WASHINGTON — As the confirmation hearings for Judge Neil Gorsuch, President Donald Trump’s U.S. Supreme Court nominee, moved into the March 23 testimony phase with those for and against his nomination taking the floor, the Democrats announced plans to filibuster his nomination.
Senate Minority Leader Charles Schumer, D-New York, announced on the Senate floor he would oppose Gorsuch’s nomination by joining other Democrats in a filibuster. This means Gorsuch will need 60 votes to be confirmed by the Senate, and with only 52 Republicans, this would be unlikely.
Schumer said that during the hearings Gorsuch was “unable to sufficiently convince me that he’d be an independent check” on the presidency.
One way around the filibuster is if Senate Majority Leader Mitch McConnell, R-Kentucky, makes a rule change, allowing Gorsuch to be confirmed with 51 votes. A vote to confirm the judge for the high court is scheduled for April 3.
The third day of confirmation hearings for Gorsuch March 22 continued along similar lines of questioning as the day before and failed to spark high drama.
When asked again about his stance on Roe v. Wade, the 1973 court decision legalizing abortion virtually on demand, Gorsuch said he accepts the decision “as the law of the land.”
Sen. Dick Durbin, D-Illinois, asked Gorsuch how this view compared to what he wrote in his book “The Future of Assisted Suicide and Euthanasia,” where he said the “intentional taking of human life by private persons is always wrong.”
“As the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the 14th Amendment, and the book explains that,” Gorsuch answered.
In response to a question from Sen. Dianne Feinstein, D-California, about assisted suicide, Gorsuch said he agreed with the Supreme Court’s 1990 decision in Cruzan that established the legal right of patients to refuse medical treatments, including artificial feeding and hydration.
He also said the position he took in his book was that “anything necessary to alleviate pain would be appropriate and acceptable, even if it caused death. Not intentionally but knowingly.”
“I drew a line between intent and knowingly. And I have been there. I have been there,” he added.
The issues of religious liberty and abortion were briefly raised during the second day of Senate confirmation hearings.
On the second day of hearings March 21, Gorsuch said that he wouldn’t give his personal views on Roe v. Wade or any other Supreme Court decision during the hearing and only said the court’s decision in Roe set a precedent that has been reaffirmed by the court. He gave similar answers on questions about guns and campaign finance.
When he was asked by Sen. Lindsey Graham, R-South Carolina, if Trump asked him to “overrule Roe v. Wade,” Gorsuch said he hadn’t. When pressed further to say what he would have done if the president asked him that, Gorsuch said he would have “walked out the door. It’s not what judges do.”
The nominee was asked by Durbin about his ruling in favor of Hobby Lobby as a sitting judge of the U.S. Court of Appeals for the 10th Circuit, based in Denver. In the ruling, the company was exempt from federal regulations to provide employees with insurance coverage for forms of birth control to which the owners objected for religious reasons. The objectionable contraception included the abortion pill.
Gorsuch said the case was a “tough one,” but the court followed the guidelines of the Religious Freedom Restoration Act passed by Congress. He said the act didn’t define terms of a person and could be interpreted that corporations have similar religious liberty rights.
He also stressed later in questioning that he views the text of the law as key and he said he credits his teacher, Sister Mary Rose Margaret — who taught him to diagram sentences — for that focus.
The first day of Senate confirmation hearings for Gorsuch began March 20 with a series of introductory remarks from senators establishing what they hope to ask the nominee and the importance of the role of Supreme Court justice.
Sen. Charles Grassley, R-Iowa, who is chairman of the Senate Judiciary Committee, began the day’s hearing by praising what he said was Gorsuch’s firm respect of the separation of powers of government.
The nominee, who currently sits on the 10th Circuit, would fill the vacant seat on the Supreme Court left by the death of Justice Antonin Scalia last year. Senate Republican leaders last year chose not to vote on then-President Barack Obama’s nominee for the court, Judge Merrick Garland.
