Article Mar 22, 2017

Gorsuch and the first two days of hearings

Neil Gorsuch defended his judicial independence and refused to express his opinion on U.S. Supreme Court decisions – including Roe v. Wade -- during the first two days of hearings on his nomination to be a justice.

In his opening statement Monday (March 20) and in responses to questions this morning (March 21), the nominee to the high court assured the Senate Judiciary Committee of his willingness to rule against President Trump, who nominated him. The hearings will continue tomorrow, and the committee is scheduled to vote April 3 on Gorsuch.

As the process continues in the Senate, the primary question appears to be whether the judge on the 10th Circuit Court of Appeals in Denver will receive enough votes to overcome an expected Democratic filibuster. The Republican majority has 52 members, but 60 votes are required to halt a filibuster and vote on confirmation. If the GOP falls short, it can hold a vote to revise the rules and confirm Gorsuch by a simple majority.

Trump nominated Gorsuch, 49, to the high court in late January, nearly a year after the death of Associate Justice Antonin Scalia. Like Scalia, Gorsuch espouses a philosophy and record of interpreting the Constitution and laws based on its original meaning and their text, respectively.

Southern Baptist ethicist Russell Moore described Gorsuch as “an outstanding nominee for the Supreme Court. His high regard for the Constitution makes him a fitting continuation of the legacy of Justice Antonin Scalia.”

“As confirmation hearings continue, my hope is that what will be on display and under discussion will not be partisan politics but rather Judge Gorsuch's eminent qualifications and his judicial philosophy,” said Moore, president of the Ethics & Religious Liberty Commission (ERLC), in written comments for Baptist Press. “I look forward in due time to seeing him confirmed as the next justice of the Supreme Court."

When asked about judicial independence March 21 by Chairman Charles Grassley of Iowa, Gorsuch said, “I have no difficulty ruling for or against any party” in a case. Later, he told Democratic Sen. Patrick Leahy of Vermont, “I will apply the law faithfully and fearlessly and without regard to persons.

Judicial independence, Gorsuch said, equates to the judicial oath he took “to administer justice without respect of persons, to do equal right to the poor and the rich, and to discharge impartially the duties of my office.”

He doesn’t believe in “litmus tests for judges,” Gorsuch replied to a question from Grassley.

“I wasn’t about to become party to such a thing,” he said, adding no one representing the Trump administration in the nomination process “asked me for any commitments, any kind of promises on how I would rule in any kind of case.

“I have offered no promises on how I would rule on any case to anyone, and I don’t think it’s appropriate for a judge to do so, no matter who’s doing the asking.”

Sen. Dianne Feinstein of California, the committee’s lead Democrat, expressed particular concern about Trump’s promise he would select pro-life judges who would overrule Roe, the 1973 opinion that legalized abortion throughout the country. She had described Roe as a “super-precedent” in her opening statement March 20.

She asked Gorsuch March 21, “Do you view Roe as super-precedent?”

He replied, “It has been reaffirmed many times.”

Earlier, Gorsuch acknowledged Roe is a precedent of the high court that was reaffirmed in the 1992 Planned Parenthood v. Casey opinion and in several other cases. A precedent is a ruling that sets a legal standard for the future.

In assessing precedent, a judge asks, Gorsuch said, among other questions, “What about the doctrine around it? Has it been built up over the years” or “has it become an island?”

“You start with a heavy presumption in favor of precedent “ and “in a very few cases you may overrule precedent,” he said.

On religious liberty questions, Gorsuch again commented broadly but not about potential cases he might rule on.

Leahy asked if a blanket religious litmus test for entering the United States is consistent with the First Amendment.

“Senator, we have a free exercise clause that protects the free exercise of religious liberties by all persons in this country,” Gorsuch said. “If you’re asking me how I would apply it to a specific case, I can’t talk about that for understandable reasons.”

When asked about a religious test to enter the military, Gorsuch said, “That is against the law.”

In his opening statement March 20, Gorsuch told the committee, “[T]hese days we sometimes hear judges cynically described as politicians in robes, seeking to enforce their own politics rather than striving to apply the law impartially. But if I thought that were true, I would hang up the robe. The truth is I just don't think that's what a life in the law is about.

“If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk,” he said. “And those who came to court would live in fear, never sure exactly what the law requires of them except the judge's will.”

Trump was able to select Gorsuch only after the Republican-controlled Senate refused to act on President Obama’s selection last March of another appeals court judge, Merrick Garland of the District of Columbia Circuit. During the hearings, Democratic members have criticized the GOP leadership for refusing to consider Garland.

The ERLC sponsored a letter Feb. 1 in which more than 50 Southern Baptist and other evangelical leaders called for confirmation of Gorsuch. The signers said they believe Gorsuch’s judicial philosophy meets the thresholds of their “core social principles.” Those precepts include in the Supreme Court’s purview “the protection of the unborn, the strengthening of religious liberty, and a dedication to human flourishing – which we believe can only be accomplished by a biblical definition of marriage and family,” they said.

During his time on the 10th Circuit, Gorsuch agreed with others on the court the Obama administration’s abortion/contraception mandate violated the free exercise of religion rights of Hobby Lobby and Little Sisters of the Poor among other religious groups. He wrote a 2006 book, The Future of Assisted Suicide and Euthanasia, before becoming a judge that argues against legalization of the end-of-life practices. Based on his judicial philosophy, however, Gorsuch has pledged to apply the law rather than his beliefs.