Takeaways From the Gorsuch Confirmation Hearings

(EDS: SUBS throughout to RECAST and ADD new reporting; NEW headline; ADDS photos.); (ART ADV: With photos XNYT1, 3, 7, 9, 17, 18-22, 25-30, 37, 60-63, 83-86, 95-98, 101.); (With: HEALTH-LAW, TRUMP-STONE, TRUMP-GAMBLING-WEBSITE, HEALTH-COVERAGE, TRUMP-INTEL-EXPLAINER, NY-LAWYERS-DISPUTE) WASHINGTON — In the second day of his Supreme Court confirmation hearings, Judge Neil M. Gorsuch said Tuesday that he did not believe in litmus tests for judges. He said Roe v. Wade was a well-established precedent should similar cases arise.

Here are some highlights:

— Sen. Patrick J. Leahy, D-Vt., pressed Gorsuch on a central question: Can he hold President Donald Trump accountable? “No man is above the law,” he said.


— The nominee refused to say how he would rule on many issues, including abortion, gun rights and Trump’s travel ban.

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— Sen. Dianne Feinstein, D-Calif., asked Gorsuch about his participation in defending the George W. Bush administration’s policies in the war on terror, like torture, when the judge was a Justice Department official in 2005-06. Gorsuch said he was a lawyer and not a policymaker then. (BEGIN OPTIONAL TRIM.) <strong> Gorsuch talks about ‘dark money.’ </strong>

Sen. Sheldon Whitehouse, D-R.I., said shadowy groups had spent millions of dollars in “dark money” to support Gorsuch’s nomination. The senator asked the judge to urge his supporters to disclose what they had spent.

Gorsuch declined, saying that would be a political move.

<strong> Trying to shift the discussion. </strong>


Outside the hearing room, Democrats are trying to weigh down the Gorsuch nomination with the baggage of investigations into the president’s orbit and Russia.

Sen. Chuck Schumer of New York, the minority leader, said it was “the height of irony” for Republicans to press for Gorsuch’s elevation to the court after holding the seat open last year.

“Republicans held this Supreme Court seat open for nearly a calendar year while President Obama was in office,” he said from the Senate floor, “but are now rushing to fill the seat for a president whose campaign is under investigation by the FBI.”

(END OPTIONAL TRIM.) <strong> Gorsuch laments dissent in truck driver’s case. </strong>

Gorsuch for the first time answered at length questions about a case Democrats have cited often: the tale of the trucker fired for abandoning his cargo for his own safety in subzero temperatures.


“This is one of those that you take home at night,” said Gorsuch, who wrote in a dissent that the company was permitted to fire the man.

But the law, he argued Tuesday, was clear: “The law said the man is protected and can’t be fired if he refuses to operate an unsafe vehicle.”

In fact, Gorsuch said, the driver had unhitched his vehicle from the trailing cargo to get to safety. “He chose to operate,” Gorsuch said, adding, “I think by any plain understanding, he operated the vehicle.” (BEGIN OPTIONAL TRIM.) <strong> Durbin asks about gender bias. </strong>

Sen. Richard J. Durbin, D-Ill., brought up letters submitted to the committee by two former students in a legal ethics class Gorsuch taught in the spring of 2016 at the University of Colorado Law School.

The two students complained about comments they recalled Gorsuch made in a class session about ethical issues that arose in the practice of the law profession. In the comments, the students claimed that Gorsuch told them that employers needed to ask female job applicants about their intentions regarding pregnancy to protect their firms from women who were simply seeking maternity benefits.

Gorsuch said that misrepresented the discussion, citing instructions in a teaching manual to explore the subject.

Gorsuch also said he believed that it would be “inappropriate” for a prospective employer to ask such a question.

<strong>Gorsuch compliments Garland.</strong>

Gorsuch was asked to address the nominee who never had his hearing: Garland.

“Whenever I see his name attached to an opinion, it’s one I read with special care,” Gorsuch said, praising his peer as “an outstanding judge.”

(END OPTIONAL TRIM.) <strong>No to ‘litmus tests’ for judges.</strong>

During the campaign, Trump said he would seek to appoint justices ready to vote to overturn Roe v. Wade, the 1973 decision establishing a constitutional right to abortion.

But Gorsuch said that no one from the White House asked him to make any commitments on legal issues that could come before him on the Supreme Court. “I have offered no promises on how I’d rule to anyone on any case,” he said. “I don’t believe in litmus tests for judges.”

Asked about Roe v. Wade, Gorsuch said, “I would tell you that Roe vs. Wade, decided in 1973, is the precedent of the United States Supreme Court,” saying that “all of the other factors that go into analyzing precedent have to be considered.”

<strong>Questioning a billionaire’s role. </strong>

Leahy brought up Gorsuch’s connections with Colorado billionaire Phil Anschutz, whom Gorsuch formerly represented in private practice.

