Like previous Supreme Court confirmation hearings, the upcoming one for Judge Neil Gorsuch will have its own dramatic arcs and surprises. But this time it won’t be a colorful nominee, an aggressive Senator, or a surprise witness who captures the nation’s attention. In fact, those who are likely to torment Judge Gorsuch won’t even be in the room. How Judge Gorsuch deals with these phantoms and ultimately dispels of them, will tell us a lot about his fate in the U.S. Senate and whether he’ll take the seat of the late Antonin Scalia on the Supreme Court.
When Neil Gorsuch appears before the Senate Judiciary Committee, he will be looking at a few Democratic Senators who believe the current Supreme Court vacancy was President Obama’s to fill. To these party faithful, Senate Republican Leader Mitch McConnell practiced the Senate dark art of obstruction to steal this seat and for that reason, any Trump pick, no matter how qualified, is illegitimate and should be opposed.
To allay this position, or at least soften it, Judge Gorsuch will have to talk about phantom and former Supreme Court Nominee Judge Merrick Garland. There is a model for how he can do just that.
At the confirmation hearing for Supreme Court Justice Elena Kagan a few years ago, Senator Lindsey Graham (R-SC) asked Kagan for her thoughts on Miguel Estrada, who had been nominated to be a D.C. Circuit judge. Estrada was seen by Republicans as a rising star and potential Supreme Court nominee, but he was ultimately denied a confirmation by Senate Democrats. Made to face her own phantom, Kagan was asked by Graham if Estrada was qualified to be a Judge, and she told the Senator: “He’s qualified to sit as an appellate judge. He’s qualified to sit as a Supreme Court justice.”
Assuming he’s asked about his predecessor nominee, Gorsuch would be wise to follow Kagan’s ghost-busting example with glowing praise for Judge Garland. This isn’t likely to change minds among the “no way, no how” crowd, but it will go a long way to reduce the potential for vitriol at the hearing and otherwise create a more positive atmosphere for Gorsuch, both at his hearing and more broadly among those who believe Senator McConnell denied President Obama his rightful judicial legacy.
During his courtesy calls last month with Senators who ultimately will control his fate, Neil Gorsuch reportedly told Senator Richard Blumenthal (D-CT) that President Trump’s attacks on the judiciary were “demoralizing and disheartening,” a statement confirmed by a Gorsuch spokesman and others at this meeting. As is his habit, the President took to Twitter with the accusation that Blumenthal had misrepresented what Gorsuch had said, which is why Gorsuch will certainly be forced to confront and dispel his second demon, Donald Trump.
The smart play for Gorsuch is a simple one: He should repeat and expand on what he purportedly told Senator Blumenthal. Senate Democrats, and Trump’s Republican antagonists on the Committee ― Senators Lindsay Graham (R-SC) and Ben Sasse (R-NE) ― may push Gorsuch to go further and denounce explicitly the President’s attacks on federal judges, but Gorsuch need not take their bait.
To prove he has the necessary independence to be a Supreme Court Justice, but without engaging in partisan name-calling, Gorsuch need only condemn any and all attacks on the impartiality of judges and state unequivocally that an independent judiciary is one of the cornerstones of our constitutional order. These rather uncontroversial opinions won’t win over Gorsuch opponents, but they could provide the necessary comfort for those Senators currently on the fence.
Silver-haired and silver-tongued, Gorsuch likely will be a hard nominee to attack. But allegations about the Trump campaign’s ties to Russia will usher in the third and final phantom to haunt this confirmation drama: Russian president Vladimir Putin.
What do the Trump campaign’s potential ties to Russian officials have anything to do with Neil Gorsuch? That’s beside the point. For Democrats, this hearing is less about Judge Gorsuch, who may be on a glide path to confirmation, than it is about embarrassing the President and letting the Democratic base know that their leaders in the Senate are fighting for them. There’s no better way for Democrats to do that than by raising the specter of Vladimir Putin.
To do this, Senate Democrats will undoubtedly ask Gorsuch to comment on Attorney General Sessions’ decision to recuse himself from any Department of Justice investigation into Russian interference in our elections. Gorsuch will undoubtedly decline to answer. They’ll ask Gorsuch to weigh-in on the possibility of an independent investigation. Here too, he will most certainly decline to engage.
Sometimes the best way to defeat a phantom menace is to deny it’s even in the room, and in this case, all Judge Gorsuch needs to do is make a compelling and robust defense of constitutional principles, starting with the separation of powers.
All too often the only drama of a Supreme Court nomination hearing is in the anticipation of cross exchanges or misstatements that may never even materialize. This time around, all signs point to Neil Gorsuch being not only a prepared and poised witness, but a ghostbuster as well.