More than one year after the death Justice Antonin Scalia, the Senate Judiciary Committee will hold its first hearing for a nominee to succeed him on the Supreme Court.
Judge Neil Gorsuch will appear Monday before senators looking to pin him down on his philosophy – and some will air grievances about why Gorsuch is even here at all. Gorsuch, for his part, will try to defend his approach without discussing specific cases or damaging his smooth nomination in any way.
The Judiciary Committee has four days of hearings scheduled. Here’s what to expect:
Democrats get their grill on
Supreme Court justices spend their careers safely ensconced with life tenure in the quiet chambers of the marble palace.
With the stroke of a pen and a packet of opinions the justices can dismantle a major piece of legislation and dash the dreams of those who toil away across the street in the Capitol. As such, senators have one – and only one – chance to grill a potential nominee, and express displeasure about past Supreme Court rulings.
Before hearing from Gorsuch, each senator on the Judiciary Committee will get 10 minutes to talk. Members on both sides will strut their constitutional stuff.
Democrats will also use the hearing to go after Trump’s early actions such as his travel ban for people from seven – then revised to six – majority-Muslim countries, which has been blocked by federal courts from coast to coast.
A glimpse of Gorsuch
After more than three hours of listening Gorsuch will then take the oath, and finally start talking. His opening statement – expected Monday afternoon – will be the first glimpse of Gorsuch’s views since his “Celebrity Apprentice”- type unveiling on January 31. Gorsuch, an eloquent speaker, is likely to dazzle the audience with a nod to the limited role of the court and the humble job of a judge.
Often it is the opening statement that the public most remembers. Chief Justice John Roberts spoke about calling “balls and strikes” while Justice Sonia Sotomayor detailed the “human consequences” of her decisions and the role her mother played in bringing her out of the projects.
It’s an opportunity for Gorsuch, who has spent the past few weeks on a listening tour through Congress, to assert his personality and set the tone.
What he’ll say and what he won’t
In a time-honored tradition, senators will do their best to get Gorsuch to speak about hot-button issues that could come before the court like immigration, abortion and national security, and he will attempt to gracefully dodge the line of inquiry.
Look for Gorsuch to refer to something called the “Ginsburg standard.” The term was coined after Justice Ruth Bader Ginsburg’s hearings. She responded more freely about issues and opinions she had already written about, but steered clear of cases that could come before the court in order to guard her impartiality.
Other justices, included Chief Justice John Roberts, referred to the “Ginsburg standard” in order to avoid answering questions about current cases and controversies.
Expect to hear versions of “Every case is different” and “I wouldn’t want to pre-judge without looking at all the facts.”
The Trump dilemma
Donald Trump has already changed Neil Gorsuch’s life by offering him a dream job.
But how does Gorsuch handle the fact that Trump has lambasted specific federal judges when they ruled against him? Very carefully. The hearing will provide the first chance for Gorsuch to publicly refute Trump’s judicial attacks.
Through a spokesperson he made it clear in February that he thought such attacks were “disheartening,” but now he might have to answer directly.
He’ll likely find a way of condemning the comments but not the man. Whatever he says, it will be well practiced. He’ll be pressed on his views on executive power as well. Muslim ban? Wiretapping? Limits of regulatory state? Although they may not get the answers they seek, Democrats are sure to launch the inquiry.
The Garland Grievance
One of Gorsuch’s first acts as a Supreme Court nominee was to telephone Judge Merrick Garland, the man who was nominated by President Barack Obama for Justice Scalia’s seat.
While some Democrats will undoubtedly refer to the seat as “stolen” from Garland, others will be forward-looking.
Democrats have to tread carefully and gauge whether they want to save some firepower. Why? At the end of the day, what is at stake is returning the court to the status quo from before Scalia’s death. Gorsuch, a conservative, is replacing a conservative. Some might think that it makes sense to save the big fight if Trump gets another chance to name a Supreme Court justice.
After all, if Justice Kennedy, or a liberal were to step down that could significantly change the balance of power for years to come. That fight could be a battle royale, and make the Gorsuch hearings pale in comparison.