The initial phases of Senate confirmation hearings, especially for judges, usually revolve around the Kabuki theater of laying down markers. The nominee exudes good will to all and reaches out to as many constituencies as possible. The two parties congenially accuse each other of bad faith in accepting or rejecting the nominee. Later on, the phony peace ends and more meaningful interactions occur when senators get to ask questions and then spar with each other. In the case of Neil Gorsuch’s Judiciary Committee confirmation hearing for the Supreme Court, the tough stuff will begin tomorrow.
The bipartisan tone for Gorsuch’s appearance was set by the fact that his introducers included Colorado’s Democratic Senator Michael Bennet (a home-state courtesy) and liberal civil-liberties attorney and one-time acting solicitor general for the Obama administration Neal Katyel. The latter, not coincidentally, is currently helping the state of Hawaii fight the Trump travel ban.
Gorsuch’s own opening statement was well-wrought. Aside from all the obligatory expressions of thanks to the president and the judge’s family and friends and all the little people behind the scenes (you’d have thought he grew up in the obscurity of the lower-middle-class if you did not realize his mother served in Ronald Reagan’s cabinet), Gorsuch oozed humility and even-handedness. His judicial shout-outs were highly calculated to cover a lot of ground.
Like all Coloradans, he professed to revere SCOTUS Justice Byron “Whizzer” White, a JFK appointee who nonetheless dissented from Roe v. Wade and authored a landmark opinion defending sodomy laws. He gave a nod to another justice for whom he clerked, Anthony Kennedy, while casually mentioning they didn’t always agree on everything, which I took as a subtle indicator that he doesn’t share Kennedy support for reproductive rights. And while he saved the loudest praise for his immediate predecessor and conservative icon Antonin Scalia, he matched that tribute with the claim that Justice Robert Jackson represented a tradition equally important to him. Jackson dissented from the Supreme Court decision that allowed the internment of Japanese-Americans and also served as chief prosecutor at Nuremberg. So he’s an important legal angel to invoke for those worried that he might bless xenophobic or even authoritarian Trump-administration policies.
The same reassure-everybody signals were sent by Gorsuch’s repeated pledges of judicial independence. To liberals that means independence from the president and party that chose him; for conservatives it connotes a willingness to defy liberal conventions and Big Government.
The opening statements of Judiciary Committee members did not break much unexpected ground. Democrats repeatedly contrasted their own willingness to consider Gorsuch on his merits with the GOP’s summary rejection without a hearing of Obama nominee Merrick Garland. Ted Cruz picked up on the standard conservative line that the very public vetting process for the judge made him a sort of people’s choice. Democrat Richard Blumenthal implicitly responded by questioning whether Gorsuch had passed some sort of “Trump litmus test,” by which he meant a promise to vote the way conservatives would like on crucial issues like a challenge to Roe v. Wade.
To the uninitiated, it all sounded pretty congenial. But you can expect lines to be drawn tomorrow, and Gorsuch’s well-rehearsed happy talk to curdle a bit. The whole show should end Thursday, and divide attention with the planned American Health Care Act vote in the House that day and whatever other madness breaks out in this unpredictable era of Donald Trump.