The senator noted that Jan. 10, 2006, The Denver Post reported that there were three finalists for an appeals court vacancy — and none were Gorsuch. Two days later, a lawyer for Anschutz wrote on the billionaire’s behalf to the White House counsel at the time, Harriet Miers, to suggest that Bush consider nominating Gorsuch. She gave him an interview in early February, and he ended up getting the nomination.

Leahy also noted that Anschutz finances conservative groups including the Federalist Society and the Heritage Foundation, which put Gorsuch on the list of candidates Trump promised to use in selecting a Supreme Court nominee.

“Are these areas of concern?” Leahy asked.

Gorsuch replied that he thought his service at the Justice Department, where he had worked about seven months, was the most important issue, noting many of his former clients had said “nice things” about him when he was up for an appeals court judgeship, including the owner of a gravel pit.

Leahy scoffed, “Who do you think the White House listened to, Mr. Anschutz or the owner of a gravel pit? Let’s be realistic.”

Leahy did not ask whether Gorsuch would recuse himself from cases involving Anschutz’s interests. The judge did recuse himself from such cases on the appeals court, but so far has left the door open to participating in them on the Supreme Court.

<strong>Gorsuch backtracks about liberals.</strong>

Gorsuch, who had criticized liberals for preferring litigation to the political process in an article written before he became a judge, distanced himself from his earlier statements Tuesday.

“American liberals,” he wrote in a 2005 essay in National Review, “have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”

On Tuesday, he said he had been wrong to single out liberals.

“The problem lies on both sides of the aisle,” he said.

He added that “the courts are a very important place for the vindication of civil rights.”

<strong>Bush-era terrorism disputes.</strong>

The top Democrat on the committee, Feinstein, pressed Gorsuch on his involvement in several Bush-era war-on-terror disputes in which he was involved as a Justice Department official: torture, the habeas corpus rights of Guantánamo detainees, warrantless surveillance, and the scope of the president’s power as commander-in-chief to defy statutes.

In December 2005, she noted, when Congress passed the Detainee Treatment Act, which barred cruel, inhuman, and degrading treatment of detainees, Gorsuch advocated for a signing statement that would say the new statute only codified existing Bush administration interrogation practices. The context, she noted, was that the Justice Department had issued a secret memo earlier that year saying techniques like waterboarding and prolonged sleep deprivation were not cruel, inhuman or degrading.

She asked whether Gorsuch believed such torture techniques were lawful.

Gorsuch declined to answer that question.

She also pointed out that after it emerged that Bush had authorized the National Security Agency to wiretap without warrants, despite a 1978 law requiring warrants, Gorsuch had drafted a statement for Alberto Gonzales, the attorney general at the time, to deliver at a congressional hearing. His initial draft suggested that Congress lacked the authority to enact a law limiting a president’s power to conduct surveillance without warrants for national security purposes.

“Goodness no, senator, and I didn’t believe it at the time,” Gorsuch replied. He said he had been only “acting in the capacity of a speechwriter” in bringing together materials submitted by colleagues in the administration. “I was the scribe.” (BEGIN OPTIONAL TRIM.) <strong>Principles don’t change, Gorsuch says.</strong>

Under questioning from Sen. Orrin Hatch, R-Utah, about how to apply new technologies to constitutional principles written two centuries ago, Gorsuch brought up the issue of whether police officers needed a warrant to attach a GPS tracker to a suspect’s car in order to monitor his movements. He spoke admiringly of a 2012 Supreme Court decision that applied the original Constitution in concluding that warrants were required.

“Technology changes, but the principles don’t,” he said, adding that “it can’t be the case the U.S. Constitution is any less protective” of people’s privacy than it was at the time it was written.”

On the appeals court, Gorsuch sometimes sided with plaintiffs in Fourth Amendment search issues even when colleagues voted for the police. Notably, though, after the Supreme Court issued its landmark GPS tracker ruling, Gorsuch voted to let prosecutors in other cases use evidence that police had gathered with such a tracker in 2011, before the Supreme Court handed down that ruling, because the rule had not been clear at the time.

<strong>Grassley pitches ‘a softball.’</strong>

opened his questioning by asking if Gorsuch would have “any trouble ruling against the president who appointed you.”

“That’s a softball, Mr. Chairman,” Gorsuch replied, in what seemed to be a scripted response. He said he would have “no difficulty” ruling for or against any party.

(END OPTIONAL TRIM.) <strong>Battling over worker rights.</strong>

Feinstein got to the heart of Democrats’ early criticisms of Gorsuch: his record on workers’ rights.

“How do we have confidence in you that you won’t just be for the big corporations?” she asked. “Those of us, I think on both sides, care very much about workers’ rights. But the record is such that one questions whether the court is capable in its current composition to give a worker a fair shot.”

She was, she added, “just looking for something” in his record to give her confidence.

Gorsuch ticked off past cases in which he ruled for the little guy, calling himself “a fair judge” and noting that members of both parties have said as much.