Challenged by Democrats still furious over Senate Majority Leader Mitch McConnell’s refusal to hear former President Barack Obama’s Supreme Court pick Chief D.C. Appellate Court Judge Merick Garland, 49-year-old Neil Gorsuch rose above the political fray. With brilliant legal reasoning and folksy down-to-earth demeanor, Gorsuch slowly helps Democrats get over their anger about Judge Garland. While painted by the left as a clone of the late Justice Antonin Scalia, Gorsuch showed he’s far too sophisticated to be taken lightly. Painted into a corner by Sen. Patrick Leahy (D-Vt.) at second day of his confirmation hearing, Gorsuch was asked whether or not he’d apply a religious test to Mideast refugees. “That’s an issue that currently being litigated actively, as you know,” said Gorsuch, prompting instant headlines that he refused to answer Leahy’s question.
Referring to 70-year-old President Donald Trump’s travel ban, Gorsuch reassured Senators that he would apply the Constitution, including the First Amendment equally, calling it his duty as fair-minded jurist. Trump’s revised travel ban, preventing entry to the U.S. from six Mideast and North African countries, was struck down March 14 by Honolulu-based U.S. District Court Judge Derrick Watson. White House officials insist the ban isn’t against Muslims but against potential refugees with possible ties to terrorist groups. Watson, like Seattle U.S. District Court Judge James Robart Feb. 3, issued a temporary stay on the basis that it violated the First Amendment guarantee of religious freedom. While Gorsuch sidestepped the issue, he clearly aligned himself with the First Amendment, giving clear picture of how he’d rule, always defending the U.S. Constitution.
Trump’s public remarks early on in the campaign Dec. 8, 2015 calling for a temporary ban on Muslims, especially those seeking to immigrate to the U.S., came back to bite him on his Feb. 3 and March 15 travel bans. Whatever the language of the newest ban, avoiding the label “Muslim,” Watson issued the stay citing harm to Hawaiian businesses. “Senator, we have a free exercise clause that protects the free exercise of religious liberties by all persons in the country,” Gorsuch told Leahy. Whatever questions thrown at Gorsuch, he showed he’s his own man, not some rubber stamp of Trump or anyone from the Federalist Society or Heritage Foundation, two conservative groups that helped pick Gorsuch as a possible replacement for Scalia. Fielding cross- examination from Democrats, Gorsuch showed why his Harvard Law degree and Oxford Ph.D. prepares him for the High Court.
Asked by Leahy about Roe v. Wade, the 1973 landmark Supreme Court ruling legalizing abortion in the United States, Gorsuch said he would do nothing overturn the law. Leahy asked Gorsuch what he would do if asked by President Trump to overturn Roe v. Wade. “Senator, I would have walked out the door,” Gorsuch told Leahy. “That’s what judges do. They don’t do it at that end of Pennsylvania Avenue and they shouldn’t do it at this end either,” referring to judicial independence. Pressed on using torture, Gorsuch said there are solid rules in place against torture. “We have a convention against torture and implementing legislation which bans torture,” agreeing with the Detainee Treatment Act, expressly forbidding torture or so-called enhanced interrogation techniques. Watching Gorsuch, Democrats are being won over with his even-keeled answers.
Pressed by Judiciary Committee Chairman Charles Grassley (R-Iowa.) about whether he could rule against President Trump, Gorsuch told Grassley, “That’s a softball, Mr. Chairman. “I have no difficulty ruling against or for any party other than based on what the law and the facts in the particular case require,” said Gorsuch, showing, over-and-again, his judicial independence, hinting to Democrats that Gorsuch would practice on the Surpeme Court much like the great independent jurists of the past, like retired Justice David Souter, an appointee of former President George H.W. Bush. After each question answered by Gorsuch, Democrats look like they’re getting over their anger about McConnell denying Garland a hearing. While some Democrats looked for payback against the GOP, there’s a growing consensus that Gorsuch shows the integrity needed to win over Democrats.
Answering questions before the committee, Gorsuch followed the Ginzburg Rule, referring to the 1993 confirmation hearing of Supreme Court Justice Ruth Bader Ginsburg, refusing to hazard opinions on ongoing litigation. Gorsuch told committee members it would be inappropriate for him to speculate on how he might rule on future cases. “I would be tipping my hand and suggesting to litigants that I have already made up my mind,” Gorsuch told Grassley. Feinstein pressed Gorsuch over-and-over on Roe v. Wade, fearing he’d cast a deciding vote to end a women’s right to choose. Refusing to state his personal views on abortion, Gorsuch reassured Feinstein, “It has been reaffirmed many times, I can say that.” Question-after-question, Gorsuch shows the judicial independence and temperament needed to win over Democrats and pave his way to the Supreme Court.
