WASHINGTON — One of the most convoluted Supreme Court confirmation battles in history finally reaches the U.S. Senate Monday, 401 days after the death of legendary Justice Antonin Scalia left a vacancy that spanned two presidencies and spawned two nominees.
Federal appeals court Judge Neil Gorsuch, President Trump's choice to be the nation's 113th Supreme Court justice, faces several days of harsh questioning from Democrats still seething at the Republican-controlled Senate's refusal to consider President Barack Obama's equally qualified nominee last year.
The 49-year-old Coloradan, a devoted fan and occasional fishing buddy of Scalia, will seem an unlikely subject of attack. Dapper, folksy and impeccably qualified by way of Columbia, Harvard Law, Oxford and two Supreme Court clerkships, the 10-year veteran of the U.S. Court of Appeals for the 10th Circuit in Denver has charmed senators from both parties during 72 courtesy visits.
But his Jan. 31 nomination was destined for a fight because of what happened within hours of Scalia's sudden death at a Texas ranch on Feb. 13, 2016. Senate Republican leader Mitch McConnell vowed the seat would remain vacant through the presidential election, a promise he kept despite Obama's compromise nomination of Merrick Garland, 63, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit and a relatively moderate jurist.
Gorsuch also is burdened by the president who chose him — one who promised to employ litmus tests on abortion and guns, who largely outsourced the initial nomination process to the conservative Federalist Society and Heritage Foundation, and who has attacked federal judges who ruled against him, both as a businessman and as president.
The Denver native, married with two daughters and a love of the outdoors, remains likely to win confirmation because of a procedural advantage. If he cannot win 60 votes needed to break an expected Democratic filibuster, Republicans can change Senate rules to eliminate the super-majority requirement for Supreme Court nominations, just as Democrats did in 2013 for lower courts and the executive branch.
Still, this week's hearings will help determine whether Gorsuch skates through the Senate in early April after a winning performance or limps to the finish line after jousting with the committee's nine Democrats. Will he criticize Trump's attacks on the judicial branch or stick to his earlier, private assessment of "disheartening?" Will he stick by his purely literal interpretation of the Constitution and federal laws or indicate flexibility?
Perhaps most important, will he answer questions about his legal philosophy and his views on past precedents or follow what conservative supporters who oppose such frankness refer to as the "Ginsburg standard," after Justice Ruth Bader Ginsburg's insistence on offering "no forecasts, no hints" in her 1993 confirmation hearings.
To prepare, Gorsuch hasn't just sweet-talked 72 senators. He has studied many of the more than 2,000 opinions that bear his name and familiarized himself with roughly two dozen areas of law likely to be addressed by the Senate Judiciary Committee. He has subjected himself to so-called "murder boards" — several sessions of questioning by White House and Justice Department lawyers portraying the senators who will quiz him this week.
Leonard Leo, the conservative Federalist Society executive vice president who has taken a leave of absence to help Gorsuch run the gauntlet, predicted "a clash of visions about the role of the courts" — but without the degree of specificity Democrats will demand. Gorsuch, he said, is likely to stick close to the "Ginsburg standard," even if asked about cases settled decades ago, such as Roe v. Wade, which granted abortion rights.
"The fact that something was decided in the past doesn't mean that you can talk about it," Leo said. "If he starts to answer questions about policy, then he's opened the door to other questions about policy."
While Gorsuch prepped, the 20-member committee and its staff have dug into his past, parsing his 68-page questionnaire, which arrived with 20 appendices, as well as some 175,000 pages of records produced by the Justice Department and the George W. Bush Presidential Library. The latest tranche of documents arrived Friday.
That lengthy paper trail will be in the background Monday when Gorsuch speaks in public for the first time since he appeared with his wife, Louise, in the East Room of the White House to accept Trump's nomination. After sitting like a potted plant while Republican senators speak glowingly and Democrats skeptically of his record, he'll deliver his long-awaited opening statement, marking the start of the first Supreme Court confirmation hearing since Justice Elena Kagan's debut in 2010.
Then on days two and three, Gorsuch will be a piñata, subjected to several rounds of questions about his adherence to "originalism" and "textualism" — the doctrines of following the Constitution and statutes to the letter — and his various opinions, dissents and concurrences issued since 2006. The final day is reserved for testimony from colleagues, opponents and interest groups on both sides.
If things go according to plan for Republicans, the committee will vote on his nomination the first week of April and the full Senate a few days later. How he is confirmed would be up to Democrats — by getting the 60 votes, including eight from Democrats, needed to surmount a filibuster, or by forcing Republicans leaders to change the rules. One way or the other, he would be sworn in before the final oral arguments of the term in April — and available to rehear any cases that emerged from the shorthanded court in 4-4 ties, as four cases did last term.
Democratic senators and liberal interest groups hope for a different scenario. They are going all out to defeat Gorsuch despite his central-casting credentials and demeanor. In recent days, the nation's most prominent civil rights groups have come out against confirmation, citing his rulings in favor of business and government interests over the "little guy."
"We have concerns that he has a narrow view of rights that are protected by the Constitution, as well as a skeptical view about the importance of protecting those rights in the courtroom," the Lawyers' Committee for Civil Rights Under Law said in a 26-page report. The NAACP Legal Defense and Educational Fund followed a day later with 70 pages, concluding that Gorsuch "would take a narrow view of — if not affirmatively weaken — the fundamental and hard-fought civil rights of African Americans and other historically marginalized communities."
MORE TO COME?
On many hot-button issues of the day, Gorsuch's record won't offer much of a guidepost. His views on abortion, for instance, cannot be gleaned even from his 2006 treatise against euthanasia and assisted suicide. The judge's most famous cases involved the craft store chain Hobby Lobby and the religious order Little Sisters of the Poor, who objected to the Obama administration's rule that employers offer free insurance coverage for contraceptives. In both cases, he sided with the employers based on their religious beliefs.
Conservative groups have spent close to $20 million in support of the nomination — one of the few moves Trump has made that unites them. They have produced an array of Gorsuch's college classmates, his former law clerks, and even a handful of liberal appellate lawyers who sing his praises. Neal Katyal, former acting solicitor general in the Obama administration, will help introduce Gorsuch Monday morning.
Gorsuch is "precisely the kind of person you'd expect a Republican administration to nominate," former U.S. solicitor general Paul Clement, who served in the George W. Bush administration, said Friday. Donald Verrilli, who served in the same capacity under Obama, said Gorsuch "checks all the boxes that you would want to check."
One box that could provide fireworks at the hearings stems from the 13 months Gorsuch spent in 2005-06 as the top aide to the Justice Department's third-ranking official -- a job that put him in the middle of the Bush administration's war on terror, from the warrantless wiretapping of terrorism suspects to the treatment and trials of detainees.
"I think you will see a retrial of the Bush war on terror," the Federalist Society's Leo says. "You'll see Democrats trying to revisit the policy battle."
For all the political sparring over 13 months, Gorsuch's nomination is just the prelude to the real fight for control of the evenly divided Supreme Court. His confirmation would restore a narrow, 5-4 conservative majority that flips to liberal whenever Justice Anthony Kennedy, the court's longest-serving member, switches sides.
It's the next vacancy — presumably involving Kennedy, 80 and considering retirement, or the 84-year-old Ginsburg — that would give conservatives firm control of the court and a chance to rewrite history in areas such as abortion and affirmation action. Whether Trump gets that opportunity or it waits for a future president will be in the back of everyone's mind this week.