Judge Neil Gorsuch has the rare privilege of being a Donald Trump nominee who enjoys support from both Republicans and Democrats. Gorsuch has been nominated to fill the vacancy created by the death of Supreme Court Justice Antonin Scalia in February 2016. The conservative-leaning judge, who was educated at Columbia, Harvard and Oxford, sailed through the first two days of Senate hearings on Monday and Tuesday.
“Through every planned line of attack — from his record on workers’ rights to his skepticism of the power of regulatory agencies — Judge Gorsuch emerged with few scratches,” said a New York Times report on Tuesday’s hearing. Gorsuch avoided sharing his views on controversial issues such as abortion rights and the Trump administration’s attempted travel ban on people from countries with predominantly Muslim populations. He also said he wouldn’t hesitate to rule against President Trump if the law warranted that.
Even as Gorsuch seems to be saying all the right things, some observers argue that Democrats must stall his appointment as the hearings continue over the next few days. They contend that a confirmation must wait until clarity emerges on growing suspicions of Russian interference in the U.S. presidential election.
“What if we find the Russian interference with our elections was larger than what we thought, and there is a reason why the President is denying [Russia’s involvement]?” asked Eric Orts, Wharton professor of legal studies and business ethics and director of the Initiative for Global Environmental Leadership. “What if we find after we confirmed a Supreme Court justice that in fact that the election was significantly affected by the Russians? Then you have a Supreme Court justice who is there partly because of Russian espionage. For that reason, the priority really needs to be on finding out what happened, and [we need to] postpone or delay Congressional hearings [until we find out].”
Billy Corriher, deputy director for legal progress at the Center for American Progress, noted that Senate Republicans want to rush through Gorsuch’s confirmation. While they would like a vote before a recess in the first week of April, the confirmation vote could extend to as far as late April or early May, he said. He agreed with Orts that because of doubts over Russian interference in the election, Democrats should push for a delayed decision. “We could have something new occurring every week on what happened during the campaign,” he said. “We could learn whether or not that election was fundamentally flawed because of interference from the Russians – who knows?”
“What if we find after we confirmed a Supreme Court justice that in fact that the election was significantly affected by the Russians” –Eric Orts
Orts and Corriher discussed the circumstances impacting the Gorsuch hearings on the Knowledge@Wharton show on Wharton Business Radio on SiriusXM channel 111. (Listen to the podcast at the top of this page.)
Setback for Trump
The latest development on the Russian front came on Monday with James Comey, director of the Federal Bureau of Investigation, testifying before the House Intelligence Committee that his office is probing allegations that Trump’s campaign team members used Russian help to influence the outcome of the presidential election. Comey, who testified along with Michael Rogers, director of the National Security Agency, also rejected Trump’s claims that the Obama administration wiretapped his premises during the presidential campaign. Meanwhile, the Senate Intelligence Committee has also said it will investigate claims of Russian interference in the elections.
All of this occurred against the backdrop of the resignation in February of Michael Flynn as national security adviser, after he admitted to having contact with the Russian ambassador to the U.S. during the campaign, and not revealing that fact before his appointment.
Degrees of Politicization
While it may seem that the Gorsuch hearings are becoming excessively politicized, Orts suggested that politics is intrinsically a part of this particular nomination. “Many Americans who didn’t like Trump voted for him because they were unhappy with where the Supreme Court seemed to be going, and they wanted to have a conservative appointed,” he said. “So, at the end of the day, it will be about politics.”
Corriher agreed, saying that “this is what most Americans expect.” He noted that “the increasing partisan divide on the [Supreme] Court itself contributes to this,” referring to many crucial rulings that passed with a close, 4-5 vote in the nine-member court. “It’s hard to argue that the process for picking that judge will not be politicized as well.”
Orts recalled the “problematic history” of this Supreme Court with Republicans denying a hearing last year to President Barack Obama’s nominee for Scalia’s seat, Judge Merrick Garland. It didn’t seem to matter to Republicans that Garland was considered “fully qualified,” just as Gorsuch is, he noted. “When you politicize the situation in one way, it comes back the other way.” The Republican denial of hearings for Garland has “raised the bar” for Gorsuch to get past his own hearing, added Corriher.
At Tuesday’s hearing, Gorsuch expressed admiration for Garland. “Whenever I see his name attached to an opinion, it’s one I read with special care,” he stated, according to The New York Times.
