Judge Neil Gorsuch assured senators Tuesday that he is willing to rule against President Trump from the Supreme Court and repeatedly declared himself a blank slate on the big issues that are likely to come before the high court.
From gun rights to abortion, the judge said that while the Supreme Court has set current precedent, it would be wrong to weigh in on what he thought of those decisions or what changes he would like to see. He said his job as a judge is to evaluate cases and the law.
His refusal to tip his hand frustrated Democrats, who said he was “playing dodge ball,” but the judge said he has an obligation to give potential litigants a fair shake in his job on the 10th U.S. Circuit Court of Appeals and on the Supreme Court if he is confirmed.
He also rejected efforts to pigeonhole him as a conservative or a guaranteed vote for overturning the Roe v. Wade abortion decision, saying nobody knows how he would rule.
“I have offered no promises on how I’d rule in any case to anyone, and I don’t think it’s appropriate for a judge to do so, no matter who’s doing the asking,” he said. “Everyone wants a fair judge to come to their case with an open mind and decide it on the facts and the law.”
Judge Gorsuch sat through more than 10 hours of testimony Tuesday and will be back for more questions Wednesday.
At one point, Sen. Ben Sasse, Nebraska Republican, said his wife had texted him asking how the judge managed not to have to go to the bathroom more often.
“The SCOTUS bladder is something the whole world stands in awe of,” said Mr. Sasse, using the acronym for the Supreme Court of the U.S.
Democrats tried to induce Judge Gorsuch to criticize Republicans for blocking President Obama’s pick for the seat, Judge Merrick Garland.
Judge Gorsuch demurred, though he said there was “a lot about the confirmation process today that I regret.”
“I regret putting my family through this,” he said.
In refusing to detail his views on hot-button issues, Judge Gorsuch was following the refrain of nominees dating back to Justice Ruth Bader Ginsburg.
Unable to shake the judge, Democrats trained their fire on Mr. Trump, the man who picked Judge Gorsuch.
Senate Minority Leader Charles E. Schumer, New York Democrat, said the revelation this week that the FBI was investigating whether anyone in Mr. Trump’s circle coordinated with Russia during the campaign taints the Supreme Court process.
“It is the height of irony that Republicans held this Supreme Court seat open for nearly a calendar year while President Obama was in office but are now rushing to fill the seat for a president whose campaign is under investigation by the FBI,” Mr. Schumer said.
Judge Gorsuch said he is not beholden to Mr. Trump and would rule against him — or for him — as the law requires. The judge also issued a mild rebuke of Mr. Trump for his criticism of federal judges who blocked his extreme vetting executive order.
“When anyone criticizes the honesty or integrity or motives of a federal judge, I find that disheartening, I find that demoralizing, because I know the truth,” Judge Gorsuch said.
The judge said he could go no further for fear of tainting himself in cases pending. That didn’t appear to assuage Democrats, who said Mr. Trump should have been held in contempt of court.
Sen. Patrick J. Leahy, Vermont Democrat, asked Judge Gorsuch whether Mr. Trump’s extreme vetting order violated the First Amendment’s guarantee of freedom of religious practice, as one federal judge in Hawaii has ruled.
Judge Gorsuch declined to answer because the issue is being litigated in the courts, but he did say the Constitution guarantees the free exercise of religion and equal protection.
Sen. Dianne Feinstein of California, the ranking Democrat on the committee, asked the judge if the president has the authority to intercept communications of Americans. Mr. Trump recently accused Mr. Obama of wiretapping Trump Tower during the election campaign.
“Goodness no, senator,” the judge said.
While Republicans praised Judge Gorsuch for his approach to the law, Democrats attempted to try to pin down his philosophy and his feelings about big cases. That included probing a number of past cases, such as Brown v. Board of Education, that overturned the “separate but equal” doctrine that was the basis for segregation.
The judge said the value of Supreme Court precedent is that it “adds to the determinacy of law.”
Ms. Feinstein asked if Roe v. Wade had “superprecedent” status. She said she was concerned that Mr. Trump had vowed to nominate a justice who would overturn that 1973 decision.
Judge Gorsuch said that Roe has been reaffirmed many times.
“What was once a hotly contested issue is no longer a hotly contested issue. We move forward,” said Judge Gorsuch.
He also said the same about the Heller decision in 2008, which ruled that the Second Amendment gives Americans a personal right to own a firearm for self-defense.
“It’s not a matter of agreeing or disagreeing,” he said. “It’s a matter of it being the law. And my job is to apply and enforce the law.”
Some of the sharpest exchanges came with Sen. Sheldon Whitehouse, Rhode Island Democrat, demanded to know whether Judge Gorsuch was aware of groups spending more than $10 million to win his confirmation.
He pressured the judge to demand that groups disclose their donors, suggesting it could be billionaire Philip F. Anschutz. As a young lawyer, Judge Gorsuch was part of a team representing Mr. Anschutz, and the billionaire has contributed to the Federalist Society, which helped create a list of potential nominees that Mr. Trump used to make his selection to the Supreme Court.
Judge Gorsuch wouldn’t take the bait. He told Mr. Whitehouse that he doesn’t get involved in politics.
Mr. Whitehouse, one of the leading campaigners to try to overturn the Supreme Court’s 2010 Citizens United ruling that opened the door for broader spending in campaigns and political debates, asked what role the courts could play in fostering more disclosure.
Judge Gorsuch said there are competing constitutional interests and that the Supreme Court has found that Congress has an interest in disclosure, but there are also times when anonymous speech is important.
He said it’s up to Congress to enact a law, then have it tested in the courts.
“The ball is in your court,” Judge Gorsuch said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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