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  Supreme Court Nominee Stresses Independence Calls Criticism of Judges...  CSPAN  March 22, 2017 2:10am-4:12am EDT

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begging federal courts not to defer to interpretive findings of agencies, end of quote. enter that into the record without objection. we will recess for 10 minutes so that means we will reconvene at 3:301.
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senator cruz, it's your turn now. >> thank you, mr. chairman. judge gorsuch, congratulations on making it g it through with flying colors. i think this hearing has been helpful for illustrating the proper temperament and approach we should expect after of a federal judge and i think you are acquitting yourself in an excellent matter.of a federal judge and i think you are acquitting yourself in an excellent matter. there have been a lot of weighty matters so let me start with something lighter. on a topic of which i think you have familiarity. what is the answer to the ultimate question of life, the universe and everything? >> 42. >> thank you, judge. for those of you watching that
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might be confuse bed this d abo exchange could you explain what it is we are referencing? >> senator, sometimes we have young people come to the court to be sworn in. often my law clerks, a couple right there, haven't enjoyed this privilege yet. they come to court and they are very nervous. and the clerk tells us about their career and their record and submits t them to the court. i move their admission to the bar. are there any question from the bench. and it is sort of like this. a bit intimidating. this has been a reminder to me of what it is like to be down here rather than up there. last time i had this interaction with senator lee is when he was down there and i was up there. at my rate, i sometimes ask them that question to put them at ease. and they all know the answer and they all know the answer because they have all head "the hitch hiker's club to the galaxy."
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if you haven't read it, you should. that may be one of my daughter's favorite books. it is a joik. >> it is a book i enjoyed very much as well. it is, i think, a delightful example of the humanity after jud of a judge that your record has demonstrated.of a judge that your record has demonstrated. you began your career with the opportunity to serve as claw clerk to byron white. byron chiet whiwhite was an exty man. byron white was the only justice that john f. kennedy put on the supreme court. he is, i'm quite certain, the only supreme court justice in history to lead the nfl in rush why and to graduate first in his class from yale law school. can you share with this committee what it was like to be
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a law clerk for byron white and interact with him everyday touring your clerkship. >> he really was my childhood hero. and actually get picked out of the pile to spend a year with him as senator lee's dad did, that's something we share in comment too. it was and remains the privilege of a life titime. it is why i'm here. i wouldn't have become a judge but for watching his example. and the humility with which he approached the job. and i don't mean a phony humility. i mean real humility. everyday. he always said two heads are better than one. he would plop himself in a claire across from my desk.
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he always started with a grunt. like hello. ghrrr. what does the great justice gorsuch think about this one? and you were expected to have a view about pretty much anything and everything that he asked. he would just sit there and chuckle at you. and he would laugh at you. and wondering what he thought. he never revealed his hand. and he would just walk out of the office and say oh, that's with what justice gorsuch thinks. okay.hat justice gorsuch thinks. okay. then would he go back in and think about it himself. then come back in again. the whole thing would repeat. he would want to bounce ideas off of this know-nothing 20-year-old, 20-something-year-old kid. that to me taught me everything
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about what it means to be a judge. and the fact when asked his judicial philosophy in this sort of settling, he said it is to decide cases. i know people think that's just mundane or maybe cover, dismonesty in some way. it is just not true. it was the humility of the man. he had been a lawyer, work a day lawyer for 14 years i think this was if a law firm. he tried cases. small cases, big cases. he knew what it was like to be the lawyer in the well and how hard it is to have the answers and how easy it is to ask the questions. >> you and i both had the experience of clerking at the supreme court after justice white had ended his time on the basketball court. >> yes. >> or maybe you were luckier than i for the those who do not know above the supreme court,
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above the roof of the courtroom, is a basketball court. which is referred to tongue in cheek as the highest court in the land. and justice white for many years would play in the basketball games. nfl hall of fame football player with a bunch of pencil neck law clerks. >> yes. >> and his elbows and fouls were legendary. when i was clerking he was no longer playing. were you lucky enough to get him um on the basketball court? >> he would come up with the game of horse with the clerks. former law clerks reunions. >> how is his jump shot? >> his best shot at that age, we are talking late 70s, was from the free-throw line back up over his head like that. and he could hit it pretty regularly. his eye-hand coordination was just uncanny. so i remember those. those law clerk reunions of the
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basketball court where he would come up and stiffly throw it up and sink it. i remember walking through in the basement. arm in arm. like it walk arm in arm at that age. walk past all the portraits of all the former supreme court justices which are down in the ground level. >> and would he ask me -- how many of these guys do you honestly recognize. and i was one of those pencil-necked law clerks. and the truth was i thought i knew a lot about springs court and the law and the answer was about half. honest answer. he said, me too. and the truth is, it will all be forgot soon. and it is impossible. and no way you're going to be forgotten. aep this portrait now hangs down in the basement.
