Supreme Court Nominee Stresses Independence Calls Criticism of Judges... CSPAN March 21, 2017 8:55pm-11:34pm EDT
[captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2017] >> the senate judiciary committee hearing is held in tomorrow at 9:30. they have scheduled more with judge gorsuch with public testimony on thursday. on thursday, the house of those on the republican health care bill. watch the debate on the bill in
the final the beginning at 9:00 a.m. eastern here on c-span and at www.c-span.org. or listen live with the c-span radio app. in a second day of testimony in his confirmation hearings, supreme court nominee neil gorsuch answered questions on his record as a federal judge and his judicial philosophy. each member of the judiciary committee had 30 minutes to question the nominee. committee chair chuck grassley began today's proceedings. senator grassley: good morning, everybody. i like to welcome everyone, especially our nominee.
this is day 2 of the supreme court nominee's hearing. we have a long day in front of us so we will immediately turn to members' questions. as my intention to get through all members' first round of questions today. so it's important we all stick to our time limits so that we can stay on that schedule. 10 hours is a long time for you to sit there and answer questions for 20 of us. you'm going to defer to when you might need a break. in the meantime, i would anticipate a break about 30 minutes for lunch time. and i hope for the members of the committee, i have not made up my mind on this yet, but we do have a vote scheduled at noon and it might -- i'm sorry. ok, we have two votes at noon.
so it might be appropriate to use that period of time for our lunch break. i will make a decision on that later on. so with that understanding with you and to accommodate you because you are the person that has to sit there and answer questions, so whatever your needs are, you let us know. i started yesterday morning, judge and audience, with justice are governmentts of laws is part of constitutional democracy, requiring the people's elected representatives do the lawmakin. -- lawmaking. judge,udge, -- you,
wrote that legislators consult their own moral convictions to shape law as we best think it to be. but you said that judges can't do those things. rightly so, from my point of view. our constitution is also a charter of liberty. justice scalia said that our constitution guarantees our liberties primarily through its structure. that happens to be the separation of powers. you said, judge, much the same thing. "what would happen to disfavored groups and individuals" if we allow judges to act like legislators? "the judge would only need his own vote to revise the law willy-nilly in accordance with preferences your quote
the separation of powers requires an independent judiciary made of judges respectful of the other two branches. but not the holden to them. judges must be equally independent of the president who nominates them and our senators who confirm the same judiciary members. let's start with independence from the executive. no one, not even president, is above the law. one of the most remarkable things about your nomination is a broad bipartisan support you have received. you have earned great praise from individuals who are not exactly supporters of the president, but who strongly supported your nomination. yesterday we heard from one of , president obama's former solicitor general said that you tol not compromise principle
favor the principal that to favor the president. in 2006, former colorado senator salazar, a democrat, said that you have, quote, the sense of fairness and impartiality. there's a keystone of being a judge, end of quote. and legal commentator jeffrey rosen, similar praised you for your independence. so let's start with my first question. describe what judicial independence means and specifically tell us whether you'd have trouble ruling against a president who appointed you. my first questi question. describe what judicial independence means and specifically tell us whether you'd have trouble ruling against a president who appointed you.
>> that's a softball, mr. chairman. i have no difficulty ruling for or against any party, based on what the laws and facts in the particular case require. and i'm heartened by the support i have received from people who recognize that there's no such thing as a republican judge or democratic judge. we just have judges in this country. when i think of what judicial independence means, i think of byron white. that's who i think of. i think of his fierce, rugged independence. he did this, he said, i have a job. people asked what his judicial philosophy was. i give the same answer. i decide cases. it's a pretty good philosophy for a judge. i listen to the arguments made. i read the briefs that are put
to me. i listen to my colleagues carefully. and i listen to the lawyers in the well. this experience has reminded me what it's like to be a lawyer in the well. it's a lot easier to ask the questions i find as a judge than it is to have all the answers as the lawyer in the well. i take the process, the judicial process very seriously. and i go through it step by step and keeping an open mind through the entire process as best i humanly can and i leave all the other stuff at home. and i make a decision based on the facts and the law. that's what it means to me. the judicial oath i took to administer justice without respect to persons, to do equal right to the poor and the rich. and to discharge impartially the duties of my office.
it's a beautiful oath. it's a statutory oath written by this body. that's what judicial independence means to me. happy to talk about the separation of powers too, if you'd like. i'm happy to answer another question. entirely up to you. >> your record made clear that you aren't afraid to fulfill your role independently and you just emphasized that. you vacated orders of administrative agencies acting outside of their authority and you ruled on cases where congress has overstepped its bounds, so i think you could maybe speak about the separation of powers but at the same time, maybe you could give me a couple of your cases that demonstrate your commitment to that independence of the executive branch of government. >> sure. on the first point, i have decided as i've noted yesterday,
over 2,700 cases. my law clerks tell me that 97% of them have been unanimous. 99% i've been in the majority. they tell me as well that according to the con impressional research service, my opinions have attracted the fewer number of dissents from my colleagues of anyone i've served with that they've studied over the last ten years. now, the congressional research service speculates whether that's because i'm persuasive or i believe in cleollegiality. in the few cases i have dissented almost to dissent from a democrat appointed colleague than a republican colleague because we don't have democrat or republican judges. according to wall street jou"wa
journa journal", i'm told of the eight cases i've identified that i've sat on that have been reviewed by the united states supreme court, our court was affirmed in seven of them. now, i think louise might argue for the eighth because in that case, the supreme court didn't like a procedural precedent of our court that as a panel we were bound to follow, so they remanded it back. we decided on the merits. denied. eight out of eight. on the separation of powers, it is, mr. chairman, the genius of the constitution. madison thought that the separation of powers was perhaps the most importanterty device in the whole constitution and this is a point of civics i think maybe is lost today. how valuable the separation of
powers is. that you have an article i, the peep people's representatives make the law, that's your job. i don't think it's an accident the trframers put article i one first. your job comes first. you make the law. the president's job was to faithfully execute your laws. and our job, article iii, down at the bottom, is to make sure that the cases and controversies of the people are fairly decided. and if those roles were confused, and power amall . judges would make pretty rotten legislators. we're life tenured, right? you can't get rid of us. it only takes a couple of us to make a decision, or nine, or 12,
depending on the court. it would be a pretty poor way to run a democracy and at the same time, with respect, legislators might not make great judges. because they're answerable to the people and when you come to court with a case or controversy about past facts, you want a neutral, rigidly neutral, fair, scrupulously fair decision maker. you want somebody who's going to put politics aside. so the separation of powers i don't think has lost any of its genius over 200 years. in fact, it's proven it. >> thank you. i've heard my colleagues and people not in this senate say that now more than ever, we need a justice who will be independent of the president who
nominated him or her, so i'd like to ask about your nomination and your independence. a lot has been made about the list of judges then candidate-trump proposed as possible nominees. it was the most transparent we've had in history and we didn't have secretary clinton give out such a list. of course, you were on the first group that came out and otherwise, added later, so i'm curious when did you first learn that you were on candidate trump's extended list? >> well, mr. chairman, you're right. there were two lists, as i recall, over the summer. and i wasn't on the first list. i remember having breakfast one day with a friend who may be here, brian? there you are.
you remember this. we were having breakfast one day and he said, neil, you're not on the list. and i said, you're right, i'm not on the list. he said, you should be on the list. i said, i love my life in colorado. i wouldn't change a thing. i'm a happy man. i have a loving wife, beautiful home and children, a great job with wonderful colleagues. i'm a happy person. walking away from breakfast and i get an e-mail from brian saying there's a new list. and you're on it. that was the first i heard of it. >> i assume you i don't know -- you didn't know. we were all surprised. and we are where we are. >> okay. tell me about the process that led to your nomination.
