By MATT FLEGENHEIMER, ADAM LIPTAK, CARL HULSE and CHARLIE SAVAGE
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.
He also said that he was not beholden to President Donald Trump and would exercise judicial independence.
“I am not an algorithm,” Gorsuch said.
Here are the highlights of Day 2 of the hearings:
--- Gorsuch was asked to address the nominee who never had his hearing: Judge Merrick B. Garland, President Barack Obama’s nominee last year, whom Republicans refused to consider.
“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.”
But when Sen. Patrick J. Leahy, D-Vt., asked whether Garland had been treated fairly, Gorsuch demurred.
“I can’t get involved in politics,” he said. “There’s judicial canons that prevent me from doing that. And I think it would be very imprudent of judges to start commenting on political disputes.”
Leahy had no such qualms.
“I can express an opinion,” he said. “I think it was shameful.”
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.”
Sen. Charles E. Grassley, the Iowa Republican who is chairman of the committee, also pressed Gorsuch for his views on precedent generally, naming a few cases, including a Second Amendment case and the matter of Bush v. Gore.
“I know some people in this room have some opinions on that,” Gorsuch joked, declining to outline firm positions.
The nominee likened precedents to “our shared family history as judges.”
“As a good judge, you don’t approach that question anew as if it has never been decided,” he added.
“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.”
The top Democrat on the committee, Sen. Dianne Feinstein of California, pressed Gorsuch on his involvement in several George W. Bush-era war-on-terror disputes in which he was involved as a Justice Department official: torture, the habeas corpus rights of Guantanamo 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 dodged that question, and Feinstein indicated she would return to the torture issue in a second round.
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 then-Attorney General Alberto Gonzales to deliver at 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.”
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 needed a warrant to attach a Global Positioning Satellite 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.
Grassley 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.
He spoke of his legal hero and former boss, Justice Byron R. White, saying he embraced his “fierce, rugged independence.”
“I have offered no promises on how I would rule on any case to anyone,” Gorsuch said.
One thing to remember at the hearings as lawmakers tick through big constitutional cases is that neither of the first two questioners – Grassley and Feinstein – are lawyers. It is a first for the committee that delves deeply into legal arcana.
But both are veterans of confirmation hearing rituals and have extremely knowledgeable lawyers advising them on their questioning. Their lack of a law degree should not be an impediment, and some actually consider it a potential advantage because they can approach issues from different perspectives.
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.
Feinstein’s frustration with Gorsuch’s refusal to answer directly on his view of high court cases that have already been decided gets at a central issue for Democrats: Their inability to pin him down.
Pressed by Feinstein on whether he could disagree with any majority decisions written by Justice Antonin Scalia, Gorsuch said that saying he agreed or disagreed “would be a signal to future litigants that I can’t be a fair judge in that case.”
Democrats have said that his refusal to be forthright would be a reason to oppose his nomination since he would be “hiding his views” from the American public.