Monday / March 25.
HomeFT SelectDemocrats fail to slow Gorsuch Supreme Court progress

Democrats fail to slow Gorsuch Supreme Court progress

Neil Gorsuch was emerging largely unscathed from an all-day marathon of sometimes hostile questioning from senators weighing his nomination for a lifetime Supreme Court post. 

The Denver-based federal appellate judge clashed with Democratic Senator Sheldon Whitehouse of Rhode Island in an exchange over the role of money in American politics. And he came under fire from another Democrat, Senator Al Franken of Minnesota, for what the lawmaker called his “absurd” dissent in a workers’ rights case. 

However, Democrats appeared to have done little to slow Mr Gorsuch’s progress as the second day of his confirmation hearing neared its conclusion. Republican leaders expect to confirm Mr Gorsuch, 49, before the Senate leaves town for its April recess in little more than two weeks. 

“This nominee is very well qualified. He is taking on almost every question,” said Senator Charles Grassley, judiciary committee chairman, who rejected as “ridiculous” a Democratic call to delay the nomination. 

Earlier on Tuesday, Senate minority leader Charles Schumer said on the Senate floor that it was “unseemly” to proceed with the nomination amid an FBI investigation of the Trump campaign’s ties with Russia.

Mr Whitehouse raised the Supreme Court’s 2010 ruling in the Citizens United case, saying it had unleashed a flood of unregulated political contributions that has corrupted the political system, including court nominations. When Mr Whitehouse suggested that an outside group, the Judicial Crisis Network, should disclose the names of those paying for its $10m pro-Gorsuch advertising campaign, the nominee demurred. 

“Senator, with all respect, the ball’s in your court,” he said. “ . . . If you wish to have more disclosure, pass a law.” 

Mr Gorsuch repeatedly returned to that theme, emphasising his role in determining what the law means once lawmakers decide what the law is. When Senator Dick Durbin of Illinois challenged Mr Gorsuch’s ruling in the 2014 Hobby Lobby case, which freed private companies from providing employees with contraceptive services that violate the owners’ religious views, the judge volleyed back. 

“Congress can change the law,” Mr Gorsuch said, later adding: “I’m not here to make policy; I’m here to follow it.” 

“It can’t be the case that the US Constitution is any less protective of the people’s liberties today than it was the day it was ratified

Later, Mr Franken excoriated Mr Gorsuch for his handling of the case of Alphonse Maddin, a truck driver fired for leaving his employer’s trailer after waiting several hours in sub-zero weather for a repair truck. 

Mr Franken said the driver had made the only possible choice, leaving the trailer rather than driving it with unsafe brakes or risking freezing to death while awaiting help, and he assailed Mr Gorsuch’s dissent upholding his firing. “That’s absurd. I had a career in identifying absurdity and I know it when I see it,” said Mr Franken, a former comedian. “It made me question your judgment.” 

The nominee — the first of Donald Trump’s young presidency — also parried Democratic attacks on his views on maternity leave and statements attributed to his dissertation adviser at Oxford university, who has complained about the changing racial composition of the UK population.

Earlier, Democrats pressed Mr Gorsuch on his willingness to stand up for “the little guy” and against the president who selected him for the nation’s highest court.

Senator Dianne Feinstein, the judiciary committee’s senior Democrat, quizzed him on gun control, abortion, and his defence of Bush administration torture policies as a government lawyer. 

But Mr Gorsuch refused to signal how he would rule on any of the issues he might face if confirmed to fill the high court vacancy left by the death last year of Justice Antonin Scalia. 

“I would be tipping my hand and suggesting to litigants that I’d already made up my mind about their cases,” he said. “That’s the beginning of the end of the independent judiciary if judges have to make, effectively, campaign promises” to win Supreme Court posts. 

Democrats, who have been struggling to develop successful lines of attack against the well-regarded appellate judge, also challenged Mr Gorsuch on his willingness to break with Mr Trump. During the campaign, Mr Trump vowed to appoint justices who would overturn the 1973 Roe v Wade abortion rights decision. 

The president had asked for no commitment to overturn the ruling and if he had, Mr Gorsuch said: “I would have walked out the door.” 

Mr Gorsuch also said that he found the president’s verbal attacks on federal judges reviewing his controversial travel ban “disheartening” and “demoralising”.

The nominee derided as “silly” speculation that he would approve Mr Trump’s immigration order if he ascended to the court, thus restoring its 5-4 conservative majority. 

Several Democrats on the committee attacked Mr Gorsuch as a habitual supporter of corporate power at the expense of workers and consumers. But he cited rulings in favour of undocumented migrants, citizens harmed by industrial pollutants and pregnant employees who had suffered discrimination. 

“I will apply the law — faithfully, fearlessly and without regard to persons,” Mr Gorsuch said, tapping the table for emphasis. “Anyone, any law, is going to get a fair and square deal with me.” 

Lingering Democratic anger over Republican refusal to vote last year on President Barack Obama’s nomination of Judge Merrick Garland for the vacant Supreme Court seat also flared. “It was shameful,” said Senator Patrick Leahy. “It has severely damaged the reputation of this committee.” 

Despite the evident partisan divide, Mr Gorsuch was relaxed during his testimony, cracking small jokes and smiling often. He earned appreciative chuckles from lawmakers with an anecdote about his first trial win as a lawyer, when he said that a juror congratulated him as “a young Perry Mason”, a reference to the popular 1950s American television show. 

Mr Gorsuch also defended his adherence to “originalist” legal thinking, which calls for judges to interpret the US Constitution in light of its meaning when it took effect in 1789. He cited the Supreme Court’s 2012 ruling that attaching a GPS tracking device to a suspect’s vehicle constitutes a search under the 4th amendment. 

“The technology changes but the principles don’t,” he said. “It can’t be the case that the US Constitution is any less protective of the people’s liberties today than it was the day it was ratified.”

Follow David J Lynch on twitter: @davidjlynch

Via FT