Supreme Court Nominations

Live blog of confirmation hearings, Day 1: Gorsuch says judges aren't politicians in robes

  • Print.

Gorsuch PBS

Judge Neil Gorsuch. Screenshot from

U.S. Supreme Court nominee Neil Gorsuch told the Senate Judiciary Committee on Monday that judges are not politicians in robes, and his record on the Denver-based 10th U.S. Circuit Court of Appeals supplies proof.

Gorsuch said he has participated in more than 2,700 appeals, and he has worked with judges appointed by a variety of presidents. Ninety-seven percent of those cases were decided unanimously, and he was in the majority 99 percent of the time.

“That’s my record, and that’s how we do things in the West,” Gorsuch said.

Putting on the judicial robe reminds judges that they occupy an important position in a democracy, Gorsuch said. The idea is for neutral and independent judges to apply the laws. “Ours is a judiciary of honest, black polyester,” he said.

Gorsuch’s statement to the committee capped the first day of hearings in which members of the Judiciary Committee talked about the role of judges, their impact on the “little guy” and the need for judicial independence.

Republicans said Gorsuch had simply applied the law to the facts, without regard to his personal views, while Democrats claimed Gorsuch had interpreted the law to favor corporations over workers.

President Donald Trump was also an invisible presence. Republicans said it wasn’t Gorsuch’s role to answer for the president who nominated him, while Democrats said Trump’s actions point to the need for a justice who can stand up to the executive branch.

Sen. Richard Blumenthal, D-Conn., referred to a “looming constitutional crisis” that could be precipitated by the FBI investigation of potential ties between affiliates of the Trump campaign and the Russian government. FBI Director James Comey had revealed the investigation Monday.

The probe could end up in the U.S. Supreme Court if the government were to seek to enforce a subpoena against the president, Blumenthal said. Blumenthal said he wants to make sure that the judiciary will protect the nation “from overreaching and tyranny, and the constitutional crisis that is now a real danger before us.”

Blumenthal also pointed to President Trump’s “demeaning and disparaging comments about the judiciary,” and said during the confirmation hearings that Gorsuch has a special responsibility to defend the judiciary from those kinds of attacks.

Another unseen presence during the hearing’s first day was Judge Merrick Garland, who did not receive a confirmation hearing after President Barack Obama nominated him to the U.S. Supreme Court. Former acting Solicitor General Neal Katyal opened his introduction of Gorsuch with a reference to Garland, whom he called possibly the most qualified person ever nominated to the Supreme Court.

If Garland had been approved, and another opening occurred on the Supreme Court, it is clear that Gorsuch would be sailing through on a unanimous or near unanimous vote, Katyal said.

There is a reason why Gorsuch has the support of Supreme Court litigators and a well-qualified rating from ABA’s Standing Committee on the Federal Judiciary, Katyal said. Gorsuch is “a fair and decent man” with a “first-rate intellect,” Katyal said.

He also has “humability”—humility and ability, Katyal said.

3:17 p.m. ET. The Judiciary Committee adjourns and will resume hearings Tuesday at 9:30 a.m. ET.

3:14 p.m. ET: Judging is sometimes a lonely, hard job, Gorsuch said in his statement to the Senate Judiciary Committee. But Gorsuch said he has seen how judges work with collegiality, independence and integrity. It is their work that makes the Constitution real, he said.

Some judges are cynically described as politicians in robes, Gorsuch noted. “If I thought that were true, I’d hang up the robe,” Gorsuch said. Over the years he has seen judges and juries working hard, and he has seen his judicial colleagues spending long days worrying about cases.

“Sometimes the answers follow us home at night and keep us up,” Gorsuch said. But the answers are the ones the judges believe are required by the law, Gorsuch said.

Gorsuch said he has participated in more than 2,700 appeals, and he has worked with judges appointed by a variety of presidents. Ninety-seven percent of those cases were decided unanimously, and he was in the majority 99 percent of the time.

“That’s my record, and that’s how we do things in the West,” Gorsuch said.

