Committee chairman Chuck Grassley gaveled the 10-hour session to a close shortly before 8 o'clock Wednesday evening [March 22] with lavish praise for the veteran federal appeals court judge for his "patience" and "thoughtfulness in all that you do." The Iowa Republican ended by saying that Gorsuch had "pretty well demonstrated how you're going to handle things when you get to the Supreme Court of the United States."
For their part, the committee's outnumbered Democrats made no similar predictions of blocking or even slowing the nomination despite the call from the Democratic leader Chuck Schumer of New York to block any vote pending the investigation into Russian interference in the presidential election.
The committee's nine Democrats came up mostly short after a second full day of using a handful of Gorsuch opinions from the Tenth U.S. Circuit Court of Appeals to depict him as a threat to civil and constitutional rights and a champion of corporate interests over workers and consumers. And they also failed to pin him down on how he might vote on a range of legal issues ranging from conservative causes such as gun rights and campaign finance to liberal agenda items such as abortion rights, gay rights, and voting rights.
Even so, the Democrats got an unexpected assist from across the street early in Gorsuch's second day of testimony in the Senate's Hart Office Building. Shortly after 10 o'clock, Chief Justice John G. Roberts Jr. announced a unanimous high court decision rejecting a Tenth Circuit test crafted by Gorsuch on educational standards under federal law for students with disabilities.
The ruling in Endrew F. v. Douglas County School District came in a case that had applied a test from Gorsuch's opinion in an earlier case on how to apply the federal Individuals With Educational Disabilities Act (IDEA). Under Gorsuch's standard, local school districts could satisfy the law by offering students who cannot be taught in mainstream classrooms "an educational benefit [that is] merely . . . . more than de minimis." In a relatively short opinion, Roberts said the goal was too low and instead students were entitled to "a program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances."
Asked about the decision by Illinois Democrat Richard Durbin, Gorsuch said he was handed the decision during a bathroom break in the hearing. Durbin said that the National Education Association had found that Gorsuch had ruled against students in eight of 10 cases under the federal law. But Gorsuch defended his opinion in the earlier decision, saying that he was bound by precedent.
Gorsuch ducked Democrats' specific questions by adopting what he and the committee's Republican senators called the "Ginsburg rule," as set out by the future justice Ruth Bader Ginsburg during her 1993 confirmation hearing. "I've tried very hard to abide by the Ginsburg rule," Gorsuch explained at one point. "No hints, no previews, no forecasts."
Republicans were fully satisfied. "I respect your absolute resistance to giving your feelings about the precedents of the Supreme Court of the United States," Idaho's Mike Crapo said. "You're consistently making clear that you're keeping your personal opinions out of it."
Earlier, Illinois Democrat Richard Durbin rejected Gorsuch's mantra that he would follow precedent and decide cases on the basis of the facts and the applicable law without regard to his personal opinions. "I don't buy that," Durbin said forcefully. "We're looking for insights into your values and your judgment."
Minnesota's Al Franken made the Democrats' point even more forcefully as the hearing neared an end by referencing a series of 5-4 Roberts Court decisions that he said had hurt small businesses, workers, consumers, and — alluding to voter ID laws — Americans who do not have driver's licenses. "I want to know whether you'll consider the real world consequences of your decisions," Franken said.
Republicans continued to defend Gorsuch's noncommittal stance. "The bottom line is that you cannot give the answers the other side would like," South Carolina's Lindsey Graham said.
President Trump nominated Gorsuch on Jan. 31 for the seat left vacant by the death of Justice Antonin Scalia a year earlier. The Republican-controlled Senate refused to consider President Obama's nominee for the seat — Merrick Garland, like Gorsuch a highly-credentialed and well-regarded federal appeals court judge. Garland would have given Democratic-appointed justices a majority on the court for the first time since 1969.
Gorsuch avoided answering a number of questions during his two days at the witness table by depicting the judiciary as nonpolitical. "You said there are no Republican judges and no Democratic judges," Franken said mockingly. "But if that were true, what was Merrick Garland about?"
Graham answered by insisting that had the tables been reversed, a Democratic-controlled Senate would have refused to consider a Supreme Court nominee from a Republican president in his final year in office. As evidence, Graham cited an oft-quoted comment to similar effect that then-Sen. Joe Biden made in 1992 as he chaired the Judiciary Committee during the fourth year of President George H.W. Bush's term.
The hearing resumes at 9:30 a.m. on Thursday with some 28 outside witnesses scheduled to testify. A first panel will consist of members of the American Bar Association's standing committee on the federal judiciary, which gave Gorsuch its highest rating of "well qualified." Three subsequent panels will be equally balanced between supporters and opponents of Gorsuch's confirmation chosen by the Republican and Democratic sides.
Grassley says he wants to bring the nomination to a committee vote on Monday [March 27], but he acknowledges that Democrats have the right to request a one-week delay. Republicans want to complete the confirmation in time for Gorsuch to join the Supreme Court for a two-week calendar of arguments that begins April 17.
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