did anyone ask you to make any promises or assurances at all about your view on certain legal issues or the way that you would rule in certain cases? >> senator, i think you'd be reassured by the process that unfolded. i try to live under a shell during the campaign season, watch baseball and football, go about my business, but 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. i've written about that years ago. i wasn't about to become party to such a thing. and i am here to report that you should be reassured because no one in the process from the time i was contacted, with an expression of interest for potential interview to the time i was nominated, no one in that
process, mr. chairman, asked me for any commitments, any kind of promises about how i would rule in any kind of case. >> and that's the way it should be. so we just discussed your independence from the president. but there is also independence from the legislative branch. it is odd that some of the same folks who claim that you're not independent from the president will turn around and try to extract from you promises and commitments before they pass judgment on your nomination. the irony, of course, is that extracting commitments during the confirmation process is exactly what would undermine your independence as a judge. one way that they'll do this is asking you about precedent. so let's talk about that. for starters, i've got a book here that you co-wrote, 800 page book on precedent, your 12
co-authors included judges from across the ideological spectrum, such as bill prior, who was also on president trump's supreme court list, and diane wood, who was reportedly on president obama's list. you've also touched on the value of precedent in speeches that you've given or in your opinions. for instance, in the speech you gave honoring justice scalia last year, you said this, quote, even when a hard case does arrive, once it is decided it takes on the force of precedent, becomes an easy case in the future, and contributes further to the determine nancy of our law, end quote, especially if more recent opinions called into
question the rational of the original case. but you also have suggested that there may be circumstances where it is appropriate to revisit precedence, specifically you wrote, that it may be appropriate to reconsider a decision where it has become a, quote, presidential island surrounded by a sea of contrary law. so there may be times where it is appropriate to reconsider certain decisions, especially if more recent opinions have called into question the rational of the original decision. i think all of us would agree, for instance, that brown versus board of education, which finally overruled repugnant separate but equal standard in plessy is the textbook example of this. so with these things in mind, i'd like to explore the approach that you take to the supreme court precedence. could you tell us what you believe is the value of
precedent in our legal system? >> absolutely, senator. and if i might, mr. chairman, go back just a moment to promises. i have offered no promises on how i would rule in any case to anyone. and i don't think it is appropriate for a judge to do so no matter who is doing the asking. and i don't because everybody wants a fair judge to come to their case, with an open mind, and decide it on the facts and the law. one of the facts, one of the features of law you have to decide it on is on the basis of precedence as you point out. and for a judge, precedent is a very important thing. we don't go reinvent the wheel every day. and that's the equivalent point of the law of precedent. we have an entire law about precedent, the law of judicial
precedent, precedent about precedent if you will. and that's what that 800 page book is about. it expresses a mainstream consensus view of 12 judges from around the country appointed by as you point out presidents of both parties, great minds, justice breyer was kind enough to write a forward to it. it makes an excellent door stop. and in it we talk about the factors that go into analyzing precedent. any consideration of precedent. there are a bunch of them. you've alluded to some of them. age of the precedent, very important fact, the reliance interests that have built up around the precedent, has it been reaffirmed over the years, what about the doctrine around it, has it built up, shored up or has it become an island, as you point out. those are all relevant considers. its workability is a consideration too. can people figure out how to abide it? or is it just too confusing for
the lower courts and their administration. those are all factors that a good judge will take into consideration when examining any precedent. you start with a heavy, heavy presumption in favor of precedent in our system. alexander hamilton said that's one important feature, i think it was hamilton, said one important feature of judges, if we give them life tenure, and allow them that extraordinary privilege, they should be bound down by strict rules and precede precedents. francis bacon called precedent the anchor of the law. so you start with that heavy presumption in favor of precedent, you consider those factors in that light, and, yes, in a very few cases, you may overrule precedent. it is not an inxerable command, the supreme court said, that's the law of precedent, as i understand it and as i believe
expressed in that book with my very highly respected colleagues. >> as a lower court judge, you're bound by not only supreme court precedent, but as you demonstrated, the precedent of your own court, but as a supreme court justice part of your job will be to decide when existing supreme court precedent need not be reconsidered. how will you decide when you revisit existing precedent? >> mr. chairman, i don't think the consideration has changed. it is the same analysis that i would have as a supreme court justice, if i'm fortunate enough to be confirmed, that i have when i'm considering circuit precedent as a circuit judge. the exact same process the exact same rules apply. >> okay. >> this is the 14th supreme court hearing that i participated in, so i have a pretty good idea of some of the questions that you're going to
be -- get today. you're going to be asked to make promises and commitments about how you'll rule on particular issues. now they won't necessarily ask you that directly, for instance, how will you rule on this issue or that issue? instead they'll ask you about old cases, whether they were correctly decided. of course, that's another way of asking the very same question. they know that you can't answer but they're going to ask you anyway. i've heard justices nominated by presidents of both parties decline to answer questions like these. that's because as the nominee put it, quote, a judge sworn to decide impartially can offer no forecast, no hints, for that would show not only disregard for the specifics of this particular case, it would
display disdain for the entire judicial process. end of quote. now, you probably know that is what justice ginsburg said at her hearing and it is what we call the ginsburg standard. the underlying reason for this is, of course, is that making promises or even giving hints undermines the very independence that we just talked about. i'd like to ask you if you agree with what i just said. >> i do, mr. chairman. >> so let me ask you about a couple of supreme court cases. in heller, the supreme court held that the second amendment protects an individual right to bare arms. if ask you to tell me whether heller was rightly decided, could you answer that question for me? >> senator, i would respectfully respond that it is a precedent of the united states supreme court and as a good judge you
don't approach that question anew as if it had never been decided. that would be a wrong way to approach it. my personal views i'd also tell you, mr. chairman, belong over here. i leave those at home. mr. cotshell yesterday said what he wanted was a fair judge. that's what i want as a lawyer. i just wanted a judge to come in and decide on the facts and the law of my client's case and leave what he had for breakfast at the breakfast table. and part of being a good judge is coming in and taking precedent as it stands and your personal views about the precedent have absolutely nothing to do with the good job of a judge. >> let me ask you about citizens united. in this case, the supreme court held that the government can't restrict independent political expenditure for a nonprofit corporation, do you agree with that decision?
>> senator, i would give you the same response. i know people have their views personally about lots of supreme court decisions. and about a lot of other things. we're all human beings. i get that. i'm not an algorithm. they haven't yet replaced judges with algorithms, though i think ebay is trying. and maybe successfully. we're all human beings. but the judge's job is to put that stuff aside and approach the law as you find it and that's part of the precedent of the united states supreme court that i'm sworn as a sitting judge to give the full weight and respect to due precedent. >> those two cases were 5-4 decisions, so let me ask you about something that was unanimous, hosana taber, the supreme court ruled 9-0 that you can't tell a church who the ministers can be. the obama administration
actually tried to convince the supreme court that a bunch of government bureaucrats could tell a church who its ministers could be. like i said, that case was 9-0. can you tell me if that case was decided correctly? >> respectfully, senator, i give you the same answer. >> okay. those are relatively recent cases. let's talk about cases that have been around for a while. let's look at giddy and wainwright. it was decided unanimously, a long time ago, 50 years or more. it says a criminal defendant has a right to an appointed attorney if he can't afford one. everyone who watches cop tv shows know this -- this law. does that make a difference? can you tell me if you agree with the principle of giddy? is it the same answer? the same reason? >> mr. chairman, it certainly is
a seminole decision of the united states supreme court, no doubt about it. it is a very old decision of the supreme court now. it has been reaffirmed many times. there is a lot of reliance interest built around it, so i could talk to you about the factors that a good judge considers in analyzing precedent. and the weight due a precedent, but i'm not in a position to tell you whether i personally like or dislike any precedent. that's not relevant to my job. gideon is a seminole precedent of the united states supreme court and deserves respect on that basis. precedent is kind of like our shared family history as judges. it deserves our respect because it represents our collective wisdom and to come in and think that just because i'm new, or the latest thing, and no better than everybody who comes before
me would be an act of hubris, inappropriate to the judicial role. >> what if i asked you about bush versus gore? >> i know some people in this room have some opinions on that. i'm sure, senator. as a judge, it is a precedent of the united states supreme court. and it deserves the same respect as other precedents of the united states supreme court when you're coming to it as a judge. and it has to be analyzed under the law of precedent. >> well, let's go to a kind of more controversial issue, but along the same lines i've been asking you. i think the case that most people are thinking about right now and the case that every nominee gets asked about, roe v. wade. can you tell me whether roe was
decided correctly? >> again, i would tell you that roe v. wade decided in 1973 was a precedence of the united states supreme court. it has been reafirmed, reliance interest considerations are important there, and all of the other factors that go into analyzing precedent have to be considered. it is a precedent of the united states supreme court. it is reaffirmed in casey in 1992. and in several other cases. so a good judge will consider it as precedent of the united states supreme court worthy as treatment of precedent like any other. >> what about griswold, which was decided a few years before roe, the case where the court found constitutional right to privacy. can you tell me your views on griswold? >> senator, it is a precedent that is now 50 years old, griswold involved the right of married couples to use contraceptive devices in the privacy of their own home.
and it is 50 years old, the reliance interests are obvious, it has been repeatedly reaffirmed, all very important factors again in analyzing precedent. >> well, i think i'm going to stop questioning, but i'd kind of sum up what you and i just talked about, in regard to precedent, so everybody understands the principles that are at stake here. there are two reasons why you can't give your opinion on these cases. one, i believe is independence. and the other one is fairness to future litigants. is that the way you see it? >> it is, senator. if i were to start telling you which are my favorite precedents or which are my least favorite precedents or view it in that fashion, i would be tipping my hand and suggesting to litigants i already made up my mind about their cases.
that's not a fair judge. i didn't want that kind of judge when i was a lawyer. i don't want to be that kind of judge now. and i made a vow to myself i wouldn't be. that's the fairness problem. and then the independence problem, if it looks like i'm giving hints or previews or intimations about how i might rule, i think that's the beginning of the end of the independent judiciary. if judges have to make effectively campaign promises for confirmation. and respectfully, senator i haven't done that in this process and i'm not about to start. >> thank you. i'll yield back eight seconds to senator feinstein. >> thank you very much, mr. chair. welcome, judge, and good morning. >> good morning. >> nice to see you again. since we're on roe, i wasn't going to begin with this, but i well recall the time we spent in my office and we talked about precedent and in my opening
remarks i indicated that if anything had super precedent, roe did in terms of the numbers and i have put that in the record. here's why it becomes of concern. th president said that he would appoint someone who would overturn roe. you pointed out to me that you viewed precedent in a serious way, in that it added stability to the law. could you elaborate on the point that you made in my office on that? >> i'd be delighted to, senator. part of the value of precedent, it has lots of value, it has value in and of itself, it is our history, our history has value intrinsically, but it also has an instrumental value in this sense. it adds to the determinesy of law.
we have lots of tools that allow us to narrow the realm of admissible dispute between parties. so we can -- people can anticipate and organize their affairs. it is part of the reason why the rule of law in this country works so well. we have statutes, we have rules, we have a fact finding process and a judicial system that is the envy of the world. and precedent is the key part of that, because as a chairman pointed out, when he quoted a piece of mine, once a case is settled, that adds to the determinesy of the law. what was once a hotly contested issue is not longer a hotly contested issue. we move forward. and the value of that is united states supreme court takes something like 70 or 80 cases a year. that is a tiny fraction of all of the disputes in our federal legal system. right? my law clerks tell me it is
something like .001%. and they're unanimous in those cases, which have divided circuit judges. that's why supreme court largely takes the case, because it has divided us, one of the rare cases where we disagree. they're unanimous 40% of the time. >> one other question. >> sure. >> do you view roe as having super precedent? >> well, senator -- sany times. i can say that. yes. >> dozens. all right. i would like now to go to -- to take you back to 2005. when you were in the justice department. and i want to explain to you why i'm going here. this has to do with torture. the intelligence committee was informed in 2006 and attorney general gonzalez played a role in this of the nature of the the
enhanced interrogation technique and we were given a very soft view. senator rockefeller became chairman of the committee in 2007 and began a study of three detainees, and the enhanced interrogation techniques. when i became chairman in 2009, i added that, and we took all of the major detainees and looked at them in a six-year study by the staff spent long hours analyzing every cable, every e-mail, looking at more than 100 interviews. and essentially putting in a 7,000 page report, 32,000 footnotes, documenting where the information -- no conclusions, just facts. that 7,000 page report has remained classified. i have read it. we have put out a 450 page
summary which is public and in that summary we indicate that those cases that the administration spelled out were torture produced operable intelligence, was simply not so. we elaborate on that in the big report, and my hope is that one day not too distant that report will be declassified so the american people can actually see. but i wanted to ask you some questions along these lines. it is my understanding that the set of talking points were prepared for a press conference for the attorney general on november 22nd, 2005. the talking points asked whether, and i quote, aggressive interrogation techniques employed by the administration yielded any valuable information, end quote. and in the margin, next to this question, you hand wrote one
word. yes. what information did you have that the bush administration's aggressive interrogation techniques were effective? >> senator, i'd have to see the document. i don't recall -- >> all right. that's fair enough. >> it has been a long time. >> i would be happy to share the documents with you. i took these pages out of my binder, i think they -- >> fair enough. >> so i wouldn't have to pause and i -- but let me just hold up that answer. >> sure. >> and we'll get you the documents on that. >> thank you. >> because let me do the next question. in december 2005, after the passage of the detainee treatment act, you advocated president bush should issue a signing statement to accompany the law. in an e-mail you sent to steven bradbury, and others, you said the signing statement would, and
i quote, this is your quote, help inoculate against the potential of having the administration criticized sometime in the future for not making sufficient changes in interrogation policy in light of the mccain portion of the amendment. this statement clearly and in a normal way would be hard to dispute later. puts down a marker to the effect that mccain is best read as essentially codifying existing interrogation policies, end quote. to be clear, the context was that earlier in 2005, the justice department's office of legal counsel had concluded that cia interrogation tactics like waterboarding and sleep derivation did not mean cruel
treatment. saying that senator mccain's amendment actually codified them, which it did not. is that true? and doesn't it mean that when you wrote this e-mail you were condoning waterboarding as lawful? >> senator, i would want to see the e-mail again. i don't feel comfortable commenting on documents that aren't in front of me. but i can say this, that i do remember -- >> my staff has the documents here. they can bring them down to you right now. >> that would be wonderful. >> and i'll put aside this part. you'll have the documents. because there are more. and i'll go on to the next subject. >> that's fine. i'm happy to -- of course i'm -- >> i want you it look at the documents. >> i would like to just know what i'm talking about. my recollection generally, i can -- from 12 years ago. >> derrick, bring him the documents, please.
