Washington – While showing sympathy for the embattled nominee, Sen. Richard Blumenthal on Monday laid out his strategy for questioning Judge Neil Gorsuch, saying he would press him on his relationship with the man who appointed him to the Supreme Court, President Donald Trump.
Blumenthal said the FBI’s disclosure it is investigating ties between the Trump campaign and Russia made the role of federal judges more important than ever, as did Trump’s attacks on federal judges who ruled against his travel ban.
“The independence of judges have never been more threatened and never been more important,” Blumenthal said. “And a large part of the threat comes from the man who nominated you, who has launched a campaign of vicious and relentless attacks on the credibility and capacity of our judiciary to serve as a check on lawless executive actions.”
At the nominee’s confirmation hearing, Blumenthal said Trump’s “demeaning and disparaging comments about the judiciary have shaken the respect for judicial rulings.” He said this week he expected Gorsuch, a judge on the Colorado-based 10th Circuit Court of Appeals, to condemn them strongly and publicly during the confirmation hearing, and not just “in the privacy of my office or my colleagues’ behind closed doors.”
Blumenthal said Trump had a “set of litmus tests” for judicial nominees and that the president said his Supreme Court pick would be someone who would “be pro-life and pro-second amendment and other conservative bent.” He said Trump had conservative groups like the Heritage Foundation and the Federalist Society vet Gorsuch and other judicial nominees.
“You must be clear that your views are not theirs,” he said.
Blumenthal also said he met with some of the people who were harmed by some of Gorsuch’s decisions.
“Justice has a human face,” he said.
Several GOP members of the Senate Judiciary Committee hailed Gorsuch for being a Westerner who would bring diversity to the Supreme Court.
“I live in the western part of Connecticut,” Blumenthal joked. “I love Colorado, and my first job was on a farm in Nebraskan.”
Blumenthal also express sympathy for the tough grilling Gorsuch would receive this week in the Judiciary Committee, but said “despite the hardship of going through this process, there are quite a few judges in Connecticut who would not mind changing places with you.”
Monday was restricted to opening remarks.
In his opening statement, Gorsuch downplayed any ideological differences he may have had with fellow judges on the 10th U.S. Circuit Court of Appeals, saying his law clerk said 97 percent of the 2,700 cases he’s been involved in were decided unanimously.
“We cherish different points of view and we seek consensus whenever we can,” Gorsuch said.
The nominee also said, “In my decade on the bench I’ve tried to treat all who come before me with respect and fairly and afford equal rights to poor and rich.”
A focus on judicial philosophy
On day one of the hearing, the sharp partisan divide was clear, as was the strategy each party would take.
Democrats, like Blumenthal, will focus on Gorsuch’s “judicial philosophy,” attack him for some of his rulings and paint him as an “originalist” and “strict constructionalist,” of the U.S. Constitution, a view they say diminishes the rights of women and minorities.
Sen. Dianne Feinstein, D-Calif., the panel’s top Democrat, said she firmly believes the Constitution is a “living document intended to evolve as our nation evolves.”
If originalism were taken at face value, she argued, discrimination against women, African Americans and gays would still be the law of the land.
“(Judges) must understand that Supreme Court decisions have real world consequences,” Feinstein said.
Meanwhile, Republicans on the panel touted Gorsuch’s top rating from the American Bar Association, “well qualified,” and argued judges should strictly follow the law without regard to impact.
“Judges aren’t free to rewrite statutes to get results they believe are more just. Judges aren’t free to reorder regulations to make them more fair. And no, judges aren’t free to “update” the Constitution. That’s not their job,” said Sen. Charles Grassley, R-Iowa, the panel’s chairman.
Sen. Orrin Hatch, R-Utah, criticized Democrats for “turning the nomination process into a political campaign.”
Sen. Ted Cruz, R-Texas, said Democrats see the court as a “hyperpolitical political branch” to turn to when they can’t get their way with voters. Meanwhile, Republicans see a “much more modest role” for courts,” Cruz said
“Judges are not supposed to make law,” he said. “They are supposed to just apply it.”
Gorsuch was chosen by President Donald Trump to fill the seat of conservative Justice Antonin Scalia, and his confirmation would arguably not shift the balance of power on the high court.
But Democrats argued that Gorsuch is more of a conservative activist than Scalia.
Nan Aron, the president of the liberal Alliance for Justice, said Gorsuch’s stance on federal regulation is “extremely problematic” and “even more radical than Scalia.”
Focus on cases
Judiciary Committee Democrats repeatedly raised several of Gorsuch’s rulings on the Denver-based 10th circuit court, including his vote in favor of Hobby Lobby Stores, a family-owned company that objected to regulations under the Affordable Care Act requiring many employers to provide free contraception coverage.
The TransAm Trucking case also was raised frequently by Democrats, including Blumenthal.
In that case, a company trucker in Chicago found himself stuck in subzero temperatures with frozen brake lines and almost no fuel. While waiting for a repairman for more than two hours, his truck’s heating stopped working and the trucker began to feel numb. When he expressed concern for his safety to his supervisor, he was told to either stay with the truck and wait or to drag the trailer with him. The trucker opted to detach the trailer and seek help.
He was fired a week later. Gorsuch sided with his employer.
Other Democrats joined Blumenthal in saying they are concerned Gorsuch would not be independent enough of Trump to preside over cases that involve his administration.
“You are going to have your hands full with this president; he’s going to keep you busy,” said Sen. Richard Durbin, D-Ill.
Several Democrats berated their GOP colleagues for failing to move forward on Merrick Garland, former President Obama’s choice to fill Scalia’s seat.
Durbin said the Judiciary Committee hearing represented “a courtesy which Senate Republicans denied to Judge Garland.”
No Democrat has said he’d oppose Gorsuch’s nomination, but they are expected to begin to announce their opposition this week.
His confirmation would require 60 votes to overcome an expected Democratic filibuster. But Trump urged McConnell last month to “go nuclear” if Democrats try to filibuster his nominee, invoking a procedural move that would allow Gorsuch to be confirmed by a simple majority of 51 votes, instead of 60. Grassley said there would be a Senate vote on the nominee in about two weeks.