Putting on the judicial robe reminds judges that they occupy an important position in a democracy. The idea is for neutral and independent judges to apply the laws, Gorsuch said. “Ours is a judiciary of honest, black polyester,” he said.

If judges acted as legislators, those who came to the courts would live in fear, never sure how the law would apply to them, Gorsuch said.

Gorsuch said he has tried to treat all who came before him with respect. He has ruled for disabled students, prisoners, the accused, workers alleging civil rights violations, and undocumented immigrants, he said. He has also sometimes ruled against such people, he said.

As he began his statement, Gorsuch pledged to do all within his powers to be a faithful servant of the Constitution and laws. He said he couldn’t do this without the support of his wife, and he gave her a hug.

He and his wife started off in a tiny apartment, drawing the concern of his wife’s mother, Gorsuch said. Gorsuch recalled family time with his daughters, and the influence of his parents and grandparents. A grandfather practiced law during the Great Depression, and taught him that the law was intended to help people with their problems, Gorsuch said.

2:58 p.m. ET. Gorsuch is sworn in and begins his statement.

2:57 p.m ET. In his introduction, former acting Solicitor General Neal Katyal said he is outraged that Merrick Garland is not on the court today. Garland could be the most qualified nominee ever to be nominated to the court, Katyal said.

If Garland had been approved, and another opening occurred on the court, it is clear that Gorsuch would be sailing through on a near-unanimous vote, Katyal said. There is a reason that Katyal has the support of Supreme Court litigators and a well-qualified rating from ABA’s Standing Committee on the Federal Judiciary, Katyal said.

Katyal said Gorsuch is “a fair and decent man” with a “first-rate intellect.” He also has “humability”—humility and ability, Katyal said.

President Trump has displayed open contempt for the courts, and judges he criticized have had to be placed under increased protection. Gorsuch has displayed a commitment to judicial independence and the rule of law, and is willing to rule against the government when it oversteps its powers, Katyal said.

2:45 p.m. ET. Sen. Michael Bennet, D-Colo., said Gorsuch exemplifies some of the finest qualities of Colorado. If Gorsuch is confirmed, he will be the first justice from the West outside of California since Justice Sandra Day O’Connor.

Bennet said he believes the Senate has an obligation to consider Gorsuch, just as it had an obligation to consider Merrick Garland. Bennet disapproved of the failure to consider Garland, but “two wrongs do not make a right,” he said.

Bennet said Trump’s “reckless attacks on the judiciary” hang over the confirmation hearing. Disagreeing with a court’s decision is acceptable, but disparaging a judge is wrong, Bennet said. Bennet said he has no doubt that, unlike the president, Gorsuch has respect for the judiciary.

2:44 p.m. ET. Sen. Cory Gardner, R-Colo., was the first of three people to introduce Gorsuch.

Gardner said Gorsuch is a fourth-generation Coloradan who is a skier and fly fisherman. He will be the only Coloradan to serve on the Supreme Court who did not break the NFL rushing record, Gardner said. The reference is to former Justice Byron White.

Gorsuch “is a mainstream jurist who follows the law as written” and doesn’t try to supplant it with his own policy preferences, Gardner said. Independence, fairness and impartiality are the hallmarks of his career, according to Gardner.

Gorsuch was a consensus pick among Democrats and Republicans in Colorado, Gardner said.

2:35 p.m. ET. Sen. John Kennedy, R-La., said the hearing needs to go beyond politics and the person who lives in the White House. The Senate’s role is advice and consent, he said, and the confirmation hearings should focus on legal philosophy, qualifications and experience.

Kennedy said he has read about 20 of Gorsuch’s opinions, and Gorsuch writes “really, really well.” The opinions are engaging, whether you agree with them or not, and they show concern for the parties by referring to them by name, Kennedy said.

Kennedy said Gorsuch believes in the separation of powers, which won’t allow any single branch of government to bully the others. “I’m looking for a judge, not an ideologue,” Kennedy said. Kennedy said he is also looking for a person who is intellectually curious and willing to fight for his view of justice.

“I guess what I want is a cross between Socrates and Dirty Harry. And I believe you just might be that person,” Kennedy said.

