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| WASHINGTON — As he met with Neil M. Gorsuch in the Capitol last week, Senator Richard J. Durbin of Illinois posed to the Supreme Court nominee what he considered a fairly basic question on the relationship between the executive and judicial branches. | WASHINGTON — As he met with Neil M. Gorsuch in the Capitol last week, Senator Richard J. Durbin of Illinois posed to the Supreme Court nominee what he considered a fairly basic question on the relationship between the executive and judicial branches. |
| “He really backed away from it,” recalled Mr. Durbin, an influential Democratic voice on judicial issues with long service on the Judiciary Committee. “Even in the most general constitutional terms, he didn’t want to discuss it. From where I am sitting I don’t think there is a more important question in light of this president.” | “He really backed away from it,” recalled Mr. Durbin, an influential Democratic voice on judicial issues with long service on the Judiciary Committee. “Even in the most general constitutional terms, he didn’t want to discuss it. From where I am sitting I don’t think there is a more important question in light of this president.” |
| Democrats preparing for hearings next month on President Trump’s first nominee to the nation’s highest court say it is not a matter of getting the answers they want from Judge Gorsuch; it is a matter of getting any pertinent answers at all. | Democrats preparing for hearings next month on President Trump’s first nominee to the nation’s highest court say it is not a matter of getting the answers they want from Judge Gorsuch; it is a matter of getting any pertinent answers at all. |
| “He refused to say anything about potentially relevant questions,” said Senator Richard Blumenthal, a Connecticut Democrat and former state attorney general who also sits on the panel that will consider the nomination. | “He refused to say anything about potentially relevant questions,” said Senator Richard Blumenthal, a Connecticut Democrat and former state attorney general who also sits on the panel that will consider the nomination. |
| The test of wills promises to provide friction at hearings scheduled to begin on March 20 as Democrats try to pin down Judge Gorsuch on what he sees as the role of an independent judiciary in constraining the executive branch, given their rising fears about Mr. Trump. It is also the latest match in the longstanding tug-of-war over how far judicial nominees should or should not go in responding to questions from lawmakers. | The test of wills promises to provide friction at hearings scheduled to begin on March 20 as Democrats try to pin down Judge Gorsuch on what he sees as the role of an independent judiciary in constraining the executive branch, given their rising fears about Mr. Trump. It is also the latest match in the longstanding tug-of-war over how far judicial nominees should or should not go in responding to questions from lawmakers. |
| Given fierce partisan tension over Supreme Court seats, it has become an uncomfortable norm for nominees to avoid providing fulsome answers both in private interviews and during the confirmation hearing. They lean heavily on the excuse that the issue could end up before the court and they would hate to prejudge it. In the current environment, the view is clearly the less said, the better the chances of confirmation. | Given fierce partisan tension over Supreme Court seats, it has become an uncomfortable norm for nominees to avoid providing fulsome answers both in private interviews and during the confirmation hearing. They lean heavily on the excuse that the issue could end up before the court and they would hate to prejudge it. In the current environment, the view is clearly the less said, the better the chances of confirmation. |
| “Everyone knows you are going to ask your best question and they are not going to answer it,” said Senator Mitch McConnell, the Kentucky Republican and majority leader, of the difficulty of inducing a nominee to say something truly revealing. | “Everyone knows you are going to ask your best question and they are not going to answer it,” said Senator Mitch McConnell, the Kentucky Republican and majority leader, of the difficulty of inducing a nominee to say something truly revealing. |
| No one expects a nominee like Judge Gorsuch to address how he would rule on a specific case — like President Trump’s contested immigration order — or offer a detailed view on federal policy likely to land before the court. But Democrats say that Judge Gorsuch must be willing to discuss the merits of past Supreme Court decisions as well as his judicial principles and philosophy if they are to make a judgment on his fitness. | No one expects a nominee like Judge Gorsuch to address how he would rule on a specific case — like President Trump’s contested immigration order — or offer a detailed view on federal policy likely to land before the court. But Democrats say that Judge Gorsuch must be willing to discuss the merits of past Supreme Court decisions as well as his judicial principles and philosophy if they are to make a judgment on his fitness. |
| “It’s always important for a Supreme Court nominee to tell senators his or her views on the Constitution, but given how aggressively this president is testing the Constitution so early in his term, senators deserve those answers more than ever,” said Senator Chuck Schumer of New York, the Democratic leader. | |