>> thank you. my recollection generally working on the detainee treatment act, senator, was that at that time after rosul was issued by the supreme court, there were a lot of habeas petitions coming in from detainees at guantanamo bay, some brought by my friend neil cotshe cotshell. a regime for the processing of those claims. in a way that would conform with the youngstown idea of congress and the president acting together, in unison. and that senator mccain and senator graham put together legislation that emphasized that not only was torture unacceptable, which always had
been, under u.s. law, but the cruel and human and degrading treatment was also unacceptable. >> let me help you here. i know from the documents that you worked on the graham effort. >> yes. >> for example, a self-assessment you wrote said that you, quote, helped coordinate the legislative effort on the graham amendment within doj and in consultation with dod and others. >> that's absolutely right, senator. i sure did. and i'm proud of it because we managed to come up with a bipartisan bill that i think passed this body with over 80 or maybe 90 votes, i don't remember. which did two things. one, affirmed this country's commitment to prevent cruel and inhumane and degrading treatment and which provided a regime that was agreed by the congress and the president on how guantanamo detainees should have their claims processed.
>> except after you read the documents, just so you know, the conclusion that we come away with is that when the bill on the mccain amendment was about to be voted on, you forwarded press articles explaining what having these two provisions together meant. that was the mccain amendment prohibiting torture and confining it to the army field manual. and the graham amendment, which would bar habeas, in other words, a detainee could not use the habeas corpus right to file in a court of law and challenge the conditions of detention. so that was looked at as off setting mccain but basically preventing habeas corpus from
being used and of course it was overturned by the court. >> senator, you're absolutely right. that it was eventually litigated as all these things are. there was a bipartisan effort, and it was between the department of defense, the department of -- the department of defense wanted congressional approval for something. so that they knew what the rules would be. they were desperate to have some congressional involvement and investment in this process. and as a lawyer, that's all i was, i was a lawyer for a client, right, i was advising them on how to go about doing that legally in conjunction with senator graham's office, and others. and it was a bipartisan effort and we put together our best effort, the dc circuit upheld it, the supreme court of the united states and eventually many, many years later found that the process was
insufficient. and that's the boumediene case. as you know, senator. but to say there was no process would be inaccurate too because the detainee treatment act had a long list of prescribed processes and the question simile was whether they were adequate enough under the suspension clause and that was a close case that divided the court very closely, and i respect that decision as a precedent of the united states supreme court no less than any other, senator. >> one last question on this. >> sure. >> when president bush signed the detainee treatment act, he issued a statement that basically said he would only construe the law consistent with his powers as commander in chief. according to press reports, administration officials confirmed and i quote, the president intended to reserve the right to use harsher methods in special situations involving national security, end quote. in other words, the signing statement reflected the
president's belief that he had the power to not comply with the law he had just signed. according it e-mails, and this you'll verify, you were involved in preparing that signing statement and you advocated for the issuance of the signing statement. they even showed you saying to the top state department lawyer that harriet miers, the white house counsel, quote, needs to hear from us, otherwise this may wind up going the wrong way. >> well, senator, i can tell you what i recall. i need to read the e-mail. my loose recollection of something that happened, i think, 11, 12 years ago, is that there were individuals and maybe the vice president's office who wanted a more aggressive signing statement along the lines that you described. and that there were others at
the state department who wanted a gentler signing statement. and my recollection sitting here -- as best i can give it to you without studying the e-mail is that i was in the latter camp. john bellinger among others i would have associated myself with there. and i don't know what was in the president's head when he wrote the signing statement. i can't tell you that. i don't know. i can only tell you what i remember and i certainly would never have counseled anyone that they could disobey the law. >> okay. i have no reason not to believe you, but if you will read those and then in my second round we'll go back to them and i would be very happy to -- because i think you'll see that we didn't make this up. >> senator, i'm not suggesting you are, but -- there was a -- there was a tug of war among parties in the white house. >> i wanted to know which side you were on. >> well, count me in with john
bellinger most of the time on these things, okay? >> okay. >> all right. >> and that's my recollection, and matt waxman is another one. and so that's my recollection, senator, sitting here, i'll study these. >> okay. >> let me ask you a question on wiretapping. in december of 2005, news broke that president bush ordered the nsa to intercept the content of certain communications of americans without a court order. outside of the requirements of the foreign intelligence surveillance act known as fisa. you helped prepare the public defense of the program. for example, in draft testimony that you prepared for attorney general gonzalez defending the program, you wrote these -- this, quote, these authorities are vested in the president and they are inherent in the office. they cannot be diminished or
legislated away by other co-equco- co-equal branches of government. paul clement, quote, found this proposition unconvincing and it was removed from the testimony. do you still believe that the president has inherent authority, this is important, to intercept the communications of americans in the united states that cannot be legislated away by congress? >> goodness no, senator. i didn't believe it at the time. what i was serving at the time, as i recall, again, my recollection and i would be happy to review whatever you have before you, is that i was acting in a capacity as a speechwriter. and taking material produced by the components that were responsible for litigating these issues including mr. clement, paul clement, dear friend of mine, and the office of legal counsel and others and assembling it to put words in
together that sounded like english. and i think people like my writing. and that was my job. i think i was the scribe. >> okay. let's move on. i would like to go to the heller case. when we met in my office, we discussed the heller decision, which you said you were open to discussing since the case had been decided. at that time, you said you thought both a majority opinion written by justice scalia and the dissent written by justice stevens were brilliant examples of originalism. where both justices sought to explain the reasoning by looking at the original public meaning of the second amendment. which decision did you agree with and why? >> well, senator, i think we have alluded to my difficulty here. i do think everything you've just said is accurate. both justice scalia and justice
stevens wrote excellent opinions in that case. i am not here, though, to grade my boss' work, impertinent of me, i suspect, and i'm sure they would think so. i also worry that saying i agree with one or the other will indicate to clients or to litigants in future cases, because it is now a precedence of the united states supreme court, it is binding, it is the law, whether we like it or not, it is the law. and if i start saying i like one opinion or i like the other opinion, i'm signaling -- >> i'll let you off the hook. let me go to another one. >> thank you. thank you, senator. >> in d.c. v. heller, the majority opinion written by justice scalia recognized that, and i'm quoting, of course the second amendment was not unlimited, end quote. justice scalia wrote, for example, laws restricting access to guns by the mentally ill or
laws forbidding gun possession in schools were consistent with the limited nature of the second amendment. justice scalia also wrote that, quote, weapons that are most useful in military service, m-16 rifles and the like may be banned without infringing on the second amendment. do you agree with that statement that under the second amendment weapons that are most useful in military service m-16 rifles and the like may be banned? >> senator, heller makes clear the standard that we judges are supposed to apply. the question is whether it is a gun in common use for self-defense, and that may be subject to reasonable regulation. that's the test as i understand it. there is lots of ongoing litigation about which weapons qualify under those standards.
and i can't prejudge that litigation. >> i'm just asking you do you agree with the statement, yes or no? >> the statements out of the heller decision from the united states -- >> justice scalia statement. >> whatever is in heller is the law. and i follow the law. >> do you agree? >> it is not a matter of disagreeing or disagreeing, senator, respectfully, it is a matter of it being the law. and my job is to apply and enforce the law. >> all right. fair enough. let me give you another one. the fourth circuit, judge harvey wilkinson authored a separate concurrence in the fourth circuit case kobe v. hogan. here is what he said. no one really knows what the right answer is with respect to regulation of firearms. i am unable to draw from the profound ambiguities of the second amendment, an invitation to courts, irrigate to themselves decisions that have been historically assigned to
other more democratic actors. disenfranchising the american people on this life and death subject would be the gravest and most serious of steps. it is their community, not ours, it is their safety, not ours. it is their lives, not ours. do you agree with judge wilkinson that the second amendment is ambiguous. should the ambiguity be decided by the court or legislatures? >> i would begin by saying i hold judge wilkinson in high regard. he's a very fine man. and a very fine judge. >> can you do yes or no? >> no, i wish i could. >> i wish you could too. >> but the supreme court of the united states isn't final because it is infallible as justice jackson reminds us, it is infallible because it is final. and judge wilkinson had his view, and the supreme court has
spoken. and heller is the law of the land and justice -- judge wilkinson may disagree with it and i understand that. and he may -- but he will follow the law no less than any other judge in america. i am confident of that. he's a very fine judge who takes his oath seriously. >> okay. i asked you that question on super precedent, and let me end with one on workers' rights if i might. as you know, there have been a number of supreme court cases where the court has made it harder for workers to hold their employers accountable when they have experienced discrimination or injured on the job and we have discussed that one case, transam, i think three or four of us.
let me give you a short list. ledbetter versus goodyear tire, which limited the ability of women to seek equal pay, gross bfbl financial services in 2009 which made it difficult to prove age discrimination and the university of southwest texas medical center v. nasser in 2013 which made it more difficult for employees to prove they had been retaliated against for reporting discrimination, including based on race, gender, national origin, religion, and other factors. vance v. ball which made it more difficult for workers to prove just plain discrimination claims. as a senator whitehouse pointed out, each case was 5-4 and justice scalia voted with the majority against the employee in every case.