2:26 p.m. ET. Sen. Mazie Hirono, D-Hawaii, said she came to the United States at age 8 with her mother, who was fleeing domestic violence. Back then, Hirono said, there were no religious tests for immigration, and there was no need for special skills to come to the United States.

She said she has heard from thousands of people who are worried about the future of the country under the Trump administration. People are looking to the courts to protect their interests and their rights, she said.

In reviewing Gorsuch’s opinions, Hirono said, she has not seen Gorsuch placing a priority on the rights of minorities and others who need the protection of the courts. She said Gorsuch has gone to great lengths to disagree with his 10th Circuit colleagues to explain why a statute requires a ruling for a corporation, rather than an individual.

This demonstrates a commitment to ideology over common sense, she said. She cited a case where Gorsuch focused on the difference between a floor hole and a floor opening.

The Supreme Court will decide whether America is a land of exclusivity for the few, or the land of opportunity for many, Hirono said.

2:17 p.m. ET. U.S. Sen Thom Tillis, R-North Carolina, said Gorsuch is not President Trump, and the confirmation hearing should focus on the nominee rather than the president.

Tillis said he doesn’t like activist judges, whether they are conservative or liberal. Gorsuch believes judges should apply, rather than alter, the law, Tillis said.

2:13 p.m. ET. U.S. Sen. Mike Crapo, R-Idaho, said Gorsuch understands that a judge is a servant of the law, not a maker of the law. In their meeting after the confirmation announcement, Gorsuch told Crapo that his personal views are irrelevant in court cases. That is the way it should be, Crapo said.

“Law that can change in a moment and capriciously is inherently destabilizing,” Crapo said.

2:03 p.m. ET: Sen. Richard Blumenthal, D-Connecticut, said President Trump has made “demeaning and disparaging comments about the judiciary,” which have “shaken the foundations of respect for judicial rulings.”

Blumenthal said Gorsuch has a special responsibility to advocate and defend the judiciary from those kind of attacks during the confirmation hearings.

Blumenthal also referred to a “looming constitutional crisis” after FBI Director James Comey’s report today that he is investigating potential ties between Trump associates and the Russian government. That could result in the Supreme Court being asked to enforce a subpoena against the president, Blumenthal said.

Blumenthal said he wants to make sure that the judiciary will protect the nation “from overreaching and tyranny, and the constitutional crisis that is now a real danger before us.”

1:58 p.m. ET. U.S. Sen. Jeff Flake, R-Ariz., noted that the teleprompter has labeled Gorsuch as “Judge Grouch,” and said that does not appear to be an accurate description.

The name has also been misspelled on Twitter, apparently due to autocorrect, according to this story by PJ Media.

Flake said Gorsuch believes in the rule of law and has a commitment to service. Gorsuch reveres the separation of powers and supports religious liberties and religious tolerance, Flake said.

Flake also noted a lack of geographic diversity on the Supreme Court and said Gorsuch has “a Western perspective.” Gorsuch’s jurisprudence reflects what westerners know about an intrusive federal government, he said.

Flake said that after Gorsuch was nominated, he called Merrick Garland, a reflection of his good temperament.

12;49 p.m. ET. U.S. Sen. Christopher Coons, D-Del., complained that Supreme Court nominee Merrick Garland was shown considerable disrespect because Republicans did not hold a hearing.

It may seem that the Supreme Court is engaged in abstract, intellectual exercises, Coons said, but the decisions have protected the right of gays to marry, the right of women to get reproductive health care, and the ability of Americans to receive insurance under the Affordable Care Act.

Coons said he is looking to Gorsuch to demonstrate his ability to separate politics from constitutional interpretation. Coons said he appreciates that Gorusch is an engaging and careful writer, but he has seen a pattern of Gorsuch going beyond the issues before the court to explore broader issues.

Coons, who has a divinity as well as a law degree, said religious liberty should not be invoked to deny rights under federal law. He also mentioned Trump’s campaign promise of a “Muslim ban” and said religious rights should be preserved for all.

12:38 p.m. ET. After a five-minute break, Grassley orders everyone to take their seats for the hearing to reconvene. But Gorsuch is not there. As soon as he arrives, the hearing starts.

