Judge Neil Gorsuch’s nomination to the Supreme Court may hinge on his antagonists’ ability to turn the confirmation into a referendum on his patron, President Trump.
After Trump unveiled Gorsuch Tuesday night in a reality TV-style announcement, prominent Senate Democrats focused their questions on Trump’s executive decisions in his first two weeks in office, giving the nominee’s 10-plus years on the U. S. Court of Appeals for the 10th Circuit almost secondary consideration.
They highlighted federal courts blocking Trump’s order last weekend banning travel for refugees from around the world and for foreign nationals from seven majority Muslim nations, and they highlighted the new president’s firing Monday of the acting attorney general for refusing to defend the controversial action in the courts.
“I believe the independence of our judicial system, and especially the Supreme Court, is more critical now than at any time in recent history. That is the context in which I will review this nomination,” Sen. Richard J. Durbin (Ill.), the No. 2 Democrat in leadership and a senior member of the Judiciary Committee, said in a statement.
Sen. Tim Kaine (D-Va.), his party’s vice-presidential nominee in the 2016 race against Trump, made a similar point: “The actions of the Trump Administration over the past week raise the stakes to an even higher level.”
It’s a sign of how vulnerable Democrats hope Trump is as a result of his wobbly start, believing that his historically low approval ratings for a new president make him the richest target to shoot at in their battles against Gorsuch and his Cabinet nominees.
After two months of questioning Sen. Jeff Sessions’s record on civil rights, Democrats on the Judiciary Committee focused Tuesday’s debate on the Alabama Republican’s nomination to be attorney general on fears that Sessions is too close to the president to be the nation’s chief law enforcement officer. Again and again, Democrats read from a Washington Post profile highlighting Sessions’s role as the “godfather” of Trump’s ideology and his deep ties to the West Wing.
[ Trump’s hard-line actions have an intellectual godfather: Jeff Sessions ]
Senate Minority Leader Charles E. Schumer (D-N. Y.) issued a blanket decree that every Cabinet nominee would have to answer questions about the travel ban. This led to an extraordinary breach of decorum, when Schumer joined five other Democrats to vote against Elaine Chao’s confirmation as transportation secretary, while her husband — Senate Majority Leader Mitch McConnell (R-Ky.) — stood a few feet away in the chamber.
But the increasing focus on all things Trump also signals that Gorsuch is not going to be easy to defeat. Democrats have signaled that he will need to clear the 60-vote threshold to choke off a filibuster, but anywhere from 10 to 15 Democrats appear open to joining what is certain to be a unified bloc of 52 Republicans.
Gorsuch, 49, comes straight from central casting of recent Supreme Court nominees: Harvard Law, Supreme Court clerk, more than 10 years on the appeals circuit.
He would be the eighth member of the current Supreme Court to come from one of the 13 circuit courts, and he would be the fifth justice to graduate from Harvard Law; a sixth, Ruth Bader Ginsburg, began at Harvard but finished her law degree at Columbia.
Statistically, that gives Gorsuch an edge.
For starters, in the last 31 years, 11 appeals judges have been nominated to the Supreme Court; nine have been confirmed, eight of them with relative ease. The two that were not confirmed, both coming from the prestigious D. C. Circuit Court of Appeals, had unusual circumstances. Robert Bork, a fiery conservative with a long paper trail, was rejected by the full Senate in 1987, and last year Merrick Garland’s nomination after Justice Antonin Scalia’s death languished as McConnell refused to consider it until the election decided the next president.
Ever since Bork’s defeat, rising stars on federal courts have taken an anodyne approach to their writings, almost as if they had begun preparing for potential Supreme Court hearings before finishing their third year of law school.
This makes them difficult prey in the normally combative confirmation hearings. They make vague assurances to “uphold the law” and “respect precedent” but avoid firm commitments on hot-button issues.
In his 2005 hearing, Chief Justice John Roberts so frustrated Schumer that he was compelled to observe that, were he to ask the nominee about his favorite movie, Roberts likely would only reply, “I like movies with good acting.” (Roberts broke the room into laughter and sealed his confirmation by interrupting to say, “Doctor Zhivago and North by Northwest.”)
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To be sure, a coalition of liberal groups have flagged several key legal rulings that will be highlighted in Gorsuch’s hearings. Abortion rights groups cited his dissents in rulings about Planned Parenthood funding and contraceptive coverage in the Affordable Care Act. Others cited rulings siding with corporations over their employees.
But the two top Democrats, Schumer and Durbin, are veterans of the past four Supreme Court hearings, and they’re keenly aware how difficult it is to knock elite judges off balance over questions about legal philosophy.
So that’s why they want to inject Trump into the process. If they can make it all about Trump, they might forge enough unity to block Gorsuch and dare Republicans to change rules to pass him on a party-line vote.
So Democrats, new and old, joined Schumer, who questioned whether Gorsuch “can be a strong, independent Justice on the Court.”
“The first week of the Trump administration underscored the need for a strong and independent judiciary that will serve as a check on the executive branch,” said Sen. Maggie Hassan (D-N. H.), who was sworn into the Senate last month.
“In light of the unconstitutional actions of our new President in just his first week, the Senate owes the American people a thorough and unsparing examination of this nomination,” said Sen. Patrick J. Leahy (D-Vt.), the most senior Democrat.
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