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Supreme Court Nominee Gorsuch Ready for His Confirmation Hearings
By Bill Mears
In an isolated area of the Eisenhower Executive Office Building in the White House complex, Judge Neil Gorsuch has spent the past few days being put through the rhetorical ringer. For hours on end, he sits alone at a table, peppered with questions about his personal and professional record, all in an effort to see if he will crack under the pressure.
The informal, but intrusive prep sessions are known as "murder boards" for their intensity, designed to simulate what the 49-year-old nominee to the Supreme Court might face next week in his Senate confirmation hearings.
"He's a home run, he's smooth, he's going to go through great," said Thomas Dupree, a former Bush Deputy Assistant Attorney General, "The [opposing] senators will take their shots, "but I think he's close to a lock."
The stakes are enormous, not only for the nominee but also for the man who selected him from a list of 21 possibles announced during the presidential campaign. Aides say President Trump hopes a successful confirmation will build momentum for his separate political agenda.
In the broader realm, filling the seat left by the death of Justice Antonin Scalia will ensure the high court remains a shaky right-leaning majority. And having that fifth conservative vote will help guide the administration as it makes strategic decisions about which high-profile issues to pursue in court-- like immigration, the environment, transgender rights, and expanded executive authority.
"It's important Democrats and Republicans not roll over on this pick," said Elizabeth Wydra, president of the left-leaning Constitutional Accountability Center. "The American people want their justices to be an independent check even to the President nominating you, to follow the Constitution, not their own political values."
But liberal advocacy groups have all but abandoned efforts to defeat Gorsuch through public opinion, with scant paid issue advertising. Many progressives lament Democratic senators have been distracted by other ideological fights.
The justices themselves hope the arrival of Gorsuch will end what court sources say has been a tense 13-month period since Scalia's sudden passing. The current 4-4 ideological divide has kept the court off its internal workplace rhythms-- operating in something of a judicial vacuum, reluctant to tackle those hot-button issues that would lead to precedent-setting impact.
A Record to Match
A Fox News analysis of Gorsuch's record on and off the bench-- including some 3,000 rulings he has been involved with-- reveals a solid, predictable conservative record, in many ways mirroring Scalia's approach to constitutional and statutory interpretation. And the Colorado native's flair for colorful opinion writing is much in the mold of Scalia, whose sharp pen and wicked wit delighted conservatives
The issues he has confronted vary widely-- from libel, capital punishment, regulatory enforcement, and tax subsidies. But the overall articulate message remains consistent: less is more when it comes to interpreting the rule of law.
"Ours is not supposed to be the government of the 'Hunger Games' with power centralized in one district," he wrote in 2015, with an oft-used reference to pop culture, "but a government of diffused and divided power, the better to prevent its abuse."
Federal worker protections strive "to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work, not to turn employers into safety net providers for those who cannot work," he wrote in a 2014 opinion, displaying sympathy for a Kansas woman undergoing cancer treatment, but nevertheless denying her discrimination claim.
Perhaps his highest profile case was the 2013 concurrence supporting the right of for-profit, secular institutions (and individuals too, he argued) to oppose the Obama's administration mandate to provide contraceptives to their workers. Gorsuch affirmed his past ardent commitment to religious freedom against claims of government "intrusion."
In the so-called "Hobby Lobby" case, the judge concluded, "For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability."
Gorsuch later supported the right of religious non-profits, like Catholic charities, to also challenge the contraceptive coverage mandate. The Supreme Court later partially vindicated Gorsuch's views on both cases.
Sometimes, the judge's conservative bona fides collide, as in the case of a notorious Wyoming inmate. Andrew Yellowbear, a Native American who murdered his daughter, wanted to use an existing sweat lodge in the prison facility as part of his religious tradition.
Gorsuch wrote the majority opinion that under a federal law, the inmate deserved that right, striking down the state's discretionary correctional policy. It was a setback for law-and-order supporters.
"While those convicted of crime in our society lawfully forfeit a great many civil liberties," he concluded, "Congress has instructed that the sincere exercise of religion should not be among them-- at least in the absence of a compelling reason. In this record we can find no reason like that."
In his questionnaire to lawmakers, the nominee said none of his own written opinions were ever reversed by the Supreme Court.
One of Gorsuch's off-the-bench remarks is generating some concern, a 2005 opinion piece in "National Journal," written shortly before he donned the judicial robes.
"American liberals have become addicted to the courtroom," he wrote, "relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary."
And Gorsuch's 2006 book "The Future of Assisted Suicide and Euthanasia" has both worried and encouraged some fellow conservatives, His conclusion that the doctor-approved procedure was "essentially a right to consensual homicide" might be used by as a red flag by abortion rights activists and death penalty opponents as a parallel argument, even though Gorsuch made clear in the book it should not.
Party sources say Democratic senators will focus much of their attention on seeking Gorsuch's views on abortion, since he has not ruled directly on the right to the procedure.
"I will not support any candidate who intends to turn back the clock on civil rights, including women's reproductive rights and LGBT equality," said Sen. Jeanne Shaheen (D-NH), who has not said whether she would ultimately vote for Gorsuch.
Other areas of Democratic interest:
- Separation of powers, and whether Gorsuch would be an independent voice to strike down excesses in Trump's executive authority, including the president's revised order banning travel for immigrants from certain countries.
- Voting rights and campaign finance reform, specifically whether the nominee thinks current unlimited corporate donations to PACs are permissible.
- Workers rights, and whether challenges over pay equity, pension benefits, job discrimination claims, and family and medical leave.
Some progressives have actually urged Democrats not to ask any questions at the hearings, as a dramatic rebuff for Republicans refusing to give President's Obama's high court nominee-- Judge Merrick Garland-- a hearing or vote.
And they demand a filibuster to prevent Gorsuch from ever getting a floor vote.
Bitter feelings linger. "This is a stolen seat being filled by an illegitimate and extreme nominee," said Sen. Jeff Merkley (D-OR), "and I will do everything in my power to stand up against this assault on the Court."
Along with his courtesy visits to more than 70 members of the Senate who will decide his fate, Gorsuch has prepared for the spotlight by reviewing his own record, and enduring those closely-guarded mock hearings.
The private rehearsals are coordinated by the White House Counsel's Office, and include more than a dozen participants-- government lawyers, conservative academics, and some of his former law clerks. The goal is to anticipate every possible line of questioning and danger zone-- to give measured answers but not reveal too much.
Sources say Gorsuch has settled in being himself, avoiding unscripted responses that might provide the televised "soundbite" to derail what has so far been a flawless confirmation journey. Administration officials are privately confident he will shine in the hearings.
Republicans point to Gorsuch's unanimous 2006 confirmation to his appeals court seat as a template to blunt any efforts to filibuster this time. Sources expect him to repeat in the upcoming hearings what he said 11 years ago, about the kind of judge he considered unacceptable: "Someone who is not willing to listen with an open mind to the arguments of counsel, to his colleagues, to precedent."