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| 7 Takeaways From Judge Gorsuch’s Confirmation Hearing | |
| (35 minutes later) | |
| Here are highlights from Judge Neil M. Gorsuch’s second day of questioning at his Senate confirmation hearings: | |
| ■ Senator Dianne Feinstein, a Democrat, asked Judge Gorsuch why, when he was a Bush administration Justice Department official in 2005, he had scribbled “yes” on a document beside a question about whether C.I.A. torture of terrorism suspects had yielded valuable intelligence. He said was merely acting as a lawyer. | |
| ■ Senator Patrick J. Leahy, a Democrat, pushed Judge Gorsuch to say whether a president has constitutional powers to lawfully override torture and wiretap statutes. Judge Gorsuch said he would approach such a case using analysis set out when President Truman tried to seize steel mills. | |
| ■ Mr. Leahy also pressed Judge Gorsuch to say whether he would recuse himself from Supreme Court cases involving the Colorado billionaire Philip Anschutz, who was a former client and helped get him appointed to the appeals court. Judge Gorsuch did not answer directly. | |
| ■ The nominee would not discuss whether President Trump’s business dealings with foreign governments might run afoul of the Emoluments Clause, an obscure constitutional provision that the judge said “has sat in a rather dusty corner” until recently. | |
| ■ Judge Gorsuch defended his originalist judicial philosophy, assuring skeptics that “no one is looking to return us to the horse-and-buggy days.” | |
| ■ When asked about his views on cameras recording Supreme Court proceedings, Judge Gorsuch would say only that he would keep an open mind. | |
| ■ The energy level in the hearing room in the Hart Senate Office Building was noticeably diminished from the previous two days. There was a clear sense that the proceedings were winding down. | |
| ■ Byron White’s Supreme Court hearing took only 90 minutes. Judge Gorsuch’s is in its third day. | ■ Byron White’s Supreme Court hearing took only 90 minutes. Judge Gorsuch’s is in its third day. |
| Here are some highlights so far: | Here are some highlights so far: |
| Senator Feinstein of California, the top Democrat on the Judiciary Committee, pressed Judge Gorsuch about a torture-related document from his time as a senior Justice Department official in 2005-6. It was a set of questions about the C.I.A. program, including: “Have the aggressive interrogation techniques employed by the administration yielded any valuable intelligence? Have they ever stopped a terrorist incident? Examples?” In the margin next to this, Judge Gorsuch had scribbled, “Yes.” | Senator Feinstein of California, the top Democrat on the Judiciary Committee, pressed Judge Gorsuch about a torture-related document from his time as a senior Justice Department official in 2005-6. It was a set of questions about the C.I.A. program, including: “Have the aggressive interrogation techniques employed by the administration yielded any valuable intelligence? Have they ever stopped a terrorist incident? Examples?” In the margin next to this, Judge Gorsuch had scribbled, “Yes.” |
| Ms. Feinstein, who was the chairwoman of the Senate Intelligence Committee when it conducted an investigation into the Bush-era torture program that concluded otherwise — asked Judge Gorsuch what information he had received that led him to write “yes.” | Ms. Feinstein, who was the chairwoman of the Senate Intelligence Committee when it conducted an investigation into the Bush-era torture program that concluded otherwise — asked Judge Gorsuch what information he had received that led him to write “yes.” |
| He replied: “My recollection of 12 years ago is that that was the position that the clients were telling us. I was a lawyer. My job was as an advocate, and we were dealing with detainee litigation. That was my job.” | He replied: “My recollection of 12 years ago is that that was the position that the clients were telling us. I was a lawyer. My job was as an advocate, and we were dealing with detainee litigation. That was my job.” |
| Senator Leahy, of Vermont, also returned to the question of whether Judge Gorsuch believed in the Bush administration’s theory that the president, as commander-in-chief, could override torture and surveillance laws. | |
| Asked about that on Tuesday, Judge Gorsuch had repeatedly said the president was not “above the law.” Mr. Leahy pointed out that Mr. Bush’s legal team did not argue that he was “above the law,” but rather that “the law” meant the Constitution gave presidents inherent authority to lawfully bypass such statutes. | Asked about that on Tuesday, Judge Gorsuch had repeatedly said the president was not “above the law.” Mr. Leahy pointed out that Mr. Bush’s legal team did not argue that he was “above the law,” but rather that “the law” meant the Constitution gave presidents inherent authority to lawfully bypass such statutes. |
