Gorsuch remains cagey in written answers to Senate

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With a confirmation vote nearing, Supreme Court nominee Neil Gorsuch is continuing to dodge Democratic senators’ questions about his views on the constitutional protection of privacy that undergirds court decisions protecting abortion rights and about the jurisprudence surrounding key rulings on gay rights.

Gorsuch submitted 76 pages of answers Thursday to written questions senators asked after the conclusion of the nominee’s Senate Judiciary Committee hearings last week, but remained cagey about his personal views of most of the legal questions raised, often repeating boilerplate phrases contending that it would be “improper” and “risk violating my ethical obligations as a judge” to opine on matters that could come before the court.

“Doesn’t surprise me,” California Sen. Dianne Feinstein, the committee’s top Democrat, told POLITICO of the lack of clarity in Gorsuch’s written answers. “That’s all I can say.”

The responses rolled in as the nominee faces what could be a party-line committee vote Monday, which is expected to be followed by a major showdown on the Senate floor later in the week.

Senator Minority Leader Chuck Schumer and many of his colleagues have said they plan to filibuster the nomination, while Senate Majority Leader Mitch McConnell has vowed that Gorsuch will be confirmed by the end of the week. Unless one side or the other blinks, the GOP is likely to deploy the so-called nuclear option, changing Senate rules to allow confirmation by a simple majority vote.

According to a POLITICO tally, 32 Democratic senators have announced that they would vote to filibuster Gorsuch’s nomination, although two moderate Democrats — Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia — said Thursday that they would support confirming the 49-year-old appellate judge to the Supreme Court.

Even some of Gorsuch’s biggest Republican boosters are now openly acknowledging that Gorsuch won’t get 60 votes.

“I think he gets 57 or 58 votes,” Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) said Thursday. “It’s kind of a gut feeling that it’s based on the proposition that some people up for election cannot justify such a well-qualified person not getting on the Supreme Court.”

After considerable prodding by Democrats at his hearings, Gorsuch appeared to indicate agreement with the Supreme Court’s landmark rulings on race discrimination, like the 1954 Brown v. Board of Education decision rejecting “separate but equal” public schools and the 1967 Loving v. Virginia decision overturning state bans on interracial marriage.

However, when Sen. Richard Blumenthal (D-Conn.) asked Gorsuch to respond to Chief Justice John Roberts’ statement at his confirmation hearing that “I believe that the liberty protected by the Due Process Clause [includes] the right to privacy,” Gorsuch seemed to dance around the question.

“I am unaware of any daylight between my discussion of the Supreme Court’s precedents and the Chief Justice’s,” Gorsuch wrote.

That answer merely repeated what Gorsuch had stated at his confirmation hearing, Blumenthal said after reading the judge’s response. “These questions were an opportunity for him to be more forthcoming,” said Blumenthal, who has not announced a formal position on Gorsuch’s nomination. “His failure to do so would simply confirm the direction I’m going to oppose him.”

The Supreme Court nominee also used somewhat different language to refer to decisions on gay rights, than those on race or gender issues. He wrote that Brown v. Board and a case about a ban on women at the Virginia Military Institute applied “the principle that all persons are created equal,” but he wrote that a ruling striking down a Colorado constitutional provision banning gay rights laws simply applied “Fourteenth Amendment principles.”

Gorsuch declined to hint at a position on President Donald Trump’s travel ban executive order focused on citizens of six majority-Muslim countries, rebuffing a question from Sen. Patrick Leahy (D-Vt.) about whether the president could impose a “religious litmus test for entry” into the U.S.

“it would not be proper for a nominee to express views that touch on or could be perceived as touching on claims made in pending or impending litigation,” the nominee wrote. “Respectfully, and as we discussed, I believe this question does that.”

The nominee did say the courts have a role in reviewing executive and legislative actions premised on national security, although he was vague about how searching that review should be.

“In our constitutional system, the judiciary provides an important, independent forum ‘for vindicating the rights of unpopular

voices, minority voices, the least amongst us.’ This is true even when the political branches are acting in the name of national security,” Gorsuch wrote in response to a query from Feinstein.

In response to question from Sen. Dick Durbin (D-Ill.), Gorsuch said he could not recall which classified programs related to the Bush administration’s aggressive interrogation techniques he was authorized to know about when he served at the Justice Department from 2005-2006.

“I had various national security clearances during my service at the Department of Justice, including related to detainee matters in aid of my work on litigation brought by individuals detained as enemy combatants, but I do not recall which specific programs or when I was read into them,” the nominee wrote.

Gorsuch also responded to criticism that during his hearings he misstated the impact of the 2010 Citizens United decision, which effectively green-lighted purportedly independent super PACs to raise donations in unlimited amounts and spend the money for or against political candidates. Critics of the decision said the nominee erred by saying that the ruling left “lots of room” to regulate spending by such groups.

The nominee insisted in a written answer Thursday that the high court had not slammed the door on such regulation, but just found the government’s case wanting in the specific dispute presented in the case.

“Although the Court in Citizens United found that the Government had not shown a compelling interest in the regulation of certain independent expenditures, the Court has not expressly foreclosed any regulation of political expenditures that might implicate the Government’s interest in preventing quid pro quo corruption, or the appearance thereof,” Gorsuch said.

Gorsuch defended his refusal to answer many questions about his judicial philosophy at the hearings and in the written queries, although he has sometimes wrote concurring opinions that cast doubt on Supreme Court precedents which he has no authority to change as an appeals court judge.

“As a circuit judge, it was appropriate for me to identify the problems that I saw underlying the result that we were required to reach,” Gorsuch said in response to a question from Feinstein. “Raising an issue in this capacity is fundamentally different than offering my views on specific Supreme Court precedents in the context of a hearing where there is no case or controversy to resolve.”

When Sen. Mazie Hirono (D-Hawaii) asked whether “unconscious biases play a role in judging,” the nominee did not respond directly and instead offered a tribute to the judiciary.

“I am a strong believer in the federal judiciary. I know many of the men and women of the federal judiciary, and I have witnessed first-hand how hard they work to perform their responsibilities with integrity every day. Those judges come from different walks of life, different experiences, but they agree overwhelmingly on the disposition of cases,” Gorsuch wrote.

Even as he deflected most of the senators’ written questions, Gorsuch was careful to be courteous. The word “respectfully” appears 39 times in his written responses.

White House press secretary Sean Spicer decried Democrats Thursday for endorsing a filibuster of the nominee and praised his willingness to sit for questioning.

“The judge sat for three rounds and nearly 20 hours of questioning by the Senate Judiciary Committee, during which he was asked nearly 1,200, almost twice as many as Justice Sotomayor, Kagan or Ginsburg,” Spicer said, before declaring that it appears that Democrats went through that whole process “for nothing more than political theater.”

A spokesman for Gorsuch, Ron Bonjean, also said the Supreme Court nominee has given senators “unprecedented access and transparency” during the two-month confirmation process, noting that he has met with nearly 80 senators in addition to the Judiciary Committee grilling.

“He was given 299 questions for the record by the Democrats on the Senate Judiciary Committee - the most in recent history of Supreme Court nominees,” Bonjean said. “Gorsuch has answered those questions by providing another 70 pages of written responses. He did all this within six days of receiving the questions in order to give Senate Democrats ample time to review the answers prior to the committee vote and floor consideration scheduled for next week.”