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Gorsuch hearings Day 3: Supreme Court pick grilled; confidence grows for GOP

Robert Barnes

By Robert Barnes The Washington Post

Published March 23, 2017

Gorsuch hearings Day 3: Supreme Court pick grilled; confidence grows for GOP Neil Gorsuch, President Donald Trump's nominee for the Supreme Court, returns after a recess during the third day of his confirmation hearing. Washington Post photo by Ricky Carioti

WASHINGTON - Democratic senators more aggressively questioned Judge Neil Gorsuch on Wednesday in hopes of drawing him out on his potential independence from President Donald Trump, while Republicans began congratulating him - signaling they anticipate his successful confirmation to the Supreme Court.

Senators completed two days of questioning Gorsuch with repeated inquiries about abortion rights, money in politics and a Supreme Court ruling issued on Wednesday that reversed a decision of his appeals court. The hearings will continue Thursday with testimony of those who support and oppose the nomination of the 49-year-old judge on the Denver-based U.S. Court of Appeals for the 10th Circuit.

Democrats on the Senate Judiciary Committee became increasingly frustrated by Gorsuch's bland answers. "You have been very much able to avoid any specificity like no one I have ever seen before," said Sen. Dianne Feinstein, D-Calif., the ranking Democrat on the Senate Judiciary Committee.

When pressed by Sen. Amy Klobacher, D-Minn., on various noncommittal answers, Gorsuch said it would be wrong for him to be more candid about what he would do on the bench. "It's like a campaign promise for office, it seems to me," Gorsuch said.

Klobacher responded: "We have to figure out what your philosophy is."

Both Democrats and Republicans seemed pretty sure that Gorsuch would be a conservative very much in the mold of the justice he would replace, Antonin Scalia, who died in February 2016.

The politics of the nomination again were at center stage. When Gorsuch said he did not think of judges as Democrats or Republicans, Sen. Mazie Hirono, D-Hawaii,responded if that were true, the committee would be considering the man President Barack Obama nominated, Judge Merrick Garland. Senate Republicans denied Garland a hearing and a vote on his nomination.

Sen. Sheldon Whitehouse, D-R.I., pressing Gorsuch on the issue of campaign finance, said "commentators" now describe the Supreme Court "as instruments of the Republican Party."

Gorsuch put both hands to his chest and responded he was "distressed that you think that judges or the Supreme Court is an organ of a party."

But partisan rancor over Supreme Court nominations is not new, and Republicans were less interested in questioning Gorsuch than congratulating him.

Sen. Orrin Hatch, R-Utah, who has participated in 14 Supreme Court confirmation hearings, told Gorsuch, "I've seen an awful lot of great people in the law come before this committee. And I haven't seen anybody any better than you."

"Why anybody in this body would vote against you, I'll never understand," Hatch said later.

Sen. Ted Cruz, R-Texas, credited Gorsuch for enduring the marathon hearings and said he was passing the test "with flying colors."

Trump again was frequently mentioned.

Sen. Patrick Leahy, D-Vt., questioned Gorsuch on the Constitution's "emoluments clause," which states the president cannot accept gifts from foreign agents without approval from Congress. Given "ongoing litigation" involving that clause, Gorsuch said, "I have to be very careful about expressing any views."

Leahy also noted Gorsuch has strong support from Trump senior counselor Stephen Bannon, whom the senator accused of "giving a platform to extremists and misogynists and racists." Another senior White House aide, chief of staff Reince Priebus, had said Gorsuch could potentially change 40 years of law, Leahy said.

"What vision do you share with President Trump?" the senator asked.

"Respectfully, none of you speaks for me," said Gorsuch. "I am a judge. I am independent. I make up my own mind."

At one point, Gorsuch seemed to reject a Feb. 13 comment from senior White House policy adviser Stephen Miller that Trump's actions on national security "will not be questioned," which some interpreted as a signal that Trump could ignore judicial orders.

"You better believe I expect judicial decrees to be obeyed," Gorsuch said.

