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April 17, 2017

Democrats will seek to tie Gorsuch to Trump as a judge soft on big business

Opposition tactics in the Senate over presidents supreme court nominee are likely to focus on anti-worker bias rather than touchstone social issues

Senate Democrats will seek to tar Neil Gorsuch with the same brush as Donald Trump when his supreme court confirmation hearing begins on Monday, branding him a pro-big business judge who favours special interests over ordinary workers.

The minority party has chosen to focus on this line of attack rather than where the conservative Gorsuch stands on touchtone issues such abortion, gay rights and gun ownership. Analysts say this is an indication that they will use the hearing to hammer Trump and are ultimately resigned to his nominees confirmation.

Democrats need to figure out how they want to lose it, said Ed Whelan, president of the Ethics & Public Policy Center, speaking on a panel at Georgetown University Law Center last week. Its actually a very important strategic decision and I think theyre struggling with this now.

When the hearing begins on Capitol Hill on Monday morning, Gorsuch, who at 49 is the youngest nominee for the supreme court in a quarter of a century, will be introduced by Cory Gardner and Michael Bennet, senators from his home state of Colorado, and former acting solicitor general Neal Katyal. Between then and Thursday, he will face probing questions from 20 senators.

With a lifetime appointment at stake, such hearings are high-intensity affairs and can throw up surprises. In 1991, Senator John Danforth introduced Clarence Thomas as having the loudest laugh he had ever heard It comes from deep inside and it shakes his body and Thomas himself choked up as he recalled: I watched as my grandfather was called boy. Then came allegations of sexual harassment from former employee Anita Hill, but Thomas ultimately cleared the Senate.

Now it is the era of Trump, whose election was helped in no small measure by the binary choice around the supreme court vacancy left by the February 2016 death of conservative justice Antonin Scalia. Democrats are under huge pressure from their liberal base to give Gorsuch a rough ride, with many demanding revenge for Republicans refusal to give Barack Obamas nominee, Merrick Garland, so much as a hearing.

But while Democrats are likely to engage in sabre rattling to assuage activists, they are not expected to fight to the death. Republicans control the Senate 52-48. Democrats can seek to use a procedural maneuver, a filibuster, to block a confirmation vote if Gorsuchs supporters cannot muster 60 votes, although Republicans could respond by changing the Senate rules the so-called nuclear option that would make it easier for Trump to ram through future nominees.

He sides with the powerful few

Democrats offered a taste of their critique of Gorsuch last week. The Senate minority leader, Chuck Schumer, appeared on Capitol Hill with several individual plaintiffs Gorsuch ruled against as a judge on the Denver-based 10th US circuit court of appeals.

Judge Gorsuch may act like a neutral, calm judge, but his record and his career clearly show that he harbors a rightwing, pro-corporate special interest agenda, Schumer said.

He expresses a lot of empathy and sympathy for the less powerful but when it comes time to rule, when the chips are down, far too often he sides with the powerful few over everyday Americans trying to just get a fair shake. Weve seen that play out time and time again.

The approach chimes with that taken by Democrats in the first two months of the Trump administration: from the presidents healthcare reform to his budget proposal, they have repeatedly emphasised economically centred arguments that he will benefit the wealthy and betray the working class, his core constituency. The Gorsuch hearing will be another proxy for their anti-Trump offensive.

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Senator Charles Schumer shakes hands with Alphonse Maddin, a truck driver against whom Neil Gorsuch issued a dissenting opinion in a dispute with his employer. Photograph: Chip Somodevilla/Getty Images

Curt Levey, a constitutional law attorney with FreedomWorks and the Committee For Justice, said: They will take every opportunity to make this about Trump.

In some ways it works in Gorsuchs favour. Its a great chance for Democrats to score points but not seriously wound Gorsuch. Theyll bring up issues where Gorsuch and Trump seems to disagree a bit and try to make Trump look bad.

Among those who spoke alongside Schumer last week was truck driver Alphonse Maddin, who was dismissed after he disobeyed a supervisor and abandoned his trailer at the side of a road, after the brakes froze in subzero conditions. Gorsuch wrote a dissenting opinion as a three-judge panel ruled last year that Maddin was wrongly fired and ordered he be reinstated with back pay.

Levey was sceptical of such examples. He noted that John Roberts once upheld the arrest of a 12-year-old girl for eating a single french fry on the Washington subway system, a ruling that did not stop him becoming chief justice.

I dont think you can make a real case that [Gorsuch is] a fervently pro-business judge, he said. He really does seem to be a rule-of-law guy.

Schumer argues that under Roberts, the court has almost always favoured big business and special interests over average citizens, making it the most pro-corporate court since the second world war. Gorsuch would therefore exacerbate the problem, he contends. But Democrats have been less vocal about Gorsuchs approach to traditional cultural battlegrounds such as abortion.

Edward Fallone, associate professor of law at Marquette University in Milwaukee, Wisconsin, said: Theres no easy way to define Gorsuch negatively in the minds of the public. Hes a non-threatening person.

Its very telling that the narrative Democrats have adopted is Neil Gorsuch is pro-business and anti-consumer, anti-worker. They will try to say he is part of the business elite that Trump has surrounded himself with. Theyre trying to come up with an argument that appeals to the mood but thats fairly weak grounds for opposition.

Conservative groups have outspent their liberal counterparts by a nearly 20-to-1 margin on TV advertising on behalf of Gorsuch, according to Republican estimates of ad buys since the end of January, the Washington Post reported. The campaign has put particular pressure on seven Democatic senators in states that went to Trump in the presidential election.

Fallone said: My feeling is Democrats will not make a concerted scorched earth opposition to Neil Gorsuch. They want to preserve the filibuster for the next vacancy when the composition of the court might change more significantly. Right now, Gorsuch is replacing Scalia so it doesnt change the dynamic.

Conservative but within the conservative mainstream

Gorsuch has been preparing for the hearing with practice sessions known as murder boards, aware that about 800 opinions he authored at the US court of appeals are open to scrutiny. There could also be attention on his time at the justice department, where he played a key role in lawsuits and legislative proposals supporting President George W Bush administrations warrantless wiretapping program and its treatment of inmates at Guntnamo Bay.

And like cabinet nominees seeking confirmation, Gorsuch could be asked if he endorses Trumps positions, for example his stalled travel ban and attacks on the judiciary, as Democrats seek to at least stir up some embarrassment. But on immigration, abortion, the environment and gun rights, it is hard to portray Gorsuch as a zealot.

Vincent Eng, a Washington lobbyist, said: When you look at the choices the president had, Neil Gorsuch is not a bad one given who he could have picked. Hes definitely a confirmable individual. Hes conservative but hes within the mainstream conservative movement.

Weighing the balance, I would expect Senate Democrats to ask the tough questions and hold a thorough examination, but we may want to hold our fire for the next individual.

Originally published at: http://www.theguardian.com/us