| The senator pressed Judge Gorsuch to be more specific. He replied that “presidents make all sorts of arguments about inherent authority — they do — and that is why we have courts, to decide.” | The senator pressed Judge Gorsuch to be more specific. He replied that “presidents make all sorts of arguments about inherent authority — they do — and that is why we have courts, to decide.” |
| Mr. Leahy followed up, asking whether Judge Gorsuch could think of a case in which a court decided that a president could override a statute. Judge Gorsuch said he could not think of one, and Mr. Leahy agreed. | |
| This was almost certainly the first confirmation hearing to feature questions on the Constitution’s Emoluments Clause, which may bar President Trump’s businesses from doing business with companies controlled by foreign governments. | This was almost certainly the first confirmation hearing to feature questions on the Constitution’s Emoluments Clause, which may bar President Trump’s businesses from doing business with companies controlled by foreign governments. |
| The clause says that “no person holding any office of profit or trust” shall “accept of any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state” unless Congress consents. The word emolument means compensation for labor or services. | The clause says that “no person holding any office of profit or trust” shall “accept of any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state” unless Congress consents. The word emolument means compensation for labor or services. |
| Asked about the clause by Senator Leahy, Judge Gorsuch said “the Emoluments Clause has sat in a rather dusty corner” and “is not a clause that has attracted a lot of attention until recently.” | Asked about the clause by Senator Leahy, Judge Gorsuch said “the Emoluments Clause has sat in a rather dusty corner” and “is not a clause that has attracted a lot of attention until recently.” |
| But Judge Gorsuch would say no more given what he said was at least potential litigation on the subject. Lawsuits have been filed against President Trump, claiming he has violated the clause. | But Judge Gorsuch would say no more given what he said was at least potential litigation on the subject. Lawsuits have been filed against President Trump, claiming he has violated the clause. |
| “I have to be very careful about expressing any views,” Judge Gorsuch said. | “I have to be very careful about expressing any views,” Judge Gorsuch said. |
| Senator Leahy also asked Judge Gorsuch to say whether he would continue on the Supreme Court to recuse himself from cases involving the Colorado billionaire Philip Anschutz, with whom he has various ties. Among those ties: Mr. Anschutz was Judge Gorsuch’s former client and in 2006, he successfully lobbied the Bush White House to appoint Mr. Gorsuch to the appeals court. Mr. Leahy noted that Judge Gorsuch had left the door open to changing his appeals court practice and participating in cases involving Mr. Anschutz’s interests on the Supreme Court. | Senator Leahy also asked Judge Gorsuch to say whether he would continue on the Supreme Court to recuse himself from cases involving the Colorado billionaire Philip Anschutz, with whom he has various ties. Among those ties: Mr. Anschutz was Judge Gorsuch’s former client and in 2006, he successfully lobbied the Bush White House to appoint Mr. Gorsuch to the appeals court. Mr. Leahy noted that Judge Gorsuch had left the door open to changing his appeals court practice and participating in cases involving Mr. Anschutz’s interests on the Supreme Court. |
| Judge Gorsuch did not answer directly, saying he would study the law and the practices of his colleagues and the facts before making a decision. But Mr. Leahy pointed out that the law was the same for both appeals court judges and Supreme Court justices, except that justices’ decisions not to recuse themselves cannot be appealed to anyone. | Judge Gorsuch did not answer directly, saying he would study the law and the practices of his colleagues and the facts before making a decision. But Mr. Leahy pointed out that the law was the same for both appeals court judges and Supreme Court justices, except that justices’ decisions not to recuse themselves cannot be appealed to anyone. |
| There is scant precedent about how justices have interpreted whether cases involving former clients raise an actual or apparent conflict of interest because few modern justices had extensive backgrounds in private practice. But Justice Clarence Thomas, who worked as in-house counsel for Monsanto from 1977 to 1979, has participated in cases involving that company. | There is scant precedent about how justices have interpreted whether cases involving former clients raise an actual or apparent conflict of interest because few modern justices had extensive backgrounds in private practice. But Justice Clarence Thomas, who worked as in-house counsel for Monsanto from 1977 to 1979, has participated in cases involving that company. |
