Judge Neil Gorsuch stressed his independence and defended the integrity of the federal judiciary Tuesday as the Senate hearings on his Supreme Court nomination turned on the search for his judicial philosophy and what one senator called “the elephant in the room” — President Trump.
From the first question from a friendly Republican to a grilling by a Democrat hours later, Gorsuch was called upon on the second day of what is expected to be four days of hearings to assert his impartiality and reassure senators that he would not be swayed by political pressure if he wins confirmation, which appeared even more likely after his marathon session.
Gorsuch reiterated in public what he had told many senators in private — that he is offended by attacks like the ones leveled by President Trump against federal judges who have ruled in the past year in cases involving him.
“When anyone criticizes the honesty or the integrity or the motives of a federal judge, I find that disheartening. I find that demoralizing — because I know the truth,” Gorsuch told Sen. Richard Blumenthal (D-Conn.).
“Anyone including the president of the United States?” Blumenthal asked, who had made the elephant-in-the-room comment.
“Anyone is anyone,” Gorsuch said.
Gorsuch declined, however, to comment specifically on Trump’s various criticisms of federal judges, including an Indiana-born judge of Mexican descent who handled a federal lawsuit involving an online university bearing Trump’s name and the “so-called” judge who ruled against the president’s first attempt to ban travelers from Muslim-dominant countries from entering the United States.
“I’ve gone as far as I can go ethically,” Gorsuch told Blumenthal.
It was a dramatic moment in a day that for the most part lacked color. Gorsuch refused to be pinned down on most of the issues that Democrats raised: his allegiance to Roe v. Wade, his views on money in politics, the reach of the Second Amendment.
He portrayed what Democrats saw as controversial rulings in his 10 years on the U.S. Court of Appeals for the 10th Circuit in Denver as authentic attempts to interpret the laws that Congress writes.
“If we got it wrong, I’m very sorry, but we did our level best,” he said about a decision criticized by Sen. Richard J. Durbin (D-Ill.), but added: “It was affirmed by the Supreme Court.”
Sen. Al Franken (D-Minn.) questioned Gorsuch’s ruling in what has become a celebrated case of a trucker who was fired after unhitching his trailer in subzero weather and driving away in search of warmth and safety. Gorsuch was the lone dissenter in saying a federal law did not protect the driver, but Franken said the judge could have ruled that a strict interpretation of the law would lead to an absurd result.
“I had a career in identifying absurdity, and I know it when I see it,” Franken said.
Republican senators did little more than set up Gorsuch, 49, to display an encyclopedic knowledge of the Constitution and Supreme Court precedent, and to allow him to stress his roots as an outdoorsy Westerner.
“What’s the largest trout you’ve ever caught?” asked Sen. Jeff Flake (R-Ariz.).
Gorsuch will be at the witness table again Wednesday as well as the fourth and final day of hearings scheduled for Thursday.
Gorsuch seemed happy at the outset of the hearing to take what even he called the “softball” question offered by Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) about whether he would have any trouble ruling against Trump, the man who nominated him.
“I have no difficulty ruling against or for any party other than based on what the law and the facts of a particular case require,” Gorsuch told the panel. “And I’m heartened by the support I have received from people who recognize that there’s no such thing as a Republican judge or a Democratic judge — we just have judges in this country.
“My personal views . . . I leave those at home,” he added later.
The Columbia-Oxford-Harvard graduate employed a homespun tone — “gosh,” “golly” and “nope” punctuated his answers. Corny dad jokes fell flat, especially with the Democratic senators.
They pressed him on abortion, gun rights, privacy and the protracted 2000 presidential campaign recount. As other Supreme Court nominees have, Gorsuch explained that it would be improper to give his views on cases that might come before him or to grade decisions made in the past.
He had a tense encounter with Sen. Sheldon Whitehouse (D-R.I.), who sparred with him on issues of campaign finance and “dark money,” including a $10 million campaign by the group Judicial Crisis Network to advocate for Gorsuch’s confirmation.