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>> well, there is wisdom in that humility. let's shift to another topic. a topic that has been raised some in this hearing which is there are some democratic senators on this committee. who have raised a challenge to the notion of -- and in the owe ridge nalg nalleys originalism and the date of the constitution. and with their view of the constitution, it is a living, breathing changing document. flexible enough to become, to accommodate whatever policy outcome the particular judge might desire. the alternative is that a judge
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is obliged to follow the constitution. the text of the constitution as informed by the original understanding at the time it was adopted. >> do you share the view of the democratic attacks that originalism is somehow a quaint and outdated notion of reading the constitution for what it says? >> senator, i want to say a few things about that and i appreciate the opportunity. the first is that sometimes we in our discourse today, use labels, as a way to not engage with other people. to treat and divide us and them. and as a judge, i just don't think that's a very fair or appropriate or useful way to engage in discourse. so i'm worried about using
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labels and ways that are sometimes an excuse for engagement with the ideas. sometimes pejoratively. the truth is, i don't think there's a judge alive who doesn't want to know about whatever legal text he or she is charged with interpreting. the meaning as enacteded. i don't think this is an ideological thing. i look at decisions like jones, which we've talked about. or decisions like kylo, thermal imaging of a home. is that a search under the amendment? supreme court looks at original history and says, it is equivalent to peeping toms which of course is a search under the fourth amendment. constitution is no less protected today of people's liberties today than 200 years ago. or when we look at crawford or the right to confront witnesses.
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and not just have pieces of evidence you can confront. ? to cross-examine your opponent. fundamental right of the amendment. original understanding that informs us or in the fifth amendment. justice stephens. wrote a very fine examination of the original history. of the constitution. and said it's not right. that an individual should be sentenced to prison. and hand sentence on the basics of facts a jury hasn't found. those are all original. if you want to put that label on opinions. every one of them. could you look at powell versus mccormick about the qualifications of members of congress. that was written by chief justice warren. very careful. we might agree or disagree with it. very careful examination of the original history and understanding of the relevant provisions of the constitution. or heller. second amendment case.
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justice scalia and justice stevens both. majority and descent go wrote opinions that are are profoundly thoughtful and examining the original history of the constitution. i guess i'm with so many other people who have come before me. justice story. justice black. and yes, justice kagan, who sitting at this table said we're all originalists in this sense. and i believe we are. >> judge, thank you for that very scholarly answer. you're right that justice kagan gave an answer that had many similar aspects and said we apply what they say, what they meant to do, so in that sense, we are all originalists. and you know, you reference the kylo case, i think it does -- it serves well to rebut the
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caricature that some on the left try to paint of originalism. there, dealing with thermal imaging and the notion that gosh how could the framers possibly imagine modern con tribances, modern contraptions. thermal imaging didn't exist in the 1700s. framers had no idea what it was. so under the caricature that some democrats have suggested, you would assume the originalists in the case would all line up on the side of saying gosh, the fourth amendment doesn't cover that and yet the kylo case, majority opinion, 5-4 written by justice scalia. perhaps the leading originalist on the court. joined by justice thomas. and in deed justice stephens descended in that case. and so i think that case illustrates that any judge doing his or her job, a thorough understanding of the original understanding of the language is
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essential to effectively doing your job. would you share your thoughts about how the constitution intersects with modern technology. how a 200-plus-year-old document could possibly be applied in a world of internet and technology and changing reality. >> well, it's just these discussions we've been having, right? you go back and look to the evidence of what it was understood at the time. to protect. of course madison didn't know about thermal imaging or gps tracking devices or dna. or e-mail. and no one is looking to take us back to the horse and buggy day. or quill pens.
