Supreme Court nominee Neil Gorsuch repeatedly brushed off Democratic attempts Tuesday to nail down his position on issues ranging from abortion to gun regulations to voting rights, while pledging that he would have no problem ruling against the man who nominated him, President Donald Trump.
Gorsuch also leveled his most significant rebuke of Trump yet when he repeated publicly what he had told senators privately: He was dismayed by Trump’s attacks on the judiciary.
“When anyone criticizes the honesty or integrity or motives of a judge, I find that disheartening,” Gorsuch told senators. “I find that demoralizing, because I know the truth.”
When pressed whether that included Trump’s comments, Gorsuch responded: “Anyone is anyone.”
Facing a marathon grilling session before the Senate Judiciary Committee, Gorsuch dodged multiple questions by saying he didn’t want to compromise his impartiality should he be confirmed to the high court.
“The first thing I’m doing [by answering] is, I’m signaling to future litigants that I can’t be a fair judge in their case because those issues keep coming up,” Gorsuch said. “All these issues keep coming up. Issues around all these precedents will be continued to be litigated.”
When pressed again on a controversial topic — this time by Sen. Patrick Leahy (D-Vt.) on the Supreme Court’s Shelby County v. Holder decision curbing the Voting Rights Act — Gorsuch simply responded, “I admire the various ways” senators try to pin him down.
Gorsuch also dodged saying whether he would vote to uphold Trump’s controversial travel ban if the beleaguered executive order, now largely on hold, makes it to the Supreme Court.
“I’m not going to say anything that gives anybody any idea how I’d rule in any case like that that could come before my court,” Gorsuch told Leahy. “It’d be grossly improper to do that.“
His comments did little to mollify Democrats, who have been eager to dissect his lengthy legal record on the bench and as a top lawyer in the George W. Bush administration’s Justice Department where he worked on anti-terror policies.
Gorsuch’s views on judicial independence were also a hot topic early on and throughout the hearing, in light of Trump’s attacks on multiple judges during the campaign and in the White House.
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) attempted to head off those criticisms from Democrats early on by asking Gorsuch about his independence and whether Gorsuch would struggle to rule against the president who picked him for the Supreme Court.
“That’s a softball, Mr. Chairman,” Gorsuch told Grassley. “I have no difficulty ruling against or for any party other than based on what the law and facts and the particular case require. And I’m heartened by the support I have received by people who recognize that there’s no such thing as a Republican judge or a Democratic judge. We just have judges.”
Gorsuch also testified that he has “offered no promises on how I’d rule in any case, to anyone” — adding that he would not find it “appropriate for a judge to do so, no matter who’s doing the asking.”
That point came into sharper relief when Sen. Lindsey Graham (R-S.C.) asked what Gorsuch would do if Trump asked for a commitment to overturn Roe v. Wade, the landmark 1973 ruling that legalized abortion.
“Senator, I would’ve walked out the door,” Gorsuch said forcefully. “Not what judges do.”
Still, Gorsuch declined to say whether Roe was correctly decided more than four decades ago, saying merely it is a “precedent” of the Supreme Court.
He echoed that line for multiple other high-profile Supreme Court decisions.
“I’m not in a position to tell you whether I’d personally like or dislike any precedent. That’s not relevant to my job,” Gorsuch in his exchange with Grassley. “To come in and think that just because I’m new or the latest thing I’d know better than everybody who comes before me would be an act of hubris.”
A few hours after he declined to weigh in on the merits of the court’s Citizens United decision, which loosened campaign finance restrictions, Sen. Sheldon Whitehouse (D-R.I.) pressed Gorsuch on why conservative groups have reportedly spent a total of $17 million in the past year blocking President Barack Obama’s candidate for the Supreme Court vacancy and now supporting Gorsuch.
“You’d have to ask them,” Gorsuch replied.
“I can’t because I don’t know who they are. It’s just a front group,” Whitehouse shot back.
Gorsuch did offer Democrats an olive branch by backing away from some of the most aggressive legal stances taken by the Bush administration in the war on terror, with the nominee declaring that he was in a camp of advisers who favored a less hawkish approach.
The committee’s top Democrat, California Sen. Dianne Feinstein, had expressed concern with Gorsuch’s involvement as a Justice Department official on a signing statement Bush issued that seemed to narrow an anti-torture amendment authored by Sen. John McCain.
“Doesn’t it mean that, when you wrote this in an email you were condoning waterboarding as lawful?” she asked.
Gorsuch said the signing statement divided the administration and that he wasn’t a policy advocate. My “involvement in this process was as a lawyer. That’s all I was. I was a lawyer for a client,” the nominee insisted.
Gorsuch said, however, his views tended to the “gentler” side.
“There were individuals, in maybe the vice president’s office, who wanted a more aggressive signing statement along the lines you described and … there were others, including at the State Department, who wanted a gentler signing statement. And my recollection sitting here as best I can give it to you without studying the email is: I was in the latter camp.”
The 10th Circuit judge also defended a number of his rulings that have come under attack by Democrats, who say they show Gorsuch tends to favor corporations over individuals.
On his dissent involving a TransAm trucker who was fired after leaving his trailer in below-freezing temperatures, Gorsuch acknowledged, “This is one of those you take home at night.” Still, he stood by his opinion, arguing that the driver, Alphonse Maddin, would have been protected from wrongful-termination laws if he had refused to drive the vehicle altogether, but he did indeed drive the tractor while leaving behind the trailer.
Gorsuch also stood by his ruling in Sebelius v. Hobby Lobby, in which he sided with the craft store giant in its challenge of Obamacare’s contraceptives coverage requirement.
“If we got it wrong, I’m sorry,” Gorsuch said. “But we did our level best, and we were affirmed by the United States Supreme Court.”
And he refused to weigh in on whether Merrick Garland — Obama’s nominee to replace the late Justice Antonin Scalia for the vacancy Gorsuch now seeks to fill — was treated fairly by Senate Republicans last year when they refused to take up his nomination.
“I can’t get involved in politics,” Gorsuch told the committee. “There’s judicial canons that prevent me from doing that. I think it would be very imprudent of judges to start commenting on political disputes between themselves or the various branches.”
Gorsuch, described as having an “originalist” take toward the Constitution in his judicial philosophy, attempted to add nuance to his view by telling senators that he’s “not trying to take us back to quill pens and horse and buggies.”
Gorsuch also noted that he believes women can become president of the United States — even if the Constitution never describes the nation’s commander in chief as a female.
“Of course, women can be president of the United States,” Gorsuch said, getting animated. “I’m the father of two daughters. I hope one turns out to be president.”
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