president trump and others have said you are the next scalia. so i think it is only fair to ask you, do you disagree with any of the majority opinions that judge scalia joined in these cases? if so, which ones do you especially disagree with and why? these have already been decided. >> i understand, senator. but, again, if i indicate my agreement or disagreement with a past precedent of the united states supreme court, i'm doing two things that worry me. sitting here. first thing i'm doing is i'm signaling the future litigants that i can't be a fair judge in their case because those issues keep coming up, all of these issues as you point out keep coming up. issues around all of these precedents will be continued to be litigated and are hotly litigated. i had post ledbetter cases in my court, for example. >> how do we have confidence in you that you won't be just for
the big corporations? that you will be for the little men? this is the question that senator hirono, i think, so well asked yesterday. you know, those of us, i think on both sides, care very much about workers' rights. but the record is such that when questions whether the court is capable in its present composition to give a worker a fair shot, so i'm just looking for something that would indicate that you would give a worker a fair shot, maybe it is in your background somewhere that i don't know about, but i'd like to have you respond to it any way you can. >> senator, i appreciate that. i think interest there is a waya look at this question without me potentially prejudging a case. i appreciate your respect for that. and just to finish that thought, i'm concerned that i have to
look the litigant in the eye in the next case, and if i prejudge that case, they can look at me and say you're not a fair judge. and i've got no answer for that, no answer for that. so what i think can give you comfort in this area, senator, i know a case or two has been mentioned yesterday, respectfully, i suggest it does not represent the body of my work. i've written -- participated in 2,700 opinions over 10 1/2 years. and if you want cases where i've ruled for the little guy as well as the big guy, there are plenty of them, senator. >> would you be willing to submit some of them? >> i'll name a bunch of them right now. i'm sorry, senator, of course. u 5 and 6, fletchy, iraqi flats case which vindicated the rights of people who had been subject
to pollution by large companies in colorado, uranium pollution, i point to the magnesium case, similar pollution case, salt lake city area, renewable energy upheld that, orr versus the city of albuquerque involving pregnancy discrimination in the police department in albuquerque, wd sports, discrimination claim, casey, energy west, crane, simpson versus cu involving young women when had been harassed by the football team, am, browder, sutton, i can give you a long list. >> that's helpful. we'll find them and read them. >> and, the bottom line i think is that i would like to convey to you, from the bottom of my heart, is that i'm a fair judge. and i think if you ask people in the 10th circuit, is he a fair judge, you'll get the answer you
got yesterday from both senator bennett and senator gardener and senator cotshell and from senator alard and senator salazar. i can't guarantee you more than that, but i can promise you absolutely nothing less. >> okay. i have 1:20. let's talk chevron. that's been used, you know, thousands of times. and it really perplexes me. olympia snowe and i did something that took me 12, 13 years to get to, and that is changing the corporate fuel economy standards. and thanks to senator inouye and senator stevens they put it finally in a commerce bill and it passed. so now we are on our way to 54 miles a gallon.
here's the point. we could do the rules for the first ten years, but who knew we needed the experts to do them from that point on. so what we said in the legislation was that science would prevail. and that is still the law. it is working. the goal is -- i've read articles, they say there will be 54 miles by 2025 if this continues. what is wrong with that. how else could we have done it? >> i'm not aware of anything wrong with that, senator. i've never suggested otherwise. >> but what you said is the congress could not legislate by leaving some of the rules up to the scientists or other professionals in departments as i understood it in chevron.
>> i appreciate the opportunity to correct this misunderstanding. >> sure, appreciate it. >> the case i think you're referring to is gutierrez. >> that's correct. >> it involved an undocumented immigrant to this country. and the question was, there were two conflicting statutes. one said, he could apply for immediate discretionary relief in this country from the attorney general. second said, he had to wait outside the country for ten years. we had a judicial precedent that said the first statute controls. that was the ruling of our court. after that, three or four years, i can't remember exactly, the board of immigration appeals and its infinite wisdom says our interpretation is wrong, chevron, you have to undo your precedent, the judicial precedent, that this man had relied upon and that he now had to wait outside the country not just ten years, but 13 or 14
because it took him so long to make up their mind. senator, that reminded me of when charlie brown is going in to kick the ball, and lucy picks it up at the last second, and that struck me as raising serious due process concerns, fair notice, and separation of powers concerns. when an executive bureaucracy can overturn a judicial precedent without an act of congress. that's what the case is about. and it suggested respectfully that under the apa, the administrative procedures act this body tasked judges to decide legal questions and left to administer agencies great deference when it comes to fact finding. that's how i read section 706, fact finding, by scientists, biologists, chemists, the experts get great deference from the courts, the only question is who decides what the law is?
and can a man like mr. gutierrez, the least amongst us, be able to rely on judicial precedence on the books, can he have the ball picked up as he going in for the kick. >> i exceeded my time. >> i'm sorry. >> i want to make clear to everybody, you didn't exceed your time because i said if you ask your question before the last second is up and you did that we would give whatever time it took for that to be done. if everybody follows that rule, i think we'll be treating everybody fairly. before i call on senator hatch, i would like to enter into the record an article in the wall street journal editorial titled this, "neil gorsuch:how would you vote?" i'll kweet quote the first paragraphs, democrats have come up empty trying to find something scandalous that neil
gorsuch has said, so now they're blaming him for what he won't say, to wit, they want him to declare how he would rule in specific areas of law, questions that every supreme court nominee declines to answer, end of quote. i without objection i enter into the record. senator hatch. >> thank you, mr. chairman. judge, as i said yesterday my goal in this confirmation process is to get an understanding or handle on your understanding of the proper role judges in our system of government. now, you gave an interesting lecture last year at case western reserve school of law about justice scalia's legacy. justice scalia, you explained, emphasized the difference between judges and legislators. you reminded us that legislators may appeal to their own moral convictions and the claims about utility to shape the laws they think it should be in the future. but the judges should do none of
these things in a democratic society. i think that accurately describes justice scalia's view. is that also your own view? >> senator, it is. though i got to confess that lecture was attended by 20 people and has more attention since. >> well, we're making sure it gets some more. in your opinions on the appeals court, you take great care to identify what issues the court may or may not address. and one opinion last year, for example, you used phrases such as, quote, it is not our job, unquote, and quote, it simply isn't our business, unquote. what is an appellate court's judge in your view? >> it is a limited vital role in our separated powers. a judge is there to make sure
that every person, poor or rich, mighty or meek, gets equal protection of the law. it is chiselled above the supreme court entrance in vermont marble, though i believe the lincoln memorial is made out of colorado marble. and that is a profound and radical promise that every person is protected by our laws equally. and in the -- all of human history, that may be the most radical promise in all of law. and what it means to me is that when i sit on the bench, and someone comes to argue before me, i treat each one of them equally. they don't come as rich or poor, big guy or little guy, they come as a person. and i put my ego aside when i put on that robe and i open my
mind and i open my heart and i listen. and i tell my clerks that their very first and most important job is to tell me i'm wrong. and to persuade me i'm wrong as i read the briefs and listen to the arguments. and then if they manage to do that, i tell them their next job is to try to persuade me i'm wrong again. because i want to make sure i leave no stone unturned. i want to get to the bottom of it. i have one client, it is the law. and it is a great joy and it is a great privilege and it is a daunting responsibility to come in every day and to try and get it right. and then i go listen to the arguments of the lawyers. i don't treat them as cat's paws. they're not there to be toyed with. i treat them, i hope, always, as respected colleagues who lived with the arguments, studied the cases, know the facts far better than i do, i might actually learn something from them, i go in with the questions i actually
have that i want answered. and then i sit and listen to my colleagues after that and senator hatch, i can't tell you how many times in the tenth circuit i've gone through that whole process, go to conference, i think i know my mind. and then one of my colleagues, harris harts was here yesterday, he's often the one, plenty of others, who say something absolutely brilliant. changes my mind. and that's the judicial process and that's the rule i see for the appellate judge. >> thank you. that's very good explanation. we held a confirmation hearing for justice sonia sotomayor in 2009. senator charles humor was the leader of this committee and praised the nominee in this way. judge sotomayor puts the rule of law above everything else. judge sotomayor has hued carefully to the text of statutes, even when doing so
results in rulings that go against so-called sympathetic litigants unquote. do you agree with senator schumer that your duty as a judge is to follow the law, even when it requires ruling against sympathetic litigants? >> yes, senator. i can't tell you that when i go home and take off the robe i'm not a human being, that i don't think about some of those cases. my job is to apply the law as fairly as i can in each and every case without respect to persons. that's my oath. there is not every law in the book i love. you love. i'm sure of that. but my job isn't it write the laws. it is to apply the laws. and i try to do that and that enough is enough for a day's work, and it is enough for a life's work. >> and in my opening remarks yesterday, i mentioned the
letter we received from dozens of your peers at harvard law school. and, mr. chairman, i ask consent this letter be included in the record at this point. >> without objection it will be included. >> the signers were of all parties and ideologies and represented many different faiths, lifestyles and views. they all support, strongly support your nomination. the letter said that you personified disinterested philosophy that respects judicial modesty, combined with compassionate appreciation of the lives impacted by your decisions. how can you do both? >> senator, i'm just a person. and i remember how hard it is to be a lawyer. i remember what it was like to represent clients who had problems. told my kids when they asked me what my job was when i was
young, to help people with their problems. and as a judge, i have to resolve their problems. one of the hard things about being a judge is that somebody has to win and somebody has to lose. you make half the people unhappy 100% of the time. that's the job description. but you have to believe in something larger than yourself and that you're part of something larger than yourself. and i believe in the rule of law in this country. and i believe in an independent judiciary is one of the keys to it. and i feel it has been a calling to be part of it and an honor. >> the fourth amendment protects the right to be free from, quote, unreasonable searches and seizures, unquote. it was written in the late 18th century when the tools used by law enforcement to investigate crime and monitor suspects were radically different than they
are today. in your view, how should a judge approach interpreting and alying constitutional provisions like the fourth amendment in cases where the technologies and/or methods at issue were not even imagined by the founders. >> may i offer an example, senat senator, i think might be helpful? >> sure. >> i take united states versus jones, recent case from the united states supreme court, involving whether police officers might attach a gps tracking device to a car. modern technology. how do you apply the original constitution written 200 years ago to that? attaching something to somebody
else's property would be considered a search. and the court held that if that's a trespass and a search 200 years ago, it has to be today, though the technology is obviously different, so the technology changes, but the principles don't. and it can't be the case that the united states constitution is any less proive of ttective people's >> well, you authored the opinion in "meshworks v. toyota motor sales" this involved cases involving photography relative to the old technology to determine the intellectual property protections for digital modeling a new medium. somehow should judges approach intellectual property in cases that involve new technologies or applications or old technologies?
