Judge Gorsuch Brings Legal Substance to Supreme Court Hearing’s Political Theater

DAY 1 ANALYSIS: The Nominee Argues ‘The Rule of Law in This Nation Truly Is a Wonder’

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WASHINGTON — The Senate confirmation hearing for federal circuit court Judge Neil Gorsuch, 49, President Donald Trump’s choice to succeed the late Justice Antonin Scalia on the U.S. Supreme Court, began Monday with both substance and political theater.

The theater was on full display in the opening statements by the members of the Senate Judiciary Committee, as each staked out their own lines of defense or attack upon the nominee based on their own ideology and the expectations of highly invested constituencies.

The substance was provided by the nominee himself.

The chairman of the committee, Republican Sen. Charles Grassley of Iowa, predicted that Gorsuch would be asked questions that would likely cause him to scratch his head, adding that he would be characterized as an extremist.

 

Merrick Garland and Progressive Priorities

The ranking member for the Democrat minority on the committee, Sen. Diane Feinstein of California, in fact, proved Grassley prescient from her very first sentence. She established two lines of assault from the progressive side: that the seat for which Gorsuch is being proposed was “stolen” from Judge Merrick Garland — President Barack Obama’s pick after Scalia’s death — and that Gorsuch is a judge outside of the judicial “mainstream.”

That Garland was robbed of a seat on the court to which the American left was somehow entitled has become a virtual article of faith since the 2016 election. The New York Times  proclaimed at the end of December, “No matter how it plays out, Americans must remember one thing above all: The person who gets confirmed will sit in a stolen seat. It was stolen from Barack Obama, a twice-elected president who fulfilled his constitutional duty more than nine months ago by nominating Merrick Garland, a highly qualified and widely respected federal appellate judge.”

In his opening statement, Sen. Pat Leahy, D-Vermont, called the failure to advance Garland’s nomination last year “one of the greatest stains in the 200-year history of this committee.” His anger over Garland was repeated by every other Democrat on the committee.

Whether the Senate was required to advance the nomination in an election year is a matter of debate, and Sen. Ted Cruz, R-Texas, reminded the committee that, ultimately, the decision for the nomination was left to the choice of the American people, who weighed it as part of their vote in the presidential election.

Notably, on the very day that he was told he would be the nominee for the Supreme Court, Gorsuch first made a call to Merrick Garland.

Feinstein also wasted little time in suggesting that Gorsuch will favor corporate rights over “the little guy,” be a judicial ally of the National Rifle Association and the gun-rights lobby, and will adhere to what Sen. Al Franken, D-Minnesota, called a “rigid” ideology that is already poisoning the Supreme Court under the tenure of Chief Justice John Roberts.

But at the very top of the list, and clearly of highest priority for the Democrat members on the committee, was abortion, so much so that Feinstein placed into the record by unanimous consent all of the supposed precedents by the high court upholding Roe v. Wade over the last decades.

 

Originalism

The effort to cast Gorsuch as a radical judge outside of the mainstream was made especially by Leahy and Feinstein, who tied the Garland nomination to concerns by progressives over Gorsuch’s judicial philosophy and his supposed adherence to the ideas of originalism that were famously part of Justice Scalia’s vast intellectual and philosophical arsenal.

Scalia, who died in February 2016, once described originalism by saying, “The Constitution that I interpret and apply is not living but dead, or, as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”

This stands against the progressive vision of constitutional law that the founding document for the republic is a “living document” (that was the term used by Feinstein in her opening remarks) that should “evolve” with time.

Many progressive jurists view originalism as both dangerous and anachronistic, and the Democrats effectively asserted that, should Gorsuch be an originalist, he ought to be disqualified as a nominee. 

This is, of course, a philosophical trap, as Scalia and many other judges are less adherents today of originalism as they are dedicated to the judicial philosophy of textualism. Scalia frequently used the phrase “text and tradition” in his opinions on the high court, reflecting a philosophical approach described in a volume of Scalia’s thought, A Matter of Interpretation: Federal Courts and the Law, that holds that judges should be “guided by the text and not by intentions or ideals external to it, and by the original meaning of the text, not by its evolving meaning over time.”

Over the next few days, originalism and textualism will be used by opposition on the committee to depict Gorsuch as a menace to U.S. jurisprudence, while several senators, such as the strict constitutionalists Cruz and Republican Mike Lee of Utah, will defend Gorsuch as a thoughtful and fair legal mind.

As often happens, the hearing will be an opportunity for a vigorous and fruitful discussion on legal philosophies.

In his opening statement, Gorsuch gave a tantalizing glimpse at that possibility, remembering that Scalia taught him, “The judge’s job is to follow the words that are in the law, not replace them with those that aren’t.”

It is likely, of course, that the chance will be squandered in the face of political rancor, ideological battles and a proxy war against the Trump presidency, with Gorsuch caught in the cross fire.  

 

Gorsuch’s Opening Statement

Only at the end of the first day was the nominee finally heard. Gorsuch concluded the first day by presenting himself to the committee and the nation as colorful, accessible, heartwarming and engaging. If his intent was to win the support of the average American, he almost certainly succeeded.

In laying out for the first time publicly some sense of what he might be like as a Supreme Court justice, Gorsuch spoke of the importance of an independent judiciary and his own great role models and mentors. He clerked for Justices Byron White and Anthony Kennedy. He called White “a model for judicial courage,” adding, “He followed the law wherever it took him.” Kennedy showed him that “judges can disagree without being disagreeable.” And Scalia, as noted, always reminded him that “words matter.”

He promised to be a voice for consensus, telling the committee that it is possible to find common ground in a time of division and that, “for all of its imperfections, I believe that the rule of law in this nation truly is a wonder, and it is no wonder that it is the envy of the world.”

 

Filibuster

Lee pointed out that Gorsuch had been approved by a unanimous voice vote in 2006 to the 10th Circuit Court of Appeals. Things are very different politically seven years later, as the nomination has come to the Senate in a politically charged and bitter era.

How bitter was apparent in the statement by committee member Sen. Richard Blumenthal, D-Connecticut, who suggested that an ongoing investigation by the FBI into so-far unsubstantiated claims of collusion between the Trump campaign and Russia have sparked a constitutional crisis that will end up at the Supreme Court. As such, he demanded that Gorsuch renounce the long-standing Ginsburg rule (named after Justice Ruth Bader Ginsburg and first used by then-Judiciary Committee chairman Sen. Joe Biden in 1993) that a nominee cannot comment on possible cases that might come before them.

Every nominee since has been granted the same principle. Until now, apparently.

The Democrat senators face a difficult path ahead if they plan to block a nominee ranked by the American Bar Association as “highly qualified,” its highest ranking. They can filibuster and spark the inevitable adoption of the “nuclear option” by the GOP leadership in control of the Senate (completing the process begun politically under the Democrats and former Senate Majority Leader Sen. Harry Reid, D-Nevada, who broke the filibuster rule and embraced a simple majority vote for most nominees to the lower courts).

Or the Democrats can allow a vote and all oppose the nominee, less as a rejection of Trump’s choice but Trump himself. Either way, Gorsuch will almost certainly be on the high court in the near future, barring a major surprise.

The process this week will reveal a great deal about the qualities and thought of Judge Neil Gorsuch as well as the current state of America’s political environment. The first will be a potentially fascinating journey into the mind of one of America’s eminent jurists.

The second will be what Ted Cruz in his opening statement aptly called a “spectacle.”

Matthew Bunson, a senior editor with the Register,

is covering the Gorsuch hearings in Washington.

He filed this report from the Senate Judiciary Committee room.