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or to turn back the clock on anything. the point is to apply the law in a way that allows us to be able to say as judges, it's not what we wish. it's what the law was understood to mean. it has a fixed meaning, as madison said, in the fixed meaning canon of construction, that the constitution should have a fixed meaning. and the judges may disagree over what that is. we disagree once in a while. not as often as some would like to portray. once in a while. but our agreements are not political disagreements, they are disagreements over what the law is. that's very important to me. the other thing it does, it is a due process value. we're interpreting the law in a way that we can charge people with notice of because we're judging them for their past conduct. people lose their liberty. their property.
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on the basis of our interpretations of the law. it seems to me that it should only be fair that their interpretations we can charge them with notice of. similar thing when we come to statutory interpretation. what does that text mean. what could a reasonable reader understand that text to mean. my favorite case and statutory interpretation when i teach this stuff and teach my law clerks about it is the fish case. there the statute read something like, not going to get it exactly right, but if you destroy e-mail documents or other tangible objects when you know the cops are after you, you go to jail. well, what does that mean in the context of a fisherman who knows the coast guard's after him and he's got an illegal catch and he throws it overboard? that case went to the united states supreme court. it's a great case! and it divided in a way that people don't expect. right?
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justice ginsburg wrote the majority opinion along with justice alito writing a concurrence saying, fish. this statute's about e-mail. not no-doze. justice kagan and justice scalia wrote a dissent saying fish, that's a tangible object. right? he had notice. he shouldn't have done it. so these things don't divide along any kind of ordinary ideological line. i am confident that there are justices who in that case, or in heller, or in any of these cases would, as a matter of policy, have come out differently than they did as a matter of judging. and that to me is all the difference in the world. we're not doing what we would like, but what we think the law is. >> let's turn to another topic. some of my colleagues on the
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democratic side have raised some questions about the federalist society and have raised it with a tone that suggests it is some nefarious and secret organization. indeed, i was waiting to see the question, are you now, or have you ever been, a member of the federalist society? and given that context, for the same of candor, i'll go ahead and self-report now, i am, and have been, a member of the federalist society since i was 21 years old and a first year law student when i happily joined. and indeed, there are over 60,000 members, law students and lawyers and indeed those just interested in the constitution and the rule of law. and one of the things that has struck me about the federalist society is the incredible range and diversity of opinions within the federalist society. you have conservatives. you have libertarians. you have those with -- who
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believe in fidelity to law and wouldn't ascribe to either of those labels. and i understand you gave a talk at a federalist society event at the problems of overcriminalization. can you tell us a bit about that talk? >> yeah. i think it is fun to go in to audiences and challenge them sometimes a bit. i think it's important. as to the federalist society, i don't have a card either. and i really don't want a back statement for past due dues. but i attend maybe one event a year or something like that. it is all along my forms that you all have. if that's a speech,dy talk to the society about the problem of overcriminalization. as i saw it. on the federal statutory books
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today we have approximately 5,000 criminal laws. that doesn't count, of course, all the criminal laws at the state and local level. and congress powers out a lot of new criminal laws all the time. most of those laws are relatively recent vintage. i asked my law clerks to go find out, okay, now how many of those -- how many laws do we have that have criminal penalties that are in regulations, too. right? just out of curiosity. i thought they'd be able to come back with a number. and apparently they reported back -- i trust them, they're pretty smart -- they came back and said that scholars have given up trying to count the number. they gave up at around 300,000. and madison warned -- he lived in a time when there were too few written laws so that the
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king could pretty much do as he or she wished -- he. tyrannical king. he was worried about a world in which we have too many laws to a point where the people can't know what the law is. and of course, there's the great example of kaligula, ancient roman emperor, deliberately posted laws written in a hand so small and up so high that nobody could tell what the law was. better to keep the people on their toes. and that's a problem, too for due process, fair notice. and the true is, like so much else in life, we are aiming for the golden mean. not too much, not too little. a point where people have enough fair notice but aren't
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overwhelmed. that's what i spoke about. >> well, and i agree with you, it is a significant problem, one that this committee has addressed multiple times and i hope will continue to address. indeed i'm reminded of one legal thinker who famously observed in heaven there is no law and the lion lies down with the lamb. in hell, there is nothing but law and due process is meticulously obeyed. and living in a situation where, by the account you just shared, there are over 300,000 potential crimes in a regulatory sense, at some point makes it exceedingly difficult for an honest citizen to conduct himself or herself in a way that doesn't run afoul of the law. and then that is something that should concern all of us. i would note, when you gave this speech, would you say it is fair
