“I don’t believe in litmus tests for judges,” he said.
Asked about Roe v. Wade, Judge Gorsuch said, “I would tell you that Roe vs. Wade, decided in 1973, is the precedent of the United States Supreme Court,” saying that “all of the other factors that go into analyzing precedent have to be considered.”
Senator Charles E. Grassley, the Iowa Republican who is chairman of the committee, also pressed Judge Gorsuch for his views on precedent generally, naming a few cases, including a Second Amendment case and the matter of Bush v. Gore.
“I know some people in this room have some opinions on that,” Judge Gorsuch joked, declining to outline firm positions.
The nominee likened precedents to “our shared family history as judges.”
“As a good judge, you don’t approach that question anew as if it has never been decided,” he added.
Questioning a billionaire’s role.
Mr. Leahy brought up Judge Gorsuch’s connections with the Colorado billionaire Phil Anschutz, whom Judge Gorsuch formerly represented in private practice.
The senator noted that on Jan. 10, 2006, The Denver Post reported that there were three finalists for an appeals court vacancy — and none were Judge Gorsuch. Two days later, a lawyer for Mr. Anschutz wrote on the billionaire’s behalf to the White House counsel at the time, Harriet Miers, to suggest that President George W. Bush consider nominating Judge Gorsuch. She gave him an interview in early February and he ended up getting the nomination.
Mr. Leahy also noted that Mr. Anschutz finances conservative groups including the Federalist Society and the Heritage Foundation, which put Judge Gorsuch on the list of candidates President Trump promised to use in selecting a Supreme Court nominee.
“Are these areas of concern?” Mr. Leahy asked.
Judge Gorsuch replied that he thought his service at the Justice Department, where he had worked about seven months, was the most important issue, noting many of his former clients had said “nice things” about him when he was up for an appeals court judgeship, including the owner of a gravel pit.
Mr. Leahy scoffed, “Who do you think the White House listened to, Mr. Anschutz or the owner of a gravel pit? Let’s be realistic.”
Mr. Leahy did not ask whether Judge Gorsuch would recuse himself from cases involving Mr. Anschutz’s interests. The judge did recuse himself from such cases on the appeals court, but so far has left the door open to participating in them on the Supreme Court.
Backtracking on liberals.
Judge Gorsuch, who had criticized liberals for preferring litigation to the political process in an article written before he became a judge, distanced himself from his earlier statements on Tuesday.
“American liberals,” he wrote in a 2005 essay in National Review, “have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary.”
On Tuesday, he said he had been wrong to single out liberals. “The problem lies on both sides of the aisle,” he said.
He added that “the courts are a very important place for the vindication of civil rights.”
Bush-era terrorism disputes.
The top Democrat on the committee, Senator Feinstein pressed Judge Gorsuch on his involvement in several Bush-era war-on-terror disputes in which he was involved as a Justice Department official: torture, the habeas corpus rights of Guantánamo detainees, warrantless surveillance, and the scope of the president’s power as commander-in-chief to defy statutes.
In December 2005, she noted, when Congress passed the Detainee Treatment Act, which barred cruel, inhuman and degrading treatment of detainees, Judge Gorsuch advocated a signing statement that would say the new statute only codified existing Bush administration interrogation practices. The context, she noted, was that the Justice Department had issued a secret memo earlier that year saying techniques like waterboarding and prolonged sleep deprivation were not cruel, inhuman or degrading.
She asked whether Judge Gorsuch believed such torture techniques were lawful.
Judge Gorsuch declined to answer that question. Ms. Feinstein indicated she would return to the torture issue in a second round of questioning.
She also pointed out that after it emerged that Mr. Bush had authorized the National Security Agency to wiretap without warrants, despite a 1978 law requiring warrants, Judge Gorsuch had drafted a statement for Alberto Gonzales, the attorney general at the time, to deliver at a congressional hearing. His initial draft suggested that Congress lacked the authority to enact a law limiting a president’s power to conduct surveillance without warrants for national security purposes.
“Goodness no, Senator, and I didn’t believe it at the time,” Judge Gorsuch replied. He said he had been only “acting in the capacity of a speechwriter” in bringing together materials submitted by colleagues in the administration. “I was the scribe.”
Principles don’t change, Gorsuch says.
Under questioning from Senator Orrin Hatch, Republican of Utah, about how to apply new technologies to constitutional principles written two centuries ago, Judge Gorsuch brought up the issue of whether police officers needed a warrant to attach a GPS tracker to a suspect’s car in order to monitor his movements. He spoke admiringly of a 2012 Supreme Court decision that applied the original Constitution in concluding that warrants were required.
“Technology changes, but the principles don’t,” he said, adding that “it can’t be the case the U.S. Constitution is any less protective” of people’s privacy than it was at the time it was written.
On the appeals court, Judge Gorsuch sometimes sided with plaintiffs in Fourth Amendment search issues even when colleagues voted for the police. Notably, though, after the Supreme Court issued its landmark GPS tracker ruling, Judge Gorsuch voted to let prosecutors in other cases use evidence that police had gathered with such a tracker in 2011, before the Supreme Court handed down that ruling, because the rule had not been clear at the time.
Grassley pitches ‘a softball.’
Mr. Grassley opened his questioning by asking if Judge Gorsuch would have “any trouble ruling against the president who appointed you.”
“That’s a softball, Mr. Chairman,” Judge Gorsuch replied, in what seemed to be a scripted response. He said he would have “no difficulty” ruling for or against any party.
He spoke of his legal hero and former boss, Justice Byron R. White, saying he embraced his “fierce, rugged independence.”
“I have offered no promises on how I would rule on any case to anyone,” Judge Gorsuch said.
Speaking of softballs.
Senator Ted Cruz, Republican of Texas, likes doing bits. His presidential run last year was full of them — from a recurring set of impressions from “The Princess Bride” to an elaborate re-enactment of a scene from “Hoosiers” before the Indiana primary. (His plans were felled by an ill-timed reference to a “basketball ring” instead of a rim.)
His questioning of Judge Gorsuch was no exception. Mr. Cruz began by asking the nominee, “What is the answer to the ultimate question of life, the universe and everything?”
“Forty-two,” Judge Gorsuch replied instantly. (The two explained that was a reference to “The Hitchhiker’s Guide to the Galaxy.”)
Mr. Cruz went on to ask Judge Gorsuch about the basketball skills of the nominee’s former boss, Justice Byron R. White, and to defend the Federalist Society, the conservative group that pushed for Judge Gorsuch’s nomination.
Battling over worker rights.
Ms. Feinstein got to the heart of Democrats’ early criticisms of Judge Gorsuch: his record on workers’ rights.
“How do we have confidence in you that you won’t just be for the big corporations?” she asked. “Those of us, I think on both sides, care very much about workers’ rights. But the record is such that one questions whether the court is capable in its current composition to give a worker a fair shot.”
She was, she added, “just looking for something” in his record to give her confidence.
Judge Gorsuch ticked off past cases in which he ruled for the little guy, calling himself “a fair judge” and noting that members of both parties have said as much.
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