U.S. Supreme Court nominee Neil Gorsuch was grilled Wednesday during testimony before a Senate panel about his role in approving severe interrogation methods when he was an attorney in President George W. Bush’s administration.
The top Democrat on the Senate Judiciary Committee, Dianne Feinstein, questioned Gorsuch about why he had written “yes” on a document next to a question about whether a CIA torture program had produced useful intelligence.
“My recollection of 12 years ago is that that was the position that the clients were telling us,” Gorsuch said. “I was a lawyer. My job was as an advocate, and we were dealing with detainee litigation. That was my job.”
Another Democrat, Senator Patrick Leahy, asked Gorsuch if he agreed with the Bush administration’s premise that the president has the authority to revoke torture and surveillance laws. Leahy said the Bush administration argued that “the law” gave presidents the Constitutional authority to circumvent such measures.
Gorsuch replied that “Presidents make all sorts of arguments about inherent authority – they do – and that is why we have the courts, to decide.”
Gorsuch faces questioning by the Senate Judiciary Committee before members vote on whether to recommend his nomination to the full Senate.
On Tuesday, senators of both parties pressed Gorsuch to speak on torture.
“In case President Trump is watching [the hearing]: if you start waterboarding people, you may get impeached,” warned Republican Lindsey Graham of South Carolina before posing a question to Gorsuch. “Is that a fair summary? Would he [Trump] be subject to prosecution?”
“Senator, I’m not going to speculate,” Gorsuch responded.
“But he’s not above the law,” Graham continued.
“No man is above the law,” Gorsuch said.
The nominee gave similarly cryptic answers during daylong testimony. While noting that Roe v. Wade established a legal precedent on abortion that has been reaffirmed repeatedly in subsequent cases, he also said that courts “may overrule precedent.” The 1973 Supreme Court decision in the Roe v. Wade case established a woman’s right to an abortion.
Democrats have portrayed Gorsuch as a pro-corporate jurist who would tilt the legal playing field against ordinary Americans, and pressed him on cases in which he sided with large companies over their employees.
Judicial nominees, both liberal and conservative, historically have refused to allow themselves to be pinned down on pending legal issues during their confirmation hearings. Gorsuch did the same, including when Feinstein asked if courts should have the ultimate say in determining the extent of Americans’ right to bear arms.
“Can you do yes or no?” Feinstein asked.
“No, I wish I could,” Gorsuch responded.
“I wish you could, too,” Feinstein added.
Again and again, Gorsuch returned to the fundamental American concept of an independent judiciary and the separation of powers in three co-equal branches of government, while stressing his conservative judicial philosophy that judges exist to apply the laws Congress writes, not rule from the bench.
Republicans hold a slim two-seat Senate majority and would need eight Democrats to support Gorsuch should a filibuster necessitate a three-fifths vote to advance his nomination in the full chamber.
Democrats are under intense pressure from progressive activists to oppose Gorsuch, but Republicans have the option of changing Senate rules to eliminate the minority party’s ability to block Supreme Court nominees should Democrats vote as a block against him.