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to say that not everyone at the federalist society who heard your speech agreed with everything you said? >> oh, goodness. that was the whole point of the speech, senator. >> well, and in my experience, a great many federalist society debates, events, are structured as debates where you have sometimes sharply contrasting views for the purpose of intellectual discussion and hopefully thinking in addressing hard problems. >> and there is a counterpart to the federalist society now, the american constitutional society. one of my friends who's just here is on the board. it does similar good work. >> sure. >> i think these societies, debating societies. useful to ideas percolating, being shared in a civic way, in a way that we can discuss with one another calmly, cooley, thoughtfully. not yelling at one another. not using labels to dismiss one another. that's what i get out of them. i learn things. >> i would note that the
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federalist society describes its purpose as, "it is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is essential to our constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." and i can think of very few people qualified to be a judge who would not agree with those basic preseps about the foundation of our current. let me turn to a different topic which is several of my colleagues on the democratic side have focused on corporations and have been critical of decisions such as security decisions in citizens united or hobby lobby, and have put forth the proposition that
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corporations are not people, and hence cannot have first amendment rights, cannot have free speech rights, cannot have religious liberty rights. and while that may be a perfectly fine debating point in a committee of the united states senate, in a courtroom it runs four square into decades, if not centuries, of precedents on the other side. "the new york times" is a corporation. judge gorsuch, is there any credible argument that "the new york times" enjoys no first amendment protections whatsoever? >> no, senator. >> the naacp is a corporation. is there any credible argument that the naacp has no first amendment protections? >> i think these are long
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settled precedents we're talking about. >> and the same, i would note, is true for the nra, for la raza, for the aclu. every one of those is corporations. the sierra club. and every one of those the supreme court has, for decades, held -- simon & schuster. a major book publisher. every one of those the supreme court has held are protected by the first amendment. is that a fair characterization? >> i believe it is. >> i think that's important to note in the public debate with be that part of the reason we have such a robust arena of free speech, part of the reason i think it is a good thing that on gun issues we have the nra and the brady center debating back and forth, citizens of good intentions and morals believing strongly on an issue, expressing their first amendment rights, petitioning congress, speaking
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out publicly. and the first amendment exists to protect your right on one side or the other to speak and let the public domain resolve that issue. let me turn to a different issue. and return perhaps to a lighter topic. i understand you like to take your law clerks, some of them very much not from the west, to the denver rodeo every year and to have them observe and react to cattle roping and bronc riding and mutton busting. is that true and can you share their experiences, and even better, yours in that regard? is it. >> well, senator, i get law clerks from all over the country. many from my region. i maybe favor my region, but i get plenty from out of the area,
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too. and we have a great rodeo in denver every year. the grand national. it begins with a parade down 17th street which would be like a parade down pennsylvania avenue in d.c. where you have cattle -- it is a cattle drive down the main road in denver. they shut it down. that's how you mark the opening of the grand national. and the closing of the grand national is celebrated by the prize steer getting to spend a little time in the brown palace hotel. the brown palace hotel is like the willard or -- pick your favorite fancy -- the plaza in new york. yes. they bring the prize steer into the lobby of the brown palace. and in between, there is a rodeo and the stock show and the kids show their animals. my kids never made it to the grand national. they were more county fair types
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with their chickens and their rabbits and dogs and whatever. but the kids compete to the grand -- this grand national! it's big time. then there's mutton busting. i think my children still have ptsd from mutton busting. mutton busting, as you know, comes sort of like bronco busting for adults. you take a poor little kid, you find a sheep, and you attach the one to the other and see how long they can hold on. and you know, it usually works fine when the sheep has got a lot of wool and you tell them to hold on. i tell my kids hold on monkey style. really get in there, right? get around it. because if you sit upright, you go flying right off. right? you want to get in. the problem when you get in is that you're so locked in that you don't want to let go. right? so then the poor clown has to
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come and knock you off the sheep. my daughters got knocked around pretty good over the years. >> as a texan, i think everyone's life could be rendered richer by going to the rodeo and i thank you for sharing that experience with your clerks. >> i'm sorry. all right. we could talk mutton busting all day. [ laughter ] >> senator franken. >> good to see you, judge. evidently there is no animal abuse laws. [ laughter ] >> you sound like my daughters on that score, senator. >> you know, i wanted to get to some questions but first i want to talk about trans am trucking. senator durbin brought it up and senator lee brought it up. i want to just go through the facts real quickly because i'm -- i understand the reasoning behind your dissent. but i'm actually kind of puzzled by it as well.