should they confine themselves to analogous technologies or may judges create new doctrines or case law that they believe better addresses that -- the changing technological landscape? >> i think it's a very similar sort of question, right? we look back, we find what the law was at the time, the original understanding, if you will and we make analogies to our current circumstance. we judges love analogies, we work with analogies and that's how law making through the judicial process happens. . it's a very different thing if you want to create a revolution and change the law dramatically. that's for this body to do, for judges to interpret the law as best they can from the original understanding to current circumstances and apply it to current circumstances so in meshworks that's exactly what we did and looked at old case law
having to do with copyright and applied it to digital media. same principles from the beginning of the copy wright act applied to a new medium. >> several of your writings have called into question the so-called chevron doctrine. it's been raised already. most americans probably wonder why a supreme court nominee could talk about a gas station but the concept of chevron is straightforward. it commands federal judges to defer to an agency's interpretation of the law. in effect unelected unaccountable bureaucrats to rewrite the law. any middle schooler, however, should be able to see how chevron is inconsistent with the basic duty of judges under the constitution. as you probably know, i'm a chevron skeptic and have led the
fight to overturn this decision legislatively with my separation of powers act. i introduced this bill last congress with the support of several colleagues on this committee and will soon reintroduce it. now i chose its title for a reason. reexamining chevron is not about being anti or pro regulation. rather, it's about restoring the constitutional allocation of powers between the three branches. it's about maintaining fidelity to the laws passed by congress and the exact bounds of authority granted to regulatory agencies and it's about ensuring the bureaucracy provides by its law no matter what the policy goals, liberal or conservative. judge, do you agree there's nothing ideological when the supreme court said in marbury v. madison that it's emphatically the province and duty of the
judicial department to say what the law is? >> senator, "mar rur"marbury v." is the law in this country. i don't know anybody who wants to go back and reconsider that. i hope not. >> i feel the same way. last week, the "new york times" reported that the primary line of attack against you is that you are "no friend of the little guy." we've had that come up time and again in these proceedings in the last couple days. harvard law school professor noah feldman who does call himself a liberal wrote an opinion piece on the subject that appeared last week on bloomberg.com. he open this is way "i don't know who decided that the democratic critique of a u.s. supreme court nominee judge neil gorsuch would be that he doesn't side with the little guy." it's a truly terrible idea.
now, mr. chairman, i asked that this column by professor feldman be placed in the record at this point. >> without objection so ordered. >> now judge, some of your critics question whether you have a solid track record of judicial independence an objectivity. in particular, they question whether you would stand up to the current president if he were to exceed his authority under the constitution and laws congress has enacted. so mr. chairman i ask consent to place on the record an essay at scotusblog.com. >> without objection, so ordered? >> judge, how would you respond to that criticism? >> senator, a good judge doesn't give a whit about politics or the political implications of his or her decision decides where the law takes him or her fearless fearlessly. i walk pass everyday a bus to
byron white in my courthouse. my courthouse is named for byron white. and when i do that i think about his absolute determination just to get it right no matter where it took him. he said "it's a job. you do your very best and you go home." that's how i approach things. and if you look at my record, senator, respectfully, it demonstrates that. according to my law clerks, when i do dissent, which is very rarely i do so in equal numbers between judges who happen to be appointed by democrat presidents and who happen to be appointed by republican presidents and i hate to use those words because they're all just to me judges, i don't think of them that way. but my decisions have always been independent regardless of
who i'm agreeing or disagreeing with. if i ruled against the government, my goodness, ask the u.s. attorney's office in colorado. i give them a pretty hard time. i make them square their corners, senator hatch. all right? and if you want some examples, i'd point you to carloss, krueger, ackerman, three recent fourth amendment cases ruling for the accused, the least amongst us, against the government. >> well, in 2005 before being appointed to the appeals court you wrote an op-ed piece for national review in which you criticized the alliance on the courts by litigants seeking to achieve policy results that they could not achieve through the regular political process. not that long ago, there was a consensus that courts are not the appropriate place to make
policy now you're criticized for that exact same common-sense idea and i want to give you a chance to respond. how does relying on courts to make policy undermine both democracy and the legitimacy of the federal judiciary? >> well, again, it goes to our separation of powers. judges would make very poor legislators. we're not equipped for it. we're not responsive to the people. can't elect us, can't get rid of us, you're stuck with us. and we don't have the opportunities to talk to people, to have hearings like this one in places like this. i'm permitted four law clerks for one year at a time right out of law school. it's kind of an evanescent crowd, replenishes itself every four years. now, i don't think you'd design
a system to let three older people with four young law clerks straight out of law school legislate for a country of 320 million. that's not how anyone would design the railroad. and so those are some of the problems i see, senator. >> well, thank you. >> with all respect to my law clerks. i love them very much, they're like family. but they're not the same as your staffs and the investigative powers you have. >> well, they're lucky to be with you, is all i can say. in that "national review" piece you pointed out some liberal policies lawyers have sought to achieve through litigation. some of your critics have tried to turn this into one of those gotcha moments, claiming that your real qualm was with those policies that were liberal. not that they were achieved through litigation. again, i'm going to give you a
chance to respond. >> well, i would say that in that article i'd say a couple things about it. first as i pointed out and i believe the courts are very important place for the vindication of civil rights. it's a place where unpopular voices get heard the same as popular voices. in a democracy, in the legislature majorities win. that's not the case in courts. the best argument should prevail. so they play an important role. and second i pointed out that one thing that we lack as judges to make good policy decisions as legislators is the ability to compromise. these bodies, legislative bodies, you can put together a compromise. judges, somebody has to win, somebody has to lose, senator. it's not a great place to compromise and, again, we're not great -- we're not well equipped
to do your work. at the same time, i pointed out a column by a liberal columnist -- self-identified liberal columnist, very fine man, and i agreed with him that his side had done some -- perhaps too much time in court instead of in front of the legislature. i can report to you having lived longer as i did report to you in 2006 that the problem lies on both sides of the aisle. that i see lots of people who resort to court perhaps more quickly than perhaps they shoul should. >> some liberal organizations are claiming in private practice you represented only big corporations. your former law partner, david frederick, who happens to be on the board of directors of the liberal american constitution society has a very different
take. in an opinion piece published in the "washington post" he describes your work at the firm this way, "over the course of this career, he has represented both plaintiffs and defendants. he has defended large corporations but also sued them . he has advocated for the chamber of commerce but also filed and prevailed with -- has prevailed with class actions on behalf of consumers. we should applaud such broadness of mind in appointees." now i asked this article "there is no principled reason to vote against gorsuch" be included in the record at this point. >> without objection, so ordered. >> judge, is that an accurate description of your work in
private practice? >> it is and i'm grateful david is here today with me. >> i'm grateful he's here, too. senator, i wanted to represent -- i wanted to go to a place where i could represent plaintiffs as well as defendants, not pick one side of the "v." i thought that would make me a better lawyer and i'd see more of life that way. we represented small plaintiffs. my first trial was representing a man who owned a gravel pit and the prior owner wouldn't leave and he stole the gravel and we had to kick them out. then he bought a bunch of lawsuits trying to kick my guy out. well, we found an old statute that said when you furtively mine another person's property you get statutory damages. it was quite an unexpected fine. it was like 100-year-old law. no furtive mining. the no furtive mining statute and we brought suit and won a
claim for conversion and malicious use of process among other things. in county court. it may have been one of the highlights of my career when one of the jurors came up afterwards and said to me "son, you're a young perry mason." [ laughter ] >> that was my first trial, senator, i represented large defendants, i represented large plaintiffs as well along with a very significant team, my partner partne partners. we won what was at that time -- i don't know if it still is, they've probably done better now the largest plaintiff's side antitrust verdict that had been affirmed in american history. we represented class actions of consumers, some dry holes, some successful.
all sorts of clients, individuals, companies, nonprofits represented pension funds, public employee pension funds, a variety of clients, it was a great and wonderful practice and i loved every minute of it. >> you're a person of great experience for your young age, i have to say. liberal groups also claim that you favor employers over employees. in fact, they suggest that you actually -- you are actually biased in that direction. an analysis published in the stanford law review came to a very different conclusion. here's the conclusion. "after surveying his labor and employment decisions, it's clear judge gorsuch does not favor or oppose employees, employers, unions, or the nlrb. his opinions do not show pro-labor or anti-labor
tendencies." the author says that parties who come before you "can rely on a record of fair analysis and resistance to simply rubber stamping business interests or executive agency actions." mr. chairman, i ask that that this be entered into the record at this point. >> without objection, so ordered. >> judge, is that your goal, to focus only on the facts and the law in every case. >> i'm heartened by that article. it's a -- i hadn't read that. >> it's a good article. >> when i became a judge they gave me an example not a rubber stamp. nobody comes to my court expecting a rubber stamp. >> that's good. the supreme court decided two cases comes to your court involving the religious freedom restoration act, a bill i was
instrumental in. i was one of its authors. i talk senator kennedy into coming on board and when clinton signed it on the south lawn kennedy was the biggest duck in the puddle. he was very proud of that particular bill it makes it difficult for the government to burden the exercise of religion and applies this protective standard to everyone and every exercise of religion. now these cases addressed whether the affordable care act's birth control mandate violated rfra. you decided that the birth control mandate failed to meet rfra standard. opponents of your nomination do not like this result and accuse you of being antiwoman. that, of course, isn't true at all and any critic would have to
admit it's not true. your critics demand as a judge you must follow their political priorities that availability of birth control is more important than religious freedoms. now, i have two questions about your decision. isn't that really a policy dispute that should be addressed by congress and was your job in these cases to impose your or anyone else's priorities or to interpret and apply those statutes the way congress enacted them? >> our job there was to apply the statute as best we could understand its purpose as expressed in its text. and i think every judge who faced that case, everyone, found it a hard case and did their level best and that's all any judge can promise or guarantee. i respect all of my colleagues
who addressed that case. >> well, we respect you for doing so. you wrote a concurring opinion in the hobby lobby case. you wrote about the religious freedom restoration act this way. "it does, perhaps, its most important work in protecting unpopular religious beliefs, vindicating the nation's long-standing aspiration to serve as a refuge of religious tolerance." in other words, congress enacted rfra to apply broadly and robustly to ensure that, among other things, the little guy would be protected as much as the big one. is it fair to say the court's decision in hobby lobby and your concurring opinion upheld this person and effectively promoted religious tolerance? >> i might give you a couple examples offive a rfra's applic
that applies not just to hobby lobby but also to little sisters of the poor and protects their religious exercise. and it also applies where i appointed counsel and our court held it applied to a muslim prisoner in oklahoma who was denied a halal meal. it's the same law that protects the rights of a native american prisoner who was denied access to his prison sweat lodge that appeared solely in retribution for a crime he committed, and it was a heinous crime, but it protects him, too. and i wrote those decisions as well, senator, yes. i owe the native american prisoner case and i wrote a concurrence in the muslim prisoner case. >> thank you for doing so. i want to give you a chance to respond to a few things said during statements on monday. one of my democratic colleagues said it is important to know whether you are a surrogate for
president trump or for particular interest groups. are you? >> no. >> of course not. another senator mentioned just a few of the thousands of cases in which you participated and said "i'm troubled by the results in those cases." he never took issue with how you applied the law, he said only that the results troubled him and as i described monday in my opening statement i contrasted judges who focused on the process or arriving at a result with judges who focus on what they want the result to be. which approach do you associate with? >> i associate myself with the approach i think all good judges attempt, to follow the law wherever it leads. >> my time is up, mr. chairman, i'm sorry. >> senator leahy? >> thank you. good to have you back. you know from our earlier discussions, and i had told you
very frankly that, of course, i felt that if the republicans had followed the constitution and practice judge merrick garland would be on the supreme court today. i also respected you for calling chief judge garland when your nomination was announced. i understand you respect him as a jurist. is that correct? >> very much so, senator. wherever i see his name attached to an opinion, it's one i read with special care. he's an outstanding judge. >> do you think he was treated fairly by this committee, yes or no? >> senator, as i explained to you before, i can't get involved in politics and there's judicial canons that prevent me from doing that and i think it would be very imprudent of judges to start commenting on political disputes between themselves or
the various branches. >> the reason i asked that question, since this committee began holding hearings, public hearings to supreme court nominations that began in 1960 -- i wasn't here at that time -- but it has never denied a hearing or a vote to a pending nominee ever until chief judge garland. i can express an opinion. i think it was shameful, i think it's severely damaged the reputation of this committee. i think it has severely damaged the reputation of senators who concurred with that. we were anything but the conscience of the nation in that regard and those who proudly held the hand and swore they would uphold the constitution of the united states did not.