In opening remarks, many of the senators spoke of the importance of a Supreme Court justice’s role, particularly given the length of time a justice generally has the position — it is a life term. Sen. Patrick Leahy, D-Vermont, said the “stakes could not be higher” for the job.
Feinstein, the committee’s ranking Democrat, and the second to address the hearing, noted the “very unusual circumstances” of the Gorsuch hearing since Garland was never granted a similar opportunity.
She highlighted several areas she said she would be interested in hearing more on from Gorsuch such as his views on abortion and on voting rights.
She acknowledged the judge had not made decisions on abortion but said his writings “raise questions” and can be interpreted to mean he would vote to overturn Roe.
Gorsuch has degrees from Columbia, Harvard and Oxford universities. He clerked for two Supreme Court justices and also worked for the Department of Justice. He is an adjunct law professor at the University of Colorado and he wrote a 2009 book arguing against the legalization of assisted suicide and euthanasia.
He has strong views on religious liberty having sided with the Little Sisters of the Poor in their challenge of the contraceptive mandate of the Affordable Care Act. In Hobby Lobby Stores v. Sebelius, in June 2013, the 10th Circuit ordered the federal government to stop enforcement of the federal mandate against Hobby Lobby, the Oklahoma-based Christian chain of retail arts and crafts stores. In his concurrence, Gorsuch said the contraception mandate substantially burdened the company’s exercise of religion exercise — a decision the Supreme Court later upheld.
Gorsuch, who was raised Catholic and attended Catholic elementary schools and a Jesuit-run Catholic high school in Maryland, Georgetown Preparatory School, now attends an Episcopalian church with his family in Colorado.
A March 20 CNN story with the headline: “What is Neil Gorsuch’s religion? It’s complicated,” points out that Gorsuch is not a registered parishioner at the church he attends and on membership forms he listed his religion as Catholic.
The article also points out that when Gorsuch studied legal philosophy at England’s Oxford University, his dissertation was supervised by John Finnis, an Australian who was a former member of the Vatican’s International Theological Commission.
Finnis, known for his work in moral, political and legal theory and constitutional law, is currently a law professor at the University of Notre Dame Law School. Gorsuch’s dissertation became his 2009 book on assisted suicide and euthanasia.
Currently, five of the justices on the court are Catholic and three are Jewish. Scalia, who had been one of six Catholic members of the court, was often described as its most conservative voice and known for his strict interpretation of the Constitution’s intent.
Just as the first day of hearings got underway, 60 national and state pro-life groups sent a letter to the members of the U.S. Senate calling for Gorsuch’s swift confirmation.
“Judge Gorsuch is widely recognized as a jurist possessed of deep intelligence and true fairmindedness,” the letter said. “In 2006 the U.S. Senate recognized these qualities, confirming Gorsuch without dissent to his current position on the 10th Circuit. After a decade of constitutionally sound and clearly written rulings and opinions, Judge Gorsuch deserves once again the swift approval of the Senate.
The letter was spearheaded by the pro-life organization Susan B. Anthony List and signed by members of the Pro-life Court Coalition.
Signers include Marjorie Dannenfelser, president, Susan B. Anthony List; Carol Tobias, president, National Right to Life; Tom McClusky, president, March for Life Action; Father Frank Pavone, national director, Priest for Life; Janet Morana, co-founder, Silent NO More Awareness Campaign; Star Parker, president, Center for Urban Renewal and Education; Melissa Ortiz, founder and principal, Able Americans; and Eva Andrade, Hawaii Family Forum.
“Many will attest to Judge Gorsuch’s judicial temperament and his respectful treatment of everyone in proceedings before him,” the letter said. “He has consistently applied an originalist approach to the Constitution, and a respect for the separation of powers, reminiscent of the late Justice Antonin Scalia.
“We believe that Judge Gorsuch’s thoughtful opinions illuminate how he would decide difficult questions on the Supreme Court,” it added.