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okay. so, alfhons madden is a truck driver. he's made a stop off the11:00 p. he's about to come back on notices his brakes are frozen on his trailer. he decides, it's dangerous to go with frozen brakes on to the interstate, frozen brakes on my long trailer. he's in the cab. and he calls in for -- pulls aside, calls in for a repair. gets the dispatcher. dispatcher says, well, wait. hang on there. couple hours goes by. the heater is not working in his cab. it's 14 below zero. 14 below zero. he calls in and he says, my feet -- i can't feel them. i can't feel my feet. my torso -- i'm beginning not to be able to feel my torso. and they say, hang on. hang on, wait for us.
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okay. now he actually falls asleep. and at 1:18 a.m. his cousin -- i think cousin calls him and wakes him up. and his cousin says that he is slurring his speech and he doesn't make much sense. now mayo clinic in minnesota says that is hypothermia. and he had fallen asleep. if you fall asleep waiting in 14 below zero weather, you can freeze to death. you can die. he calls them back. and his supervisor says, wait. you got to wait. so he has couple choices here. wait or take the trailer out with the frozen brakes on to the
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interstate. now, when those brakes are locked and you're pulling that load, a trailer with its brakes locked, you can go maybe what? 10, 15 miles an hour? now what's that like on an interstate? say you are going 75 miles an hour. someone's going 75 miles an hour, they come over a hill -- slam into that trailer. also he's got hypothermia. he's a little woozy. probably figures that's not too safe. i don't think you'd want to be on the road with him, would you, judge? >> senator -- >> you would? or not? it's a really easy yes or no. would you like to be on -- >> would i want to be on the road with him? is. >> yeah. >> with the hitched trailer or unhitched trailer, senator? >> well, either. but especially with the hitched trailer with the locked brakes. >> no. i don't think -- >> okay. i wouldn't want to be there either.
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so what he does is he unhitches it and goes off in the cab. >> then i believe he comes back 15 minutes later. >> he comes back after he gets warm. so that he can be there when it gets repaired. >> right. >> okay. gets fired. he gets fired. and the rest rof the judges all go that's ridiculous. he shouldn't -- you can't fire a guy for doing that. he was -- there were two safety issues here. one, the possibility of freezing to death. or driving with that rig in a very, very dangerous way. which would you have chosen? which would you have done, judge? >> oh, senator, i don't know what i would have done if i were in his shoes and i don't blame him at all for a moment for doing what he did do. i empathized with him entirely. >> okay. just you -- we've been talking about this case. you haven't decided what you
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would have done? you haven't thought about for a second what you would have done? >> senator, i thought a lot about this case. >> what would you have done? >> i totally empathize. >> i'm asking you a question. >> senator, i don't know. i wasn't in the man's shoes. >> you don't know what you would have done. i tell you what i would have done, i would have done exactly what he did. i think everybody here would have done exactly what he did. and i think that's an easy answer, frankly. i don't know why you had difficulty answering that. okay. so, you decide to write a thing in dissent. if you read your dissent, you don't say it was like subzero. you say "it was cold out." the facts that you described in your dissent are very minimal. but here is the law that -- and you go to the language of the law. you talk about that. i go to the law.
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a person may not discharge an employee who refuses to operate a vehicle because the employee has reasonable apprehension of serious injury to the employee or the public because of the vehicle's hazardous safety or security condition. that's the law. and you decided that they had the right to fire him, even though this law says you may not discharge an employee who refuses to operate a vehicle, because he did operate the vehicle. is that right? that's how you decided. right? >> that's the gist of it. >> well, no, is that how you decided? that's how you decided. >> senator, there are a lot more words in the opinions both in the majority by my colleagues and in dissent. but i am happy to agree with you that that's the gist of it. >> right. well, that's what you've said. and i -- look. i'm not a lawyer. but i've been on this committee for about eight years.