| Not long after he started his testimony on Wednesday, Judge Gorsuch defended an opinion he had written ruling against an autistic student whose parents had sought reimbursement for his education under a federal law, the Individuals with Disability Education Act. | |
| Judge Gorsuch said he had merely applied a standard set out in a Supreme Court decision as interpreted by an earlier decision of his court, the United States Court of Appeals for the Tenth Circuit in Denver. | |
| At about the same time Wednesday, the Supreme Court handed down a unanimous decision saying the Tenth Circuit had been wrong. All that was required from public school systems, the Tenth Circuit had said, was a “more than de minimis” benefit. | |
| Writing for the Supreme Court, Chief Justice John G. Roberts Jr. disagreed. “When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.” | |
| Asked about the Supreme Court decision later on Wednesday, Judge Gorsuch said he had been bound by precedents from the Supreme Court and the Tenth Circuit in the opinion he had written. | |
| It has been the custom of Supreme Court nominees to endorse video coverage of arguments in the court during their confirmation hearings — only to retreat later on. Judge Gorsuch would not even go that far. | It has been the custom of Supreme Court nominees to endorse video coverage of arguments in the court during their confirmation hearings — only to retreat later on. Judge Gorsuch would not even go that far. |
| Senator Charles E. Grassley, the Iowa Republican who heads the Senate Judiciary Committee, asked Judge Gorsuch on Wednesday morning to keep an open mind on the topic. The judge agreed to do that much. | Senator Charles E. Grassley, the Iowa Republican who heads the Senate Judiciary Committee, asked Judge Gorsuch on Wednesday morning to keep an open mind on the topic. The judge agreed to do that much. |
| On Tuesday, Judge Gorsuch said cameras in the courtroom were “not a question that I confess I’ve given a great deal of thought to,” adding that, “I’ve experienced more cameras in the last few weeks than I have in my whole lifetime by a long, long way.” | On Tuesday, Judge Gorsuch said cameras in the courtroom were “not a question that I confess I’ve given a great deal of thought to,” adding that, “I’ve experienced more cameras in the last few weeks than I have in my whole lifetime by a long, long way.” |
| The last two successful Supreme Court nominees, Justices Elena Kagan and Sonia Sotomayor, endorsed camera coverage at their hearings. | The last two successful Supreme Court nominees, Justices Elena Kagan and Sonia Sotomayor, endorsed camera coverage at their hearings. |
| “I have had positive experiences with cameras,” Justice Sotomayor said in 2009. | “I have had positive experiences with cameras,” Justice Sotomayor said in 2009. |
| In 2010, Justice Kagan said video coverage “would be a great thing for the institution, and more important, I think it would be a great thing for the American people.” | In 2010, Justice Kagan said video coverage “would be a great thing for the institution, and more important, I think it would be a great thing for the American people.” |
| After joining the court, the two justices started expressing doubts about the value of letting citizens see their government at work. | After joining the court, the two justices started expressing doubts about the value of letting citizens see their government at work. |
| Mr. Grassley began on Wednesday by noting — a bit wistfully — that Judge Gorsuch’s former boss, Justice Byron R. White, coasted through his Supreme Court confirmation hearing in 90 minutes. | Mr. Grassley began on Wednesday by noting — a bit wistfully — that Judge Gorsuch’s former boss, Justice Byron R. White, coasted through his Supreme Court confirmation hearing in 90 minutes. |
| Now, that’s how long it takes three senators (out of 20 on the committee) to complete their questioning. | Now, that’s how long it takes three senators (out of 20 on the committee) to complete their questioning. |
| “I’m sure that you needed your rest,” Mr. Grassley said to Judge Gorsuch. Mr. Grassley said he was “prepared to stay as long as we need” to get through the rest of the questions from senators. | “I’m sure that you needed your rest,” Mr. Grassley said to Judge Gorsuch. Mr. Grassley said he was “prepared to stay as long as we need” to get through the rest of the questions from senators. |
| Mr. Grassley also deemed himself an effective prognosticator. | Mr. Grassley also deemed himself an effective prognosticator. |
| “Yesterday I predicted that you’d get asked a lot of questions that it wouldn’t be right for you to answer,” Mr. Grassley said, suggesting both parties had their share of offenders. “And unfortunately, I was right.” | “Yesterday I predicted that you’d get asked a lot of questions that it wouldn’t be right for you to answer,” Mr. Grassley said, suggesting both parties had their share of offenders. “And unfortunately, I was right.” |