Facing the fury

U.S. Supreme Court nominee Neil Gorsuch, 49, reportedly cried when he heard the news of Justice Antonin Scalia’s death last February. The conservative judge couldn’t have known then, with President Barack Obama in office, that a year later he would be smuggled into the White House for a prime-time announcement that he was the nominee to replace Scalia.

If Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, can keep his schedule amid the Democratic uproar against Gorsuch’s nomination, hearings should begin in mid-March. Gorsuch can expect a barrage of questions about his views on abortion, assisted suicide, originalism, and executive power.

“The left is going to bring its full fury to bear,” said Robert George, a professor of legal philosophy at Princeton University and a friend of Gorsuch’s.

Staffers in the White House and on Capitol Hill are hard at work on his behalf, and conservative groups are spending millions on ads in red states with Democratic senators. Liberal groups are launching their own ad campaigns and opposition research. An ad from the liberal group People For the American Way that aired in 12 states depicted Gorsuch as a judge ripping up the Constitution.

In Washington, D.C., the week after Trump announced his nomination, Gorsuch went on a charm tour, meeting dozens of senators every day. (Former Sen. Kelly Ayotte, R-N.H., who announced her refusal to vote for Trump after the tape of Trump’s inflammatory comments about women came out during the presidential campaign, is the designated shepherd, taking Gorsuch from meeting to meeting. Ayotte lost her bid for a second term in November by 750 votes.)

Judiciary Committee Democrats, unlike some of their colleagues, thus far haven’t taken as aggressive a position against Gorsuch. Sen. Dianne Feinstein, D-Calif., the top Democrat on the committee, said after her meeting with Gorsuch that he was “impressive.” Sen. Patrick Leahy, D-Vt., a senior Democrat on the committee, said he doubted that Gorsuch “meets the high standard set by [failed Obama nominee] Merrick Garland” but didn’t oppose a hearing. Another Judiciary member, Sen. Dick Durbin, D-Ill., committed immediately after Gorsuch’s nomination to a hearing and a vote on him.

Feinstein, Durbin, and Leahy all previously voted to confirm Gorsuch to the 10th Circuit. Gorsuch supporters will point to those votes during the confirmation battle, but some Senate Republicans, notably, voted to confirm Justices Elena Kagan and Sonia Sotomayor to lower positions, then opposed them at the Supreme Court level. Democrats will put up a fight and have vowed to pursue him on the question of abortion.

Those who know Gorsuch don’t expect the hearings to generate much material against his confirmation. “Gorsuch is really smart,” said attorney Josh Blackman of the South Texas College of Law, who has written several books on the Supreme Court. Blackman also runs a site called FantasySCOTUS, a Supreme Court fantasy league (like with football), which correctly predicted Gorsuch’s nomination. “By the third question [Senate Democrats] are going to be out of their league. … They’re not going to score a single point.”

Gorsuch’s own Washington career began as a teenager, when he was a Senate page. After earning degrees from Columbia University, Harvard Law School, and Oxford University, Gorsuch settled into a legal career in Washington before moving back to Colorado (his family goes back four generations there) when he was appointed to the 10th U.S. Circuit Court of Appeals.

The experience of Gorsuch’s mother, Anne Gorsuch Burford, surely marked his perception of politics and his preparation for his own hearing. President Ronald Reagan appointed Burford to head the Environmental Protection Agency. Burford had a tumultuous Senate confirmation and tenure at the agency, as she sought to turn regulations over to states and cut costs aggressively—to the fury of environmentalists.

Two years into her tenure the Democratic House of Representatives cited her for contempt of Congress for withholding agency documents—and with that she resigned. “One of the most controversial appointees of President Reagan,” declared a wire news report in 1984.

Gorsuch will avoid that kind of drama. Since Robert Bork’s crash-and-burn nomination in 1987, Supreme Court nominees have stuck to a script, dodging questions about social issues like abortion on the grounds that they might have to rule on the issue. Kagan, back in a 1995 law review article, called the Supreme Court hearings a “vacuity and farce” because nominees could decline to disclose their views on controversial issues and cases. Kagan argued the confirmation hearings for Justices Stephen Breyer and Ruth Bader Ginsburg were positively “cozy.”

“Both judges knew that they were playing the game in full accordance with a set of rules that others had established before them,” she said. “Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.”

