WASHINGTON — Neil Gorsuch gave his clearest answer yet on abortion rights Wednesday, calling Roe v. Wade “the law of the land” as he continued to walk a delicate line of answering questions while not disclosing his personal opinions on cases or controversies.
Sitting before the Senate Judiciary Committee in his third day of confirmation hearings, the Supreme Court nominee was asked by Sen. Dick Durbin about a book he wrote on assisted suicide, which touched on the debate over when life begins.
“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,” said Gorsuch, who sits on the 10th U.S. Circuit Court of Appeals in Denver and lives in Boulder.
“Do you accept that?” Durbin, D-Ill., asked.
“That’s the law of the land, senator,” Gorsuch said. “Yes.”
On the campaign trail, President Donald Trump said he would appoint a judge who would overturn the Supreme Court ruling, but Gorsuch said he was never asked during the selection process to make promises on certain decisions.
Pressed during Tuesday’s hearing on what he would have done if Trump had asked him to do so, Gorsuch said he “would have walked out the door.”
“That’s not what judges do,” he continued. “They don’t do it at that end of Pennsylvania Avenue and they shouldn’t do it at this end, either.”
Gorsuch throughout his hearings has sought to paint himself as a fair and independent judge. If confirmed, Gorsuch will fill the seat vacated by the late Justice Antonin Scalia, who died a little more than a year ago.
Though Gorsuch had deep admiration for Scalia, his attempts to stay independent meant keeping his distance from the former justice at times.
Sen. Patrick Leahy, who said Scalia was “intelligent” and a friend of his, asked Gorsuch if he agrees with Scalia’s comment that the 2013 renewal of the Voting Rights Act was a “perpetuation of racial entitlement.”
Gorsuch, who’s been trying to avoid issuing opinions, did not give a direct answer.
“I don’t speak for Justice Scalia,” he said. “I speak for myself.”
Democrats seize on Supreme Court decision
Democrats pounced on the news that the Supreme Court Wednesday reversed an interpretation of a federal anti-discrimination statute that Gorsuch played a role in crafting.
Chief Justice John Roberts explained that the federal appeals court in Denver had applied too strict a standard to claims by an autistic child’s parent that they were entitled to reimbursement for the cost of private education under the federal Individuals with Disabilities in Education Act.
The decision reversed Wednesday was by a different three-judge panel (that didn’t include Gorsuch) of the same court on which he sits — but it relies largely on an earlier decision by the same court that Gorsuch wrote.
Gorsuch’s interpretation was that if a school district satisfies federal law, it does not need to reimburse the cost of private education, so long as it provides educational benefits to disabled students that are “more than de minimis.”
In Wednesday’s opinion, the Supreme Court stressed that more was required by the federal statute.
Sens. Amy Klobuchar and Dick Durbin quizzed Gorsuch on his interpretation, with Klobuchar pointing out more than once that the Supreme Court was unanimous in its decision.
Gorsuch noted there was a circuit split on the standard and argued he was trying to follow precedent as best he could.
“To suggest that we were in any way out of the mainstream or that I was doing anything unusual would be mistaken because it’s the standard used by many circuits up until, I guess, today,” he said.
Gorsuch said he finds it “wonderfully reaffirming” that there’s a body like the Supreme Court that resolves situations like these in which federal courts disagree.
Gorsuch faces questions over Trump remarks, policies
Gorsuch faced an 11-hour marathon session the day before, answering questions on a range of issues, from his previous rulings to the president’s attacks on the judiciary.
The nominee has also repeatedly suggested that he’d be willing to rule against the president, if necessary.
Leahy, citing the Bush administration and torture, asked Gorsuch on Wednesday if he thinks there’s any circumstance in which a president could legally ignore a statute.
Gorsuch argued that “presidents make all sorts of arguments about inherent authority,” as does Congress. “We have courts to decide these cases for a reason– to resolve these disputes.”
He was pressed again on whether he can think of a scenario in which a president can ignore a law on the books.
“I can’t think of one, offhand,” Gorsuch said.
Leahy, a Democrat from Vermont, used his answer to transition to a question about the current administration. Without mentioning his name, Leahy referenced a quote by Trump adviser Stephen Miller on the president’s executive order banning immigration from six Muslim majority countries.
Miller, shortly after a federal court ruled against the ban earlier this year, stated that the President’s powers to protect the nation “will not be questioned.”
Reading the quote, Leahy asked Gorsuch if a president would have to comply with a court order.
“That’s the rule of law in this country,” Gorsuch said.
“I’m a judge now, and I take that seriously, and you better believe I expect judicial decrees to be obeyed,” he added.
It was one more example of Gorsuch trying to prove he’s willing to take on “the big guy,” fending off attacks from Democrats who worry Gorsuch won’t rule in favor of “the little guy.”
Gorsuch, still responding to Leahy, quoted a mentor of his, saying “the real test of the rule of law is where the government, government could lose in its own courts and accept those judgments.”
Republicans give cover to Gorsuch
While major fireworks haven’t broken out between Democrats and Gorsuch during the hearing, Democrats have still expressed great frustration, saying he has not been direct enough in his answers.
Republicans, in turn, accused their Democratic colleagues of applying a double standard, saying they’ve been quick to criticize Gorsuch yet at the same time condemn Trump’s attacks on federal judges.
Sen. Ted Cruz, R-Texas, used a chunk of his time Wednesday to read off a list of attacks against Gorsuch by high-profile Democrats, including some on the committee.
“My colleagues, the Democrats, have a right to engage in whatever attacks they chose. But it’s a little rich for them to be maligning a sitting federal judge and at the same time giving speeches about how unacceptable it is for anyone to criticize a federal judge,” he said. “You can’t have both at the same time.”
Sen. Mike Lee, R-Utah, clarified that he wasn’t defending Trump’s attacks, but said he found Democrats’ rhetoric about Gorsuch “ironic” and “quite troubling.” Sen. Ben Sasse, R-Neb., called it “absurd.”
Earlier Wednesday, Sen. Lindsey Graham, R-S.C., bemoaned that the confirmation process has become too politicized and specifically targeted Democrats for trying to get Gorsuch to state his personal views.
“What’s happened? Did the Constitution change? I don’t think so. I think politics has changed. I think it’s changed in a fashion that we should all be ashamed of as senators, and I think we’re doing great damage to the judiciary by politicizing every judicial nomination,” he said.
Democrats, meanwhile, have been hammering Republicans for blocking a vote on President Barack Obama’s nominee to the Supreme Court last year so they could keep the seat open until a new president was inaugurated.
Committee Chairman Chuck Grassley announced he expects the committee will vote on Gorsuch’s nomination April 3. After that, Republicans, who have 52 members in the Senate, need 60 votes to avoid a filibuster in the full Senate.