WASHINGTON — The first day of the confirmation hearing for Neil Gorsuch often felt like a referendum on the man he has been nominated to replace.
Thirteen months after Antonin Scalia's death created a vacancy on the Supreme Court, the Senate Judiciary Committee finally met to consider a successor. Last year's Republican blockade of Merrick Garland ensured that the 2016 election would be relitigated this week. President Trump repeatedly promised to nominate justices in the mold of Scalia if he won, and Gorsuch fits that bill.
Senators dropped Scalia's name at least 55 times during just the first four hours. Almost every Republican on the panel quoted him admiringly during his opening statement, including Chairman Chuck Grassley (R., Iowa). Nearly every Democrat bemoaned the consequences of landmark decisions for which he provided the pivotal fifth vote, from Citizens United to Heller.
There was rare bipartisan consensus that Scalia was a larger-than-life figure of profound significance. Republicans characterized Scalia as a model justice and praised Gorsuch as just the man to carry his mantle. Democrats agreed Trump's nominee will follow in Scalia's footsteps, but they think that should be disqualifying.
Sen. Jeff Flake (R., Ariz.) said "Scalia demonstrated how much one justice can impact and shift the gravity of the court": "No justice in recent memory has so fundamentally influenced the trajectory of the Supreme Court or our approach to reading the law . . . Scalia's passing marked a watershed moment for the future of our judiciary. . . . Now fortunately, the president has nominated a jurist who believes in the rule of law."
Sen. Al Franken (D., Minn.) lamented that Scalia's "rigid" ideology has "infected the bench": "While no one can dispute (his) love of the Constitution, the document he revered looks very different from the one that I have sworn to support and defend."
• Gorsuch tried to downplay the ideological dimensions of this clash during his opening statement. He identified his "legal heroes" as the two more pragmatic justices he clerked for: Byron White and Anthony Kennedy. "Justice Scalia was a mentor, too," Gorsuch acknowledged. "He reminded us that words matter, that the judge's job is to follow the words that are in the law, not replace them with those that aren't."
The judge asserted that he and Scalia, who had become a good friend, didn't agree on everything. But the only example he cited related to their shared love of fly-fishing. "The justice fished with the enthusiasm with a New Yorker," Gorsuch quipped. "He thought the harder you slap the line on the water, somehow the more the fish love it."
All 11 Republican behind the dais laughed. None of the nine Democrats did. That reflected how polarized SCOTUS fights have become generally since Scalia was confirmed unanimously 31 years ago, but really it underscored just how much the well has been poisoned since Republicans refused to take up Barack Obama's nomination of Garland. That obstruction, while risky, turned out to be a political masterstroke that may ensure conservative dominance of the judicial branch for another generation.
"February 13 of last year was a devastating day for those of us who revere the Constitution and the rule of law," said Sen. Ted Cruz (R., Texas), referring to when Scalia died in his sleep during a hunting trip. "Justice Scalia was one of the greatest justices to ever sit on the court. He was a trailblazing advocate for the original meaning of the Constitution."
Cruz, who campaigned heavily on the Supreme Court and cited this vacancy as his primary rationale for ultimately endorsing Trump, praised Gorsuch for "channeling" Scalia. He called both men "brilliant," with "impeccable" academic and judicial records. "Had his vacant seat been filled by Barack Obama or Hillary Clinton, Justice Scalia's legacy would have been in grave danger," said Cruz. "We would have seen a Supreme Court majority that viewed itself as philosopher kings. . . . We would have seen our democratic process controlled by five unelected lawyers here in Washington."
• The Federalist Society and Heritage Foundation put Gorsuch on Trump's shortlist precisely because of his steadfast devotion to Scalia's school of constitutional interpretation during a decade on the Denver-based 10th Circuit appeals court.
Fearful they might wind up with another moderate in the mold of David Souter, conservative activists demanded that the president pick someone with a long paper trail. Especially because Republicans control the Senate majority, and seem willing to go nuclear to change the rules of the body, the groups would not accept any stealth candidate who might turn out to be ideologically squishy.
Based on the 2,700 cases he's decided over the past decade, no one doubts that Gorsuch will instantly move the center of gravity on the Supreme Court to the right, which is why the partisan battle lines have already hardened so much despite his sterling academic credentials.
Two political scientists who analyzed all the judge's decisions concluded that Gorsuch's voting behavior puts him to the right of Sam Alito and Clarence Thomas, and by a substantial margin. "The magnitude of the gap between Gorsuch and Thomas is roughly the same as the gap between (Sonia) Sotomayor and Kennedy during the same time period," Ryan Black from Michigan State and Ryan Owens from the University of Wisconsin at Madison wrote in a post published yesterday. "In fact, our results suggest that Gorsuch and Scalia would be as far apart as (Stephen) Breyer and (John) Roberts." They predict he will be the most conservative justice on the court.
Key figures on the right and in the corporate world expect Gorusch will be an even more reliable vote to advance their agenda than the sometimes iconoclastic Scalia, especially when it comes to the deconstruction of the administrative state. Their investment in a multi-million-dollar ad campaign to pressure red state Democrats who are up for reelection in 2018 to support Gorsuch reflect this confidence. In fact, conservatives have outspent liberals in the Gorsuch fight by a margin of 20-to-1, per Paul Kane.