1:29 p.m. ET: U.S. Sen. Ben Sasse, R-Neb., emphasized the job of judges to dispassionately apply the facts and the law in a particular case. He saw the judicial robe as emblematic of the cloaking of judges’ personal preferences and political views.

As all of us learned in Schoolhouse Rock, Sasse said, the judiciary is a co-equal branch of government and the role of a Supreme Court justice is sometimes to uphold the Constitution and thwart the majority.

1:10 p.m. ET. U.S. Sen. Al Franken, D-Minn., criticized Republicans for blocking confirmation hearings on Supreme Court nominee Merrick Garland.

He noted that Donald Trump had pledged during the campaign to appoint a judge in the mold of Justice Antonin Scalia. Franken said he wanted to find out how Gorsuch was similar to and different from Scalia, and said one possible difference was in the area of Chevron deference, in which judges defer to federal agency views.

Scalia had supported Chevron deference, while Gorsuch has questioned it, Franken said.

Chevron deference is the what stands between federal agencies and the so-called deconstruction of the administrative state endorsed by presidential adviser Stephen Bannon, Franken said.

1:08 p.m. ET. U.S. Sen. Ted Cruz, R-Texas, said judges have a more modest role than the left embraces. Judges are supposed to interpret, rather than make, law, Cruz said. If Republicans had allowed Obama to fill the seat of the late Justice Antonin Scalia, there would have been a “profound and troubling shift” on the court, he said.

During the campaign, Donald Trump had promised to appoint judges in the mold of Justice Antonin Scalia and issued a list of 21 people from whom he would pick. That gave Americans a clear view of Trump’s choices, and the American vote embraced Trump’s list, Cruz said.

Gorsuch has “a super legitimacy,” Cruz said, “because of this unique and transparent process, unprecedented in the nation’s history.”

There wasn’t even a “whisper of disapproval” when Gorsuch was approved to be a judge on the Denver-based 10 U.S. Circuit Court of Appeals, Cruz said. Now Democrats are trying to “slander judge Gorsuch” as being “against the little guy,” and that is “absurd,” Cruz said.

Democrats attacked nuns—essentially the little guy—who objected to providing contraceptives under the Affordable Care Act, he said.

Cruz also asserted that Gorsuch should not be asked during the hearings to defend the president who appointed him. Such queries would be “inappropriate political questions that have nothing to do with the record of the nominee before this committee,” Cruz said.

12:58 p.m. ET. U.S. Sen. Amy Klobuchar, D-Minn, noted instances of discrimination and asserted that “the pillars of our democracy and Constitution are at risk.”

Senators want to know what Gorsuch will do on the court, she said. She noted a speech in which Gorsuch said legislators look to their own moral convictions in shaping laws, while judges should strive to apply the law as it is, looking to text, structure and history.

“I want to understand better those views of the Constitution and how they square with modern life,” she said.

12:47 p.m. ET. U.S. Sen. Lindsey Graham, R-S.C., said Gorsuch is the best choice available to a Republican president in terms of someone who is going to keep the conservative philosophy alive and well.

Graham said Gorsuch is highly qualified, and that is what senators should be evaluating. Gorsuch had issued 2,700 decisions and he has been overruled just once, Graham said.

Graham also defended the decision not to hold hearings on President Obama’s Supreme Court nominee, Merrick Garland. He said Democrats would have also refused to act, had the tables been turned.

Graham said he had voted to confirm the Supreme Court nominations of Samuel A. Alito Jr., John G. Roberts Jr., Sonia Sotomayor and Elena Kagan because he thought all were qualified. Confirmation hearings, as they are held today, are “going to destroy the judiciary over time” if the Judiciary Committee does not return to prior days when senators judged qualifications, he said.

12:37 p.m. ET. U.S. Sen. Sheldon Whitehouse, D-R.I., noted 5-4 rulings that interpreted election law and that, he said, helped Republicans win elections. Republican appointees were in the majority, he said. Similarly, Republicans were in the majority in several decisions on behalf of corporations.

