Democrats Grill a Cautious Neil Gorsuch on Privacy Rights

On the third day of confirmation hearings for Supreme Court nominee Neil Gorsuch, Democrats on the Senate Judiciary Committee pressed him on privacy rights, but he volunteered little information.

The high court's decisions for marriage equality and abortion rights, and against sodomy laws, are all based to some degree on the concept of a constitutional right to privacy, Sen. Chris Coons of Delaware pointed out while questioning Gorsuch. Coons asked Donald Trump's Supreme Court nominee if he would agree that privacy rights "extend to protecting women's right to have autonomy over reproductive choices and protecting privacy of intimate relationships, whether same-sex or not?"

The rulings Coons mentioned include Obergefell v. Hodges on marriage equality, Roe v. Wade and Planned Parenthood v. Casey on abortion rights, and Lawrence v. Texas on sodomy laws. After some back-and-forth, Gorsuch said that these rulings "are all precedents of the United States Supreme Court due all the weight of a precedent of a Supreme Court." In Tuesday's hearing, Gorsuch said he recognized the marriage equality and abortion rights decisions as strong precedents.

Coons asked if Gorsuch thought one of his judicial heroes, the late Supreme Court Justice Byron White, was wrong in joining the majority in upholding sodomy laws in 1986's Bowers v. Hardwick. Gorsuch responded only that the Supreme Court found the Bowers decision in error, in overturning it in 2003's Lawrence.

Sen. Richard Blumenthal of Connecticut brought up these issues with Gorsuch as well, saying he didn't see Gorsuch praising these decisions with the same enthusiasm with which he praised Brown v. Board of Education, the 1954 Supreme Court ruling that declared segregation of public schools unconstitutional; Gorsuch called it a "great and important decision."

Blumenthal said, "Your declining to be more direct and give the same answers about these cases as you did about Brown leaves doubt in the minds of millions of Americans who rely on privacy rights."

Gorsuch replied, "I'm drawing the same line that Justice Ginsburg, Souter, Scalia --many, many, many people that sit at that confirmation table declined to offer their personal views to this or that precedent."

Another Democrat, Sen. Mazie Hirono of Hawaii, expressed concern about what she sees as a tendency on Gorsuch's part to favor corporate interests. "I still need reassurances that you would be the kind of justice that is open to applying the law to protect the rights of the working poor who are just one paycheck away from being homeless, who understands the importance of ensuring that victims of discrimination cannot only ask for but can receive protection from the courts, and who demonstrates a commitment to the constitutional principles that protect the right of women who make the most intimate and personal choice of what to do with our bodies," she said.

She also mentioned his 2005 National Review article criticizing liberals as leaning too heavily on the courts to make social change. He responded that the courts have to be open to civil rights suits, but he believes, as do some other legal scholars, both conservative and liberal, that change is best made by elected legislators, who are accountable to voters and often have to compromise. In court, he said, there has to be a winner and a loser. Hirono noted that legislative change is often more difficult than Gorsuch seems to think.

Gorsuch also said that regardless of who appoints judges, he doesn't see them as Republican or Democratic judges, just fair judges. "People surprise you from time to time," he added.

Committee members will continue questioning Gorsuch this evening, and Thursday public witnesses will appear before the committee; these are expected to include Gorsuch's colleagues and people who've been involved in cases he's heard.

See our coverage of Tuesday's hearing here and Monday's here. C-SPAN has video of all the proceedings plus transcripts.