The Supreme Court nomination hearings for Judge Neil Gorsuch have begun – with Democrats expressing their frustration at the timing of the sessions.
Members of the Senate Judiciary Committee went through their opening statements ahead of questioning President Trump’s nominee to fill the late Justice Antonin Scalia’s seat.
Mr Gorsuch is seen as controversial for a variety of reasons, but mostly for his close alliance with President Trump’s politics. He tried to ally some fears in his opening statement by saying that he feels “putting on a robe reminds us judges to lose our egos and open our minds”.
Senator Dianne Feinstein of California started her statement by saying she wished Mr Gorsuch was in front of the committee under better circumstances.
Ms Feinstein made mention of the “unprecendented treatment” of Merrick Garland, who was former President Obama’s nominee for Mr Scalia’s seat.
Mr Garland was seen as a moderate candidate, chosen because he would not ruffle feathers on either side of the political aisle.
However, he was denied even a hearing. Dr. Barbara Perry, Director of Presidential Studies at the University of Virginia’s Miller Centre and a former Judicial Fellow at the US Supreme Court, told The Independent that no person with “a nomination has been denied a hearing, since hearings have been in place” in the 20th century.
Ms Perry gave the example of President Lyndon B Johnson’s nomination of Justice William Fortis to be promoted to the Chief Justice position was filibustered by both Republicans and Democrats at the time, but Mr Fortis was still given a proper hearing.
Democrats made it known this was still a sore spot for them.
However during his opening statement, Republican Senator Lindsey Graham asked how any Senator could say that Mr Gorsuch was unqualified for the job.
Mr Graham also explained that though “no Republicans would have chosen [current Supreme Court Justices] Sotomayor or Kagan but how could anyone say they weren’t qualified?” He had voted for both the women to be put on the Supreme Court despite being appointed by Democrat President Obama because he felt they “had lived exemplary lives” and were “well within in the mainstream of judicial thinking on the left”.
He said he “thought” that is what the Senate Judiciary Committee was supposed to do, pointing to the rumours that Democrats could challenge Mr Gorsuch’s nomination with a filibuster due to Mr Garland’s treatment.
West Virginia Senator Joe Manchin, a Democrat, has already made it known he will not participate in a filibuster. Ms Perry explained that even ardent Democrat, Massachusetts Senator Ted Kennedy had voted several times for Republican nominees for the Court.
She also said that “about one-third” of Mr Gorsuch’s decisions in the 10th Circuit Federal Court were in agreement with Democrat nominees in that circuit, though they may not have been on “hot button social issues”.
Ms Feinstein and others routinely brought up concerns about the overturning of Roe v Wade, which protects a woman’s right to get an abortion and other class action suits in which Mr Gorsuch has sided with large corporations rather than public health and safety, in their opinion.
Ms Perry said that though he is a conservative judge, Mr Gorsuch would be a “one for one” for Mr Scalia, known for his strict and politically conservative interpretation of the US Constitution.
This means that Mr Gorsuch would not be in a “swing seat,” as Ms Perry called it. The Court could allow for more state restrictions on abortion and other women’s rights but she thinks that because of Justice Anthony Kennedy’s more liberal voting record on the issues that Roe v. Wade should remain intact.
However, she did say that Mr Gorsuch, a former clerk for Mr Kennedy, is seen as a “Kennedy whisperer” in some circles and could get the elderly judge to retire, which open another seat for Mr Trump to fill.
It is this potential that also worries many Democrats.
Many members of Congress have expressed that they are content with Mr Gorsuch’s consistent decision making on the bench, despite disagreeing with him politically.
Ms Perry said it is a “comforting thought” for those who oppose his appointment because at least they know what they are getting. Even Mr Graham pointed out he has “never been disappointed” with Ms Kagan or Ms Sotomayor because of that.
Ms Perry mentioned that was not the case with Justice David Souter was seen as a “stealth nominee” because of his lack of federal judicial experience and absence of many published legal opinions.
The concern for Illinois Senator Dick Durbin is not just Mr Gorsuch’s decision history but the influence of Mr Trump on him.
White House Chief of Staff Reince Preibus has said that Mr Gorsuch is a judge with “the vision of Donald Trump”. Mr Durbin cautioned Mr Gorsuch that the nominee will “have his hand full with this President” and that a Justice’s duty is to the law not the administration or politics.
Mr Gorsuch, perhaps addressing that particular concern, said in his statement that society “cynically describes judges as politicians in robes. If that were true, I'd hang up the robe”.
He went on to say that he had learned an important lesson from Mr Kennedy, “judges can disagree without being disagreeable”. He also said he agreed with Mr Scalia’s strict interpretation of the US Constitution but also firmly believed in the philosophy of Supreme Court Justice Robert H Jackson that “once you become a judge, you fiercely defend only one client: the law.”
He also said none of his previous decisions were about the people before him, but the “law’s demands.” He also cited his first case in front of the Supreme Court, in which liberal justice Ms Sotomayor and conservative Justice Clarence Thomas were in agreement.
Mr Gorsuch said Ms Sotomayor and Mr Thomas are in agreement almost 60 per cent of the time, with Mr Scalia and Justice Stephen Breyer, his liberal opposite, agreeing “more often than that”.
The looming questions for some are whether Senate Democrats will actually initiate a filibuster to block the nomination and whether Kentucky Senator and Majority Leader Mitch McConnell will shuttle such an attempt.
Former Senator Harry Reid of Nevada eliminated the filibuster on lower level court appointees while Democrats held the majority because he felt Republicans would unnecessarily deny Mr Obama’s appointments.
Mr Reid interpreted Senate rules to mean that he could do this with a simple majority vote. It was called the “nuclear option.”
Mr McConnell, however, said in his interpretation of the rules a two-thirds majority would be required to eliminate a filibuster for Supreme Court nominees. Sixty seven Senators would have to vote to not give Democrats a way to oppose Mr Gorsuch’s nomination.
A Congressional staffer told The Independent that Mr McConnell is unlikely to employ a “nuclear option,” however. Only one other Supreme Court nominee – President Ronald Reagan’s nominee Robert Bork – was not confirmed by the Senate. That was in 1987.
Given his record on rules changes and his open criticism of the chaos caused by the Trump administration, this could bode well for Democrats who want to filibuster. The real issue, according to Ms Perry, is that ten Senators are up for re-election, “five in red red states,” and so they may “get caught between the party in Washington and people at home”.
The hearing is expected to last until 22 March.Reuse content