The Republican political industrial complex uses amicus briefs to tell Republican appointees on the court what it wants, Whitehouse said. “It’s kind of a machine,” he asserted. Special interests fund front groups that appear as amici, the court rules based on those arguments, and the special interests get more money to fund the front groups, he said.

Studies show the court is the most corporate-friendly court in modern history, Whitehouse said.

“Now, where do you fit in?” Whitehouse asked. By one count, Whitehouse said, Gorsuch had ruled for corporations in 21 out of 23 decisions. “Will you saddle up” with other Republican appointees to support special interests and corporations Whitehouse asked.

12:26 p.m. ET. U.S. Sen. Mike Lee, R-Utah, who was on President Trump’s list of potential Supreme Court nominees, said Gorsuch’s “only agenda is getting the law right.”

Some senators will likely claim Gorsuch is outside the mainstream because he is an originalist, Lee said. But even liberal Justice Elena Kagan, during her confirmation hearings, said judges try to interpret the framers and in that way, all are originalists, Lee said.

Some may complain that Gorsuch is refusing to state how he decides future cases. In his view, Lee said, that is a reason to vote for, not against, confirmation. Nor should Gorsuch’s judicial record be interpreted based on who won and who lost, Lee said.

12:17 p.m. ET. U.S. Sen. Dick Durbin, R-Ill., noted that some Republicans are saying politics should not play a part in the confirmation process. But Gorsuch’s nomination is part of a Republican strategy to capture the judicial branch of government, Durbin said.

Durbin said nominees typically try to “dodge” senators’ questions, but it’s nonetheless their job to seek the truth.

Durbin said the Roberts court has expanded its rulings on behalf of corporate America. The court has held that corporations have the same rights as people to spend money on elections and to assert religious objections to withhold contraceptive insurance coverage, he said.

Durbin then cited Gorsuch’s opinions against workers and in favor of corporations.

Durbin also questioned Gorsuch’s involvement, while in the Justice Department, in a presidential signing statement asserting a right to ignore a law restricting the use of torture.

12:06 p.m. ET. U.S. Sen. John Cornyn, R-Texas, said Gorsuch’s jurisprudence “reflects brilliance and humility.” Some senators might ask Gorsuch during the hearings how he will vote in specific cases, but confirmation hearings should not degenerate into such a question-and-answer session, Cornyn said.

Cornyn noted that judges who follow the law and the facts may rule for or against the government, and for or against a corporation. That’s how the law works, and it protects the little guy better than a system rigged to favor one side, he said.

11:58 a.m. ET. U.S. Sen. Patrick Leahy, D-Vt., noted that Republicans had blocked confirmation hearings for President Obama’s Supreme Court nominee, Merrick Garland.

Gorsuch has spent more than a decade on the federal bench and has the type of qualifications that are beneficial for a Supreme Court nominee, Leahy said. Garland had similar qualifications, Leahy said.

Leahy noted that the present and past nominee differ on judicial philosophy, however. Gorsuch is an originalist, and Leahy said he is worried that originalism is an agenda rather than a philosophy.

Leahy said he has yet to decide how he will vote on the nomination. He says Gorsuch, if confirmed, should be a justice for all of America rather than a justice for the special interests of a few.

11:47 a.m. ET. In his statement to the committee, Sen. Orrin Hatch, R-Utah, criticized opponents of Gorsuch who “seem to think the confirmation requires a political agenda and a calculator.”

The opponents tally the winners and losers in past cases decided by Gorsuch and do the math. If they don’t like the results, they oppose confirmation, he said.

Hatch advised Gorsuch to resist efforts to compromise his impartiality by pledging to adhere to litmus tests to decide future cases.

11:40 a.m. ET. In her opening statement, U.S. Sen. Dianne Feinstein, D-Calif., said the hearings were being held because the U.S. Supreme Court has the final word on hundreds of issues that impact our daily lives.

Those issues, Feinstein said, include a woman’s right to control her own body, health care, the influence of money in elections, voting rights, the environment, gun rights and worker protections.

