Supreme Court nominee Neil Gorsuch on Tuesday tiptoed around how he would rule on key potential cases, including President Donald Trump's divisive restrictions on travel from six Muslim-majority countries.
Sen. Patrick Leahy, D-Vt., pressed the 49-year-old conservative appeals judge on Trump's executive order during the second day of Senate Judiciary Committee confirmation hearings. Gorsuch called religious tests illegal, outlining various protections including the First and 14th amendments to the Constitution and the Religious Freedom Restoration Act.
However, he did not explicitly say whether he thought Trump's measure was a religious test. He added that suggesting how he would rule on cases he would possibly face could compromise his independence.
"I'm not going to say anything here that would give anybody any idea how I'd rule in any case like that that could come before the Supreme Court or my court at the 10th Circuit," Gorsuch said. "It would be grossly improper of a judge to do that. It would be a violation of the separation of powers and judicial independence if someone sitting at this table, in order to get confirmed, had to make promises or commitments about how they'd rule in a case that's currently pending and likely to make its way to the Supreme Court."
Last week, a federal judge in Hawaii blocked enforcement of Trump's revised executive order temporarily barring travel from specific countries due to what the White House calls terrorism concerns for particular areas. The ruling said Trump's order showed evidence of religious motivation, partly based on Trump's campaign calls for a temporary "total and complete shutdown" on Muslims entering the U.S. and later comments from advisor Rudy Giuliani suggesting Trump asked for a "legal" way to craft a Muslim ban.
Trump has called the ruling "overreach" and said he will take the case to the Supreme Court, if necessary. Some senators have raised concerns that Gorsuch may not be independent of Trump, though he tried to assure them Tuesday that he would break with the president if he runs afoul of the law.
Leahy also questioned Gorsuch about the Trump administration's assertion that the president's powers on immigration for national security matters are not reviewable by courts. After an earlier version of Trump's order was suspended in court, Trump policy advisor Stephen Miller argued that Trump's executive power "will not be questioned."
"No man is above the law," Gorsuch said when asked if national security decisions are reviewable by the judicial branch.
Gorsuch sidestepped questions about how he would rule on other potential cases, like overturning Roe v. Wade, the ruling that recognized women's right to abortion which the president has vowed to reverse.
Republicans hold 52 seats in the 100-member chamber, and may need at least eight Democratic votes to confirm Gorsuch if they decide not to trigger a "nuclear option" rules change that would only require a majority. Many Democrats have dug in against confirming Gorsuch after Republicans did not hold a hearing for Merrick Garland, whom President Barack Obama nominated for the seat left vacant by the death last year of arch conservative Justice Antonin Scalia.