Professor Schmidt: “The Gorsuch Report—Week 7”

By Professor Christopher Schmidt

Less than a week away from the confirmation hearings for Neil Gorsuch to be the next associate justice of the Supreme Court and the media machine is ramping up. Journalists are publishing a new round of stories on Gorsuch. Commentators, activists, and politicians are busy attacking and defending the nominee, each side hoping to score a few points before the main event begins on Monday.

In the National Law Journal, Tony Mauro reviewed notes from a 2010 speech Judge Gorsuch submitted to the Senate Judiciary Committee, concluding that the nominee offered a distinctly “bleak” portrait of the American legal system. Among Gorsuch’s complaints were the expense and delays of the discovery stage of civil litigation. “Not long ago we used to have trials without discovery,” he noted. “Now we have discovery without trials.” Gorsuch also lamented the increasing “vitriol” of the Supreme Court confirmation process.

The New York Times published an article detailing Gorsuch’s connections to Philip F. Anschutz, the “publicity-shy billionaire” who “inherited an oil and gas firm and built it into an empire that has sprawled into telecommunications, railroads, real estate, resorts, sports teams, stadiums, movies and conservative publications.”

At CNN, Ariane de Vogue describes Gorsuch’s “stealth” path to the Supreme Court nomination. First, there were the efforts the administration went through to hide the identity of the nominee until it could be revealed in a prime time news event. Then, in the weeks since the announcement, Democrats have been so busy responding to the President’s tweets and executive orders that they have not been able to focus much attention on Gorsuch. “All along, Gorsuch quietly continued his journey to the high court, meeting with more than 70 senators, boning up on constitutional issues, participating in so-called murder boards with his closest colleagues, where they ask him difficult questions to prepare him for his hearings.”

Having met with 72 senators, Gorsuch is now busy “preparing for his Senate showdown,” Politico reports. Senator Kelly Ayotte, who has been guiding him through his meetings with senators, says that Gorsuch has “been spending a lot of time reviewing case law and reviewing his cases and also participating in some mock hearings.”

According to the New York Times, “Democrats have zeroed in on their most prominent planned line of attack: Judge Gorsuch’s rulings have favored the powerful and well connected.” This strategy is something of a departure from the normal line of attack against conservative jurists, which usually centers on social issues, such as abortion. According to Senator Chuck Schumer, “the social issues are always looming out there with any justice. But where [Gorsuch is] particularly vulnerable is in this antiworker, pro-corporate record.” Along with Senator Richard Blumenthal of Connecticut, Schumer held a press conference today, where they were joined by people they presented as having been adversely affected by Judge Gorsuch’s rulings. Schumer reiterated his basic point: “Neil Gorsuch may act like a neutral, calm judge,” the senator from New York declared, “but his record and his career clearly show he harbors a right-wing, pro-corporate, special-interest agenda.” If Gorsuch “shows in his answers that he is out of the mainstream as his opinions indicate he very well may be,” Blumenthal said he would “use every tool available, including the filibuster, to oppose him.”

But Politico posted a story emphasizing the lack of unity among Democrats on how to opposed Gorsuch. “Democrats can’t seem to land a punch on Neil Gorsuch — and it’s not even clear they want to.” Some are following Schumer and Blumenthal, staking out a position of staunch opposition and insisting that they will use the filibuster if necessary. But other Democrats are less sure this is the wise path, since the most likely outcome of a Democratic filibuster would be for Republicans to change the rules and no longer allow filibusters of Supreme Court nominees. “Democrats could wave Gorsuch through, reasoning that confirming him won’t change the balance of the court — but the next vacancy would, and they’d be left without a 60-vote threshold as a weapon.”

Along with these attacks, Gorsuch’s nomination continues to attract considerable support. David C. Frederick, a prominent Supreme Court litigator and self-described “longtime supporter of Democratic candidates and progressive causes” wrote an op-ed in the Washington Post expressing his support for the nominee. “Gorsuch — my former law partner and longtime friend — is brilliant, diligent, open-minded and thoughtful. He was the only Supreme Court candidate considered by this administration that I could support. The Senate should confirm him because there is no principled reason to vote no.”

The conservative activist group Judicial Crisis Network has promised to spend 10 million dollars lobbying on behalf of Gorsuch and has hired the law firm Covington & Burling, to help in the effort. Former Republican Senator Jon Kyl, now at Covington, will be involved in the lobbying campaign.

This post originally appeared on ISCOTUSnow, the blog of Chicago-Kent’s Institute on the Supreme Court of the United States, on March 15, 2017.

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