Feinstein referenced the so-called frozen trucker case, in which Gorsuch wrote a dissent finding that federal law did not protect a trucker who abandoned his disabled trailer to find help during cold weather. She also spoke about a Gorsuch opinion questioning Chevron deference, a doctrine that holds that federal courts should defer to federal agency views when Congress passes ambiguous laws.

Among the consequential issues, she said, is Roe v. Wade establishing the legal right to abortion. “The debate over Roe v. Wade and the right to privacy, ladies and gentlemen, is not theoretical,” Feinstein said. Gorsuch has not ruled on a case involving Roe, but Gorsuch’s writings on the taking of a human life have been interpreted to mean he would vote to overturn Roe, Feinstein said.

Feinstein also criticized Gorsuch’s view that judges should look to the original public meaning of the Constitution when they decide meaning. “In essence, it means that judges and courts should evaluate our rights and privileges as they were understood in 1789,” she said. This “limits the genius of what our Constitution upholds,” Feinstein said.

11:24 a.m. ET. Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, said the Senate Judiciary Committee will vote on Gorsuch’s nomination Monday, April 3.

In his opening statement, Grassley quoted the late Justice Antonin Scalia on the importance of separation of powers, which gives power to the Bill of Rights. “The most important feature of our Constitution is the design of the document itself,” he says. This structure “protects against the mischief that results against the concentration of political power,” he said.

Judges play a “crucial but limited role” in resolving cases, Grassley said. Judges are not free to rewrite statutes, to reorder regulations or to rewrite the Constitution, he stated.

Gorsuch’s body of professional work displays an unfailing commitment to the principles of separation of powers and judicial independence, Grassley said.

A ruling doesn’t mean you are for the winner or for the loser, or that it means you are for the big guy or the little guy, Grassley said.

Gorsuch appeared to close his eyes briefly when Grassley discussed a Supreme Court decision against the Obama administration and occasionally took notes. He nodded when Grassley spoke about some of his prior writings.

10:59 a.m. ET.. Gorsuch will be introduced by three witnesses. Two are Colorado’s U.S. senators: Michael Bennet, a Democrat, and Cory Gardner, a Republican. The third is former acting U.S. Solicitor General Neal Katyal.

Gorsuch laughs as photographers crowd in to snap his photo.

Gorsuch confirmation hearings: Can he overcome Democratic resentment? Confirmation hearings for U.S. Supreme Court nominee Neil Gorsuch begin today at 11 a.m. ET. Gorsuch will seek to overcome Democratic resentment over the failed nomination of President Barack Obama’s nominee.

The hearings, which will be broadcast live at this PBS website, are expected to last four days.

Gorsuch, a judge on the Denver-based 10th U.S. Circuit Court of Appeals, was nominated to fill replace Justice Antonin Scalia, who died in February 2016. President Barack Obama’s nominee, Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, never received a confirmation hearing.

Gorsuch has received a well-qualified rating from the ABA’s Standing Committee on the Federal Judiciary. He is known for strong academic credentials, clear writing and an originalist philosophy that puts him in the mold of Scalia. In announcing the nomination, President Donald Trump cited bipartisan support for Gorsuch when he was nominated to the 10th Circuit.

Some Democrats have indicated they may oppose Gorsuch. In a press conference last week, Senate Minority Leader Chuck Schumer, D-N.Y., said he has “a strong presumption against” confirmation, report Bloomberg Politics and Reuters. “Judge Gorsuch may act like a neutral, calm judge, but his record and his career clearly show he harbors a right-wing, pro-corporate, special-interest legal agenda,” Schumer said.

Another issue in the hearings may be Gorsuch’s opposition to the doctrine of Chevron deference, which holds that federal courts should defer to federal agency views when Congress passes ambiguous laws. His views on the issue differ from that of Scalia, who had argued that judges are less capable than regulators in interpreting laws.

Sen. Sheldon Whitehouse, D-R.I., said last week that Democratic resentment over Garland’s failed nomination may also be a factor. Gorsuch “does not come into this with the benefit of the doubt in his favor,” Whitehouse said. Democrats must see that he is “a true judicial conservative and not a political conservative.”

Give us feedback, share a story tip or update, or report an error.