WASHINGTON — Senate Democrats hope to force Supreme Court nominee Neil Gorsuch into revealing his opinions on abortion rights and the legality of President Trump’s travel ban during confirmation hearings that begin Monday.
Supreme Court nominees are usually circumspect when asked to share their views on issues that could one day make their way to the court, a standard that Gorsuch’s defenders say was set by liberal Justice Ruth Bader Ginsburg during her confirmation hearing in 1993.
But Democrats argue that Gorsuch’s nomination is different given Trump’s repeated attacks on judges.
“I think he has an obligation to show unequivocally and emphatically his support for an independent judiciary and his own independence from Donald Trump,” Sen. Dick Blumenthal, D-Conn., told Yahoo News.
Gorsuch told Blumenthal in a private meeting in February that he felt Trump’s attacks on judges who temporarily blocked his first executive order banning travel from several majority-Muslim nations were “demoralizing.” The judge will likely be repeatedly asked about the president’s statements.
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
— Donald J. Trump (@realDonaldTrump) February 4, 2017
Blumenthal acknowledges that Gorsuch would not be able to comment directly on the litigation surrounding the executive order since it will likely reach the Supreme Court. But he thinks Gorsuch should be able to answer broadly about what constitutes religious discrimination by explaining whether he supports past Supreme Court decisions.
“There are cases involving religious discrimination that would be very appropriate for him to address, cases decided many years ago,” Blumenthal said.
Carrie Severino, chief counsel of the Judicial Crisis Network, a group that is backing Gorsuch, said the judge will need to be wary of getting pinned down on questions that are veiled attempts at eliciting an opinion on Trump’s travel ban.
“We have seen [Sen.] Chuck Schumer and some of the Democrats … trying to paint Gorsuch as nonresponsive,” she said. “The same people who are attempting to get him to make commitments on these cases — which everyone understands are going to come up before the court — are going to be filing a recusal motion if he did make those statements.”
“He simply is not ethically able to respond to them,” she added.
Blumenthal also believes Gorsuch should have to clarify his stand on the Supreme Court decisions Roe v. Wade and Planned Parenthood v. Casey, which upheld a woman’s right to an abortion. Trump vowed to appoint a justice who would overturn Roe, which Blumenthal says makes this question even more crucial than in previous nominations. Gorsuch has never directly ruled on the issue.
“He has an obligation to come clean with the American people before he assumes a lifetime appointment on the nation’s highest court,” Blumenthal said.
Nominees in the past have found ways to dodge answering hot-button questions, and Gorsuch is likely to do the same.
Democrats will also ask the judge to answer questions raised by his tenure as the Justice Department’s third-highest ranking official in President George W. Bush’s administration. Gorsuch helped defend the administration’s warrantless wiretapping program and its treatment of detainees in the war on terror. The senators also have picked out cases in which Gorsuch ruled against sympathetic plaintiffs like trucker Alphonse Maddin, who was fired after driving to safety when his trailer broke down in subzero weather.
Gorsuch has been nominated to fill the seat left vacant after conservative firebrand Justice Antonin Scalia died last year. His appointment would restore a 5-4 conservative majority on the court. The hearings will likely last four days, with a vote anticipated in early April.
Democrats, including Blumenthal and Schumer, have threatened to filibuster Gorsuch’s nomination if they decide he is outside of the “mainstream,” but Senate Majority Leader Mitch McConnell, R-Ky., said he would have no problem changing the chamber’s rules to let Gorsuch pass through on just 50 votes.
The Democrats’ efforts to paint Gorsuch as extreme are also undercut by his bipartisan support from former law clerks and colleagues across the ideological spectrum. Former Obama administration lawyer Neal Katyal will help introduce Gorsuch at Monday’s confirmation hearing.
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