Whitehouse said the group’s donors do not have to be disclosed, and he wondered what they saw in Gorsuch that would warrant such an expenditure.
“You’d have to ask them,” Gorsuch said.
“I can’t because I don’t know who they are,” Whitehouse shot back.
Democrats questioned him about his work at former president George W. Bush’s Justice Department and whether he’d rule against Trump’s travel ban.
Gorsuch declined to express his views on Trump’s move to ban travelers from several Muslim-majority countries because “that’s an issue that is currently being litigated actively.”
When Sen. Patrick J. Leahy (D-Vt.) mentioned that a Republican lawmaker recently suggested that Gorsuch would uphold Trump’s ban if it came before the court, Gorsuch snapped: “Senator, he has no idea how I’d rule in that case.”
Other senators quizzed Gorsuch about several of Trump’s past statements. During the presidential campaign last year, Trump said that he would nominate people to the Supreme Court who would overrule Roe v. Wade and return decisions on abortion to the states.
Sen. Lindsey O. Graham (R-S.C.) asked Gorsuch whether Trump had asked him to do that during his interview before his nomination.
“Senator, I would have walked out the door,” Gorsuch replied. In questioning later, Gorsuch said Trump did mention abortion being a “divisive” issue but then moved to other topics.
It was at least the second time senators had pressed Gorsuch on what Trump had said he was looking for in a Supreme Court justice. Gorsuch said he does not believe in litmus tests and was never questioned about them.
Each senator was allotted up to 30 minutes to question Gorsuch during the first round of questions. A second round, scheduled to begin Wednesday morning, gives senators an additional 20 minutes to quiz the nominee.
The committee’s top Democrat, Sen. Dianne Feinstein (Calif.), asked about Gorsuch’s work on issues involving enhanced interrogation of suspected terrorist detainees while he served in Bush’s Justice Department.
Even though the issue has been in the news during the past week, Gorsuch said he did not remember a document released last week in which he was preparing talking points for the then-attorney general. “Yes,” is handwritten next to a typed question: “Have the aggressive interrogation techniques employed by the Admin yielded any valuable intelligence?”
Feinstein said she would supply Gorsuch with the documents for future questioning. In general, Gorsuch portrayed himself as a facilitator rather than a policymaker during his 14 months at the Justice Department in 2005 and 2006.
“I was a lawyer for a client,” he said.
Feinstein asked about Gorsuch’s role in designing a signing statement for Bush on a detainee treatment law; she characterized it as indicating that the president did not feel bound by the law he had just signed.
“I certainly never would have counseled anyone not to obey the law,” Gorsuch responded.
Gorsuch also forcefully rejected claims by one of his former law school students that he had suggested that women take advantage of maternity leave policies by not telling the truth in job interviews about their plans to have families. Democrats had seized on the accusations when they surfaced Sunday and vowed to ask Gorsuch about them.
When Durbin asked about the topic, Gorsuch explained that he has taught ethics classes at the University of Colorado Law School for several years. Based on his years of teaching young law students, he said that employers in the corporate world, particularly law firms, continue to treat women poorly and often ask inappropriate questions in job interviews that are used to weed out female applicants who plan to have children.
Republicans intend to move quickly on confirming Gorsuch. Those on the Judiciary Committee hope to refer him to the full Senate on April 3 so that he can be confirmed before Easter.
But Senate Minority Leader Charles E. Schumer (D-N.Y.) warned Republicans on Tuesday that his party would attempt to slow down consideration of Gorsuch because Republicans last year blocked then-President Barack Obama’s attempts to fill the vacancy created by Justice Antonin Scalia’s death, and because Trump’s presidential campaign is the subject of an ongoing FBI investigation.
Schumer said it seemed “unseemly to be moving forward so fast on confirming a Supreme Court justice with a lifetime appointment” due to the looming FBI investigation, which could potentially last for months or years.
“You can bet that if the shoe was on the other foot — and a Democratic president was under investigation by the FBI — that Republicans would be howling at the moon about filling a Supreme Court seat in such circumstances,” Schumer added.
Sean Sullivan contributed to this report.