Judge Neil Gorsuch sought to cast himself as being impartial to big business, political pressure and the president who nominated him during the second day of his confirmation hearing in front of the Senate Judiciary Committee on Tuesday.
Gorsuch, named by President Trump to succeed Justice Antonin Scalia on the Supreme Court, was grilled by Democrats and Republicans and emphasized the importance of precedent and fairness while avoiding weighing in definitively on past and future court decisions.
"A good judge doesn't give a whit about politics," Gorsuch said, delivering one of a handful of quips during the day.
Gorsuch, who was appointed by President George W. Bush in 2006 to the U.S. Court of Appeals for the Tenth Circuit, based in Denver, sought to bat back characterizations by progressives that he favors big business over the "little guy." He faced criticism for a second day over his dissent in TransAm Trucking v. Administrative Review Board, better known as the "frozen trucker" case. He criticized his colleagues for finding against a company that fired a truck driver whose vehicle broke down in the cold for several hours and unhitched his cab to get help.
Senator Dianne Feinstein (D-CA) brought up the case on Monday, and Senator Dick Durbin (D-IL) asked Gorsuch about it on Tuesday.
"Senator, this is one of those that you take home at night," Gorsuch said. He explained that by his interpretation, the truck driver was protected from firing if he refused to operate an unsafe vehicle, but as he operated it, he had no such protection. "All I can tell you is my job is to apply the law you write."
Durbin pushed back, telling him the fired driver had been "blackballed from trucking because of that."
Durbin also asked about Gorsuch's reasoning in Burwell v. Hobby Lobby Stores, Inc., a decision upheld by the Supreme Court allowing for-profit corporations to be exempt from providing employees with access to birth control under the protection of the Religious Freedom Restoration Act (RFRA). Earlier in the day, Senator Orrin Hatch (R-UT) also asked him about the decision.
"It's the same statute that applies not just to Hobby Lobby, it also applies to Little Sisters of the Poor and protects their religious exercise," Gorsuch said, referring to the Catholic group that was exempted from the Affordable Care Act's contraceptive mandate. He pointed to two non-Christian religion cases where he sided with the RFRA as well, siding with a Muslim prisoner and a Native American prisoner regarding their religious rights.
He said Congress could return to the RFRA if desired to change the outcome of the Hobby Lobby decision and others.
"Congress can change the law," he said. "If we got it wrong, I'm sorry."
Gorsuch declined to weigh in on a handful of past discrimination cases handled by the Supreme Court, including Ledbetter v. Goodyear Tire, which limited the ability of women to seek equal pay, and Gross v. FBL Financial Services, which made it more difficult to prove age discrimination.
"I'm concerned that I have to look the litigant in the eye in the next case, and if I've prejudged that case, they can look at me and say you're not a fair judge and I've got no answer for that," he said.
Gorsuch faces discrimination accusations of his own amid allegations by a former law student that he told students that employers should ask women seeking jobs about their plans for having children. He discussed the allegations on Tuesday when questioned by Durbin, telling him the first he had heard of them was the night before his confirmation hearing and explaining that it was part of a larger discussion of the difficulties of working as a lawyer.
As to questions about his decisions, he reiterated a point made the day before -- he has decided over 2,700 cases, 97% of which have been unanimous, and in 99% of which he has been in the majority.
Gorsuch toed the line on the Chevron Deference, a principle of administrative law that requires courts to defer to interpretation of statutes to government agencies. He seemed to question Chevron in a decision in Gutierrez-Brizuela V. Lynch, calling it an "elephant in the room" that allows "executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design."
On Tuesday, he refrained from taking a truly definitive stance on the matter.
Gorsuch sought to emphasize the importance of precedent and acknowledged the precedent of Roe v. Wade decision protecting a woman's right to an abortion, which has been reaffirmed dozens of times by the courts.
"It's been reaffirmed many times," Gorsuch said. "Once a case is settled, that adds to the determinacy of the law."
Trump said he would seek to appoint someone who would overturn the 1973 decision. Gorsuch pushed back against the idea of such a litmus test.
"I try to live under a shell during the campaign season, watch baseball and football, go about my business," he said. "I did hear lots of talk of litmus tests from all around, it was in the air, and I don't believe in litmus tests for judges."
He repeatedly avoided questions on campaign finance and "dark money" in politics, including millions of dollars in donations backing his Supreme Court nomination, from Senator Sheldon Whitehouse (D-RI).
"There's a lot about the confirmation process today that I regret," he said. "If you wish to have more disclosure, pass a law and a judge will enforce it, Senator."
Gorsuch sought time and time again to assure Senators he will be impartial, including towards the man who selected him to join the United States' highest court, President Trump.
"Nobody is above the law in this country, and that includes the president of the United States," he said.
Senator Lindsey Graham (R-SC) is no fan of Trump and expressed relief that the president had nominated Gorsuch.
"Quite frankly, I was worried about who he'd pick," he said. "Maybe somebody on TV."