Democrats pose little threat to high court nominee Gorsuch
SAN FRANCISCO — Federal Judge Neil Gorsuch, President Trump’s Supreme Court nominee, moves a step closer to Senate confirmation this week, and Democrats, despite their threat of a filibuster, have virtually no chance to stop him.
After a Senate Judiciary Committee hearing last week marked by the Democratic minority’s futile efforts to unearth Gorsuch’s views on past or future legal issues, the committee is prepared to send his nomination to the Senate floor on a party-line vote.
Senate Minority Leader Chuck Schumer of New York roused his party’s base by announcing late in the week that Democrats would filibuster the nomination, raising the threshold needed for approval from 51 to 60 votes in the 100-seat Senate.
Most of his cohorts plan to join him, including California’s junior senator, Kamala Harris, who agreed with a radio interviewer March 9 that Democrats should “force supporters to produce 60 votes.” Harris’ senior colleague, Dianne Feinstein, has been publicly noncommittal about a filibuster, but made her opposition to Gorsuch clear during the committee hearing.
But Republicans, who control the Senate 52-48, have a ready response: what’s called the nuclear option, which would repeal the filibuster for Supreme Court nominees and allow confirmation by a majority vote. A Democrat-controlled Senate used the nuclear option for all other federal court positions in 2013, and Republican leaders, with Trump’s encouragement, have said they’ll do whatever it takes to get Gorsuch confirmed.
Filibuster is “a weird strategy to me,” said Rory Little, a law professor at University of California-Hastings in San Francisco and a former Supreme Court law clerk. “If you’re a Democrat, you would like to keep the filibuster rule in place for Supreme Court nominees. … If they block Gorsuch, and I’m not sure how, (Trump) will just nominate somebody else, almost certainly someone who is more conservative.”
But Erwin Chemerinsky, the law school dean at UC Irvine, said Democrats have nothing to lose by using every tool available to contest the nomination.
If Trump gets another Supreme Court vacancy to fill while his party controls the Senate, “are Republicans less likely to use the nuclear option then?” Chemerinsky asked. “If they’d be doing it anyway, Democrats should stand up for what they believe in.”
If confirmed, Gorsuch, a federal appeals court judge and former Justice Department attorney in President George W. Bush’s administration, would succeed Justice Antonin Scalia, the court’s most outspoken conservative, who died in February 2016.
Democrats — notably Feinstein, the senior Democrat on the Judiciary Committee — are still seething over Republican leaders’ unprecedented refusal to hold hearings for President Barack Obama’s choice to succeed Scalia, appeals court Judge Merrick Garland.
Gorsuch lived up to his reputation as affable, articulate and knowledgeable at the committee hearing and presented few openings for Democrats. But Feinstein and others were able to shed some light on lesser-known aspects of his record.
In one exchange, Feinstein pressed Gorsuch about his actions as a Justice Department lawyer in 2005, when Congress passed a law prohibiting “cruel, inhuman or degrading treatment” of U.S. prisoners at Guantanamo.
Gorsuch proposed that then-President Bush issue a statement that the measure, which the president planned to sign, merely reflected the administration’s current practices, which included the near-drowning technique known as waterboarding; Bush wound up signing a more combative statement, drafted by other attorneys, suggesting he wouldn’t be bound by the restrictions. A year later, he appointed Gorsuch to the 10th U.S. Circuit Court of Appeals in Denver.
“Doesn’t it mean that … you were condoning waterboarding?” Feinstein asked, referring to the statement Gorsuch had suggested. She also cited a 2005 Justice Department memo asking Gorsuch whether the administration’s “aggressive interrogation” had yielded useful intelligence. Gorsuch’s handwritten reply was simply “Yes.”
Gorsuch told Feinstein he had been acting as “a lawyer for a client,” not an advocate of interrogation policies.
Feinstein also asked him whether he agreed with past rulings by the court’s conservative majority on workplace issues, including one that made it harder for women to sue for wage discrimination and another that toughened the standard for proving age discrimination.
Gorsuch, who fended off numerous questions during the hearing about his views, replied that he couldn’t even discuss past cases because the issues might arise again.
“You have been very much able to avoid any specificity like no one I have ever seen before,” Feinstein told him.
Gorsuch actually gave some specific responses, telling one senator he “would have walked out the door” if Trump, during their prenomination interview, had asked for a commitment to overturn Roe vs. Wade, the 1973 ruling that legalized abortion. But several legal analysts agreed with Feinstein’s overall assessment.
“We learned he’s very smart, he’s very articulate, and he won’t answer questions about his views on legal issues,” Chemerinsky said. Most recent candidates, including Chief Justice John Roberts, have been somewhat more forthcoming, Chemerinsky said, and Gorsuch’s approach “really makes the hearing meaningless.”
Gorsuch “assiduously avoided saying anything,” said Pamela Karlan, a Stanford law professor and former Justice Department attorney in President Barack Obama’s administration. Even when the nominee appeared to be declaring his independence from Trump by telling a senator that “no man is above the law,” Karlan said, “The question is, where’s the law?”
But John Yoo, a UC Berkeley law professor and former Justice Department attorney in the George W. Bush administration, said Gorsuch had merely followed standard practice for Supreme Court candidates.
“The more a nominee says, the more ammunition she applies to her opponents,” Yoo and Saikrishna Prakash, a University of Virginia law professor, said Friday in an article for Fox News. They said Democrats “have tried to ‘Bork’ Gorsuch” — referring to the Senate’s rejection in 1987 of Supreme Court candidate Robert Bork, who expressed some of his conservative views at his confirmation hearing — but Gorsuch outsmarted them.
Feinstein has refused to say how she will vote, but her statements during the hearing left little doubt.
While a “reasonable, mainstream conservative” would be acceptable, she said, Gorsuch has called for an end to judicial deference to regulatory agencies that “safeguard the health and safety of our food supply, our water, our medicines.” And although he has not ruled in an abortion case, she said, his observations on human life in a book on euthanasia have been widely interpreted as a sign he would vote to overturn Roe vs. Wade — a goal that Trump has said his nominees would “automatically” fulfill.
Asked about the abortion ruling during the hearing, Gorsuch declined to take a position.
Harris, who is not a Judiciary Committee member, had been less outspoken about the nomination until Friday, when she set forth her views in an opinion piece in The Chronicle.
She cited several opinions Gorsuch had written as a judge — allowing a corporation to deny contraceptive coverage to women for religious reasons, upholding a company’s firing of a trucker who drove off to seek help in bitterly cold weather, affirming a university’s refusal to extend the medical leave of a cancer-stricken professor — as reasons to oppose his nomination.
Gorsuch has shown he is “willing to favor corporations over the American people,” Harris said.
Yoo and Prakash, in their column Friday, countered that Democrats had failed to make a case against Gorsuch and had chosen “to play to the peanut gallery of left-wing activist groups.”
Schumer’s call for a filibuster “signals the success, not the failure” of Gorsuch’s nomination, they wrote. If Democrats “had made any progress in attacking Gorsuch’s qualifications, record, or judicial philosophy, they could persuade their Republican colleagues to reject Gorsuch.”
Source: Daily Gazette
Democrats pose little threat to high court nominee Gorsuch