Senate Democrats' Neil Gorsuch dilemma

Judge Neil Gorsuch appeared before the Senate Judiciary Committee on March 21, for the first day of questioning in his Supreme Court confirmation hearing. Lawmakers took turns grilling the nominee on his past rulings and political views. (Jenny Starrs/Photo: Ricky Carioti/The Washington Post)

Senate Democrats have a problem: Faced with pressure from the left, they are trying to stick Judge Neil Gorsuch with something — anything — that would give them a judicial reason (read: not political) to vote against his nomination to the Supreme Court.

But two days into his multi-day confirmation hearing, Democrats seem to be coming up short in finding that overriding reason on which to hang their opposition to Gorsuch — beyond the fact he’s not President Obama’s pick for the seat, of course.

Politics is, in theory, supposed to be left out of the Senate’s “advise and consent” role on federal appointments, though neither side rarely checks their politics at the door.

On Tuesday, Democrats’ political goals manifested in taking turns dissecting Gorsuch’s solidly conservative judiciary record, his history as a lawyer defending Bush-era terror policies and a recent allegation by a student in his judicial ethics class that he “specifically targeted females and maternity leave.”

But it felt like every time they went down that road of questioning, they hit a dead end — specifically, they ran up against Gorsuch’s insistent defense of his impartiality. (Republican senators did their part on that front by throwing Gorsuch some easy questions on that front.) A typical defense from Gorsuch went something like:

“When I sit on the bench and someone comes to argue before me, I treat each one of them equally. They don’t come as rich or poor, big guy or little guy. They come as a person and I put my ego aside when I put on that robe and I open my mind and I open my heart and I listen.”

His sharp rebuttals left Democrats without much onto which to grab. If a judge says he’s impartial and he will apply the law equally, from president on down  — and can point to specific examples in his judicial process and record he says proves that  — what else can you do? It’s your word versus his.


U.S. Supreme Court Associate Justice nominee Neil Gorsuch (Ricky Carioti/The Washington Post)

Case in point was one of the first showdowns of Tuesday’s hearing.

Sen. Dianne Feinstein (D-Calif.), the ranking member of the Judiciary committee, asked Gorsuch about his record on workers’ rights. (He was once the lone dissenter against a trucker who claimed he’d been wrongly fired for seeking warmth in subzero weather.)  Gorsuch declined to share his opinion on specific cases — citing, again, his desire to be impartial.

So Feinstein asked this: “How do we have confidence in you that you won’t just be for the big corporations, that you will be for the little men?”

Gorsuch looked down at his notes and ticked off cases where he did, in his words, favor “the little guy.”

GORSUCH: I’ll name a bunch of them right now… Ute 5-6, Fletcher, the Rocky Flats case which vindicated the rights of people who had been subject to pollution by large companies in Colorado — uranium pollution. I — I point you to the magnesium case. Similar pollution case in the Salt Lake — in the Salt Lake City area. Colorado’s effort with renewable energy, upheld that.

Orr v. City of Albuquerque involving a pregnancy discrimination in the police department of Albuquerque. WD Sports, a discrimination claim. Casey, Energy West, Crane, Simpson v. CU involving young women who have been harassed by the football team, AM v. — AM, Browder, Sutton. I — I can give you a long…

FEINSTEIN: That’s helpful.

GORSUCH: … long list, Senator.

FEINSTEIN: That’s helpful, and we’ll find them and we’ll read them.

And that was the end of that discussion.

Judge Neil Gorsuch faced questioning over his support for workers during his confirmation hearing on March 21 from Sen. Dianne Feinstein (D-Calif.), and cited numerous cases where he ruled for “the little guy.” (Video: Reuters / Photo: Ricky Carioti/The Washington Post)

A couple hours later, the testiest exchange yet. Sen. Richard J. Durbin (D-Ill.) asked Gorsuch about allegations a student in his legal ethics class made that he targeted pregnant lawyers.

Gorsuch denied he did that. In fact, he went on: “I do ask for a show of hands,” Gorsuch explained, “How many of you have had questions like this asked in the employment environment, an inappropriate question about your family planning? And I am shocked every year, senator, how many young women raise their hand. It’s disturbing to me.”

Gorsuch’s answer was shared widely in conservative advocacy and media circles.

Who “won” each stand off will likely be in the eye of the beholder (and his or her political affiliation).

But beyond their loyal base, Democrats struggled to make an attack on Gorsuch stick. For every scattered question they lobbed at him, he offered a laser-focused rebuttal hinged on his impartiality.

“It’s hard to find anything to criticize Judge Gorsuch about in terms of his record, his demeanor, his temperament, and his qualifications,” Sen. John Cornyn (R-Texas) observed on MSNBC after the hearing.

In politics, repetition of message often equals penetration of message. Gorsuch’s line –“There is no such thing as a Republican judge or a Democratic judge” — was literally the headline of The Washington Post’s coverage of his hearing for most of Tuesday.

The thing is, Gorsuch probably will be a reliably conservative vote once he gets on the bench. But if Democrats were trying to unmask Gorsuch as a sort of right-wing ideologue unfriendly to minorities and women, they largely failed.

And through a purely political lens, that means Democrats on the Senate Judiciary Committee may have failed in their ultimate goal: To give their members a reason to oppose Gorsuch other than the fact he is Trump’s nominee and not President Obama’s.

Source: Washington Post

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