Senators Grill Supreme Court Nominee Gorsuch On His Judicial Philosophy

Mar 21, 2017
Originally published on March 21, 2017 11:50 pm
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AUDIE CORNISH, HOST:

For more now, we turn to NPR legal affairs correspondent Nina Totenberg. Hey there, Nina.

NINA TOTENBERG, BYLINE: Hi.

CORNISH: Next to you is Tom Goldstein. He's the publisher of SCOTUSblog, which is all about the Supreme Court. Tom Goldstein, welcome to you as well.

TOM GOLDSTEIN: Hey, Audie.

CORNISH: So Nina, I want to start with you. Your assessment of how Gorsuch did today - senators say they want to get to know the nominee - right? - but what did they actually learn about him?

TOTENBERG: Well, he was a practiced and skilled witness but I would have to say not a natural. The natural was John Roberts, now Chief Justice Roberts, and Elena Kagan, now Justice Kagan. I would have to say that Neil Gorsuch was clunkier than that, more like Justices Alito and Sotomayor at their confirmation hearings.

GOLDSTEIN: Yeah, I think that they learned the bare minimum about Judge Gorsuch because he just really wouldn't talk about particular cases. And that's now the tradition in these sorts of hearings. But one thing they did learn is he does not like the process. Several times he said to senators, there are a lot of things that I don't like about what's going on in the confirmation process - for example, when he was talking about what happened to President Obama's nominee, Merrick Garland.

CORNISH: It's interesting because this is them trying to get at his judicial philosophy, right? And Tom Goldstein, did we learn any more on that front?

GOLDSTEIN: We did a little bit. So the big issue in the law between conservatives and liberals is this thing called originalism. It's the idea that you interpret the Constitution the way it was understood when it was written. And other judges, including conservative nominees who've come before this committee before going on the Supreme Court, have said, well, you know, we don't have one strict rule for how we interpret the Constitution.

But Judge Gorsuch took the very hard line that Justice Scalia did when he was a justice, and that is, we always look back to how the Constitution was originally understood, and then we apply that to modern problems. So that's a very conservative view of the law.

CORNISH: I want to talk about abortion rights for a second 'cause both supporters and skeptics of Judge Gorsuch were trying to get at his views about this. And it's something that nominees never really answer questions about, right, Tom?

GOLDSTEIN: Yeah, this is the hottest of hot-button issues. You played a clip where he said, well, it has been reaffirmed many times. The idea that he is an originalist does suggest that he would be the - with the conservatives on probably limiting abortion rights. He did say that he would respect Roe versus Wade as precedent. But when asked by Dianne Feinstein if it was a super precedent, something that deserved extra respect, he did not agree with that.

CORNISH: Another issue that came up from Senator Sheldon Whitehouse, Democrat of Rhode Island - dark money, lobbying campaign mounted in support of Judge Gorsuch's nomination. Here's a clip.

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SHELDON WHITEHOUSE: Is it any cause of concern to you that your nomination is the focus of a $10 million political spending effort and we don't know who's behind it?

NEIL GORSUCH: Senator, there's a lot about the confirmation process today that I regret - a lot.

WHITEHOUSE: Yeah.

GORSUCH: A lot.

CORNISH: Nina, help us parse that exchange. I mean what did Gorsuch say about even the Citizens United case or campaign finance law?

TOTENBERG: Well, the Citizens United, for our listeners, was the case in 2010 that essentially undid about a century's worth of understandings about regulation of campaign money and at least three decades of specific decisions. And Judge Gorsuch really made it quite clear I think without meaning to that he (laughter) is somewhat sympathetic to the newer decision that was written by Justice Kennedy which opened the floodgates to enormous - millions and millions - probably hundreds of millions of dollars in campaign cash.

And on one thing, it was - I thought the implication was that he's more conservative than the late Justice Scalia, who was a big advocate of disclosure of who gives money to campaigns and who gives money to big-issue campaigns. And he repeatedly said, you know, you really have to worry about the privacy of people who are giving money. I understand the need for public disclosure, but I am - would be worried also about other precedents involving privacy of donors.

CORNISH: One more question about Gorsuch's background. He had a top position in George W. Bush's Justice Department. And senators asked about that and about the policy at that time regarding torture, right?

TOTENBERG: Right, and they didn't get much for it because Judge Gorsuch said that he hadn't seen these documents. He didn't - he couldn't respond to it. That seemed to me a bit disingenuous. These documents have been out for days and days. Certainly his handlers at the Justice Department who turned them over to this committee certainly made him aware of what was in these documents and showed them to him. So he still hasn't answered those questions. He was asked again after lunch, and he said, well, I was eating my sandwich, but, you know, give me time. It just seemed to me to be very - remarkably unresponsive.

CORNISH: One last remark - it came from outside the hearing room on the Senate floor - Democratic Leader Chuck Schumer, who said that there's a cloud over the presidency.

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CHUCK SCHUMER: You can bet if the shoe were on the other foot and a Democratic president was under investigation by the FBI, the Republicans would be howling at the moon about filling a Supreme Court seat in such circumstances.

CORNISH: Do either of you see a scenario where Democrats can kind of slow this down?

TOTENBERG: They might be able to throw a little bit of sand into the gears, but they don't have the votes.

GOLDSTEIN: I don't think that they can stop it. And in fact, they aren't really setting the table in the hearing for an actual filibuster that would require the Republicans to change the rules of the Senate. I think what they're doing is just appealing to their base and saying, we're trying.

CORNISH: That's NPR legal affairs correspondent Nina Totenberg and Tom Goldstein, publisher of SCOTUSblog. Thanks to you both.

GOLDSTEIN: Thank you.

TOTENBERG: Thank you.

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