This week’s Supreme Court nomination hearing isn’t Judge Neil Gorsuch’s first appearance before the Senate Judiciary Committee: He had to win Senate confirmation before taking his current spot on the 10th Circuit Court of Appeals.
But the breezy questioning Gorsuch received during his 2006 confirmation hearing won’t compare to the grilling he’ll get from the same Senate panel starting Tuesday. The 2006 hearing for his federal judgeship lasted all of 23 minutes; just one committee member — Sen. Lindsey Graham (R-S.C.) — was present to question him.
This time around, Gorsuch will have to field multiple rounds of questions from the panel’s 20 members, and 28 witnesses will follow up with their own testimony. Monday’s hearing offered a preview, with Democrats using their opening statements to go after Gorsuch’s judicial record and views on abortion, gun control and other issues.
The stakes are higher, too: If confirmed, Gorsuch would be the ninth justice on a Supreme Court that’s been shorthanded in the 402 days since Justice Antonin Scalia’s death in February of 2016. In that time, the court, with just eight justices, has been unusually prone to deadlocking, as it did on major cases involving immigration and union dues.
Here’s what to watch as senators begin their questioning:
Where do Democrats attack?
This time last year, President Barack Obama and Senate Democrats thought they had a nominee in Judge Merrick Garland, who could fill Scalia’s seat and possibly even alter the ideological tilt of the court. But Republicans controlled the Senate and chose to let his nomination expire without holding a hearing.
Garland’s doomed nomination remains a sore subject among Senate Democrats. The day President Donald Trump nominated Gorsuch, Sen. Jeff Merkley (D-Ore.) went as far as to call it a “stolen seat.”
Several Democrats brought up Garland on Monday as well. Sen. Al Franken (D-Minn.) said the Senate Republicans’ decision to block Garland’s nomination was “a truly historic dereliction of duty by this body.” Sen. Patrick Leahy (D-Vt.) called it “one of the greatest stains on the 200-year history” of the Senate Judiciary Committee.
Look for Democrats to continue bringing up Garland throughout the hearings. But they will also likely highlight their concerns over whether Gorsuch would stand up to President Trump’s agenda and rhetoric.
After a private meeting with the nominee last month, Senate Minority Leader Chuck Schumer (D-N.Y.) said that “the bar for a Supreme Court nominee to prove they can be independent has never, never been higher.” Last Friday, the office of Sen. Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee, distributed a fact sheet highlighting Gorsuch’s views on judicial deference to federal agencies’ interpretations of statutes.
“Judge Gorsuch’s nomination,” the fact sheet said, “is part of the Trump administration’s effort to strip federal agencies and their policy experts of the power to regulate in areas of federal law assigned by Congress.”
Gorsuch has spoken out — at least behind closed doors — against President Trump’s criticism last month of a federal district court judge who blocked the implementation of his original travel ban. Sen. Richard Blumenthal (D-Conn.), who met privately with Gorsuch last month, said afterwards that the nominee called Mr. Trump’s rhetoric “disheartening” and “demoralizing.”
On Monday, Blumenthal wondered if Gorsuch would be willing to stand up to the president publicly as well. “It isn’t enough to do it in the privacy of my office or [to] my colleagues,” Blumenthal said during the opening day of the hearings.
Gorsuch’s private comments on Trump’s attacks on the courts didn’t satisfy other Democrats either. Schumer wrote in a New York Times op-ed last month that Gorsuch should have gone further.
“A truly independent judge would have the fortitude to condemn the president’s remarks, not just express disapproval, and to do it publicly,” Schumer wrote.
The magic number is still 60 (until it isn’t)
Whatever approach Democrats take to oppose Gorsuch, anyone trying to put up a serious effort to block his confirmation will have to pay attention to a very important number: 60.
Under current rules, Senate Republicans need 60 “yes” votes to overcome a filibuster and schedule a confirmation vote. But because Senate Republicans only control 52 seats in the chamber, a handful of members can tip the balance one way or the other.
Outside groups have already aired television ads and booked significant ad buys to pressure Senators on both sides of the aisle. The Judicial Crisis Network, a conservative group, has focused its multi-million dollar ad campaign on states where Senate Democrats face tough reelection fights in 2018. The Constitutional Responsibility Project, which was formed last year to boost public support for Garland’s confirmation, has targeted Republicans like Arizona Sen. Jeff Flake and Nevada Sen. Dean Heller.
Senate Majority Leader Mitch McConnell (R-Ky.) has not clarified what he would do if he can’t secure the 60 votes needed to pave the way for a confirmation vote in the full Senate.
In 2013, then-Senate Majority Leader Harry Reid used a rule change known as the “nuclear option” to eliminate the 60-vote threshold for executive branch and non-Supreme Court judicial nominations — so the Democrat-controlled Senate could approve Obama appointees who were being blocked by Republicans. McConnell has not ruled out using the “nuclear option” to get Gorsuch confirmed.
There’s a lot we don’t know about Gorsuch’s opinions.
Gorsuch has not had to write about the issue of abortion in his time as a federal appellate court judge, but he has penned a 320-page tome on end-of-life issues. And he’s grappled with religious liberty cases like Hobby Lobby’s challenge to the Affordable Care Act’s contraceptive coverage mandate. Both topics — abortion and religious liberty — have been before the nation’s highest court in recent terms, and both are sure to come up on Tuesday.
Some senators have indicated keen interest as well in Gorsuch’s opinions on judicial deference to agencies and how those agencies interpret statutes — a critical issue in cases dealing with the scope of government power.
Gorsuch has also fielded questions specifically about President Trump’s use of executive power to impose his travel ban, a policy the Supreme Court could be asked to grapple with in the coming weeks. Schumer said Gorsuch sidestepped his questions about the travel ban when he raised the issue last month during their private meeting. A quick confirmation could enable Gorsuch to be part of the court’s deliberations if it were to take the issue up in the near future.
Follow our live coverage of Gorsuch’s hearings here.
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