Gorsuch keeps cards close during nomination hearing


Throughout his marathon confirmation hearing, U.S. Supreme Court nominee Neil Gorsuch remained tight-lipped about how he might rule on major health care issues if confirmed to the country’s highest court, pledging to look at the facts of each case and rule according to the law.

The Senate Committee on the Judiciary wrapped up its nearly week-long questioning of Judge Gorsuch on March 23. Inquiries during the hearing ranged from Judge Gorsuch’s stance on abortion, to his support of religious freedom, to whether he would uphold President Trump’s controversial Executive Order on travel and immigration. Through it all, Judge Gorsuch, who presides over Denver’s 10th Circuit, kept his composure and refused to offer insight into which way he would lean when deciding such hot-button issues.

Neil Gorsuch

Neil Gorsuch

“If I were to start telling you which are my favorite [Supreme Court] precedents or which are my least favorite precedents, or if I viewed precedents in that fashion, I would be tipping my hand and suggesting to litigants that I’ve already made up my mind about their cases. That’s not a fair judge. I didn’t want that kind of judge when I was a lawyer, and I don’t want to be that kind of judge now.”

During the hearing, the case of Roe v. Wade was brought up repeatedly, and multiple senators from both parties questioned whether Judge Gorsuch would vote to overturn the right to an abortion. Sen. Lindsey Graham, (R-S.C.) discussed recent legislation he supports that would prohibit abortion if the probable postfertilization age of the fetus is 20 weeks or greater.

“We’re one of seven nations that allow wholesale, on demand, unlimited abortion at 20 weeks. I’d like to get out of that club,” Sen. Graham said during the hearing. “I’m just letting everybody know that if this legislation passes, it will be challenged before you and you will have to look at a new theory of how the state can protect the unborn ... Here’s what I think. You will read the briefs, look at the facts, and make a decision, am I fair to conclude that?”

“Senator, I can promise you no more than that, and I guarantee no less than that in every single case that comes before me,” Judge Gorsuch responded.

Sen. Dianne Feinstein (D-Calif.) queried whether Judge Gorsuch considered Roe to be “super precedent.”

“Senator, [the ruling] has been reaffirmed many times,” Judge Gorsuch responded, stressing that all Supreme Court precedent deserves respect and consideration when deciding new challenges.

The judge defended his 10th Circuit decision that found in favor of Hobby Lobby Stores after the company objected to the Affordable Care Act’s contraceptive coverage requirements based on religious grounds. In a separate case, Judge Gorsuch dissented from a ruling not to rehear a challenge by the Little Sisters of the Poor against certain contraceptive coverage provisions.

Sen. Orrin Hatch (R-Utah) Wikimedia

Sen. Orrin Hatch (R-Utah)

Sen. Orrin Hatch (R-Utah), who helped author the legislation in question (the Religious Freedom Restoration Act), asked Judge Gorsuch whether it was his job in these cases to impose his or anyone else’s priorities or to interpret and apply the statutes the way Congress enacted them.

“Senator, our job there was to apply the statute as best we could understand its purpose as expressed in its text,” Judge Gorsuch said. “And I think every judge who faced that case – everyone – found it a hard case and did their level best and that’s all any judge can promise or guarantee. I respect all of my colleagues who addressed that case.”

The subject of religious freedom also was addressed during questions regarding President Trump’s Executive Order on travel and immigration and whether Judge Gorsuch would uphold the Executive Order if it came before the high court.

“President Trump promised a Muslim ban,” Sen. Patrick J. Leahy (D-Vt.) said during the hearing. “He still has on his website to this day that he’s called for a total and complete shutdown of Muslims entering the United States. And a Republican congressman recently said the best thing the president can do for his Muslim ban is to make sure he has Gorsuch on the Supreme Court.”

Judge Gorsuch called the unnamed congressman’s remark “silly,” adding that the congressman had “no idea” how Judge Gorsuch would rule in any case that comes before him. Sen. Leahy went on to ask Judge Gorsuch whether the president has the authority to block Jews from coming to the country or ban residents of Israel.

“We have a Constitution,” Judge Gorsuch replied. “And it does guarantee free exercise [of religion]. It also guarantees equal protection of the laws and a whole lot else besides, and the Supreme Court has held that due process rights extend even to undocumented persons in this country. I will apply the law faithfully and fearlessly and without regard to persons.”

A vote by the Senate Judiciary Committee is expected April 3 followed by a Senate floor vote later that week. Supreme Court justices require 60 votes for confirmation. Republicans control the Senate 52-48, so eight Democrats are needed to confirm Judge Gorsuch. Senate Minority Leader Charles E. Schumer (D-N.Y.) vowed on March 23 to oppose Judge Gorsuch and asked other Democrats to join him, setting up a potential filibuster against Judge Gorsuch’s confirmation.

On Twitter @legal_med

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