- The Washington Times - Sunday, March 19, 2017

At some point Monday afternoon, Judge Neil Gorsuch will sit alone at the witness table and deliver his opening statement to the Senate Judiciary Committee, setting the initial tone for the week’s worth of probing.

The heavy lifting will come later in the week, when he faces senators’ questions — but that opening statement will go a long way toward deciding whether Democrats will be able to mount a successful filibuster against a man they’ve been unable to dent so far.

“It’s a great opportunity for him to speak more at length than he did at the nomination process to the American people. I think they’ll get to see a little bit more of who he is,” said Carrie Severino, chief counsel at the conservative Judicial Crisis Network, which has spent millions of dollars on ads encouraging senators to support Judge Gorsuch.

Mr. Trump’s nominee to fill the seat of the late Justice Antonin Scalia will speak after all 20 senators on the committee have their say, and after he’s introduced by Colorado Sens. Cory Gardner, a Republican, and Michael F. Bennet, a Democrat, and by Neal Katyal, a former acting solicitor general under President Obama.

Mark Zaid, a Washington, D.C. attorney, said the opening statement can make a difference as it sets the initial tone, but it’s also political theater.

“It’s very easy to have a very prepped and polished statement, and one can only hope as we’re watching what’s in the legal community, or the general community, that sentiments being expressed are genuine,” said Mr. Zaid.

Drexel University Law Professor Lisa Tucker McElroy, who has written a biography of Chief Justice John G. Roberts Jr. and has worked on other books with Justice Sandra Day O’Connor, said she expects Judge Gorsuch to stress his Colorado roots, hoping to appeal to western Democratic senators.

Judge Gorsuch will be measured against the modern-day gold standard of Chief Justice Roberts, who delivered his opening statement without notes, crisply laying out his legal philosophy and famously saying his job was “to call balls and strikes and not to pitch or bat.”

Ms. McElroy said he was one of the best Supreme Court advocates, having appeared repeatedly before the high court as a lawyer.

“Considering the length of these things, which is not very long, and considering his really vast experience in public speaking and advocacy, it’s cool, and he’s very, very impressive, but I don’t think it’s as spectacular as you might otherwise think,” she said.

As the week progresses, Democrats will have a chance to try to set their own narrative about Judge Gorsuch, prodding him on everything from abortion to campaign finance to whether he agrees with Mr. Trump’s harsh criticism of federal judges.

In private meetings with more than 70 senators, the judge has expressed consternation at the president’s verbal assault on the federal judiciary. Mr. Trump lashed out after a series of courts blocked the White House’s extreme vetting plans.

After Judge Gorsuch is done answering questions, the Judiciary Committee will hear from the American Bar Association, which gave the judge its highest rating, and then from three panels of witnesses, divided between supporters and opponents.

The supporters’ list is full of people who have worked with the judge and are expected to attest to his keen mind and impeccable legal qualifications. The opponents are generally interested groups based on race, sexual identity or labor unions that are all expected to say they fear the judge’s rulings.

Even though Ms. McElroy isn’t a fan of Mr. Trump and identifies as a Democrat, she praised Judge Gorsuch’s qualifications and believes he’ll be quickly confirmed by the senate.

“There is still a potential that some Democrats will cross party lines and confirm, because he is qualified and he does bring things to the court that aren’t there right now,” she said.

Ms. Severino thinks an important part of Judge Gorsuch’s preparation is for him to be “thinking through some of the traps that the Democrats are likely to lay [for] him.”

She said they may ask him questions that they know he cannot answer as a judge, but that he will “make sure he’s clear in his mind about how far he can go in trying to be as forthcoming as possible about those questions without violating any of his ethical boundaries.”

Some Democrats may also ask Judge Gorsuch about his path to the nomination. The Scalia seat has been empty since February 2016, and it was a year ago last week that President Obama nominated Judge Merrick Garland to fill the seat.

Republicans refused to consider that nomination, saying the choice should be left to voters as part of the 2016 election and citing historical precedent that opposite-party Senates have rarely considered the Supreme Court nominees of eighth-year presidents.

Steamed over the treatment of Judge Garland, some Democrats have already vowed to filibuster Judge Gorsuch.

If all 52 Republicans back him, he’ll still need eight members of the Democratic caucus to support him to overcome a filibuster.

In retaliation, Republicans could use the so-called “nuclear option” to change Senate rules to curtail the power of the filibuster.

Senate Majority Leader Mitch McConnell hasn’t committed to that but hasn’t ruled it out either, saying only that Judge Gorsuch will be the next justice.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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