Senate Democrats may not like his judicial philosophy and may be suspicious of how he might rule on big issues. And they are justified in their anger over the outrageously political move by Republicans, who ran out the clock on Merrick Garland, Barack Obama’s well-qualified nominee for the seat vacated when Antonin Scalia died last year.
But Democrats have to ask themselves: If they filibuster and somehow manage to block Gorsuch, would the next nominee sent up by President Donald Trump be any better?
It’s doubtful, based on the list of names put out by Trump. Democrats need to be far more concerned about the next vacancy if it’s a Democratic appointee, which could tilt the ideological balance on the nation’s highest court.
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Gorsuch, a 49-year-old federal appeals court judge in Colorado, has the highest rating from the American Bar Association. During two days of testimony, he presented himself well. With the president bad-mouthing federal judges who ruled against his travel ban, Gorsuch made it a point to promise independence from the White House and to say the president is not above the law.
While Trump promised to appoint justices who would overturn the 1973 Roe v. Wade decision that established a right to abortion, Gorsuch repeatedly said he would respect prior rulings and said Roe was “the law of the land.” He said that Trump did not ask him about overturning Roe, and if he had, “I would have walked out the door. That’s not what judges do.”
Democrats on the Senate Judiciary Committee also pressed Gorsuch on specific issues, and he parried to avoid tipping his hand. That’s what Supreme Court nominees usually do, but it still frustrated Democrats, including Sen. Dianne Feinstein of California.
That led to some contentious exchanges. When asked about a “dark money” group that doesn’t disclose its donors and is backing his nomination with a $10 million public relations campaign, Gorsuch’s reply was unsatisfying. “It is what it is,” he said, though it’s the Supreme Court’s Citizens United decision that unleashed the floodgates for hidden campaign money.
Advocacy groups, including those called by Democrats to testify, are questioning his record on civil rights, religious freedom and gun control; his role at the Justice Department when it defended torture; and whether he would favor corporations.
They seized on a unanimous Wednesday Supreme Court ruling that autistic students have the right to an education that lets them reach their full potential, arguing that it rebuked Gorsuch, who ruled in another case that a state need only provide minimal educational progress to disabled students. Gorsuch said he was sorry for the ruling, explaining he had been bound by precedent.
On the whole, however, Gorsuch avoided saying anything very damaging. The Judiciary Committee is expected to vote April 3, and Republicans are pushing for a vote by the full Senate before April 10. If confirmed by then, he could hear cases this term, perhaps even Trump’s travel ban.
Gorsuch would be the fifth justice appointed by a Republican president, presumably restoring the 5-4 conservative majority. Yet we have to remember that some justices haven’t ruled as expected by the presidents who appointed them.
For instance, Justice Byron White – whom Gorsuch calls his childhood hero and mentor – was appointed by Democrat John F. Kennedy in 1962, but dissented from the liberal Warren Court and joined justices later appointed by Republicans during the 1980s and 1990s. Gorsuch clerked for Justice Anthony Kennedy, a Sacramento native appointed by Ronald Reagan who turned out to be a swing vote and a champion of gay rights.
So maybe Gorsuch will be the independent, nonpolitical judge he portrayed himself to be this week. If he gets the lifetime appointment, Americans can only hope so.