| Lawmakers say that Mr. Gorsuch assured them during their meetings that no one in the Trump White House had asked him how he would rule in specific cases. But Democrats note that his nomination was promoted by leading conservative groups such as the Federalist Society and the Heritage Foundation. In the absence of information to the contrary from him, they say they will have to assume he shares the views of those groups on such issues as abortion and gun rights. | Lawmakers say that Mr. Gorsuch assured them during their meetings that no one in the Trump White House had asked him how he would rule in specific cases. But Democrats note that his nomination was promoted by leading conservative groups such as the Federalist Society and the Heritage Foundation. In the absence of information to the contrary from him, they say they will have to assume he shares the views of those groups on such issues as abortion and gun rights. |
| “His refusal to answer these questions leaves us with the inescapable conclusion that he has passed the Trump litmus test,” said Mr. Blumenthal, who, like other lawmakers, found Judge Gorsuch personable and impressively prepared. | “His refusal to answer these questions leaves us with the inescapable conclusion that he has passed the Trump litmus test,” said Mr. Blumenthal, who, like other lawmakers, found Judge Gorsuch personable and impressively prepared. |
| For their part, Republicans have voiced nothing but praise for the nominee. | For their part, Republicans have voiced nothing but praise for the nominee. |
| “I met with Judge Gorsuch for more than an hour and was tremendously impressed with his intellect, his humility and his respect for the rule of law,” said Senator Susan Collins, Republican of Maine. She said they had an extended discussion about precedent and that Mr. Gorsuch said he believed that “it is not sufficient to overturn a long-established precedent for five current judges to believe a previous decision was wrongly decided.” That position could be interpreted by lawmakers who support abortion rights, like Ms. Collins, to mean he would not overturn Roe v. Wade even if he were part of a majority that disagreed with it. | “I met with Judge Gorsuch for more than an hour and was tremendously impressed with his intellect, his humility and his respect for the rule of law,” said Senator Susan Collins, Republican of Maine. She said they had an extended discussion about precedent and that Mr. Gorsuch said he believed that “it is not sufficient to overturn a long-established precedent for five current judges to believe a previous decision was wrongly decided.” That position could be interpreted by lawmakers who support abortion rights, like Ms. Collins, to mean he would not overturn Roe v. Wade even if he were part of a majority that disagreed with it. |
| Kelly Ayotte, the former New Hampshire senator who is serving as Judge Gorsuch’s sherpa through the Senate process, said she found him quite forthcoming during the 58 meetings with lawmakers she attended and added that he talked at length about his rulings on the United States Court of Appeals for the 10th Circuit. “He’s obviously saying as much as he can without violating his responsibility as a judge not to offer opinions on cases that may come before the court,” she said. | |
| In trying to forestall Democratic complaints that Judge Gorsuch has not been sufficiently revealing, Mr. McConnell has reminded Democrats of the “Ginsburg standard” — a reference to Ruth Bader Ginsburg’s repeated refusal at her hearing in 1993 to answer many direct questions on the grounds she could not “preview or forecast” her decisions. | In trying to forestall Democratic complaints that Judge Gorsuch has not been sufficiently revealing, Mr. McConnell has reminded Democrats of the “Ginsburg standard” — a reference to Ruth Bader Ginsburg’s repeated refusal at her hearing in 1993 to answer many direct questions on the grounds she could not “preview or forecast” her decisions. |
| But Republicans had their own differences in the past with the reluctance of nominees to be direct. Senator Charles E. Grassley, the Iowa Republican who now heads the Judiciary Committee, opposed the nomination of Elena Kagan in 2010, saying she failed to provide candid answers. | But Republicans had their own differences in the past with the reluctance of nominees to be direct. Senator Charles E. Grassley, the Iowa Republican who now heads the Judiciary Committee, opposed the nomination of Elena Kagan in 2010, saying she failed to provide candid answers. |
| One contemporary nominee did pride himself on his ability to take on members of the Judiciary Committee in a full exchange of views. Judge Robert Bork answered nearly every question from senators over five days of testimony in 1987. At the time, Senator Arlen Specter, Republican of Pennsylvania, said he hoped Mr. Bork’s willingness to engage would “set a pattern for the future.” | One contemporary nominee did pride himself on his ability to take on members of the Judiciary Committee in a full exchange of views. Judge Robert Bork answered nearly every question from senators over five days of testimony in 1987. At the time, Senator Arlen Specter, Republican of Pennsylvania, said he hoped Mr. Bork’s willingness to engage would “set a pattern for the future.” |
| It did. After Mr. Bork’s nomination was famously defeated, nominees have been very stingy with their answers to avoid blowing up their chances of success. | It did. After Mr. Bork’s nomination was famously defeated, nominees have been very stingy with their answers to avoid blowing up their chances of success. |