WASHINGTON — The first day of Judge Neil Gorsuch’s confirmation hearings to be the nation’s 113th Supreme Court justice focused to a remarkable degree on people who were missing from the packed Senate Judiciary Committee hearing room — but who will have a major impact on the result.
President Trump. Merrick Garland. Antonin Scalia. Byron White. Perhaps most of all, the “little guy.”
Here are five things to watch for during the next three days as Gorsuch, 49, who serves on the U.S. Court of Appeals for the 10th Circuit in Denver, and his supporters and detractors testify under oath:
Democrats made clear during opening-day speeches that Trump’s attacks on judges with whom he disagrees represent a threat to the independence of the federal judiciary — and Gorsuch will have to answer for it.
“You have a special responsibility here this week, which is to advocate for and defend the independence of our judiciary against those kinds of attacks,” Sen. Richard Blumenthal of Connecticut said.
Democrats also criticized Trump’s method of choosing Gorsuch from a list created by the conservative Federalist Society and Heritage Foundation. And they noted Trump promised to pick someone who was pro-life and likely to help overturn the high court’s 1973 Roe v. Wade decision legalizing abortion.
“I can only conclude that you met the president’s litmus test,” Sen. Mazie Hirono of Hawaii said.
Besides Gorsuch, no one commanded more attention than Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, who Republicans snubbed after President Obama nominated him to the seat a year ago. Sen. Michael Bennet, D-Colo., who introduced Gorsuch but has not decided how he’ll vote, even referred to the vacancy as “the Garland seat.”
“Due to unprecedented treatment, Judge Garland was denied a hearing, and this vacancy has been in place for well over a year,” said Sen. Dianne Feinstein of California, the panel’s top Democrat. “I just want to say I’m deeply disappointed that it’s under these circumstances that we begin our hearings.”
Even Republicans acknowledged those circumstances. Sen. Jeff Flake of Arizona commended Gorsuch for calling Garland almost immediately after receiving the president’s nomination on the last day of January.
On one thing committee members agreed: Gorsuch is a judge much in the mold ofthe man whose death created the 13-month vacancy. They disagreed on whether that’s a good or bad thing.
“Justice Scalia was unique,” Sen. John Cornyn, R-Texas, said. “His wit and style brought the Constitution to life, for lawyers in their first year of law school and for the American public at large. He led the most important legal revolution in our lifetimes, tethering judicial interpretation to the written text. What a concept.”
But Sen. Chris Coons, D-Del., noted that Scalia dissented from seminal decisions of the past three decades granting abortion rights and same-sex marriage rights, protecting gay men from criminal prosecution and both juveniles and the intellectually disabled from the death penalty, and allowing women to attend military academies.
Another former justice who came galloping back to life was Byron White, the first to hail from Colorado, whom Gorsuch served as a law clerk. Gorsuch lauded his mentor, who he said “followed the law wherever it took him, without fear or favor toward anyone.”
It was Scalia who often noted that a majority of the current justices were Easterners — in fact, four hailed from New York City from the time Elena Kagan joined the bench in 2010 until Scalia’s death last year. As for the West, Justice Anthony Kennedy’s home state of California, Scalia was fond of saying, “does not count.”
“This is nice, to have someone from the West with a Western perspective,” said Arizona’s Flake, seated between senators from Idaho and Nebraska. Also on the committee: two Texans and two Utahns (or is it Utahans?).
This is the theme that will come back again and again in the ensuing days: Does Gorsuch favor corporations and the wealthy over “the little guy”?
Democrats say he does. They cite cases involving a trucker who nearly froze to death in his cab, a woman blocked from suing a medical device company whose product resulted in debilitating injuries, a professor fired after being denied more than six months’ leave to recover from cancer.
“You rarely seem to rule in favor of the little guy,” Hirono said.
Gorsuch indicated how he will defend himself against those charges in the coming days. He has ruled in favor of disabled students, prisoners, workers alleging civil rights violations and undocumented immigrants, he said, as well as ruling “against such persons.”
“My decisions have never reflected a judgment about the people before me, only my best judgment about the law and facts at issue in each particular case,” he said. “A good judge can promise no more than that, and a good judge can guarantee no less.”