Democrats dug in to Supreme Court nominee Neil Gorsuch Wednesday with sharp questions regarding abortion and his conservative judicial philosophy.
That was a change from the final moments of his second day of hearings, Tuesday’s marathon session, where an exhausted Gorsuch was fielding softball questions from Republicans on the Judiciary Committee concerning his fly fishing techniques and a Western past time called mutton busting.
A subdued and serious Gorsuch was ready with his answers Wednesday. Throughout the day he parried a bit more with the senators, but steered clear when they squabbled among themselves.
Democratic Sen. Dianne Feinstein, the ranking member, began the day asking about the fact that Gorsuch, and his ideological ally, the late Justice Antonin Scalia, share the same conservative philosophy of originalism. In simple terms, the two men believe that the Constitution should be interpreted based on its original public meaning.
“Now do you agree with Justice Scalia’s statements that originalism means there is no protection for women or gays and lesbians under the equal protection law because this was not the intent or understanding of those who drafted the 14th Amendment in 1868?” Feinstein asked.
Gorsuch, a judge and a law professor, was careful in his response.
To ease Feinstein’s concerns about the future of Roe v. Wade, he reminded her a “good judge starts with precedent and doesn’t reinvent the wheel.”
He sought to assure her about his philosophy, “no one is looking to return us to horse and buggy days,” he said.
But he refused to say how he would rule. It’s vintage Gorsuch and a tactic he has used throughout the hearing: Talk about cases, explain precedent, but never go too far to tip his hand.
When Feinstein pressed, he brought up his family.
“I come from a family of strong women,” he said and added that sitting in the room he was “daunted by” his upcoming role if confirmed.
“We’re trying to interpret the law faithfully, taking principles that are enduring in a Constitution that was meant to last ages and apply it and interpret it to today’s problems,” he said.
That’s a little education, a little reassurance, but not an answer to her question.
Later however, he did say that Roe was “the law of the land.”
Republican Sen. Lindsay Graham, when it was his turn, lambasted Feinstein for trying to get Gorsuch to speak directly about Roe suggesting that a judge should never be asked on how he would rule in a case.
As he did Tuesday, Gorsuch also flexed his muscle to say he was an independent judge. He said he had respect for Justices like Scalia, and members of the committee and the President and the Vice President, but at the end of the day he said no one speaks for him.
“I speak for me,” he said. “I am a judge, I am independent. I make up my own mind.”
At one point he seemed to have more optimism for the future of the Congress then some members. “I’ve seen it work,” he said to Sen. Ben Sasse, a Nebraska Republican.
Near the conclusion of Wednesday’s testimony he referenced the fact that he had met with over 70 Senators since his nomination of courtesy visits.
“I wish the American people could see what I’ve seen,” he said. “I think that if they had seen what I’ve seen, they’d be much bigger believers in their government than they are. It’s not perfect, my branch isn’t perfect, but I’m a believer in it and I want to thank you.”
In the end, although he didn’t refer back to “mutton busting” or the Western practice of children riding sheep in rodeo events, he said he would have no problem returning back to his life on a federal appeals court in Colorado if he didn’t win confirmation.
“If the Senate were not to confirm you to the Supreme Court, what position would you continue to hold then?” Senator Ted Cruz asked.
“The one I happily enjoy now,” Gorsuch said.
