Leader Mitch McConnell of Kentucky said he is hopeful confirmation could come before Congress’ mid-April recess.
Sen. Orrin Hatch (R-Utah) slammed Democrats for calling on Gorsuch to say how he would vote on Supreme Court cases, as if “judicial independence requires he be beholden to [Democrats] and their political agenda” on issues such as abortion.
Other GOP senators accused Democrats of seeking to judge Gorsuch based on Trump’s view rather than on the judge’s qualifications, legal writings and decisions.
“The nominee before us today is not President Trump,” Sen. Thom Tillis (R-N.C.), said, adding that neither is Obama’s Supreme Court nominee, or McConnell.
Democrats did nothing to mask their fury over Republicans’ blocking Garland’s nomination after the death of Scalia 13 months ago.
“The Judiciary Committee once stood against a court-packing scheme that would have eroded judicial independence [during Franklin D. Roosevelt’s presidency],”said Sen. Patrick Leahy, D-Vt.
“That was a proud moment. Now, Republicans on this committee are guilty of their own ‘court unpacking scheme.’ The blockade of Chief Judge Merrick Garland was never grounded in principle or precedent.”
Democrats pointed to Gorsuch rulings they called disturbing.
In the Hobby Lobby case, Gorsuch voted in favor of the chain in its objections to Obama regulations requiring employers to provide free contraception coverage.
Gorsuch also wrote the sole dissent in favor of a company that fired a truck driver for abandoning his cargo in subzero temperatures because his life was at risk.
And the judge denied a professor’s discrimination claim after she lost her job because she took off to recover from cancer.
Republicans, who hold a 52-48 majority in the Senate, would need at least eight Democrats or Independents to vote with the GOP — unless the McConnell invokes the “nuclear option,” requiring only a simple majority.