• Monday's debate about Gorsuch kept coming back to the broader philosophical split over Scalia's legacy. "He led the most important legal revolution in our lifetimes, tethering judicial interpretation to the written text," said Sen. John Cornyn (R., Texas). "What a concept!"
Sen. Cory Gardner (R., Colo.), chairman of the National Republican Senatorial Committee, introduced Gorsuch to the committee as an "originalist." "Judge Gorsuch recognizes that the judiciary is not the place for social or constitutional experimentation, and that efforts to engage in such experimentation delegitimizes the court," he said. "As he has said, this overwhelming addiction to the courtroom as this place to debate social policy is . . . bad for the country."
Democrats noted that this was the sort of rhetoric segregationists also used to decry decisions like Brown vs. Board of Education. "I find this originalist judicial philosophy to be really troubling," said California Sen. Dianne Feinstein, the ranking Democrat on the committee. "In essence, it means that judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789. At the time of our founding, African Americans were enslaved, it was not so long after women had been burned at the stake for witchcraft, and the idea of an automobile, let alone the Internet, was unfathomable. If we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools and bans on interracial marriage. Women wouldn't be entitled to equal protection under the law, and government discrimination against LGBT Americans would be permitted."
Sen. Chris Coons (D., Del.), the Democrat on the Judiciary Committee who is most open to breaking ranks, nonetheless marveled at how often Gorsuch has been compared to Scalia since he was nominated: "It's because of Supreme Court decisions that gay men can no longer be criminally prosecuted for engaging in consensual relationships, that loving same-sex couples can get married in every state in our union, that women cannot be denied attendance at one of the nation's premier military academies, that juveniles and intellectually disabled people can no longer be executed and that millions of Americans who obtained health insurance under the Affordable Care Act have been able to keep it. These cases impacted the lives of millions of real Americans, and Justice Scalia . . . dissented in every one of them!"
Sen. Sheldon Whitehouse (D., R.I.) quibbled that it is misleading to refer to Gorsuch or Scalia as originalists. He argued that their records show they're activists who routinely read more into the Constitution than is there. "The Second Amendment uses the military term 'arms' and talks about 'militias,' but never mind that when the gun lobby wants something," he said. "Find me a founding father who planned a big role for corporations in American elections, or one who would have countenanced the steady strangulation of the civil jury (with the move toward mandatory arbitration) without so much as a mention of the Seventh Amendment."
• If Republicans see this as Scalia's seat, Democrats made clear time and time again that they see it as Garland's seat. Democrats attacked Senate Majority Leader Mitch McConnell by name for declining to even sit-down with Garland and their Republican colleagues on the committee for refusing to hold a hearing, let alone a vote. Franken called it "a truly historic dereliction of duty" and "a tactic as cynical, as it was irresponsible." Whitehouse said Gorsuch will no longer get "the benefit of the doubt."
"Your nomination is part of a Republican strategy to capture our judicial branch of government," Sen. Dick Durbin (D., Ill.) told Gorsuch.
Republicans made no apologies. Cruz argued that the presidential election "was essentially a referendum" on Trump's list of 21 potential nominees, which he said made it "the most transparent process in the nation's history" and means that Gorscuh's nomination "carries with it a super legitimacy." "The American people played a very direct role in helping choose this nominee," he said.
Sen. Pat Leahy (D., Vt.) noted that Trump received three million fewer popular votes than Trump, so there is no mandate. "Some likened it to the action of the tyrannical kings who claim that they have sole control," he said, referring to the Garland blockade. "In fact, this unprecedented obstruction is one of the greatest stains on the 200-year history of this committee."
Flake said it would be unfair for Democrats to punish Gorsuch for the way the GOP treated Garland. The current nominee called his fellow judge after Trump selected him, something Flake described as a classy gesture. "That says a lot about the man," said the Arizonan.
Sen. Lindsey Graham (R., S.C.) defended the election-year obstruction, arguing that Democrats would have done exactly the same thing if the shoe had been on the other foot. "I don't feel like any injustice has been done to anybody here," he said.
Graham has a lot of credibility because he voted for both Elena Kagan and Sotomayor. "I remember after I voted for Ms. Kagan, the headline in the Washington Post was: 'This will ensure that Graham gets a primary challenge,'" he recalled. "They were right! That's not the only reason . . . but that was the main reason, and I made it through just fine."
The South Carolina senator recalled that Scalia was confirmed 98-0 in 1986 and Ruth Bader Ginsburg made it through by a vote of 96-3 in 1993: "How did we go from being able to understand that Scalia was a well-qualified conservative and Ginsburg was a well-qualified liberal? . . . I hope . . . we turn around and go back to where we were because what we're doing is going to destroy the judiciary over time."
Democratic Sen. Michael Bennet introduced Gorsuch to the committee because both hail from Colorado. He praised him but stressed that he's undecided about how to vote. He recognizes that a vote for Gorsuch would be a major blow to any 2020 presidential hopes he might have. "It is tempting to deny Judge Gorsuch a fair hearing because of the Senate's prior failure," Bennet told his Democratic colleagues. "But two wrongs never make a right."