Civil and Human Rights

Here’s What to Expect at Gorsuch Confirmation Hearing

By Tony Mauro

The stage is set for U.S. Supreme Court nominee Neil Gorsuch’s confirmation hearing to begin on Monday before the Senate Judiciary Committee.

Supporters, including a significant number of his former law clerks, have been prepping him for the hearing, which may last three or four days. Stand-ins for senators have peppered Gorsuch with questions in so-called murder boards, or mock hearings, at the Eisenhower Executive Office Building near the White House.

Meanwhile, activist groups on both sides are turning up the pressure. The conservative Judicial Crisis Network is airing $10 million worth of ads supporting Gorsuch. Liberal groups, for their part, gathered more than a million signatures to urge senators to vote no on Gorsuch and planned advertising of their own.

Apart from the political fireworks, “these hearings should be a riveting constitutional seminar,” said Jeffrey Rosen, a Supreme Court scholar and National Constitution Center president. Even though nominees usually avoid answering questions about hot-button issues, Rosen thinks the hearings still yield substantive statements that reveal a nominee’s frame of mind. Some things to watch for:

Opening Salvos

If the usual pattern is followed, Monday will be taken up mainly by opening statements from senators that run too long and state the obvious. But this time they may be worth listening to as a gauge of how Democrats will approach Gorsuch. Democrats are under enormous pressure from their base to oppose Gorsuch, even if he won’t change the court’s balance because his views approximate those of Antonin Scalia, the justice he was nominated to replace. Liberals are still bitter about Republicans sitting on the nomination last year of Merrick Garland to the Scalia seat. But with the American Bar Association giving Gorsuch its highest rating, and with Hogan Lovells partner Neal Katyal praising Gorsuch even as he challenged the Trump administration travel ban, some Democrats may want to let Gorsuch be confirmed and wait to do battle over the next vacancy.

Taking Care of Business

Though it may not be as prominent as other hot-button topics, Gorsuch’s track record on issues relating to business is certain to crop up. And it won’t be just his criticism of the less-than-exciting Chevron doctrine, which defers to regulatory agencies in interpreting ambiguous statutes. But Elizabeth Wydra, president of the liberal Constitutional Accountability Center, predicts that Gorsuch’s dissents in such Tenth Circuit worker-safety cases as TransAm Trucking v. Administrative Review Board, Department of Labor and Compass Environmental v. Occupational Safety and Health Review Commission will also be cited during the hearings as “life-or-death issues that people can identify with.” These are not side issues, she asserted. “They are key to the job of being a justice—whether he will apply the law fairly, whether for big corporations or for someone holding a big corporation accountable.”

Gorsuch and Trump

It is a fair bet that in his preparations for the hearing, Gorsuch is being advised on how to respond to questions about the controversial statements and policies of the man who appointed him. Democrats will press him to answer such questions to tease out how independent Gorsuch will be. After President Donald Trump criticized the federal judge who ruled against his immigrant travel ban in February, Gorsuch was quoted as saying it was “disheartening” and “demoralizing,” though Trump aides subsequently said he was speaking in general about attacks on the judiciary. Given his seemingly calm demeanor and his reputation as a diplomatic and collegial judge, Gorsuch is likely to thread the needle, but the Democrats won’t make it easy for him.

Scalia-Like or Scalia-Lite?

Especially because Gorsuch would replace Scalia, senators are likely to grill Gorsuch to determine how alike the two jurists are, and where they would part company. His answers could be revealing in gauging his views on gun rights, executive power and other issues. Rosen anticipates extended discussion of originalism, the doctrine that exalts the original meaning of the Constitution and statutes. Rosen said some view Scalia as “an inconsistent originalist,” so “it will be interesting to see if Gorsuch criticizes that.” After Scalia’s death, legal scholars devised a “Scalia Index Score” and determined that among Trump’s possible nominees, Gorsuch was the most “Scalia-like.”

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