Professor Schmidt: “The Gorsuch Report—Week 4”

By Professor Christopher Schmidt

It’s been over three weeks since Judge Neil Gorsuch was nominated to become a U.S. Supreme Court associate justice. Here’s the latest news on his confirmation process.

Among the senators who will vote on his appointment, Minority Leader Chuck Schumer remains Gorsuch’s most vocal critic. The Democratic senator from New York previously took to the pages of the New York Times to air his concerns with Gorsuch. While praising Gorsuch as “clearly very smart, articulate and polite, with superb judicial demeanor,” Schumer criticized him for refusing “to answer even the most rudimentary questions” about where he stands on pressing legal issues. For Schumer, this all feels “eerily similar” to what happened when Chief Justice Roberts went through this same process. Roberts was “similarly charming, polished and erudite,” Schumer writes. He “played the part of a model jurist.” But “when Judge Roberts became Justice Roberts, we learned that we had been duped by an activist judge,” warns Schumer.

The Minority Leader remains unpersuaded. When he appeared on “The View” talk show on Tuesday, Schumer explained that Gorsuch’s refusal to tell him whether a ban on Muslim immigrants would violate the Constitution gave him an “eerie feeling.” Although no other senators have reported eerie feelings when talking with Judge Gorsuch, other Democrats have expressed concern about his unwillingness to answer questions on issues of executive authority and separation of powers.

Senator Kelly Ayotte, the New Hampshire Republican who is serving as Gorsuch’s escort for his meetings with Senators, came to the judge’s defense. “The judge has ethical responsibilities that he cannot answer questions about cases that may potentially come before the court,” she explained in an interview with CNN. “I’ve been in 58 meetings with him. He’s been very forthcoming. He has answered questions.” She added that Schumer simply “asked him questions he knew he couldn’t answer.” It’s all something of a scripted performance, explains Senate Majority Leader Mitch McConnell: “Everyone knows you are going to ask your best question and they are not going to answer it.”

In Politico, Seung Min Kim assesses Gorsuch’s best chance for securing the support of some Democrats in the Senate, arguing that the judge should focus on Democratic senators who face an upcoming reelection in states that Trump won. He adds that Gorsuch’s “biggest liability remains Trump, whom Democrats will seize on during the confirmation fight.”

Gorsuch himself has resisted efforts to define and categorize his work as a judge. “I resist pigeon holes,” he said during his confirmation hearings for his appointment to the Tenth Circuit. “I think those are not terribly helpful, pigeon-holing someone as having this philosophy or that philosophy. People do unexpected things and pigeon holes ignore gray areas in the law, of which there are a great many.” The Washington Post offers an in-depth profile of the judge that concludes that we should not be too quick with those pigeonholes: “Gorsuch himself is perhaps not so predictable. An examination of his development from gifted Colorado schoolboy to college firebrand and then staunchly conservative jurist reveals that he is quite capable of surprise.” (The pitfall of pigeonholes was also the theme of an earlier New York Times article on Gorsuch’s views on gay rights.)

This post originally appeared on ISCOTUSnow, the blog of Chicago-Kent’s Institute on the Supreme Court of the United States, on February 23, 2017.

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