by William Yeomans, Fellow in Law and Government, American University Washington College of Law
As has become the custom, day one of the confirmation hearing for Neil Gorsuch to become an associate justice of the Supreme Court was swallowed by a series of now mandatory positioning statements by members of the Senate Judiciary Committee. Republicans followed their script, uniformly adhering to talking points in praise of the nominee’s Ivy League credentials, years in private practice as a defender of free enterprise and principled conservatism on the bench. Translation: he is a smart guy who has shown his willingness to put his energy and intellect behind positions that track the Republican political agenda. That agenda favors employers over employees, management over labor, corporations and banks over consumers, religious interests over the rights of others and the Commander-in-Chief over Congress, while weakening federal administrative agencies, interpreting civil rights statutes narrowly and applying the doctrine of originalism to minimize individual rights and lock in traditional social injustices.
Several Republican senators spent considerable energy providing cover for the nominee to refuse to answer questions, citing statements from Ruth Bader Ginsburg as a nominee and Sen. Edward M. Kennedy as a Committee member, cautioning that a nominee should not take positions on matters that could reach the Court. Invoking liberal icons exploited a tradition at confirmation hearings – citing the opposition to set up the defense of the nominee and teeing up the charge of hypocrisy if the other side attacks.
Democrats were not deterred. Several cited the abusive treatment of Merrick Garland, but none declared these proceedings illegitimate. Nobody went quite so far as to suggest that President Trump might be as crazy and corrupt as he seems, undercutting the need to respect the nominee. But, several senators plainly thought the mistreatment of Garland combined with the unorthodoxy of the Trump presidency (including his announcement of litmus tests, and reliance on the Federalist Society and the Heritage Foundation to identify a nominee) to place an added burden on Gorsuch to be more forthcoming than the usual nominee to establish his independence and ability to serve as a check on an undisciplined executive.
Several Democratic senators presaged vigorous questioning on substance. Sen. Whitehouse, for example, made a striking case that putting another conservative ideologue on the Court would feed the pattern of recent years in which five-member conservative majorities have voted as a bloc to change the law in favor of Republican electoral prospects, guns and corporations, and against labor, consumers and the environment.
Democrats, however, come to this fight without having done enough to prepare the country for its messages – that this seat is stolen, Trump is illegitimate and should not be allowed to fill it and the nominee’s radical conservatism threatens the interests of working, middle class and minority people, as well as those who care about civil rights and liberties, and democracy.
While conservative groups backing Gorsuch have been spending lavishly to flood airwaves and social media with messages of support for Gorsuch, Democrats have been struggling to tread water in the face of the flood of Trump generated issues. Between Trump’s lie that Obama wiretapped Trump Tower, the international embarrassments that followed, the release of the draconian budget, rapid movement on the dismemberment of Obamacare, the threat of preemptive military action against N. Korea, and the assault on environmental and labor regulations, Democrats have failed to find sufficient time and space to press the case against Gorsuch. Indeed, the Democratic dilemma is summed up by the apparent consensus that today’s hearing was only the second most important of the day -- behind the House Select Committee on Intelligence’s hearing on the Russian hacking and wiretap investigations.