Gorsuch also declined to give his view on Scalia's characterization of the Voting Rights Act as a "perpetuation of racial entitlement."

"I don't speak for Justice Scalia. I speak for myself," he told the committee.

"You have been very hesitant to even talk about various Supreme Court precedents," Leahy told Gorsuch, noting that Justices John Roberts Jr. and Samuel Alito took positions on specific cases during their confirmation hearings.

The latest hearing produced an emotional exchange between Gorsuch and Feinstein on the subject of women's rights.

"You are pivotal in this," she told Gorsuch, saying that the "originalist'' interpretation of the Constitution to which he adheres has been used in the past to say that the Constitution does not cover women and gays.

"No one is looking to return us to horse-and-buggy days," Gorsuch responded. Supreme Court precedent has established that the Constitution's Equal Protection Clause is wide enough to encompass those who were not recognized when it was written.

"A good judge starts with precedent and doesn't reinvent the wheel," Gorsuch said, adding that it "matters not a whit" that some who wrote the Constitution were racists or sexists, "because they were." What matters, Gorsuch said, were "what the words on the page mean."

The two also discussed a book that Gorsuch wrote in which he opposed physician-assisted suicide and said any taking of a human life was wrong.

Feinstein mentioned the death of her father and a close friend, which she said were agonizing. She mentioned California's recent physician-assisted suicide law.

"My heart goes out to you," Gorsuch said, and then appeared to choke up when he mentioned the death of his own father. He said his personal views would have no role in his duties as a judge and noted the Supreme Court has ruled that states may allow laws such as California's.

Democratic senators also raised questions about a decision that had just been issued across the street from the hearing room at the Supreme Court.

The eight sitting justices decided unanimously on Wednesday to boost the standards of education that public schools provide to learning-disabled students, rejecting an earlier ruling from the U.S. Court of Appeals for the 10th Circuit - the one that Gorsuch serves on - saying that it had set the bar too low for students. Gorsuch had ruled similarly in a different case.

At issue was whether schools must provide disabled children "some" educational benefit - which several lower courts have interpreted to mean just more than trivial progress - or whether students legally deserve something more.

In response to questions from Sen. Richard Durbin, D-Ill., Gorsuch defended his court's decision, saying that they were applying what the 10th Circuit had decided in a 1996 case, which adopted the standard that the services have to be more than de minimis.

"I was bound by circuit precedent," Gorsuch said, saying that ruling against an autistic child and his parents was "heartbreaking."

Republicans are hoping to refer Gorsuch to the full Senate by April 3, and Majority Leader Mitch McConnell has said that the judge will be confirmed to the Supreme Court before Easter.

Senate Minority Leader Charles Schumer, D-N.Y., said this week that it would be "unseemly" for the Senate to confirm Gorsuch while the FBI is investigating whether Trump's presidential campaign was swayed by Russian interference.

But Sen. Joe Manchin III, D-W.Va., a key moderate and a member of Schumer's leadership team, said on Wednesday that the ongoing FBI investigation "shouldn't have any bearing" on Gorsuch's confirmation.

"I want to get a working court, okay? What they did to Merrick Garland was wrong. I don't want to do the same. Two wrongs don't make a right," Manchin said at a Washington Post Live event on Trump's early weeks in office.

Manchin later visited the Judiciary Committee room to watch the proceedings for a few minutes - a notable appearance given that he is one of several moderate Democrats facing reelection next year who are the targets of a multimillion-dollar ad campaign bankrolled by conservative groups in hopes of securing Gorsuch a filibuster-proof vote tally. Sen. Angus King, I-Maine, another potential vote for Gorsuch, made a similar visit on Tuesday.

Manchin said at The Washington Post event that he plans to meet again with Gorsuch before deciding how to vote.

"If Gorsuch is the right person or not, I can't say that as of yet," he said. "Is there 60 votes as of yet, I don't think, I don't see it. Can it happen? Anything can happen."

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