Gorsuch offered a message of unity on Monday
He might have to go farther than other Supreme Court nominees in explaining his position on abortion rights
Fireworks are expected on day two of the confirmation hearings for Supreme Court nominee Neil Gorsuch.
On Tuesday, each senator on the Judiciary Committee will get 30 minutes to grill President Donald Trump’s pick. The session is expected to last 10 hours, following a lengthy — and telling — round of opening statements from senators and Gorsuch.
Here’s what we learned Monday and what’s tap for Tuesday:
Gorsuch strikes a tone of unity
Gorsuch, who didn’t speak until the end of Monday’s four-hour hearing, delivered a heartfelt speech to a silent room, at times growing emotional. But the bottom line was a message of unity.
“Long before we are Republicans or Democrats – we are Americans,” the 49-year-old judge said.
Not only did he talk about his family’s impact on his life, but he also expressed support for judges across the country. This comes after Trump made headlines twice in the past year for attacking judges whose decisions he disagreed with.
Gorsuch did not bring up those attacks on Monday, but in his meetings with senators leading up to his hearing, he said attacks on judges were “disheartening” and “demoralizing.”
“I want to thank my fellow judges across the country,” he said Monday. “Judging is sometimes a lonely and hard job, but I have seen how these men and women work with courage and collegiality, independence and integrity. Their work helps make the promises of our Constitution and laws real for us all.”
Tuesday, he is all but certain to be asked directly about Trump’s comments.
Introductions get tense
Notably, two of the three men who introduced Gorsuch at the hearing were Democrats. Despite the bipartisan showmanship, both used some of their time to go negative, ripping into Republicans for blocking Merrick Garland – President Barack Obama’s pick for the same seat last year – and blasting Trump for his attacks on the judiciary.
One of them was Obama’s acting solicitor general, Neal Katyal, who successfully challenged the Trump administration’s new travel ban in federal court in Hawaii.
“It is a tragedy of national proportions that Merrick Garland does not sit on the court, and it would take a lot to get over that,” he said. “Indeed, there are less than a handful of people that the president could have nominated to even start to rebuild that loss of trust, but in my opinion Neil Gorsuch is one.”
Democratic Sen. Michael Bennet of Colorado was respectful of Gorsuch, but he made it clear that his introduction didn’t necessarily mean he would vote for the judge and that he was doing the introduction out of tradition.
“It is customary for senators to introduce nominees from their home states,” he said. “I’m not here today to take a position or persuade any of our colleagues how to vote. I am keeping an open mind about this nomination and expect this week’s hearing will shed light on Judge Gorsuch’s judicial approach and views of the law.”
Bennet called Senate Republicans’ treatment of Garland an “an embarrassment to this body,” and said “it is tempting to deny Judge Gorsuch a fair hearing” as well.
“But two wrongs never make a right,” he added.
Snub of Garland takes the spotlight
At times on Monday, it was difficult to remember that Gorsuch was the focus of the hearing. Democrats frequently sought to remind the public that Republicans orchestrated a strategy to keep Obama’s nominee from ever receiving a hearing, thus keeping the seat open until a new president was inaugurated.
Patrick Leahy, D-Vermont, called it an “extraordinary blockade” that was “totally unprecedented in our country’s whole history.”
Dick Durbin, D-Illinois, said it was part of a “Republican strategy to capture our judicial branch of government.”
Sheldon Whitehouse, D-Rhode Island, argued that under normal circumstances, Gorsuch would be deserving of the “benefit of the doubt,” but circumstances changed after Republican senators “denied any semblance of due legislative process” for Garland.
Looking up from his notes to make direct eye contact with Gorsuch. Whitehouse told the judge that Garland was “even more qualified than you – and that’s saying something.”
Texas Republican Ted Cruz responded later by saying, in essence: We won.
Cruz sharply defended Republicans’ decision to hold the seat vacant, saying the presidential election was also a “referendum on the kind of justice that should replace Justice Scalia.”
“Given the engagement of the electorate nationally on this central issue, I would suggest that Judge Gorsuch is no ordinary nominee,” Cruz said.
“Because of this unique and transparent process – unprecedented in the nation’s history – his nomination carries with it a super legitimacy,” he continued. “The American people played a very direct role in helping choose this nominee.”
The question for Tuesday: Have Democrats shouted themselves out on Garland, or is there more to come?
How will Democrats grill Gorsuch?
Several senators signaled their upcoming line of questioning by bringing up specific decisions or comments by Gorsuch that they didn’t like.
Minnesota Democrat Amy Klobuchar expressed concern about Gorsuch’s past criticism of a doctrine known as “Chevron deference.”
In the simplest terms, back in 1984, the Supreme Court held in Chevron U.S.A. Inc. v. Natural Resources Defense Council that when a law is ambiguous, courts must defer to the interpretation of a law adopted by the federal agency charged with enforcing that law, as long as the interpretation is reasonable.
Liberals in recent years have tended to support Chevron because when there is congressional gridlock, Democratic presidents have interpreted older statutes having to do with issues such as the environment and labor to allow them to implement broader protections. President Obama was especially active on that front.
But Gorsuch has argued the doctrine gives agencies too much power to say what the law is, which is really the job of the courts.
Dianne Feinstein, the top Democrat on the committee, brought up a case in which a trucker was fired for abandoning his broken-down trailer in freezing temperatures to seek safety.
The trucker, Alphonse Maddin, filed a complaint asserting that his firing violated a federal safety law. In a 2-1 decision the 10th US Circuit Court of Appeals ruled in Maddin’s favor.
Gorsuch dissented. “A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck,” Gorsuch wrote and noted that the company “fired him for disobeying orders and abandoning its trailer and goods.”
“It might be fair to ask whether TransAm’s decision was a wise or kind one,” he wrote. “But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”
Gorsuch concluded it wasn’t. His dissenting opinion is something Democrats are likely to harp on to paint Gorsuch in a negative, less humane light.
Connecticut Democrat Richard Blumenthal also suggested that Gorsuch might have to go farther than other Supreme Court nominees have in explaining his position on Roe v. Wade – the landmark opinion that legalized abortion, in part because Trump announced that he was going to appoint “Pro-life judges.”
“If you fail to be explicit and forthcoming and definite in your responses, we have to assume that you will pass the Trump litmus test,” Blumenthal warned.
Leonard Leo, an attorney currently on leave from the conservative Federalist Society, who helped Trump pick the nominee, called Blumenthal’s potential question “far-reaching and dangerous.”
“The President never sought promises from the judge on future cases, and Judge Gorsuch never made any,” Leo added. “Judge Gorsuch can’t make these promises on how he might rule.”
It’s rare for anything to outshine a Supreme Court confirmation hearing. But that’s what happened Monday when FBI director James Comey testified before the House Intelligence Committee, saying no evidence had been found to back up the president’s claim that Obama had wiretapped the phones at Trump Tower.
At the same hearing, Comey also confirmed for the first time that the FBI is investigating whether there was any coordination between the Trump campaign and Moscow while Russia was interfering in the presidential election.
Those were major headlines that dominated news coverage all day Monday, but Comey won’t be returning to the Hill on Tuesday, and the spotlight will be squarely focused on Gorsuch.
Asked if the Russia and wiretapping news is sucking all the oxygen out of the Supreme Court debate, Blumenthal told reporters Monday after the hearing that he’s not concerned.
“I don’t think it will be overshadowed. I think for the purposes of our decisionmaking, it will be immensely important in what my colleagues and perhaps I had to say today,” he said. “But much more important will be what Judge Gorsuch has to say tomorrow.”