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Gorsuch promises to remember 'modest station' of judges in a democracy

  • Author: Ed O'Keefe, Robert Barnes, Sean Sullivan, The Washington Post
  • Updated: March 20, 2017
  • Published March 20, 2017

Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, is sworn in Monday on Capitol Hill. In a 13-minute introductory address during his confirmation hearing, Gorsuch tried to reassure senators he was a mainstream jurist, who was in the majority in 99 percent of the 10 years of cases he decided on the appeals court. (Washington Post photo by Melina Mara)

WASHINGTON – Judge Neil Gorsuch promised to remember the "modest station we judges are meant to occupy in a democracy" if he is elevated to the nation's highest court, as the hearing on his nomination to the Supreme Court began Monday among Democratic doubts about his impartiality and whether he should be before them in the first place.

Democrats on the Senate Judiciary Committee made clear they are not over the decision of their Republican colleagues to keep open the seat held by the late Justice Antonin Scalia in order for President Donald Trump to fill it.

They said they would use four days of scheduled confirmation hearings to draw out Gorsuch, who sits on the Denver-based U.S. Court of Appeals for the 10th Circuit, on abortion rights, gun rights, religious rights, environmental protection and whether he would ever rule against the White House if presented with cases challenging the administration.

"You're going to have your hands full with this president. He's going to keep you busy," Sen. Richard Durbin, D-Ill., told Gorsuch.

In a 13-minute introductory address, Gorsuch tried to reassure senators he was a mainstream jurist, who was in the majority in 99 percent of the 10 years of cases he decided on the appeals court.

Gorsuch said he has ruled for disabled students, prisoners, undocumented immigrants, the rich and poor "and against such persons too."

"But my decisions have never reflected a judgment about the people before me – only my best judgment about the law and facts at issue in each particular case," he said.

The senators will begin questioning Gorsuch at 9:30 a.m. Tuesday.

Supreme Court nominee Judge Neil Gorsuch gestures as he arrives for his Senate Judiciary Committee confirmation hearing on Capitol Hill. REUTERS/Jonathan Ernst

It was clear from the beginning of Monday's hearing that Democrats were still livid that Republicans blocked consideration of U.S. Appeals Judge Merrick Garland, who had been President Barack Obama's choice to replace Scalia after his death 13 months ago.

Senate Majority Leader Mitch McConnell, R-Ky., decided to block a hearing for Garland, saying that the next president should name the late justice's successor.

"I'm deeply disappointed that it's under these circumstances that we begin our hearings," Sen. Dianne Feinstein, D-Calif., told the Senate Judiciary Committee, saying that Gorsuch was nominated only because of the "unprecedented treatment" of Garland.

Sen. Patrick Leahy, D-Vt., on Monday called that decision "an extraordinary blockade" and "one of the greatest stains on the 200-year history of this committee." He noted that the judiciary panel had once defied President Franklin D. Roosevelt's "court packing" – or attempts to expand the size of the Supreme Court in order to earn more favorable rulings.

"Now, Republicans are guilty of their own court-unpacking scheme in that their blocking of Merrick Garland was never grounded in principle or precedent," Leahy added.

The 49-year old Gorsuch was promoted by conservative legal activists because of his sterling credentials, a decade of right-of-center rulings and his allegiance to the same brand of constitutional interpretation that Scalia followed. In a sign of the bipartisan support he enjoys, Gorsuch was introduced by the senators from his home state of Colorado, Cory Gardner, R, and Michael Bennet, D, – who has not yet signaled whether he plans to vote for the judge – and Neal Katyal, who served as acting U.S. solicitor general for Obama.

The first day of hearings began with the panel's chairman, Charles Grassley, R-Iowa, vowing to refer Gorsuch to the full Senate by April 3.

"This is quite a lot different than the last time I was here," Gorsuch joked as he introduced his family to the committee, contrasting the large crowd seated behind him in the hearing room with that at a far less controversial hearing in 2006 for him to serve on the 10th Circuit Court of Appeals.