now, it caused more of a problem because it appears the president outsourced your selection to fire write big money special interest groups. and you may not like that terminology but even republican senators have acknowledged that there was a group that he was had a list of people he would select from, the list not prepared by him but by these special interest groups and they want -- they have an agenda. they are confident you share their agenda. in fact, the first person who interviewed you for this nomination said they saw -- sought a nominee who understands things like we do. and mr. chairman i would ask
that an article in the "wall street journal" entitled trump's supreme court whisper er be included in the record. >> without objection, so ordered? >> and another one in which the "new york times" in "the gorsuch, conservative activist, sees test case reshaping the judiciary" those be included in the record. >> without objection, so order ed. >> now, the two fire write interest groups that recommended you to the president, i want you to have a chance to talk about that, the federalist society and the heritage foundation applauded the citizens united decision which allowed unrestricted corporate money to pour into election s elections suggested constitutional law should be grounded solely in the original meaning of the text.
you said judges should "strive to apply the law as it is, focusing backward not forward." if we do that, let's go to the first amendment. do you believe james madison and the other drafters of the first amendment understood the term "speech" to include corporate money being funneled into campaigns? >> senator i can tell you that the supreme court of the united states has a lot of precedent in this area, as you're well aware. quite a lot of it permitted congress to compel disclosure, to limit contributions and a lot of other case law in this area.
there's a lot of precedent in this area? >> well, is there precedent from the drafters that speech included corporate money being put into corporations? being put into campaigns? >> senator, that was exactly what was at issue in part in "austin" and then again in "citizens united" and the supreme court issued a variety of opinions on that subject, on that very subject looking back to the original understanding of the first amendment to see whether it embraced the speech at issue in those cases and different justices came to different conclusions on that score. >> but nothing in the federalist papers that talked about corporate money going into campaigns, is that correct? >> well, senator, i -- >> that's an easy yes or no. >> i think there's an awful lot in the federalist papers and elsewhere that were relevant to and considered by both concurrences and dissents in
citizens united. >> but nothing about corporate mone money. >> i don't remember that term, no, senator. >> trust me, there wasn't. >> i trust you. >> okay. >> entirely. >> well, you don't have to. >> not that much? [ laughter ] >> i'll let it go. [ laughter ] the -- in "citizens united" justice kennedy indicated the restrictions on campaign donations can only be justified by concerns about quid pro quo corruption. now president trump has said that the reason he made campaign donation was so that when he needs something from them they're there for me.
his campaign contributions by favors. shouldn't congress not the courts make the determination about the potential for corruption? especially if we're talking about quid pro quos? >> senator, i think there is lots of room for legislation in this area that the court has left. the court indicated that if proof of corruption can be demonstrated that a different result may obtain on expenditure limit limits. >> you don't believe putting unlimited amount of money by somebody who has a particular interest in the outcome of actions by the congress, putting an unlimited amount of money into specific campaigns that's not enough to show the intent to buy favors or enough to show corruption. >> i'm not sure i track the question, senator, i'm sorry.
>> if you have corporate money that is basically unlimited under citizens united being funneled through various special interest groups, does that at least raise concerns about quid pro quo corruption? >> i think citizens united made clear the quid pro quo corruption remains a vital concern and is subject for potential legislation and i think there is ample room for this body to legislate even in light of citizens united. whether it has to do with contribution limits, whether it has to do with expenditure limits or whether it has to do with disclosure. >> if somebody were to out and out buy a vote or buy a favor, we'd all agree that's corruption, is it not? >> i think justice kennedy would agree with you, yes. >> would you agree with me? >> i follow the law and that's
my understanding that it would certainly follow within my understanding of the law. >> when i was a prosecutor we'd call that corruption. >> all right. i'll trust you there, too, senator. >> and i did. now -- but influence is different ways. for example when you became a judge you were here in washington. you were working in washington. i understand there were three extremely well-qualified coloradoen women attorneys who are on the short list being considered by the bush white house. the "denver post" then did a profile of these women and at that point -- and your name was not on that list. at that point a billionaire conservative donor intervened. he lobbied the white house to
appoint you. your his lawyer, he liked you, he made donations to the same interest groups that were on the list that recommended you to president trump. are these areas of concern? >> senator, with respect to my nomination, as i recall -- >> i'm talking about the circuit. >> yeah, yeah. as i recall, all of my clients came out of the woodwork to say nice supportive things about me and phil was one and i think there's probably letters in there from the fellow with the travel pit, too. >> which one do you think mr. white house listened the most? mr. henshot or a gravel pit owner? let's be realistic.
>> senator, i think what they probably listened to was the fact that they'd seen me in action at the department of justice. that's my guess, if you're asking me to guess. but that's a guess because i didn't make the decision. >> i raise this because some of the same people helped to fund the group that you are on the list for president trump. now president trump as you know has attacked judges who dare to impose the constitution he's gone after them. he's said things that i don't think any one of us would do. so you have to prove that you can be an independent judge. you've heard that from both sides here let me ask you a question in this record. you are a person who believes in religious freedom. you said that before.
in des, 2015, the senate judiciary committee. do adopted that the united states "must not bar individuals from entering the united states based on their religion." almost every senator with the exception of then-senator sessions, a couple others, voted for it. does the first amendment allow for a religious litmus test into the united states? >> senator, that's an issue that's currently being litigated actively as you know -- >> well, i'm not asking about the litigation in the ninth circuit or anything else. i'm asking about the fact th that -- is a blanket religious test, is that consistent with the first amendment? >> senator, we have a free exercise clause that protects the free exercise of religious
liberties by all persons in this country. if you're asking me how i apply it to a specific case, i can't talk about that for understandable reasons. >> well, could the president -- >> the understandable reasons, just so -- you know, we're -- i'm frank and candid with you as i can be, senator, when you ask me to apply it to a set of facts that look like a pending case in many circuits now -- >> well, try hypothetical. would the president have the authority to ban all jews from the united states or all people that come from israel. that would be an easy question? >> we have a constitution. and it does guarantee fear from exercise. it also guarantees equal protection of the laws and a whole lot else besides and the supreme court has held that due process rights extend even to undocumented persons in this
count country. i will apply the law faithfully and fearlessly and without regard to persons. >> how about with regard to religion? >> anyone, any law is going to get a fair and square deal with me. my job as a judge is to treat litigants who appear in front of me as i wished to be treated as a lawyer with my client large or small. i didn't want them discriminated against because they were a large company or small individual with an unpopular belief and that's the kind of judge i've tried to be senator. and i think that's my record. >> judge, let me ask you this. do you agree with me that there should not be a religious test in the united states? >> i need to know more specific -- >> well, let me give you an example. should there be a religious test to serve in the military? >> oh, senator, that would be inappropriate, yes. that's against the law.
>> or in -- well, of course, we go right back to the question do we ban people based solely on their religion. solely on their religion. not whether they form a religious threat or something but do you ban somebody solely on their religion? >> senator, we have not just the first amendment free exercise clause in this country, very important protection. we have not just the equal protection guarantee of the 14th amendment which prohibits discrimination on the basis of race, gender, ethnicity, we also have the religious freedom restoration act senator hatch mentioned which was a bipartisan bill passed by this body with the support of senator kennedy and senator schumer when he was in the house. and that imposes an even higher standard on the government than the first amendment when it comes to religious discrimination. it says that there if there's any sincerely held religious
beli belief, earnestly held religious belief the government must meet strict scrutiny before it may regulate on that basis. strict scrutiny being the highest standard known in american law. >> the reason i ask these questions, there is a legitimate concern. i hear stories from my grandparents when signs used to say "no irish need apply" or "no catholic need apply." i'm sure senator feinstein could speak about those of her religion. now president trump promised a muslim ban he still has on his web site to this day that he's called for a total and complete shut down of muslims entering the united states and a republican congressman said the best thing the president can do
for his muslim ban is to make sure he has gorsuch on the supreme court before the appeals get to that point. >> senator, a lot of people say a lot of silly things. my grandfather -- >> that's more than silly, that's a -- he wants -- this congressman wants you on the court so he can uphold the muslim ban. >> senator, he has no idea how i'd rule in that case and, senator 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 of tenth circuit. 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 would rule in a case that's currently pending and likely to make its way to the supreme court.
