By Lawrence Hurley and Andrew Chung
WASHINGTON (Reuters) – Supreme Court nominee Neil Gorsuch said Wednesday that presidents must obey court orders and expressed uncertainty about the language of the Constitution that prohibits US government officials from accepting payments from a country. foreigner while Democrats questioned him on issues related to President Donald Trump.
Gorsuch, the conservative Colorado appellate court judge nominated on Jan. 31 by Trump to a lifetime job at the nation’s highest court, received many questions on the third day of his Senate Judiciary Committee confirmation hearing.
While his confirmation process seemed to go smoothly, Democrats on the committee pressed him on the issues revolving around Trump, and even asked him about standards for impeachment. If confirmed by the full United States Senate, it would reinstate a conservative majority in court.
Vermont Senator Patrick Leahy cited comments made by Trump aide Stephen Miller after federal courts blocked the president’s executive action barring people from several Muslim-majority nations from entering the United States. On February 12, Miller challenged the authority of the courts to rule on the issue, saying the president’s power to enforce the ban should not be questioned.
“Now I am a judge. I take it seriously. And you better believe that I expect court orders to be obeyed,” Gorsuch said.
“That is the rule of law in this country,” Gorsuch added.
Gorsuch declined to say how he would address an alleged violation of the Emoluments Clause of the U.S. Constitution, which prevents U.S. officials from accepting gifts or favors from foreign governments without congressional approval.
“The question is: What does that mean exactly?” Gorsuch said, adding that there is ongoing litigation on the matter. “I have to be very careful when expressing any point of view,” he added.
Trump has been sued by ethics lawyers, who say his companies have accepted payments from foreign governments in violation of the Emoluments Clause.
On the basis on which an official can be charged, Gorsuch said that historically the focus has been on “serious crimes” rather than “misdemeanors.” He said the number of misdemeanors on the books has risen substantially since the U.S. Constitution was written in the 18th century.
BOUND BY THE PRECEDING
A Supreme Court ruling reached Gorsuch’s hearing on Wednesday. The court ruled in favor of an autistic child, finding that public schools must offer disabled students a special educational program that is ambitious enough to ensure their progress. The unanimous decision rejected the approach taken by Gorsuch in a 2008 ruling about which he was being questioned just as the new decision was announced.
Gorsuch said he was bound by court precedent when he participated in the decision, saying it would be “heartbreaking” to suggest that he would like to rule against disabled students.
Gorsuch is virtually certain of getting committee approval, moving his nomination to the full Senate. There, Gorsuch’s challenge will be to gather enough Democratic support to avoid a prolonged floor fight with the potential, if it gets tough, of changing the way the Senate works.
Gorsuch has avoided answering whether he thought a number of contentious cases from the past had been decided correctly, including cases on abortion, gun rights, political spending and religious rights.
“What worries me is that he has been able to avoid any specificity, like no one I’ve ever seen before,” Sen. Dianne Feinstein, the top Democrat on the panel, told Gorsuch.
Democratic Senator Dick Durbin added that Gorsuch had “rejected most of the substantive issues.” Republican Senator Lindsey Graham accused Democrats of applying a “double standard,” saying they had no problem when Supreme Court candidates for Democratic presidents were equally elusive.
Feinstein asked Gorsuch to explain a document dating back to his work at former President George W. Bush’s Justice Department related to restrictions against torture in 2005.
The document asked if the aggressive interrogation techniques used by the Bush administration had provided valuable information or stopped a terrorist incident, and Gorsuch had written “yes.” Gorsuch said he was simply doing what the administration told him to do. “My memory from 12 years ago is that that was the position that customers told us,” he said. “I was a lawyer, my job was that of a lawyer and we were dealing with a detainee litigation.”
Gorsuch is assured of the support of Republicans who hold 52 seats in the 100-member Senate. But the Senate has a 60-vote hurdle for confirmation from Supreme Court justices, meaning Gorsuch would need the backing of eight Democrats.
If Democrats stick together, Republicans could change Senate rules to allow simple majority confirmation.
The panel will hold a closed session later Wednesday before final testimony Thursday from outside witnesses who oppose or support Gorsuch. The committee is expected to vote on April 3. Senate Republican Leader Mitch McConnell said Tuesday that Gorsuch would be confirmed before the Senate recess in mid-April.
If confirmed, Gorsuch would replace Conservative Judge Antonin Scalia, who died in February 2016.