WASHINGTON (CN) – Emotional exchanges on abortion, equal-protection rights and executive authority dominated Wednesday as the Senate wrapped its second full day of confirmation hearings for Supreme Court nominee Neil Gorsuch.
Sen. Patrick Leahy, D-Vt., questioned Gorsuch about his allegiances, noting that the 10th Circuit judge has voiced support of Stephen Bannon, the Breitbart founder advising President Donald Trump.
“By nominating you,” Leahy said to the judge, “Trump was talking about a chance of having a new sort of law in place for the next 40 years.”
He added, “He was suggesting you might come in here as a Trojan horse. What vision do you share with Trump?”
As he has since the hearing began Monday, Gorsuch insisted that he will maintain his independence on the bench.
“I have admiration for every member of this committee and the president and the vice president, but none of you speak for me,” Gorsuch said. “I am a judge. I am independent, and I make up my own mind.”
Later in the hearing, Sen. Ben Sasse, R-Neb., inserted a bit of levity into the tense hearing. Sasse didn’t miss an opportunity to rib Gorsuch when the judge used a word made popular by Trump.
Meaning to say “big and boldly” in reference to John Hancock’s signature on the Declaration of Independence, the words came out as “bigly.”
Laughter filled the chamber and Gorsuch closed his mouth, eking out a smile. Sasse teased further saying that he had just won $5 off the gaffe.
Turning in his chair to his nephew sitting behind him, Gorsuch replied that he had been embarrassed in front of his family, but that the nephew “loved it.”
“He’s the one paying me the five bucks,” Sasse said.
Further inquiry into the powers of the executive branch continued, including an inquest into possible abuses of the Emoluments Clause. On that, Gorsuch was less forthcoming. The clause states that a president cannot accept gifts from foreign entities without congressional approval.
Gorsuch reserved any further opinion on the subject, citing “impending” litigation or the very possible threat of it.
Sen. Dianne Feinstein, D-Calif., made an emotional appeal to the judge, reminding him of his own two daughters and asking if he would be comfortable with how their own rights might fare under his term as a Supreme Court justice.
“You’re pivotal in this,” Feinstein said.
Though conservatives have praised Gorsuch’s conservative reputation on the bench, Feinstein argued that textualist or originalist interpretations of the U.S. Constitution may miss modern realities, such as the strengthening of rights for minorities, women and the LGBT community.
Gorsuch repeated his loyalty to the word of law and precedent but also took care to reassure Feinstein.
“No one is looking to return to horse-and-buggy days,” he said. “A good judge starts with precedent and doesn’t reinvent the wheel.”
Gorsuch disputed Feinstein’s attack on his school of judicial interpretation. “It would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law,” he said. “What a good judge strives to do is understand what the words on the page mean and not import words.”
He added that it didn’t so much matter that “some of the drafters were racist.”
“Because they were,” he added. “Or sexist. Because they were. But the law promises equal protection of the law to all persons,” Gorsuch said.
When Sen. Lindsey Graham, R-N.C., took up the microphone after Feinstein, the committee endured a nearly 30-minute tongue-lashing on hypocrisy.
Graham accused Democrats of putting Gorsuch’s legal experience aside so that they could grill him on their own interpretations of his political beliefs.
“If we have to vote against a nominee because they won’t tell us about things that we want to hear about, instead of things that are important to the nomination process, then the nomination process has become a joke,” Graham said.
In an attempt to quash further partisan bickering, Graham brought up the last Supreme Court justice confirmed by the Senate.
“Justice Kagan was picked in the mold of Obama himself,” Graham said. “I didn’t vote for him. But he won. And as president, he had a right to pick someone from the progressive wing of the law and he did. Twice. I knew full well what I was getting, and I hope you understand that you’re getting one of the most qualified, conservative judges in the country.”
Calling Gorsuch as “mainstream conservative” as one can get, Graham took affront that anyone would challenge the judge’s history one reversal in 2,700 cases heard.
“We’re taking the nomination process to a place it was never intended to go,” Graham said. “And Alexander Hamilton would be rolling in his grave to believe that in the U.S. Senate, I can’t vote for you if you won’t tell me about the cases that are only important to me and you don’t share my philosophy.”
Reconvening after an hour recess, Republican senators appeared at ease – quieting much of the fiery rhetoric and fierce defense of Gorsuch that came in the morning.
Democrats on the committee spent the remainder of the afternoon attempting to chip away at the polished presentation Gorsuch has so far delivered.
Sen. Mazie Hirono, D-Hawaii, landed a few punches at Gorsuch when she teed him up to defend a 2005 essay he wrote.
“Your description [over the last two days] of the court system as Rockwellian or that anyone can file a claim to protect their rights and interests and that these claims will be ruled upon by neutral judges despite their own personally held or frequently expressed beliefs, both you and I know that the courts and politics are intertwined,” Hirono said.
Gorsuch evaded a direct acknowledgement.
Hirono reminded him of the 2005 article, “Liberals and Lawsuits,” in which the nominee was less abashed about his own political bias.
“In that article, you wrote that as a result of Republican wins in the presidency and senate elections, Republicans were in charge of the judicial appointment process. As a result, you also wrote, ‘The level of sympathy pushing constitutional litigation can expect the courts to wither over time, leaving the left truly out in the cold.'”
Hirono said she was profoundly troubled by her finding.
Gorsuch was adamant that politics and judgeship don’t have much in common.
“If you came to my court, it would be deeply wrong to suggest that who won the last election will determine your fate in my court,” he said.
Unconvinced, Hirono told the nominee that his response didn’t square with the notions he put forward in 2005.
“You understand that politics has an impact on the court. If not, we would have Merrick Garland before us and not you. You admonish liberals through seeking to protect their rights in court rather than through the political process,” Hirono said.
Quoting his essay directly, Hirono read from piece again.
“It would be good for the left itself to take a page from their own judges of the New Deal era, kick their addiction to constitutional litigation and return to their New Deal roots by trying to win elections rather than lawsuits,” Gorsuch wrote in the article.
Hirono threw yet another barb at Gorsuch before wrapping up.
“After just reading ‘Liberals and Lawsuits,’ I think this has definitely endeared you to the Heritage Foundation and the billionaires who recommended you for this position,” she said.
The criticism referred to Colorado billionaire Philip Anschutz, an oil, railroad, real estate and entertainment magnate whom Gorsuch has represented in the past. Anschutz also lobbied the George W. Bush administration to appoint Gorsuch to the federal appeals court.
Democratic senators also took an opportunity to pounce on a real-time challenge by the Supreme Court to an earlier controversial ruling by Gorsuch.
The eight sitting justices decided unanimously Wednesday afternoon to raise education standards for learning-disabled students. Their ruling rejected an earlier one from the Tenth Circuit where Gorsuch serves.
In their ruling, the justices said the bar for disabled students’ education was set too low by the lower court.
A final day of testimony by witnesses in support of Gorsuch is expected to continue Thursday.
Gorsuch’s confirmation to the Supreme Court is expected by April, and Majority Leader Mitch McConnell has said a confirmation should come before Easter.