>> well, is the president's national security determinations, are those reviewable by the court? >> senator, no man is above the law. >> okay. because they've asserted that their national security determinations are unreviewable by the court. i've heard presidents -- other presidents say that in the past. i disagree when they say that. do you disagree? >> senator, as a judge i apply the law and the law here i think is "youngstown." i look to justice jackson and justice jackson wrote a brilliant opinion in "youngstown." now it's important to know who he was -- >> i wrote a paper on that in law school. >> i know you did. we talked about it. and here was the fiercest advocate of executive power as
fdr's attorney general. fierce advocate of executive power and when he became axecuv power and when he became a judge he said "the robe changes a man where it should." and you go from being an advocate to being a neutral adjudicator. and the youngtown system of analysis when it comes to presidential power and foreign affairs has three categories. one, the president acting with the concurrence of congress. that's when the president is acting at his greatest strength because they're shared responsibilities in our constitution. he has commander-in-chief power, this body has power of the purse and the power to declare war assigned to it in article one. when the congress and the president are in disagreement, that's the other end of the spectr spectrum. the president is acting at the lowest ebb of his authority. and when congress is silent,
that's the gray area in between. that's how a court as opposed to a lawyer or advocate approaches the problem. >> well, let's go to that then. president trump has declared torture works and he's said, and i quote him "bring a hell of a lot worse than waterboarding." in 2002 a memo from the office of legal counsel claimed that any effort by congress to regulate the interrogation battlefield combatants would violate the constitution's sole vesting of the vesting of the commander and chief in the president. now considering the fact that congress has passed a law on this, what controls? >> well, we have a convention
against torture and implementing legislation which ban torture. we have the detainee treatment act which we talked about earlier which bans cruel and inhumane and degrading treatment. we also have an eighth amendment. >> let me ask you this. does the president have the right to authorize torture if it violates the laws passed by congress or the other ones you cited? >> senator, no man is above the law. >> well, let me ask you another question. president bush's warrantless surveillance program when you were working there resulted in the illegal collection of thousands of americans' communications. now i always felt that was a direct violation of our surveillance laws justice department attorney john yu justified the program. he said "the statutes passed by congress cannot infringe the
president's inherent power under the constitution to conduct national security searches. so do you believe that president bush's warrantless surveillance program is justified because the president had "inherent power to override our surveillance laws to conduct national security searches"? >> senator, as a judge, before i even tried to decide a question like that i'd want briefs and argument and i'd want to go through the whole judicial process. i wouldn't attempt to offer an off-the-cuff opinion like that. >> let me ask a different way. if congress passed a specific law on surveillance and if a president said "i'm going to violate that law because i'm president" does he have that power? >> no man is above the law,
senato senator. >> senator lee who was here a minute ago, senator lee and i led the efforts to pass the usa freedom act to end the nsa bulk collection of americans' phone records. had a clear decree from congress that dragnet collection of american phone records is not permitted. that's still your answer that the president does not have the power to supersede that law? >> senator, i can't issued a visesory opinions at this table in cases or controversies and how they would come out. i just can't do it, wouldn't be responsible but every law that this body passes i take seriously, i respect this body and nobody is above the law in this country, and that includes the president of the united state
states. >> well, when you were there -- and i don't know whether these are among the things that senator feinstein gave you but when jay biby wrote "any attempt by congress would violate the constitution's sole vesting of the commander in chief in the president." and you appear to have advocated for a similar view when you attempted to give president bush the flexibility not to be bound by senator mccain's legislation. >> senator my recollection is that mr. biby was long gone from the department before i ever showed up and that by the time i got there the department and the
president were willing to work with congress to try and establish a regime that would govern operations at guantanamo. that's my recollection and my role was a lawyer and predominantly overseeing litigation filed by others against the government. i had a role as a lawyer, a significant one but i was not a policymaker, senator. >> were you involved in "hampden v. rumsfeld"? >> senator, hampden i recall was a decision that passed in the first instance on the detainee treatment act so to the extent i was involved in providing advice as a lawyer about the detainee treatment act i'm sure yes.
>> you've read the shelby county decision. if you were on the court, which side would you have voted with? >> senator, i admire the various ways -- [ laughter ] -- you really -- you'd be a formidable companion in the courtroo courtroom. >> senator feinstein said "don't let it go to your head, pat." >> he should. >> i'm not, i'm not. i'm just -- i'm a lawyer from a small town. >> yeah, right, i've heard that
story. whenever a lawyer says "i'm just a lawyer from a small town," watch out. last time -- you've got to watch your wallet because it's gone quickly, in my experience and i might have played that line once or twoois myself. >> i ask these questions because there were both justice alito when he was before us and justice roberts in judge alito and judge roberts answered some precedent questions and -- are you saying there are no precedent questions you could answer? >> well, no, senator, i'm happy to say shelby is a precedent of the united states supreme court. it's a recent one, it's controversial one, i understand that. what its peres den shl reach will prove to be remains to be seen because, for example, as i read it, the decision left room for congress to legislate in
this area if it wishes to make new findings and to express a new possible regime for section 4 and section 5 coverage. and that possibility is live and could yield further litigation, undoubtedly would. >> you've been critical of class action s and justice scalia in the ledbetter case and the walmart dukes case made for difficult, i believe, for americans to have their day in court. would you have joined justice scalia's decision in walmart? i just -- whatever answer you want. >> senator i would tell you that my record on class actions i think will reflect, if you look -- and i know you have -- that i represented class actions. i represents people fighting class actions. i've ruled against class actions and i've ruled for class actions.
and in each case it depends upon the facts and the law presented to me. the most recent class action case, significant one that i can think of, involved residents who live near rocky flats, a uranium processing plant that made nuclear weapons outside of denver and those folks filed a class action for damage to their property and it took 25 years for that case, bouncing up and down and back and forth across the legal system before i finally issued a decision saying stop, enough, they win. they had a trial, a jury found for them and they win, finish the lawsuit and i believe it has been finished and i believe they have been paid though, of course, it's been so long many of them, it's their children who are getting the money. >> before senator graham, i thought i'd give some
directions. we have this vote at noon. it's just one roll call vote and senator graham should finish about 11 -- 12:11 or 12:12 depending on when your last word is answering his question, so somewhere around 12:45 i'll gavel the committee back into session and you need to be reminded that you shouldn't be offended as members, go to vote and you'll have your 30 minutes and i hope that's enough because i want to keep this moving, you can be back here around 12:45 or thereabouts? i'll wait until you get the orders. [ laughter ] does that detract from anything? >> we're okay. >> senator graham? and senator graham if i go ahead of time you will adjourn the committee, recess the committee until that time?
>> yes, sir. well, judge i want to read a statement that i associate myself with. "i certainly don't want you to have to lay out a test here in the abstract which might determine what your vote or your test would be in a case you have yet to see that may welcome before the supreme court." does that sound like a reasonable standard? >> yes, senator. >> that's what senator leahy said on july 21, 1993. i think it was good then, i think it's good now. you're not a political person, i am. so i'm going to take a bit of a moment to talk about the fairness of what's going on in terms of you and judge garland. judge garland was a fine man. i'm sure i would have voted for him. at the time his nomination came about we were in the middle of selecting a new president. we were in the last year of president obama's term.
to my democratic colleagues i want to remind you of some things that people on your side have said. june 25, 1992, it was in an election year. there was a suggestion that maybe one of the judges on the supreme court would step down before the election in november. this is what the chairman of this committee, joe biden, said about that possibility then. "it would be our pragmatic conclusion that once the political season is under way -- and it is -- action on a supreme court nomination must be put off until after the election campaign is over. if someone steps down, i would highly recommend the president not name someone, not send a name up. if bush did not send someone up, i would -- if bush did send
someone up i would ask the senate to seriously consider not having a hearing on that nominee." that was joe biden, the possibility of a vacancy coming about by somebody stepping down not dying once the campaign season was afoot. justice alito passed away in february. there had already been three primaries. the campaign season, in my view, was afoot. this is what senator reed said on may 19, 2005. "the duties of the united states are set forth in the constitution of the united states. nowhere in that document does it say the senate has a duty to give presidential nominee a vote." this is senator schumer in the last, july 27, 2007. "we should reverse is presumption of confirmation. we should not confirm any bush nominee to the supreme court
except in extraordinary circumstances." that was the last year of president bush's last term. to my democratic colleagues, on november 21, 2013 you decided when you were in charge of this body by a 52-48 vote to change the rules of the united states senate for the nomination of executive branch appointments and all judges below that of the supreme court. i'm not going to ask you whether you think that was fair or not, because that's not your job, i will say to the public i thought it was incredibly unfair. i thought it was a power grab by our democratic colleagues that will change the nature of the judiciary for the rest of our lives because what you have done is you made it that you can confirm a judge within one party if you have over 5050 votes not having the requirement to reach across the aisle to pick up a vote or two, which is a
moderating influence. that is last forever for all judges below the supreme court. i was in the gang of 14 that was formed to deal with the wholesale filibuster of all bush nominations. new to the body, i felt it would be bad to change almost 200 years plus resident of how we deal with nominations coming from a president. but there was a wholesale filibuster of everything bush and there were 14 of us, i think i'm one of two or three left, that believed it was wrong to filibuster supreme court judges and judges in general because you don't like the outcome of the election and we came up with a standard that you should only filibuster in extraordinary circumstances which i think is consistent with what hamilton had in mind in terms of the role of the senate. that you expect a republican nominee or a republican president to pick someone different than a democrat president because that's what the campaigns are all about,
qualified judges. and i believe that sotomayor and kagan were well within the reasonable mainstream of judges who would be to the left of center in the judicial philosophy world, that's why i voted for them. but now things are different. i believe that that vote november 21, 2013, forever changed the way the senate works when it comes to executive appointments, judicial nominations and will do long-term damage to the judiciary as a whole. because the most ideological will be rewarded. we don't have that requirement yet for the supreme court and i hope we never will. time will tell. i'm not optimistic. at the time of that vote the senate had confirmed 19 of president obama's judicial
nominations. that same time in president bush's second term there had been four confirmed. i thought it was a manufactured crisis, i thought it was politically motivated and when it comes to cries of being unfair they fall on deaf ears. as to justice garland, fine man. i fully expected trump to lose. he won. i think he deserves the right of every president to pick qualified people. and that's just not me saying that. this is what the federalist papers number 76 said about the requirement of advise and . 1788. the senate could not be attempted by the preference they might feel to another to reject the one they propose because
they could not au sure themselves because the person brought forth by second or subsequent nomination could not even by certain that a future candidate in any degree more acceptable to them. to what purpose then require the cooperation of the senate? it would be an excellent check upon a spirit of favoritism in the president. it would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity. that was the check and balance rules of the game established in 1788. when you look at the history of the senate's role in confirming justices to the supreme court it has changed dramatically, many
of the judges of the supreme court were confirmed without a hearing. some without even a recorded vote. i'm not here to say that my party is without fault in the area of judges, i'm here to say that in november 2013, the game changed in a way that i think mr. hamilton i think would be very disappointed in. it's not that i don't understand. i very much do. when my time came for tosotomay and kagan, came, i knew what would apply if i applied the standard. partisan people on both sides of the aisle. the voracity of people that wanted me to vote no was real,
pare apparent and i could feel it. i believed if strom thurmen could vote for vinceberg and -- for scalia, there was a point in time you would vote for somebody you would not have chosen, you would use the qualifications of that person, so we find ourselves here today confronting a nomination of one of the most qualified people i think president trump could have chosen from the conservative world. you are not an unfit person. i don't think there's any reason to suggest that you're his favorite. had you ever met president trump personally? >> not until my interview. >> in that interview, did he ever ask you to overrule roe v.