Then in Kagan’s own hearings in 2010, she participated in the scripted “farce,” refusing to comment on the constitutionality of gay marriage—which she later voted to legalize. John Yoo, an official in the George W. Bush Department of Justice, has said that the Supreme Court has “only itself to blame” for the increasingly politicized hearings since it has been issuing increasingly politicized decisions. Below are several subject areas where Democrats are likely to intensely question Gorsuch.

ABORTION

Gorsuch has never declared a position on the legality of abortion, but Democrats are sure to read between the lines of some of his rulings and writings—and the support he has received from pro-life groups. In his book on assisted suicide, he wrote that all life is “intrinsically valuable.”

He has supported religious individuals objecting to pay for abortifacients, writing a concurrence supporting the Green family in the Hobby Lobby case when it came before the 10th Circuit. Later he dissented from the court’s decision not to hear en banc a case from the Little Sisters of the Poor against the Obamacare contraceptive and abortifacient mandate.

ASSISTED SUICIDE

A few Democratic senators submitted questions in writing during Gorsuch’s Senate confirmation in 2006, and all of them asked about his extensive writings on assisted suicide. Assisted suicide is likely to be a topic again in these hearings, especially because it relates to another life issue—abortion. Gorsuch has previously defended those writings as in line with existing court precedent.

Gorsuch seems to oppose the principle behind assisted suicide. In 2013 Gorsuch wrote an essay in Reason, Morality, and Law: The Philosophy of John Finnish, edited by John Keown and Robert George, the Princeton University professor. The essay is dryly titled “Intention and the Allocation of Risk” and discusses criminal intent, supporting current jurisprudence on when someone is guilty of intentionally taking a life. Gorsuch takes the “intent” question into the matter of equality of human beings, no matter how “useless.”

“Judge [Richard] Posner contends that assisted suicide should be legalized because (in his view) the balance of social utility appears to justify it,” Gorsuch wrote. “But his utilitarian argument for legalization leaves him forced to concede that some human lives are worth greater legal protection than others because of their comparative instrumental value. … If we throw over existing law and permit some persons’ lives to be taken intentionally, how are we supposed to go about the business of sorting out which lives may be so taken? Whose life may be taken and who decides? Does it even matter whether we have the consent of those to be killed, at least if we can confidently conclude their lives really lack (what someone deems to be) sufficient instrumental value? Peter Singer’s work advocating infanticide reveals just how far the logical progression ignited by this line of inquiry may take us.”

EXECUTIVE POWER

Given the ferocity of lawsuits against Trump’s immigration executive order, the Supreme Court will likely hear a number of cases on Trump’s use of executive power over the next few years.

Gorsuch has a limited view of executive power—and that is why some liberals have argued for his confirmation. In an immigration opinion last year, Gorsuch argued courts should do away with the Chevron doctrine, where courts defer to the executive branch’s interpretation of regulations.

Courts established the Chevron doctrine under Reagan to limit intervention of the judiciary in executive branch regulations. The idea was that an agency like the Department of Agriculture would have more expertise to interpret agriculture regulations than federal judges would have. But over the years, Chevron has become a more powerful tool for the executive branch.

Conservatives argued that Obama abused Chevron, using executive agencies as policymakers. Now liberals might be ready for courts to do away with it. Chevron “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design,” Gorsuch wrote in his ruling, Gutierrez-Brizuela v. Lynch.

“In times like these, we need judges who are neither toadies nor resisters,” wrote former Judge Michael McConnell, who served on the 10th Circuit with Gorsuch, in a piece for the Hoover Institution. McConnell highlighted Gorsuch’s limited view of executive power. “We need judges who take their bearings from the Constitution, and not from party loyalties. In Neil Gorsuch, we have such a judge.”

ORIGINALISM

Like Scalia, Gorsuch bases his judicial philosophy in originalism and textualism. That means he follows the text and original intent of the Constitution. He does not see it as a “living” document. Originalists believe that changes should come from the people—through legislatures or through constitutional amendments—not through the courts. Gorsuch has said that judges should focus “backward, not forward.”

“An assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function,” he wrote last year in a law review article. “That, yes, judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views. … Though the critics are loud and the temptations to join them may be many, mark me down too as a believer that the traditional account of the judicial role Justice Scalia defended will endure.”