Supreme Court nominee Neil Gorsuch must have had the Hippocratic oath firmly in mind as he underwent more than 20 hours of questioning from senators during his confirmation hearing last week. "First, do no harm," the ancient Greek physician Hippocrates prescribed for medical practitioners.
Given the Republicans' 52-48 majority in the Senate, Gorsuch had a partly clear path to confirmation, but he faced and largely avoided two risks. He needed to avoid giving the chamber's Democratic minority evidence of out-of-the-mainstream legal views to justify a filibuster. He needed to make it hard for red-state Democrats to support any vote-blocking parliamentary tactic or for blue-state Republicans to break party ranks in deference to their moderate suburban constituents.
Democrats tried but succeeded no more than part way to use Gorsuch's record in 10 years on the federal appeals court in Denver to prove him to be a doctrinaire conservative and indifferent to interests of workers or consumers, reproductive freedom, or LGBT rights. It can never be known whether they would have done better by focusing more on questions than on speeches with their allotted time, but the National Law Journal end-of-hearing headline said it all: Gorsuch emerged "unscathed."
Gorsuch ducked the Democrats' questions by sticking with a mantra that he was a judge, not a legislator, committed to ruling in every case on the basis of law and facts, not personal opinion. He promised to faithfully follow precedent — except when "the law of precedent" allows departures or reconsideration. And he skillfully used the power of precedent as a shield against questions about his own legal views .
Gorsuch demurred when asked whether her considers himself an "originalist," as he was described by any number of Republican senators and some of his supporters who appeared later on the fourth and final day of the hearings. The term "has different meanings" for different people, Gorsuch said in begging off. The Democrats tried but failed to get Gorsuch to admit that originalism is guesswork at best and prevents the adaptation of the Constitution to meet present-day legal issues.
On a different tack, Democrats tried to get Gorsuch to give his personal evaluation of Supreme Court precedents, but he refused except for one. The landmark school desegregation decision in Brown v. Board of Education was "a shining moment" in Supreme Court history, Gorsuch said. But on other decisions Gorsuch said that giving his own opinion would be "an act of hubris" and would carry no weight in any event.
The abortion-rights decision in Roe v. Wade was among the precedents Gorsuch promised to follow but declined to endorse. Gorsuch and several Republican senators justified the nominee's reticence by citing what they called the Ginsburg rule, drawn from Justice Ruth Bader Ginsburg's confirmation in 1993. Ginsburg had promised "no hints, no forecasts, no previews." Unlike Gorsuch, however, Ginsburg in 1993 had not hesitated to embrace Roe v. Wade as protecting a right "central to a woman's life."
Democrats voiced their frustration with Gorsuch's reticence. "I don't buy that," Illinois' Richard Durbin chided the nominee at one point. Later, Connecticut's Richard Blumenthal told Gorsuch, "Your silence speaks volume."
Blumenthal pressed Gorsuch especially hard to try to find out what he knew about the $10 million campaign being waged in support of his confirmation. Gorsuch insisted he did not know who was paying for the TV ads being broadcast mostly in states with Democratic senators. Gorsuch told Blumenthal that Congress could decide whether to require more disclosure of donors in such campaigns and insisted that Congress had "ample authority" to legislate in the area. But he acknowledged only under questioning that he had suggested, in an opinion striking down an unusual Colorado law, that limits on campaign contributions should be subject to stricter constitutional scrutiny than current Supreme Court precedents require.
On LGBT rights, Gorsuch appeared to accept the marriage equality ruling in Obergefell as precedent and generally to acknowledge that gays and lesbians are encompassed within the Fourteenth Amendment's Equal Protection Clause. But, perhaps because of imprecision in the questioning, Gorsuch never addressed whether he would find sexual orientation and gender identity to be a protected characteristic for equal protection purposes or whether religious beliefs could be invoked to justify discrimination against LGBT individuals.
On the latter issue, the testimony from opposing advocates indicated they think they know Gorsuch's mind. Hannah Smith, a senior counsel with the religious-liberty litigating Becket Fund, praised Gorsuch's support on those issues, while Sarah Warbelow of the Human Rights Campaign said that Gorsuch's record indicated "a level of indifference to the LGBT community."
By the end of the hearing, South Carolina Republican Lindsey Graham had lost whatever patience he had allowed the Democrats. The prospect loomed that Democrats would stick together in preventing the 60-vote majority needed under current Senate rules to bring the nomination to a vote on the floor. Graham, who underlined his own votes in favor of confirming the Obama-nominated justices Sonia Sotomayor and Elena Kagan, said that it was unclear that Democrats would back any Republican nominee for the court.
Democrat Durbin was right in saying at the outset that any Republican complaints about partisanship "ring hollow" after the refusal last year to consider Obama's nominee for the seat, Merrick Garland. Gorsuch strived to keep himself out of the partisan bickering, disclaiming the labeling of "Republican judges" and "Democratic judges." But the partisan lines remain sharply drawn as the committee moves toward the vote to send the nomination to the floor.
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