The Gorsuch Report—Confirmation Hearings (Halftime Report)

By Professor Christopher Schmidt

It was a long day for Supreme Court nominee Neil Gorsuch. For over eleven hours yesterday, the 10th Circuit judge answered questions from the Senate Judiciary Committee. Each senator had thirty minutes to question Judge Gorsuch (or, as was often the case, to deliver monologues with question marks at the end). The second day of the confirmation hearings concluded after the dinner hour on a rather strange note, with a senator suggesting that Judge Gorsuch stay away from vodka for the night and the nominee saying he was ready to “hit the hay.”

The day went pretty much according to predictions. Judge Gorsuch was friendly, articulate, thoughtful—no surprises there for a man who has been universally praised for these attributes. In the New York Times, Adam Liptak compared his performance to the widely praised confirmation hearings of Chief Justice John Roberts, concluding that the current nominee was “folksier, a little more combative and a little more canned.” Gorsuch assiduously stayed away from anything particularly controversial, refusing to discuss in meaningful detail any issue that might come before the Supreme Court, including past decisions of the Court (since they may be involved in future litigation).

The senators talked a lot, as senators love to do. Republican senators were clearly impressed; there were no indications of any fissures in their support for the nominee. Predictably, Democratic senators were less impressed, with their critique primarily aimed at two targets: the Republican maneuverings that prevented Obama’s nominee to the Court, Merrick Garland, from getting a hearing; and some of Judge Gorsuch’s opinions that went against the “little guy.” Neither line of attack did more than score a few points among those who were already disposed to be skeptical of the nominee. There was no indication that any of the Democratic efforts to challenge Gorsuch (or to evoke the ghost of Judge Garland) had enough traction to undermine what, short of something totally unexpected, looks to be a confirmation hearing for the next associate justice of the Supreme Court. (The Senate majority leader, Mitch McConnell, said that he expected Judge Gorsuch to be on the Supreme Court within two weeks.)

Some interesting moments of the day:

  • When asked if President Trump had asked him whether he would reverse Roe v. Wade, Judge Gorsuch responded that if the President had done so, “I would have walked out the door.” As USA Today notes, that answer silenced the Committee from asking about President Trump for a time.
  • Judge Gorsuch and his “frozen trucker” case came up a number of times. Democrats used the case to paint Judge Gorsuch as “hardhearted” and to highlight his record of being critical of the courts for excessive deference to administrative agencies.
  • When probed him about workers’ rights, Judge Gorsuch quickly rattled off a list of cases in which he ruled for the “little guy.”
  • Gorsuch was encouraged to discuss his views on when political figures denounce judges. “When anyone criticizes the honesty or the integrity or the motives of a federal judge, I find that disheartening,” he said. “I find that demoralizing — because I know the truth.” Senator Blumenthal followed up by asking whether the “anyone” Gorsuch referenced included the President, to which Gorsuch responded, “Anyone is anyone.”
  • “No man is above the law,” was Gorsuch’s answer when questioned about whether he would be willing to rule against the President who nominated him to the High Court.
  • “What’s the largest trout you’ve ever caught?” (Question from Senator Jeff Flake, Republican from Arizona.)

This post originally appeared on ISCOTUSnow, the blog of Chicago-Kent’s Institute on the Supreme Court of the United States, on March 22, 2017.

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