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Gorsuch: Judges Aren’t ‘Politicians in Robes’

SCOTUS nominee tries to ease concerns about his legal philosophy

Judge Neil Gorsuch takes his seat for the first day of the Senate Judiciary Committee confirmation hearings on Monday for his Supreme Court nomination. (Bill Clark/CQ Roll Call)
Judge Neil Gorsuch takes his seat for the first day of the Senate Judiciary Committee confirmation hearings on Monday for his Supreme Court nomination. (Bill Clark/CQ Roll Call)

Judge Neil Gorsuch used family details to introduce himself to the country Monday on the opening day of his Supreme Court confirmation hearing, and sought to ease Democrats’ concerns about his legal philosophy.

In his opening statement, Gorsuch spoke of starting off married life with his wife, Louise, in a small apartment. The federal appeals court judge shared his favorite memories of his teenage daughters, such as bathing chickens for the county fair. The Colorado native mentioned his father’s lessons that kindness is a great virtue and there are few experiences closer to God than wading in a trout stream.

But when it comes to his career, the 49-year-old nominee told the Senate Judiciary Committee that judges are not “politicians in robes.”

“If I thought that were true, I’d hang up the robe,” Gorsuch said in his first public comments since President Donald Trump nominated him to fill the seat of the late Justice Antonin Scalia, who died in February 2016. “Putting on a robe reminds us judges that it’s time to lose our egos and open our minds.”

Gorsuch’s comments ended the first day of what could be a week of testimony in the Judiciary Committee. The panel didn’t get past opening statements on Monday and Gorsuch faces a full day of questioning from all 20 committee members starting at 9:30 a.m. Tuesday. Chairman Charles E. Grassley announced a committee vote will take place April 3.

Gorsuch spoke of his time with legal heroes and defended his record, saying 97 percent of the decisions he participated in were unanimous, and he was in the majority 99 percent of the time. “That’s my record, and that’s how we do things in the West,” he said.

He reassured senators that judges are not there to make laws, and that their black robes serve “as a reminder of the modest station we judges are meant to occupy in a democracy.”

“If judges were 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,” Gorsuch 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.”

Gorsuch on Judicial Independence: ‘That’s a Softball’

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Judicial independence

Earlier Monday, Grassley had a message for Democrats and progressives worried about the federal courts acting as a check on Trump: “Meet Judge Gorsuch.”

The Iowa Republican highlighted how the appeals judge has an unfailing commitment to constitutional order and the separation of powers.

“In recent months, I’ve heard that ‘now more than ever’ we need a justice who is independent, and who respects the separation of powers,” Grassley said. “His grasp on the separation of powers — including judicial independence — enlivens his body of work.”

Public interest is high. At issue is the continuation of the Supreme Court’s conservative tilt.

Sixty votes are needed to overcome a filibuster on a Supreme Court nomination and that’s a tall order for Democrats. They can’t block Gorsuch without help from some of the 52 Republicans in the Senate majority and they could lose votes from some of the 10 vulnerable Democrats up for re-election next year in states won by Trump.

The dilemma for Democratic leadership is whether to launch a confirmation war over Gorsuch and force Republicans to change the long-held Senate rule that requires consensus on Supreme Court nominees or save that fight for a less palatable pick if there is another high court vacancy.

Grassley’s comments sought to address one of Democrats’ main concerns: Will Gorsuch say ‘no’ to the man who appointed him? The issue has become even more important for Democrats in the wake of Trump’s controversial travel ban and the president’s full-throated criticisms of federal judges that they say show a lack of respect for the role of the judiciary.

“We need to know what you’ll do when you’re called upon to stand up to this president, or any president, if he claims the power to ignore laws that protect fundamental human rights,” Senate Minority Whip Richard J. Durbin said. “You’re going to have your hands full with this president. He’s going to keep you busy.”

Sen. Dianne Feinstein of California, the top Democrat on the Judiciary Committee, in her opening statement listed the concerns from Democrats on Gorsuch’s positions on abortion, the rights of large corporations over workers, and a longstanding legal principle that affects environmental, labor and other civil rights laws.

Feinstein also spent time defending the “settled law” of the 1973 landmark case of Roe v. Wade that established a woman’s right to have an abortion. She pointed out that Trump promised during the campaign to put justices he considers “pro-life” on the court who would overturn that case.

While Gorsuch has not ruled directly on abortion, “his writings do raise questions,” Feinstein said.

Not like 2006

Feinstein opened her comments by mentioning President Barack Obama’s nominee for the same vacancy — federal appeals Judge Merrick Garland — whom Republicans blocked last year from ever getting such a confirmation hearing or vote.

“I am deeply disappointed that it is under these circumstances that we begin these hearings,” the California Democrat said.

Gorsuch’s entry to the committee room on Monday caused a lighthearted moment because there was such a din of shutter clicks from media photographers that he couldn’t keep a straight face as he sat down at the witness table.

Grassley dryly told Gorsuch that he imagined the Supreme Court hearing was better attended than the last time Gorsuch appeared before the committee in 2006, when he was confirmed to the U.S. Court of Appeals for the 10th Circuit by a voice vote.

“This is quite a lot different than the last time I was here,” Gorsuch said before introducing his wife and other family members and friends. “I appreciate all the attention.”

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