On the second day of hearings concerning his appointment to the Supreme Court, Judge Neil Gorsuch testified for over 10 hours on a wide variety of legal and personal topics. Throughout the hearings, Judge Gorsuch emphasized the importance of an independent judiciary and a textualist interpretation of the Constitution, all the while refusing to answer questions about how he would rule on specific issues. Right out of the gate, Senator Chuck Grassley (R-IA), Chairman of the Judiciary Committee, asked Judge Gorsuch whether he would have any trouble ruling against President Donald Trump, the man who appointed him. Judge Gorsuch took this first opportunity, as he did on multiple occasions throughout the hearing, to emphasize that “there’s no such thing as a Republican judge or a Democratic judge — we just have judges in this country,” and he would have “no difficulty” in ruling against the man who appointed him.
However, his answers were not always so straightforward. Senator Dianne Feinstein (D-CA), the Ranking Member of the committee and the first Democratic Senator to ask questions, probed Judge Gorsuch on his support for the 2005 Detainee Treatment Act when he was a lawyer for the Department of Justice. Though the Supreme Court eventually ruled against the Act, Judge Gorsuch stated that “all I was, I was a lawyer for a client,” and he “respects [the Supreme Court case] as a precedent…no less than any other.”
Sen. Feinstein was the first of many senators to receive that sort of answer. Judge Gorsuch refused to say how he would rule on a wide variety of issues, including President Trump’s travel ban, abortion, and “dark money” in politics, saying it would be a “violation of the separation of powers and judicial independence” if he were to answer those questions. As a general rule to protect the separation of powers, Judges do not give advice nor do they discuss how they would rule in a certain situation with anyone, until there is an actual case or controversy that comes before their bench.
Even still, Judge Gorsuch did provide some answers to the Democrats. When questioned by Senator Richard Blumenthal (D-CT) about Trump’s disparaging comments concerning certain federal judges, Judge Gorsuch said “when anyone criticizes the honesty or the integrity or the motives of a federal judge, I find that disheartening.” When asked specifically if that statement applied to Trump, Gorsuch replied “anyone means anyone.” Senator Patrick Leahy (D-VT) mentioned that a “Congressman wants you on the Court so [the Court] can uphold the Muslim ban,” to which Gorsuch quickly replied, “he has no idea how I’d rule” if that case were to come before him. In response to a question about Judge Merrick Garland, then-President Obama’s appointee to fill the vacant Supreme Court seat whose appointment was thwarted by Republican stonewalling in the senate, Gorsuch called Garland “an outstanding judge,” echoing the sentiments of many Senate Democrats who fought to get Judge Garland a hearing. Gorsuch stuck to his guns, though, telling Senator Sheldon Whitehouse (D-RI) that it was “on legislators to legislate” when it comes to “dark money” in politics.
The most heated exchanges of the day came when Senator Al Franken (D-MN) was questioning Judge Gorsuch. As with previous Senators who had questioned him, Judge Gorsuch continued to defer any question where he might give advice without a valid case or controversy, and thus violate the separation of powers doctrine. However, Senator Franken got a few words in himself: he called Judge Gorsuch’s dissent in TransAm Trucking v. Adm. Review Bd. (2016) “absurd,” and added that “it makes me question [Gorsuch’s] judgement.” Franken also grilled Judge Gorsuch on his work for the Bush campaign in 2004, and on Reince Priebus’ statement that Judge Gorsuch is “type of judge…that fulfills the promise [President Trump] made” to appoint a conservative justice to the Court. Judge Gorsuch, dismissing the criticism while also respecting the separation of powers, said “Mr. Priebus doesn’t speak for me.” When Sen. Franken asked a question regarding a statement by Steve Bannon, Gorsuch responded “I believe that’s a question best directed to Mr. Bannon.”
Though Judge Gorsuch has made it through his first day of hearings, he is far from the end of the road: he will testify again to the Judiciary Committee, and the Committee will hear testimony from witnesses other than Judge Gorsuch before it deliberates and makes a recommendation to the whole Senate. Only after the whole Senate has the opportunity to debate his nomination will they have a chance to vote. Even then, there is a high threshold: Supreme Court nominations must first pass a cloture vote, which requires 60 of the 100 Senators to pass; with 52 Republican Senators assumed yes, 8 Democrats would also have to vote for Judge Gorsuch. Though he has received bipartisan support on account of his conciliatory reputation, Senate Minority Leader Chuck Schumer (D-NY) has already publicly requested that a vote on Judge Gorsuch’s confirmation be postponed until the results of the FBI investigation into Russian involvement in the recent Presidential election is concluded. He may have made it this far, but for Judge Gorsuch, there is still a lot of road ahead.