Updated at 5:42 p.m. ET
Democratic senators spent most of Tuesday’s Supreme Court confirmation hearing trying to pin down nominee Neil Gorsuch’s views on abortion, campaign-finance reform, gun rights, and a host of other contentious issues. They were largely unsuccessful. So in Wednesday’s Senate Judiciary Committee session, they tried a new approach: warning Gorsuch about what they see as the consequences of his decisions in those spheres.
Front and center was abortion rights, a topic on which Gorsuch remains an enigma. The 49-year-old federal appellate judge from Colorado has never taken part in an abortion-related case in the Tenth Circuit Court of Appeals, where he currently serves, nor has he written on the subject. During the campaign, President Trump vowed to appoint anti-abortion judges who would overturn Roe v. Wade, but Gorsuch testified yesterday that neither Trump nor anyone else during the confirmation process had asked him to rule on the issue in a specific way. “Senator, I would’ve walked out the door” if they had, he told South Carolina’s Lindsey Graham yesterday.
During Tuesday’s marathon session, which stretched more than 11 hours, Gorsuch stuck to purely descriptive answers about Roe, the foundation of the Court’s abortion-rights precedents. At one point, he referred to it simply as a “precedent of the United States Supreme Court.”
On Wednesday, California Senator Dianne Feinstein tried to impress upon Gorsuch that the ruling represents more than a mere court decision. “For the life of me, I really don’t know when you’re there what you’re going to do with it,” she told him. “As you say, this isn’t text, this is real life. Young women take everything for granted today. All of that could be struck out with one decision.” She recalled how earlier in her professional career, which spans the modern history of abortion rights, women obtained abortions in Mexico and were sentenced to prison in California for seeking them.
A similar warning came from Vermont Senator Patrick Leahy, who said the time before Roe represented “dark days that I don’t want to go back to.” Leahy recounted being called to a hospital at 3 a.m. while working as a state’s attorney in the late 1960s to meet a young student who had survived a botched abortion. The man who procured the abortion, Leahy told Gorsuch, would “blackmail [women] for either sex or money” before bringing them to Montreal, where a woman would perform the procedure. Before their trial, Leahy told the defense attorney the woman learned to perform the procedure while “working for the SS at Auschwitz.” With the backdrop of these back-alley abortions, Leahy explained, the Vermont Supreme Court decriminalized abortion before Roe. Gorsuch didn’t reply substantively to these stories, but seeking his response didn’t seem to be the senators’ point in telling them.
Illinois’s Dick Durbin tried to persuade Gorsuch to reveal his abortion views by quoting the judge’s book on euthanasia, in which he said “the intentional taking of human life by private persons is always wrong.” Conservatives have interpreted that line as a signal of Gorsuch’s supposed anti-abortion beliefs.
“How could you square that statement with legal abortion?” Durbin asked him. “Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment, and the book explains that,” Gorsuch replied.
“Do you accept that?” Durbin asked. “That’s the law of the land,” Gorsuch answered. “I accept the law of the land, senator, yes.”
Another caution from Democrats came in the area of campaign-finance reform. Rhode Island Senator Sheldon Whitehouse spent the bulk of his question period describing the effects of “dark money,” a term for political funds by unknown donors. Gorsuch replied by reviewing the precedent surrounding campaign finance. “Congress has ample authority and opportunity to pass campaign-finance laws,” he noted, including on disclosures. But he also pointed to NAACP v. Alabama, a civil-rights-era Supreme Court case that blocked the state from obtaining the organization’s membership rolls.
Whitehouse then laid out an extensive critique of the Court’s Citizens United ruling, which he said undermined public confidence in the political system and the Supreme Court. Gorsuch, in keeping with his careful efforts to avoid revealing his views on cases, didn’t directly engage with those criticisms. But he said it was a “distressing” view that some see the Supreme Court as an extension of the political parties.
That didn’t give Whitehouse much to explore. So he instead closed his questioning by urging Gorsuch to think about the subject in antitrust terms, with Citizens United raising the risk that some factions could gain a “monopoly” in the political sphere. He also drew comparisons to administrative law and the phenomenon of “regulatory capture,” whereby regulators are “captured” by the influence and proximity of the companies and people they oversee.
“Nobody will capture me,” Gorsuch said, to laughter.
Wednesday’s hearings began as the Supreme Court handed down a series of rulings across the street from the Capitol, leading to an awkward moment for Gorsuch. Some of the senators asked him about his ruling in Thompson R2-J School District v. Luke P., a 2008 case in which Gorsuch sided with a school district against an autistic student. The student’s parents wanted tuition reimbursement to send him to a private school under the federal Individuals with Disabilities in Education Act, also known as IDEA. Gorsuch said the school district complied with the law because it provided educational benefits that were “merely more than de minimis,” a Latin legal term for “trivial.”
The Court declined to review that decision at the time. But Gorsuch’s de minimis standard was later used in a Tenth Circuit case that the Court did take up. And it was during Gorsuch’s hearing, wherein he defended his school-district ruling, that his would-be colleagues unanimously rejected his reasoning. When word reached him about the ruling during a brief recess, he expressed some regret to the senators.
“The fact of the matter is I was bound by circuit precedent,” Gorsuch told the committee. “I was wrong because I was bound by circuit precedent, and I’m sorry.”
Throughout the hearing, Republicans continued to praise Gorsuch for his record and answers. A new theme emerged in their comments, as multiple senators knocked their Democratic colleagues for allegedly attacking Gorsuch on a personal basis. Ted Cruz and Mike Lee compared the Democratic criticism of Gorsuch to the attacks leveled by President Trump against federal judge Gonzalo Curiel and the federal judges who ruled against his controversial travel ban.
“These are serious attacks,” Cruz said in stern tones. “Many of them impugn your integrity directly, and yet this is a confirmation hearing. The Founders understood a confirmation hearing would be in the political arena. My colleagues, the Democrats, have a right to engage in whatever attacks they choose, but it is a little rich for them to be maligning a sitting federal judge and at the same time giving speeches about how unacceptable it is for anyone to criticize a federal judge.”
Gorsuch himself didn’t address that point, nor have any Democratic senators responded to it. But it seems likely to become a theme as Republicans continue to defend the president’s nominee for the high court.