If he’s confirmed to the Supreme Court, Judge Neil Gorsuch would be the first person to serve alongside a justice for whom he once clerked: Anthony M. Kennedy.
But if anything was clear from Gorsuch’s Senate testimony this week, it was that he is a far better fit with the justice he would replace, the late Antonin Scalia, than with the one who was his boss.
That would land him in the minority — for now — on issues such as affirmative action, abortion rights and same-sex marriage. It would put him among a majority of justices protective of the rights of the religious; skeptical of campaign finance restrictions, as evidenced in the Citizens United decision; and generally friendly to corporate interests.
If justices were seated by ideology rather than seniority, the 49-year-old judge from Colorado would pull up a chair in the vicinity of Clarence Thomas and Samuel A. Alito Jr. At the opposite end of the bench from Ruth Bader Ginsburg and Sonia Sotomayor. And comfortably to the right of his former boss, Kennedy.
At the hearing, Republicans on the Senate Judiciary Committee seemed comforted by Gorsuch’s past writings on and off the bench and did not push him for reassurance. After Chairman Charles E. Grassley (R-Iowa) tossed him what Gorsuch called a “softball” that allowed him to declare his independence from President Trump, Republicans were content to defend the nominee against demanding Democrats and to ask questions about trout fishing and skiing (better than snowboarding, Gorsuch said).
Democrats were largely frustrated in their efforts to extract promises from Gorsuch that he would leave precedent alone in areas they care about — abortion, gay rights — or even get him to agree that landmark Supreme Court cases were decided correctly.
Sen. Richard Blumenthal (D-Conn.) reminded Gorsuch that he was nominated by a man who once vowed that his choices for the court “would, for example, automatically overrule Roe v. Wade. And so I have felt that you had a responsibility to be, if anything, more forthcoming than judges or justices nominated in the past.”
But Gorsuch was just as elusive as past nominees, who are always protected by the party in charge and pursued by senators in the opposition.
Gorsuch displayed the earnestness of an Eagle Scout and the politeness one might expect of a man who, as a government lawyer, wrote a thank you note to the military officials who gave him a tour of the detainee facility at Guantanamo Bay, Cuba.
Even as he was deep into it with one Democratic inquisitor, Gorsuch took time to be thankful.
“I appreciate the advice I’ve gotten, thoughtful advice on a number of issues from senators across the spectrum,” he said. “You’re thoughtful people who care deeply about this country, and you care deeply about the judiciary, and I appreciate that.”
Blumenthal and Sens. Christopher A. Coons (D-Del.) and Amy Klobuchar (D-Minn.) seemed more frustrated than flattered.
Specifically, they tried to get Gorsuch to say that a long line of cases establishing rights to contraceptives and abortion were correctly decided. He would do no more than say they are precedents and are afforded deference depending on how long ago they were decided, whether they had been reaffirmed by subsequent decisions and whether reliance on them had become part of public life.
“The point of a precedent — I’m trying to be as helpful to you as I can be here, Senator — is that it represents collective wisdom,” Gorsuch said. “And to say I agree or I disagree with a precedent of the United States Supreme Court, as a judge, that’s an act of hubris that to me just doesn’t feel like a judicial function.”
Blumenthal said other Supreme Court nominees, including Chief Justice John G. Roberts Jr. and Alito, had also been judges when they appeared before the committee and had not hesitated to say whether some of the cases at issue had been correctly decided.
Without a similar commitment, “gay and lesbian Americans have to wonder” whether the decisions that afforded them rights are safe, Blumenthal told Gorsuch. He added, “Millions and millions of women who had apprehensions about Roe v. Wade and whether you would vote to overturn it will find very little basis for confidence.”
Conservatives, too, were concerned when, at one point, Gorsuch called Roe “the law of the land.”
But John Malcolm of the Heritage Foundation, one of the groups that supports Gorsuch and compiled for Trump the list of possible replacements for Scalia, said the nominee would have made a mistake to be more forthcoming.
“Once you start talking about which precedents you like and which precedents you don’t, you’re toast,” he said.
Malcolm said he heard nothing during the hearings that made him doubt that Gorsuch is fit to be Scalia’s successor. “I think they’re very, very similar,” he said, especially in Gorsuch’s embrace of originalism.
That also marks Gorsuch’s most obvious difference with his old boss, Kennedy.
In a tribute to Scalia last year, Gorsuch said that originalism means “focusing backward, not forward, and looking to text, structure and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”
Carolyn Shapiro, a co-director of the Institute on the Supreme Court at the Chicago-Kent College of Law, notes how differently Kennedy answered questions about constitutional interpretation during his hearings nearly 30 years ago.
“The words of the Constitution must be the beginning of our inquiry,” Kennedy explained. But he went on to describe a “line that is drawn where the individual can tell the government: Beyond this line you may not go.”
That line, Kennedy added, is “wavering; it is amorphous; it is uncertain.”