Colorado’s Neil Gorsuch moves closer to being named to U.S. Supreme Court, needs Democrats’ support

‘No man is above the law’ Supreme Court pick says on Trump
5 min. read
Neil Gorsuch (Provided by the 10th U.S. Circuit Court of Appeals)

Erica Werner and Mark Sherman, Associated Press

Supreme Court nominee Neil Gorsuch said Tuesday that "no man is above the law" when pressed on whether President Donald Trump could reinstitute torture as a U.S. interrogation method.

The exchange with Republican Sen. Lindsey Graham of South Carolina came on Day Two of Gorsuch's confirmation hearing to fill the 13-month vacancy on the Supreme Court.

Graham suggested Trump might be watching the hearing, and asked Gorsuch what would happen if the president tried to reinstate waterboarding, the now-banned torture technique that Trump embraced on the campaign trail. Graham suggested that Trump "might get impeached" if he tried to do so.

"Senator, the impeachment power belongs to this body," Gorsuch said, but when Graham followed up on whether Trump could be subject to prosecution, Gorsuch said: "No man is above the law, no man."

It was one of several charged exchanges Tuesday as Gorsuch mostly batted away Democrats' efforts to get him to reveal his views on abortion, guns and other controversial issues, insisting he keeps "an open mind for the entire process" when he issues rulings. He answered friendly questions from majority Republicans in the same way as they tried to help him highlight his neutrality in face of Democratic attempts to link him to Trump, who nominated him.

Graham asked Gorsuch whether Trump had asked him to overturn Roe v. Wade, the case establishing a right to abortion, and what he would have done had Trump asked him to do so.

"Senator, I would have walked out the door," Gorsuch replied. "That's not what judges do."

"My personal views, I tell you, Mr. Chairman, are over here. I leave those at home," Gorsuch said in response to a question from Judiciary Committee Chairman Chuck Grassley of Iowa. And he gave versions of that same response numerous times to other senators.

As a long day of questioning wore on, senators and Gorsuch engaged in a routine well-established in recent confirmation hearings, as the nominee resists all requests to say how he feels about Supreme Court decisions, even as he is asked about them again and again.

Questioned by Democratic Sen. Dianne Feinstein of California about the Supreme Court's 2008 ruling affirming the right of people to keep guns in their homes for self-defense — District of Columbia v. Heller — Gorsuch said, "Whatever is in Heller is the law and I follow the law. ... It's not a matter of agreeing or disagreeing."

Gorsuch said he has not been asked since his nomination to make promises about future rulings.

"I don't believe in litmus tests for judges," he said. "No one in that process asked me for any commitments."

Republicans are unanimously supporting Gorsuch, and they asked supportive questions as he appeared for a second day before the committee. But Democrats made clear on the first day that they were in no mood to "rubber stamp a nominee selected by extreme interest groups and nominated by a president who lost the popular vote by nearly 3 million votes," as Democratic Sen. Patrick Leahy of Vermont put it.

Democrats remain incensed over how Republicans treated former President Barack Obama's nominee, Judge Merrick Garland, who was denied even a hearing last year after Antonin Scalia's death created an opening on the high court. Senate Majority Leader Mitch McConnell insisted that since a presidential campaign was underway it was the right of the next president to fill the opening, and his gamble paid off when Trump won the election and nominated Gorsuch, a 49-year-old judge on the 10th U.S. Circuit Court of Appeals in Denver.

There are now just eight justices on the nine-member high court.

Gorsuch was on a list of potential Trump picks vetted by the Federalist Society and Heritage Foundation, and is strongly supported by Senate Republicans, many of whom believe his selection is the best move so far of Trump's presidency and goes far to compensate for the president's erratic behavior on other fronts.

For their part, Democrats are divided on what to do about Gorsuch and how hard to fight his confirmation, given their frustration over Garland's treatment and the fury of liberal base voters over Trump. Few dispute, though, that Garland is highly qualified and credentialed, and by most accounts a gentle and amiable person.

In an interview with Associated Press reporters and editors Tuesday, McConnell dismissed "whining" and "crocodile tears" by Democrats over Garland, insisting they would have done the same in his position. With a Senate narrowly divided 52-48 between Republicans and Democrats, McConnell would need eight Democrats to get Gorsuch over procedural hurdles to a final confirmation vote.

He said Tuesday he remains hopeful of getting Democratic votes, but if they aren't forthcoming he sounded prepared to move unilaterally to change Senate rules and confirm Gorsuch with a simple majority.

"If there aren't 60 votes for a nominee like Neil Gorsuch it's appropriate to ask the question is there any nominee any Republican president could make that Democrats would approve," McConnell said. "Gorsuch will be confirmed I just can't tell you exactly how that will happen yet."

Associated Press writer Mary Clare Jalonick contributed to this report.

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