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and i paid some attention. so i know that what you're talking about here is the plain meaning rule. here's what the rule means. the plain meaning of the statute is clear on its face when its meaning is obvious, courts have no business looking beyond the meaning to the statute's purpose. and that's what you used. right? >> that's what was argued to us by both sides, senator. >> but that's what you -- that's what you used. >> yeah. both sides argued that the plain meaning supported their -- >> and you used it to come to your conclusion. >> both sides -- >> but the plain meaning rule has an exception. when using the plain meaning rule would create an absurd
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resu result, courts should depart from the plain meaning. it is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death, or causing other people to die possibly by driving an unsafe vehicle. that's absurd. now i had a career in identifying absurdity. [ laughter ] and i know it when i see it. and it makes me -- you know, it makes me question your judgment. you stopped by my office a few weeks ago. i asked you about merrick garland. i had read somewhere that after you accepted the nomination,
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first call you place was to chief judge garland and you said to me, "i think the world ofmaker gar laro merrick garland. you said, senator, i try to stay away from politics. so you've been on the bench for ten years. i decided to leave well enough alone so i moved on to another topic. but your relationship with politics came up again yesterday. my good colleague, senator lee, lamented the extent to which the confirmation process has become political and suggested that you and other nominees are not equipped to navigate that process because confirmation politics are, in his words, "still a little foreign to you." are "still quite unfamiliar to
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you." but turns out that's not really entirely accurate. after you were nominated, this committee made a formal request for documents relating to your previous nomination and to your time at the department of justice. this is standard procedure. those documents include e-mails back and forth between former bush administration officials and you in 2004 back before you joined the administration and the neil gorsuch in those e-mails seems to be very, very familiar with politics. the neil gorsuch in those e-mails is looking for a job. here is a message you sent to matt schlapp, president bush's political director, "i spent some time in ohio working on the election. what a magnificent result for the country. for me personally the experience was invigorating and a great
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deal of fun." that doesn't sound like someone who steers clear of politics to me. you went on to write, "while i've spent considerable time trying to help the cause on a volunteer basis in various roles, i have concluded that i'd really like to be a full-time member of the team." you attach your resume which describes in detail your work in support of political campaigns and candidates. basically you had worked on republican political campaigns since 1976. you had worked for reagan. bush 1. bush 2. you were cited for distinguished service to the united states senate for work in support of president bush's judicial nominees by the senate rap conference which suggests that even the political aspects of confirming judicial nominees is something that you are not
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unfamiliar with. when we met earlier i asked you what you thought of the way senate republicans treated merrick garland and rather than answer the question you said i try to avoid politics. but here you are in 2004 pledging your allegiance to "the cause" and shopping around a resume touting your work on political campaigns dating back to 1976. these messages establish that, for a good deal of your prior career, you didn't avoid politics. quite the contrary. you were very politically active. so in light of that, i'd like to ask my question again, do you think merrick garland was treated fairly by the united states senate? >> senator, a couple of things in response to that, if i might. going back, the absurdity doctrine argument was never presented to the court. it usually applies in cases where there is a scrivener's error, not where we just disagree with the policy of the statute. so i appreciate the opportunity
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to respond there. >> when there is a scrivener there. >> scrivener's error. >> error. okay. i'm sorry. >> not when we just disagree with the policy. with respect to -- >> well, if i read my statutory interpretation from -- let's see. this is from the notre dame law school national institute for trial advocacy. this is a pretty well known exception to the plain meaning rule. >> oh, yeah. >> and i think you can apply it without it. i mean don't you think it is absurd that this man was put -- given that choice and then fired for it? don't you think that was absurd? >> senator, my heart goes out to him. >> okay, never mind. >> my heart goes out to him. it's just not my job -- >> how do you think merrick garland was treated by the republican senators? >> senator, since i became a judge ten years ago i have a canon of ethics that precludes me from getting involved in any way, shape or form in politics.
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the reason why judges don't clap at the state of the union and why i can't even attend a political caucus in my home state to register a vote in the equivalent of a primary. >> okay. but i don't think that this is -- you have to state your political views. that's not -- this is about how a supreme court justice who was nominated by the president of the united states, this is like in the constitution. i think you're allowed to talk about what happened to the last guy who was nominated in your position. you're allowed to say something without being -- about getting involved in politics. you can express an opinion on this. >> senator, i appreciate the invitation. but i know the other side has their views of this, and your side has your views of it. that by definition is politics. >> okay. >> and, senator, judges have to stay outside of politics.
