Neil Gorsuch, President Donald Trump’s pick to fill a vacancy on the Supreme Court, was asked at Tuesday’s Senate confirmation hearing whether he agreed with longstanding precedent when it came to libel and defamation.
It’s a key concern in media circles, as Trump said during the campaign that he wanted to “open up” libel laws to make it easier for plaintiffs in defamation cases. The landmark 1964 Supreme Court decision in New York Times Company v. Sullivan requires a high standard for public figures to prove libel, including actual malice.
At the hearing, Gorsuch noted that New York Times v. Sullivan has been the “law of the land for gosh, 50, 60 years.”
While he didn’t explicitly say whether he agreed with it, he pointed to an appellate decision he made in a case involving A&E Networks and a prison inmate, who sued the network for airing a documentary that labeled him as a member of an Aryan Brotherhood gang when he was merely assisting them.
“Our court declined to grant that relief, saying substantial truth is protected, even if it is not strictly true,” Gorsuch said.
But Sen. Amy Klobuchar (D-Minn.), who had posed the defamation questions to him at the marathon hearing, also asked him to comment on the 1972 Supreme Court decision in Branzburg v. Hayes, in which the high court ruled that the First Amendment did not protect reporters from testifying before a grand jury.
Gorsuch did not offer much on that point, as he generally avoided any tinge of comment on potential future cases. He even declined to weigh in on whether cameras should be allowed in the Supreme Court, the final judicial frontier for media exposure.
Democrats on the Senate Judiciary Committee at times expressed frustration at Gorsuch’s unwillingness to weigh in on controversial cases, such as Roe v. Wade. He praised Judge Merrick Garland, but declined to comment on what happened to him, characterizing it as wading into politics. President Barack Obama nominated Garland to the Supreme Court last year, but Republicans refused to give him a hearing. The nomination died, leaving President Trump to pick Gorsuch last month.
Sen. Al Franken (D-Minn.) asked Gorsuch about the Supreme Court’s decisions that led to the legalization of same-sex marriage.
Gorsuch declined to tell Franken his personal views on the subject, but said that it was “absolutely settled law.” He did note that there were other issues related to same-sex marriage that were still pending.
Later in the day, Gorsuch was asked about Trump’s attacks on federal judges, like those who sidelined his initial travel ban.
While not commenting on Trump’s remarks specifically, Gorsuch said, “When anyone criticizes the honesty or integrity or motives of a judge, I find that disheartening. I find that demoralizing.”
Sen. Richard Blumenthal (D-Conn.), who had been questioning Gorsuch, asked if that included the president.
“Anyone is anyone,” Gorsuch said.
Sen. Lindsay Graham (R-S.C.), praised Gorsuch and said that he was a bit worried over who Trump would pick.
“Quite frankly, I was worried about who he would pick, maybe someone on TV.”