Republicans cheered Gorsuch on Monday, acknowledging the strong Democratic attacks to come, but adding that the nomination came with broad public support.

"This will be more of an ordeal than for your last appointment," Sen. Orrin G. Hatch, R-Utah, counseled Gorsuch as he read his opening statement.

Sen. Ted Cruz, R-Texas, said that Gorsuch's nomination comes with "super-legitimacy" because he was on a list of potential court nominees that Trump touted during his presidential campaign.

"The American people played a very direct role in helping choose this nominee," Cruz added.

Sen. Lindsey Graham, R-S.C., dismissed Democratic claims of a grand Republican plan to nominate someone with similar views to Trump.

"If you believe this has been a great plan to get a Trump nominee on the court, then you had to believe Trump was going to win to begin with," he said.

The frequent Trump critic added: "Obviously, I didn't believe that, saying all the things I said." Some in the room erupted in laughter.

The Senate Judiciary Committee begins Neil Gorsuch’s confirmation hearing for the vacancy on the Supreme Court on Capitol Hill on Monday. Senators will begin questioning Gorsuch at 9:30 a.m. Tuesday. (Washington Post photo by Melina Mara)

Given Gorsuch's genial demeanor and strong record, Senate Democrats face a stark dilemma – whether to take yet another stand against Trump's administration and satisfy liberals upset with his efforts to strip away provisions of the Affordable Care Act, impose an entry ban on some immigrants and deeply cut federal agencies – or allow enough moderate Democrats to join with Republicans to confirm him.

In recent days, many Democrats on the judiciary panel said they will wait until the end of the hearings before determining how to proceed.

But they signaled on Monday that they will probe him on several fronts.

Feinstein said she would ask Gorsuch to clarify his beliefs on abortion rights and gun rights – two issues on which he's never ruled, but issues that he has mentioned in passing in other legal opinions, she said.

She said she takes issue with Gorsuch's originalist views on the Constitution because, "If we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools and bans on interracial marriage. Women wouldn't be entitled to equal protection under the law, and government discrimination against LGBT Americans would be permitted."

Durbin and Sen. Christopher Coons, D-Conn., said they would push Gorsuch to clarify his views on religious freedoms and work. Sen. Richard Blumenthal, D-Conn., said he planned to draw out the nominee on Trump's "vicious" attacks on federal judges.

Gorsuch, looking tanned and interested, took notes Monday as some senators were speaking. He nodded his head at some of their statements, and smiled. When Durbin – after complaining about Garland's treatment – said Gorsuch should nonetheless be judged on his own merits, Gorsuch silently mouthed, "thank you."

Senators and their staffs also have been examining Gorsuch's role as a high-ranking official in the U.S. Justice Department at the time the George W. Bush administration was dealing with Guantanamo Bay detainees, reports of torture and anti-terrorism policies.

A new trove of materials released over the weekend show Gorsuch playing a central role in coordinating legal and legislative strategy, but portraying himself as reconciling the many opinions of those in the administration rather than driving policy.

"I am but the scrivener looking for language that might please everybody," he wrote in one email.

Gorsuch is poised to listen for several hours as members of the Judiciary Committee read opening statements. He is expected to deliver his opening statement by midafternoon, giving senators and the nation an early indication of how he might serve on the court.

On Tuesday and Wednesday, Gorsuch is set to face at least 50 minutes of questioning by each member of the panel. The proceedings are expected to conclude Thursday with a panel of witnesses speaking for or against Gorsuch.

In one of the day's lighter moments, Sen. Jeff Flake, R-Ariz., acknowledged that Gorsuch is still widely unknown by most Americans by recalling how the nominee's name had been misspelled in recent remarks he was reading off a teleprompter.

"Your name wasn't as familiar as some. And it replaced it with 'Judge Grouch,' " Flake said of the teleprompter, drawing laughs from the crowd.

By the end of this week, "every spell-checker in the country will know your name — and Judge Grouch is about as far as you can get from Judge Gorsuch in terms of your temperament," Flake said.

He then quipped: "That may change by the end of the week as well."

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