wade? >> no, senator. >> what would he have done? >> senator, i would have walked out the door. it's not what judges do. they don't do it at that end of pennsylvania avenue and shouldn't do it at this end either respectfully. >> this is what the democratic leader in the house said about you. neil gorsuch is a very hostile appointment. and a very bad decision. well outside the mainstream of american legal thought. if you breathe air, drink water, eat food, take medicine or in any other way interact with the courts this is a very bad decision. i want to ask you to respond to what i think is complete absolute political garbage.
and statements like that were also directed against justice sotomayer and kagan, i remember sotomayer being call racist because she gave a speech -- and kagan to kick -- off the campus, and the reason i didn't buy one was a racist and the other un-patri un-patriotic is because i listened to people who had listened to them their whole lives, if you take the time to listen to people who have interacted with judge gorsuch throughout his career you will find pretty quickly he is a fine decent man who has tried to be a good father, a good husband, a good lawyer and a good judge and
if you don't want to take the time. it says more about you than him. all i can say is that it is impossible to conclude that what na nancy pelosi said about you is nothing but political talk because there's nothing to back that, the apa gave you the highest qualified rating they could give anybody. i just want you to know that i believe you have led a life you should be proud of, that you have tried your best to be a good husband, a good father, a good lawyer and a good judge. now let's talk about our interaction a long time ago. >> thank you senator for those very kind words. >> well it was something you have earned, not something you need to thank me for. the bottom line is are we at war in your view as a nation?
>> senator, all i know is that there are a lot of young men and women out there in harm's way so that we may sit here and have this conversation. >> it would be news to them we're not at war. >> i'm sure that's right. >> it would be news to the families who lost a loved one in this fight, so i think we're at war. would you agree with me it's not a traditional war? >> certainly not, senator. >> there's no capital to conquer, no taking of berlin and japan. do you agree with me it would be hard to determine when the war is actually over? >> senator, that was a question that the court struggled with in the handy case, as you know. >> and we had a lot of conversations about how to proceed forward when you were in the bush administration, is that correct? >> we did. >> and you were in the camp of the youngstown steel camp that
if congress is involved, the president is stronger, not weaker is that right? >> that's right, senator. >> but there are some authorities that the commander in chief have that cannot be taken away. >> there are certainly people who believe that, senator. >> i am one of them, because you can't have 535 commander in chiefs, senator mccain and myself were trying to pass legislation that basically cot fied the practices of the bush administration post-waterboarding, is that a fair summary of the conflict? >> yes, senator, i believe it is. >> there were people in the bush administration that did not want to go down the road that waterboarding was torture. that was not the view of senator mccain or myself. at the end of the day the detain detainee treatment act codified
how we treat enemy combatants in a time of war in practices we can employ in terms of interrogation standards, is that correct? >> yes. >> and it also tried to come up with a system of judicial review. i was in the camp that we're at war and in past wars you don't give enemy prisoners warriors, i don't remember any japanese having a lawyer, so traditionally is it the commander in chief's job to determine who the enemy force is. >> there's certainly -- to suggest that. >> and -- pass muster. >> that's correct and of course this body plays a role too. >> so the dilemma i believed it was the commander in chief's --
congress could regulate the naval and land forces and we had a say about how they could do and the courts have a say whether or not the procedures used by the president pass constitutional muster is that the general layout of this situation. >> that's the separation of powers at work. >> and there was a crosscurrent here. there was an e-mail that you weren't part of you were not included on the e-mail but it says neil and i have just been told separately this is not what the white house wants. we have been given authorization to engage on the graham amendment they want us to engage if possible but if not to fix, d.o.d. not d.o.j. has lead which may be what led to loj's
confusion. i was trying to -- the tribunal concept the arb administrative review board concept and allow the courts to judge the work product to have judicial review but let the crt's go first do you remember that? >> i do. >> it was where the tribunal would have the determination, the supreme court inadean said it was not -- for habeas corpus. >> that's correct. >> it was your view that congress being involved would
strengthen the president's hand. >> as a lawyer? >> yes. >> i was not a policymaker but i did advise. >> as a lawyer. >> as did many others. there were many other fine lawyers too, senator, who advised the administration that engaging congress would be a good idea because we had read our youngstown and our justice jackson. >> any lawyer i think who understands this area of the law would suggest the president is stronger when he has congree ha congressional support. about what this signing statement should say or look like? >> that's my recollection and about all i can recall. >> i remember it very well because vice president cheney's signing statement was going to be we have an inherent authority do whatever we think we need to do. and there are a lot of other people saying no, you don't have the authority just to set aside
a law, you have to have a reason to object to it. so i just want the public to understand that when it comes to this man, i've seen him in action in very complicated emotional matters where he had one group of people who could give a damn and the terrorist and other people who wanted criminalize what i thought was a real world fight and we tried to find that middle ground and in a 5-4 decision the supreme court struck down my proposal and we fixed it late were a huge bipartisan vote so that every enemy combatant today has a habeas proceeding where the government has to prove by a preponderance of the evidence that you're in fact an enemy combat and the and can be held under the -- of war as long as you're a threat to our nation, is that your understanding?
>> that's my understanding, senator, long the way your legislation did prevail, of course it was a close call, 5-4. >> yeah, and just proves why five people can be wrong. >> you're not going to get me the commit on that one. >> not even going to try. >> the bottom line here is there will be more legislation coming regarding the role of the government in gathering information. but from sort of a civic's point of view which senator sass is going to take you through there's a difference between criminal and the common criminal the goal of the law is prosecute a individual or group that's committed against another individual or groups, the law of
war is about winning the war. >> senator, there are as you know rules about that, too. >> right. >> laws about that the. >> and we're fighting enemy who has no rules that would do anything and i've always been in the camp that i don't want to be like them i think that's their weakness and the strongest thing we could do is stand up for a process that stood the test of time which is intelligence gathering in a humane way because they would cut our heads off doesn't make us weak because we won't cut their heads off. it actually makes us stronger over the arc of time so that's my commercial about that. so there will be more litigation and there are no bad guys or girls when it comes to challenging president, do you agree with that? people have to right to do that. >> to challenge precedent? >> yes. >> every person is allowed to come to court to bring whatever claim they have. >> that's how brown versus board of education came about. >> yes, sir. >> let's talk about roe v. wade,
what is the holding in 30 seconds? >> well, the holding roe v. wade in 30 seconds senator is that a woman has a right to an abortion. it developed a trimester scheme in roe that specified when the state interest and women's interests tend to prevail. >> let me just break it down. the court said there's a right to privacy that the government can't interfere with that right in the first trimester. beyond the first trimester the government has more interest as the baby develops, is that fair to say. >> that was the scheme set. >> and i think medical viability was the test that the court used. >> that's the test that the court came around and applied in casey in 1992, so viability became more of the touch stoen rather than a rigid.
>> is it fair to say that medical viability 1992 might be different than what it is in 2022. >> sir, i'm not a scientist. >> i would suggest that it may change as science progresses so you may have people coming in and saying in light of scientific medical changes let's look at when medical viability occurs. that's one example of litigation that may come before you. i have legislation that says that 20 weeks the unborn child is able to feel excruciating pain and the theory of the legislation is that the state has a compelling interest to protect and unborn child from excruciating pain cause bid an abortion. i'm not asking you to agree with my legislation, i am saying that i am developing one of seven nations that allow wholesale on demand unlimited abortion at 20
weeks the fifth month of pregnancy. i would like to get out of that club but we're going to have a debate in this body in this house about whether or not we want to change the law to give an unborn child protection against excruciating pain at 20 weeks because you can -- the standard medically is if you operate at unborn child 20 weeks the protocols are such that you have to apply anesthesia so you don't hurt the child while trying to save the child, you can airpooperate at 20 weeks an theory is let's look at it the other way, is that what we want to be as nation? does that run afoul of roe v. wade, i want to make the argument that that stage to have pregnancy to protect the child against death that is going to be excruciatingly painful, you don't have to say a word i'm
just letting everybody know that if is this legislation passes it will be challenged before you and you will have to look at a new theory of how the state can protect the unborn. and here is what i think. you will read the briefs look at the facts and make a decision, am i fair to conclude that? >> senator, i can promise you no more than that and i guarantee you no less than that in every single case that comes before me. >> well, this is a real world situation that may develop overtime because 70% of american people side with me on the idea that 20 weeks we should not be in the club of seven nations that allow abortions on demand because that's in the fifth month and doesn't make us a better nation. there will be people on the other side saying no, that's an erosion of roe and will go to the court if it passes here,
everybody who wants to challenge whatever in court deserves a person like you. a person like you no matter what pressures are applied to will say over and over again i want to hear what both sides have to say, i want to read their legal arguments, look at the facts and i will decide. that to me is he assuring and that's exactly the same answer i got from sotomayer and kagan, no more, no less. and we can talk forever about what you may or may not do, if you do anything different than that, i think you would be unworthy of the job. now, about what's going on in the country with president trump. whether you like him or you don't, he is the president, but you have said several times that he is not above the law as
president. is that correct? >> yes, senator. >> you told senator leahy if there fs a law passed that a muslim could not serve in the military you believe based on current law that would be an illegal act. >> yes, senator i see that having all sorts of constitutional problems under current law. >> so if we have laws on the book that prevent waterboarding, do you agree with me that the detainee treatment act prevents waterboarding? >> yes, senator, that's my recollection of it. >> in case president trump is watching, which he may very well be, one you did a good job picking judge gorsuch. number two, here is the bad part, if you start waterboarding people you may get impeached. is that a fair summary? >> senator, the impeachment power belongs to this body. >> okay that's even better.
>> would it be subject to prosecution? >> sir, i'm not going to speculate. >> but no man is above the law. >> no man is above the law. no man. >> thank you. i think you're a man of the law. and i really want to congratulate the president to pick you. quite frankly i was worried about who he would pick. maybe somebody on tv. but president trump could not have done better in choosing you and i hope people on the other side will understand that you may not like him, i certainly didn't agree with president obama but i understood why he picked sotomayer and kagan and i hope you can understand why president trump picked neil gorsuch and hope you will be happy with that because i am. >> thank you, senator. >> we will recess until 12:45.