Judge Neil M. Gorsuch, President Trump’s nominee for the Supreme Court, sought to assure senators Tuesday he would be independent, impartial and willing to rule against the occupant the White House.
“Nobody is above the law in this country, and that includes the president of the United States,” he said.
He also told the Senate Judiciary Committee that he had made no promises or commitments to Trump or his aides, including whether he would vote to overrule the landmark abortion ruling in Roe vs. Wade.
“Senator, I would have walked out the door” if the question had been asked, he said. “That’s not what judges do. They don’t do it at that end of Pennsylvania Avenue, and they shouldn’t do it at this end either.”
Calm and unruffled, Gorsuch frustrated Democrats by refusing to be drawn into revealing his thoughts on current legal controversies or past rulings. “If I were to start telling you which are my favorite precedents or which are my least favorite precedents,” he said, “I would be tipping my hand.”
Instead, Gorsuch said he was there to defend his qualifications and his record as an appeals court judge.
Committee Chairman Charles E. Grassley (R-Iowa) began the second day of hearings by giving Gorsuch an opening to distance himself from the president. Grassley asked whether Gorsuch “would have any trouble ruling against the president who appointed you.”
“That’s a softball, Mr. Chairman,” Gorsuch replied. “I have no difficulty ruling against or for any party other than based on what the law and the facts in a particular case require.…There’s no such thing as a Republican judge or a Democratic judge.”
And anticipating that Sen. Dianne Feinstein, the ranking Democrat, would press him on abortion, Grassley asked Gorsuch to discuss his views on adhering to Supreme Court precedents, a topic that can sometimes provide insights into a judge’s thinking on Roe vs. Wade and other controversial rulings.
“You start with a heavy, heavy presumption in favor of precedent in our system,” Gorsuch said. That is particularly so, he said, for cases decided many years ago. In addition to the age of the precedent, he said other key factors he would consider in deciding whether to overturn a decision are whether it has been reaffirmed over the years and to what degree the precedent is currently relied upon.
Without quite saying so, his comments appeared to signal to the Democrats that he would be skeptical about overturning the right to legal abortion set in 1973.
But Democrats grew increasingly frustrated with Gorsuch’s refusal to frankly discuss his views about others cases, something no almost Supreme Court nominee does anymore because the process has become so partisan.
Sen. Al Franken (D-Minn.) grilled Gorsuch about the case of the freezing truck driver who had been fired after he had driven away from his broken trailer after waiting several hours for help. The temperature was 14 degrees below zero.
While the 10th Circuit Court panel upheld an administrative judge’s ruling in favor of the fired driver, Gorsuch dissented. He said the law would have protected a driver who refused to operate an unsafe vehicle, but it did not protect a trucker who drove away from his trailer.
“I had a career in identifying absurdity, and I know it when I see it,” said Franken, a former “Saturday Night Live” performer and writer. “It makes me question your judgment.” He pressed Gorsuch to say what he would have done when faced with the driver’s predicament.
“I don’t know what I would have done if I were in his shoes,” Gorsuch replied. “I don’t blame him at all for doing what he did do. I thought a lot about this case. I totally empathize.”
Franken shot back. “I would have done exactly what he did. And I think everyone here would have done exactly what he did. And I think it is an easy answer.”
Then Franken turned to this year’s annual Conservative Political Action Conference meeting in Washington, where, the senator noted, White House Chief of Staff Reince Priebus and senior advisor Stephen K. Bannon pointed to the Gorsuch nomination as a central part of their plan to “deconstruct the administrative state” and roll back 40 years of regulatory law.
“Are you comfortable with your nomination being described in such transactional terms?” Franken asked Gorsuch.
“There is a lot about this process that makes me uncomfortable,” Gorsuch said.
Earlier, Feinstein aggressively questioned Gorsuch about his involvement in defending the torture policies of the George W. Bush administration during the year he served in the Justice Department.
Feinstein produced documents that she said appear to show Gorsuch condoning the use of waterboarding and other torture techniques, and offering ways to defend or explain their use. Such methods have since been abandoned by national security agencies as inhumane and ineffective. She pointed to a set of talking points she said Gorsuch prepared for then-Atty. Gen. Alberto Gonzales for a 2005 news conference.
Feinstein said the talking points asked whether “aggressive interrogation techniques employed by the administration yielded any valuable information.”
“And in the margin next to this question, you hand-wrote, ‘Yes,’” she said. Then she asked Gorsuch what information he had showing that the techniques were effective, a finding that was contradicted by a 7,000-page report congressional investigators published on the issue.
Gorsuch demurred. He said he was unfamiliar with the document from which Feinstein was quoting. They agreed he would review it and offer more fully informed answers during the second round of questioning on Wednesday.
Feinstein then moved on to an anti-torture bill passed by Congress, and quizzed Gorsuch about his advocacy to craft Bush’s signing statement in a way that would enable the administration to continue using techniques like waterboarding and that would limit the ability of prisoners subjected to them to sue the government.
Gorsuch said that his memory was hazy on the discussions, which took place 12 years ago. However, he said that he recalled there were officials in Vice President Dick Cheney’s office who were aggressively pushing to preserve some of those techniques in the signing statement, but that he said he was not among those who concurred. He said he was on the side of preserving the anti-torture provisions in the legislation.
When Feinstein moved to Gorsuch’s apparent advocacy in favor of a White House policy aimed at wiretapping U.S. citizens, he again said the documents she produced did not reflect his point of view.
“I was acting in my capacity as a speechwriter,” he said. “I think people liked my writing.”