The Washington PostDemocracy Dies in Darkness

4 takeaways from Neil Gorsuch’s highly politicized confirmation hearing

Judge Neil Gorsuch appeared before the Senate Judiciary Committee on March 21, for the first day of questioning in his Supreme Court confirmation hearing. (Video: Jenny Starrs/Photo: Ricky Carioti/The Washington Post)

In theory, senators on the judiciary committee are supposed to leave their politics at the door as they decide whether a president's pick for the Supreme Court is fit for the job.

But day two of Judge Neil Gorsuch's multiday hearing was infused with politics. Democrats said they feel like his nomination comes at time when the independence between the executive and judicial branches may be threatened. Plus, they're raging mad that President Barack Obama's nominee to fill the seat of former justice Antonin Scalia never got a hearing.

Republicans are pleased at the notion of replacing Scalia's conservative mantle with the prospect of another reliable conservative vote.

In the end, Republicans have the ability to confirm Gorsuch even if they have to blow up the rest of the filibuster for nominees to do so. But if Tuesday's hearing was any indication, Democrats are going to make the process as politically painful as possible. Here are four emerging takeaways from the hearing:

1. Republicans want to prove Gorsuch is not beholden to President Trump

Judge Neil Gorsuch extolled on the importance of the separation of powers throughout government during questioning at his confirmation hearing. (Video: The Washington Post)

Rarely has there been such a demand that a Supreme Court nominee declare his independence from the president who picked him, says The Washington Post's Supreme Court reporter Robert Barnes.

That's partly because on Monday, FBI Director James B. Comey confirmed Trump's associates are under investigation for any potential illegal ties to Russia during the election, as Russia was meddling in the U.S. election.

And Trump's repeated criticism of judges who rule in a way he doesn't like hasn't made life easy for Senate Republicans trying to emphasize Gorsuch's independence.

(Gorsuch, you'll recall, said last month behind closed doors that Trump's attack on a judge who froze his travel ban was “demoralizing.")

Top Senate Republicans on the Judiciary Committee repeatedly gave Gorsuch a chance to distance himself from Trump.

“Would you have any trouble ruling against a president who would appoint you?” Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) directly asked Gorsuch in the first few minutes of the hearing.

“That's a softball,” Gorsuch responded. “I have no difficulty ruling against any party based on what the law and the facts of the particular case requires.”

The next Republican up for questioning, Sen. Orrin G. Hatch (R-Utah), asked Gorsuch to again respond to criticism that he's not independent of Trump.

Gorsuch replied: “A good judge doesn't give a wit about politics or the political implications of his or her decision, besides where the law takes him or her, fearlessly.” He added: “There is no such thing as a Democratic or Republican judge.”

“No man is above the law,” Gorsuch would go on to say several times.

2. Democrats are divided on their method of opposition

Judge Neil Gorsuch discussed the precedent of Roe v. Wade with Sen. Grassley (R-Iowa) and Sen. Feinstein (D-Calif.). (Video: Video: Reuters / Photo: Ricky Carioti/The Washington Post, Photo: Ricky Carioti/Video: Reuters / Photo: Ricky Carioti/The Washington Post)

Democrats say they have lots of reasons to seriously question Gorsuch's nomination. But Tuesday's hearing made clear they don't have one, cohesive narrative.

Among various criticisms Democrats are trying to pin on Gorsuch:

A. As a lawyer, he defended Bush-era terrorism policies: Early on, Sen. Dianne Feinstein (D-Calif.) tried to push him on his work defending the George W. Bush administration in lawsuits over terrorism and interrogation.

Gorsuch assured Feinstein that he did not advocate to allow the president to waterboard despite a law preventing the interrogation tactic.

B. Trump promised to appoint an antiabortion judge: It suggests to Democrats that Gorsuch might overturn one of the most sacrosanct Supreme Court rulings in liberal circles: Roe v. Wade, upholding the legality of abortion.

Gorsuch replied that it wouldn't be fair for future litigants if he shared his opinions on cases past, present or future. All he could say is that precedent matters.

C. Gorsuch may be a far-right conservative with a record of supporting big business:

Judge Gorsuch faced questioning over his support for workers during his confirmation hearing on March 21and cited cases where he ruled for "the little guy." (Video: Video: Reuters / Photo: Ricky Carioti/The Washington Post)

Feinstein pressed Gorsuch on whether he'd uphold workers' rights, citing cases where she felt Gorsuch ruled in favor of large corporations. (The Post's Barnes says the Case of the Frozen Trucker — where Gorsuch was the lone dissenter in a case against a driver who claimed he’d been wrongly fired for seeking heat in subzero temperatures — is one of those.)

Gorsuch answered that he's ruled “plenty” of times on the side of the smaller litigant — in favor of an officer in a pregnancy discrimination dispute and of women harassed by a college football team, for example.

Asking how Gorsuch might vote particularly prickled Senate Republicans. After Feinstein's 30 minutes of drilling Gorsuch, Grassley paused to enter a Wall Street Journal editorial into the record that reads: “Democrats have come up empty trying to find something scandalous that Neil Gorsuch has said, so now they're blaming him for what he won't say.”

3. Merrick Garland, Merrick Garland, Merrick Garland

During the second day of his March 2017 Supreme Court confirmation hearings, then-Judge Neil Gorsuch was asked about Merrick Garland's stalled nomination. (Video: Reuters)

Democrats' underlying frustration comes down to one thing — one person, actually: Their guy is not the one being vetted for the court, even though a vacancy opened up when Democrats controlled the White House.

Senate Republicans held off on considering Obama's pick, Garland, gambling that they'd win the presidency in November and could replace Scalia.

“If Republicans had followed the Constitution,” said Sen. Patrick J. Leahy (D-Vt.), a senior member of the Democratic caucus, “Chief Judge Merrick Garland would be on the Supreme Court.”

“Your nomination is part of a Republican strategy to capture our judicial branch of government,” Sen. Richard J. Durbin (D-Ill.) said in his opening statement Monday.

One Democratic senator (who is not on the Senate committee vetting Gorsuch) went so far as to accuse Republicans of stealing the seat.

The standoff could lead to a historic filibuster of Gorsuch requiring 60 votes to get him confirmed, which in turn would force Republicans into a very difficult choice: Gorsuch, or preserving what's left of the filibuster for nominees. All indications are they'd choose Gorsuch.

4. Gorsuch is not easily flustered

Sen. Leahy (D-Vt.) questioned Judge Neil Gorsuch on religious freedom and the constitutionality of President Trump's travel ban on March 21. (Video: Video: Reuters / Photo: Ricky Carioti/The Washington Post, Photo: Ricky Carioti/Video: Reuters / Photo: Ricky Carioti/The Washington Post)

Adding more fuel to the theory that looking the part is as important to Trump as being the part, Gorsuch presented himself as the picture of a cool, calm, self-assured justice.

At 49, he'd be one of the youngest Supreme Court justices in modern history. His blue suit was sharp. His face often broke into a relaxed smile. He appeared to be listening to every word every senator said, and he rarely stumbled in his talking points.

In fact, the only time Gorsuch seriously got flustered was when senators questioned his impartiality. At one point Tuesday morning, Leahy pointed out that a GOP congressman said that he wanted Gorsuch on the court so he would “uphold Trump's Muslim ban.”

Gorsuch raised his voice for the first time: “Senator, he has no idea how I'd rule on that case, and, senator, I'm not going to say anything here that would give anybody any idea how I'd rule in any case like that that could come before the Supreme Court.”