Judge Neil Gorsuch did not think much of the original line of attack that Democrats drew up to go after his nomination to the Supreme Court. He laughed at the very idea that he lacked the independence from President Trump to serve on the high court.
“That’s a softball question, Mr. Chairman,” Gorsuch told Sen. Charles E. Grassley (R-Iowa), the Judiciary Committee chief.
It’s been seven weeks since Trump announced the nomination of Gorsuch, 49, just a day after the president fired the acting attorney general, Sally Yates, for refusing to defend the first version of his controversial travel ban. Democrats had signaled that “judicial independence” would be the most important prism through which they would view the nominee.
“That is the context in which I will review this nomination,” Sen. Richard J. Durbin (D-Ill.), a senior member of the Judiciary Committee, said in a statement immediately after Trump’s announcement.
Other Democrats issued similar decrees, daring the nominee to break away from his presidential benefactor in his private one-on-one meetings with senators and in public hearings this week.
There was just one problem: Gorsuch, like almost every judicial nominee, was more than willing to swat away that critique. He was so eager, in fact, that he started answering before his microphone was turned on, prompting him to repeat his initial response to Grassley once the sound was properly set: “That’s a softball question.”
After more than 10 years on the U.S. Court of Appeals for the 10th Circuit, Gorsuch was prepared for how to respond to questions about judicial independence and how a judge should consider a decision outside his personal political ideology.
“I go through it step by step and keeping an open mind through the entire process as best as I humanly can. And I leave all the other stuff at home, and I make a decision based on the facts and the law. Those are some of the things judicial independence means to me,” he told Grassley.
At other times, under questioning from other senators, Gorsuch affirmed his belief “in the rule of law” and, on several occasions, that “no man is above the law.” He rejected predictions from a Republican lawmaker that he would be a reliably conservative vote on matters such as the ban on travel from several Muslim-majority nations.
“Senator, he has no idea how I’d rule,” Gorsuch told Sen. Patrick J. Leahy (D-Vt.).
What Democrats initially viewed as an opportunity to hit the nominee with gotcha questions instead allowed Gorsuch to appear even more reasonable than he would have otherwise. The smooth performance seemed even to impress Republican supporters.
“They gave me a gavel, not a rubber stamp,” Gorsuch said of his judicial philosophy.
“That’s good,” Sen. Orrin G. Hatch (R-Utah) cooed.
The reality is that those are some of the easiest lines for any nominee to rehearse, and longtime watchers of the Judiciary Committee have seen this routine quite often.
Liberal anti-Trump activists delighted in discovering a 2015 confirmation hearing video of Yates being asked by then-Sen. Jeff Sessions (R-Ala.) whether the attorney general or deputy attorney general has “a responsibility to say no to the president if he asks for something that’s improper.”
“I believe that the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution,” Yates told the future attorney general, adding that she would “fairly and impartially evaluate the law.”
In his 2005 confirmation hearing, Chief Justice John G. Roberts Jr. famously compared himself to a baseball umpire who would not choose sides during a game. “My job is to call balls and strikes, and not to pitch or bat,” he said then.
Democrats may have realized in the run-up to the Gorsuch hearings that this line of attack would not work very well. In his second week of making rounds to visit senators, the nominee was confronted with questions about Trump’s attack on the judges who struck down the initial travel ban.
In a private meeting, he told Sen. Richard Blumenthal (D-Conn.), a Judiciary Committee member, that Trump’s comments were “disheartening” and “demoralizing,” Blumenthal said afterward. Rather than dispute the senator’s characterization of Gorsuch’s comments, top Trump aides working on the nomination confirmed the account on the record — they were more than happy to publicly acknowledge his private rebuke of the president.
By last week, Democrats had started to signal that they were shifting their focus to a critique that Gorsuch’s rulings demonstrated a willingness to side with big corporations over average citizens.
Ultimately, only time can determine how independent a justice will be. A pair of renowned law professors released a “loyalty effect” study in 2016, in which they found that justices tend to be more loyal to the president who nominates them and then become more independent after he leaves office.
Gorsuch cited the late Justice Byron White as his example of “judicial independence.”
“People asked [White] what his judicial philosophy was; I’ll give the same answer. I decide cases,” he said. “It’s a pretty good philosophy for a judge. I listen to the arguments made. I read the briefs that are put to me. I listen to my colleagues carefully, and I listen to the lawyers.”
White is an intriguing model. Nominated by President John F. Kennedy in 1962, he eventually drifted into the court’s conservative bloc, opposing the Roe v. Wade decision, which afforded rights to abortion, as well as some gay rights cases.
Democrats fear that Gorsuch is having what is known as a “confirmation conversion,” uttering the right words to win confirmation only to end up siding with the Trump administration’s most controversial positions.
Leahy tried to pin Gorsuch down on the travel ban and other potential rulings on Trump-related matters, but the nominee kept returning to the same type of lines that Yates, Roberts and many other nominees have uttered.
“Anyone, any law, is going to get a fair and square deal with me,” Gorsuch said.