As the central figure in one of the most contentious confirmation hearings in years, U.S. Supreme Court nominee Neil Gorsuch said Monday judges should not be “secret legislators” and vowed to apply the law in an impartial fashion while seeking consensus whenever possible.
Appearing before enthusiastic Republicans and skeptical Democrats on the Senate Judiciary Committee, Gorsuch portrayed himself as an independent voice modeled after former Supreme Court Justices Byron White and Robert Jackson, declaring Jackson “reminded us that when you become a judge, you fiercely defend only one client – the law.”
“These days we sometimes hear judges cynically described as politicians in robes, seeking to enforce their own politics rather than striving to apply the law impartially,” Gorsuch said in his opening statement. “If I thought that were true, I’d hang up the robe.”
“If judges were just secret legislators -- declaring not what the law is, but what they would like it to be -- the very idea of a government by the people and for the people would be at risk,” Gorsuch said. “And those who came before the court would live in fear, never sure exactly what the law requires of them it except for the judge’s will.”
Gorsuch, who faces two days of questioning Tuesday and Wednesday by committee members, clearly used his opening statement to assuage Democratic fears that he is an implacable conservative while simultaneously trying to establish his independence, a way to distance himself from President Donald Trump, who nominated him last month to fill the seat left vacant by the death last year of Justice Antonin Scalia, a conservative icon for the past three decades.
Gorsuch, 49, a judge on the 10th U.S. Circuit Court of Appeals in Colorado, delivered his 15-minute statement after sitting through more than three hours of deeply partisan opening statements from committee members.
Senate Democrats, backed by progressive legal organizations, have sharply complained that Republicans unfairly kept the seat open when they refused last year to hold a hearing for federal appeals Judge Merrick Garland, nominated by former President Barack Obama.
But they also made clear their anger is directed against Trump, with Sen. Richard Blumenthal, D-Conn., saying the “independence of those judges has never been more threatened and never more important, 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 judiciary.
“Just hours ago, not far from here, the director of the FBI revealed that his agency is investigating potential ties between President Trump’s associates and Russian meddling in our election," Blumenthal said.
He warned of “the possibility" that he Supreme Court might need "to enforce a subpoena against the president is no longer idle speculation,” pointing to the court’s 1974 case directing President Richard M. Nixon to yield White House taped recordings demanded by special prosecutors investigating the Watergate scandal.
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Gorsuch listened attentively through opening statements by committee members, often jotting down notes on a yellow legal pad. When it came time for him to speak, he did so in a clear, but soothing voice.
Rather than accepting the challenge from Senate Democrats, he steered clear of ideological labels and said “putting on” a judge’s black robe “reminds us judges that it’s time to lose our egos and open our minds."
“It’s for this body -- the people’s representatives -- to make new laws, for the executive to make sure those laws are faithfully executed, and for neutral and independent judges to apply the law in the people’s disputes,” Gorsuch said.
He suggested his judicial style was closer to White and Justice Anthony Kennedy, both of whom he clerked for when they were on the high court in the 1980s, pointedly saying Kennedy “showed me that judges can disagree without being disagreeable.”
By doing so, Gorsuch was doing his best to describe his role as limited to interpreting the law, much like Chief Justice John Roberts did during his confirmation hearings in 2005 when he told the same committee that “judges are like umpires. Umpires don't make the rules; they apply them.”
Reminding lawmakers that he grew up in Colorado, he said “in the West, we listen to one another respectfully. We tolerate. We cherish different points of view. And we seek consensus whenever we can.”
Because five current members of the court support abortion rights and same-sex marriage, Gorsuch will not change the balance of power on those key questions. But on a host of other issues, such as whether judges should grant broad authority to federal agencies to interpret laws approved by Congress, Gorsuch could emerge as a key vote.