Orts recalled that several previous Supreme Court nominations were also highly politicized, such as that of Clarence Thomas in 1991 and Robert Bork in 1987. He said senators opposed to a nomination are typically driven by both their judicial philosophy and politics, and often look to drum up public opinion to support their case. “That is a drama we have played out that is getting a little tiresome,” he added.
Orts suggested that the U.S. is an outlier among nations in the reach of its judiciary. “Issues like abortion rights and gay marriage are determined here by going to the Supreme Court eventually, but in most other countries they are decided by a democratic legislative process,” he said. He recalled the oft-cited quote by the 19th century French political thinker and historian Alexis de Tocqueville, “There is hardly any political question in the United States that sooner or later does not turn into a judicial question.”
Issues on the Table
As the nomination hearings move forward, Gorsuch faces a formidable list of issues on which the Democrats could grill him. The hearings will shed light on the impact of his rulings, and “the impact of his views on the law on ordinary Americans,” said Corriher. He expected the questioning to focus on issues like what his confirmation would mean for American workers and American consumers.
“You had a court that favored corporations over workers and corporations over consumers, and a return to that as a status quo is something that people should be concerned about.” –Billy Corriher
Corriher predicted that a confirmation of Gorsuch would allow the continuation of a pro-business approach in Supreme Court decisions. He cited the 2010 Citizens United vs. Federal Election Commission, where the court in a 5-4 decision said that free-speech principles prevented the government from prohibiting campaign contributions from nonprofits, which have been since extended to include for-profit corporations, unions and other associations. He also cited Gorsuch voting in favor of the 2014 decision of the U.S. Appeals Court of the Tenth Circuit in Burwell vs. Hobby Lobby Stores case, which allowed corporations run along Christian principles to deny medical coverage for contraceptive treatments. The Supreme Court later upheld that ruling.
“You had a court that favored corporations over workers and corporations over consumers, and a return to that as a status quo is something that people should be concerned about,” said Corriher. “I hope [the Democrats] will go hard on this nomination.”
But on Tuesday, Gorsuch defended his record and said it included rulings in favor of both businesses and workers.
According to Corriher, the continued questioning of Gorsuch would cover his time as deputy associate attorney general at the Department of Justice in 2005-2006. The George W. Bush administration at the time stressed the powers of the executive branch over those of the courts, and “Gorsuch helped develop a lot of those legal arguments,” he said. “Trump, too, has a very broad view of executive power and wants to limit the courts’ powers.”
Orts disagreed with Corriher on reading Gorsuch’s role in the Bush administration. “Gorsuch served in that prior role as an executive, not as a judge,” he said. “So while it is fair to inquire about those questions [and] he will have standard answers, we don’t expect any skeletons in the closet.”
Although Gorsuch has declined to reveal his stance on abortion rights or gun rights, Orts said he could face questions on some of his controversial rulings. One such ruling is on the so-called Chevron deference, where Gorsuch criticized a Supreme Court call for courts to let federal agencies prevail on ambiguous statutes.
Gorsuch also spoke unambiguously about his position on Trump’s tweets and comments attacking judges. “When anyone criticizes the honesty or integrity or motives of a federal judge, I find that disheartening and demoralizing,” he said at Tuesday’s hearing.
“Trump … has a very broad view of executive power and wants to limit the courts’ powers.” –Billy Corriher
To Filibuster or Not
According to Orts, the big question is whether the Democrats will use the filibuster to thwart the Gorsuch hearings. If they choose to do so, Republicans could seek to eliminate that filibuster by mustering the required 60 votes, he said. He expected the situation to play out precisely that way. “That would establish more strongly the idea that the Supreme Court nominations are heavily political,” he said. “It doesn’t matter if you have very highly qualified candidates.”
Orts recalled that when Senate Democrats were in a majority last year, they had eliminated the filibuster for hearings of all judges at levels lower than the Supreme Court, enabling those judicial appointments to be made with a majority vote. He described both Gorsuch and Garland as highly qualified candidates for the Supreme Court job. “In normal times, we would have probably seen both of those candidates confirmed.”
Orts offered a broader perspective on why he was opposed to Gorsuch despite the judge’s qualifications. “Judge Gorsuch is eminently qualified as was Merrick Garland,” he said. “The ball game was changed when there was a refusal to even hold a hearing on Garland for nine months. There was no question at that time whether Obama was legitimately the President for eight years. But there is a question of whether … President [Trump] is legitimately the president. We have lots of different dots to connect. Sen. [John] McCain (R-Ariz.) has said there are many other shoes to drop in this saga. So I don’t see any reason to rush this.”