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i think the world of merrick garland. i think he's an outstanding judge. >> okay. i understand. >> i've told you what i think of him. >> i understand. thank you. thank you. i don't mean to cut you off but we have time. i think it is really important for us to understand how your political work and your political views might inform the views of the law. i know your -- i don't hold that against you that you did political work. >> 1976 i was walk on the district with my man when she ran for state house. >> looking again at the e-mails five or so months after your messages to mr. schla. . p, you e-mailed ken mehlman. he was your law school roommate. at the time you e-mailed him he was chairman of the republican xhas national committee. you just interviewed at the department of justice. he put in a good word e-mailing the white house saying neil is a wonderful guy, did the 72.
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hour effort in ohio for us and was part of lawyers for bush. mr. mehlman wrote, "he is a true loyalist." now again, being politically active or a loyal republican are not disqualifying characteristics for a supreme court nominee. not in my book, anyway. let's think back to the 2004 election. look at ohio where you volunteered. ohio is 1 of 11 states in 2004 where republicans working to support the re-election campaign also worked to put anti-gay marriage amendments on the ballot. these state constitutional amendments passed. all 11 of them. the text varied state by state by generally the amendments defined marriage as being between a man and a woman. the amendments sent a clear message to lesbian and gay couples that their unions were not equal in the eyes of the law. now, you were a campaign worker in ohio. you remember the group lawyers for bush-cheney. you remember as a lawyer and student of the constitution how did you feel about the right to marry being put to a popular
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vote? >> senator, i don't recall any involvement in that issue during that campaign. i remember going to ohio -- >> were you aware of that issue at all? >> certainly, i was aware of it. >> how did you feel about it? >> senator, my personal views? any revelation of my personal views about this matter would indicate to people how i might rule as a judge. mistakenly. but it might. i have to be concerned about that. >> these discriminatory amendments were part of the deliberative effort to drive up the turnout. we know that because your friend, ken mehlman, said so. mr. mehlman was interviewed by "the atlantic" in 2010 and said the bush campaign had "been working with the republicans to make sure anti-gay initiatives and ref rerendum would appear o november ballots to help 2004 and 2006 republicans. there is nothing to suggest you were involved in crafting that strategy, but at the time this tactic received a lot of
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attention, including in ohio where you worked on the campaign. there was a profound impact on people's lives. but a lot has changed since 2004. mr. mehlman announced publicly that he is gay, for one. he also voiced regret about what happened. he apologized. he said at a personal level, i wish i had spoken out against the effort. as i've been involved in the fight for marriage equality, one of the things i've learned is how many people were harmed by the campaigns in which i was involved. i apologize to them and tell them i'm sorry. that's a brave thing to say. it is hard to admit regret. mr. mehlman had a personal connection to the issue, to be sure. but our country has come a long way in a relatively short amount of time. a lot of folks have changed their view about marriage equality. republicans and democrats alike. in the meantime, supreme court has settled this issue. marriage equality is now the law of the land, so you shouldn't
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have any problem answering this question. how have your views of marriage equality changed, if at all, since the 2004 election? >> senator, my personal views, if i were to begin speaking about my personal views on this subject, which every american has views on, would send a misleading signal to the american people that my -- >> it is settled law. >> it is absolutely settled law. there is ongoing litigation about its impact and its application right now. and i cannot begin to share my personal views without suggesting mistakenly to people -- >> okay, can i move on to something else then? you've given a version of this answer before. i understand. i understand. i'd like to return to something i raised in my opening statement, and that's your view of administrative law. standing before conservative activists gathered at cpac, the conservative political action
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committee, president trump's chief strategist, steve bannon, and his white house chief of staff, reince priebus, outlined the president's agenda. two topics were featured prominently. deregulation and your nomination. i don't think that's a coincidence. reince priebus started by explaining why nominating you was so important for the president to do right out of the gate. he said, referring to your nomination, "number one, we're not talking about a change over a four-year period. we are talking about a change of potentially 40 years of law." number one. that's change of potentially 40 years of law. change the law. you and your colleagues here have said the job of a judge is to follow the law. even if he dislikes the results. you've said that. not change the law. or change 40 years of the law.
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but that's what reince priebus said this is about. when the white house chief of staff is talking to his friends at cpac, he says a justice' job, that your job, is to change 40 years of law. yet my colleagues and you say it is to follow the laws as written. well, can't be both. so which is it? >> senator? it's to be a judge, to be fair, to follow the law. to apply it to the facts and circumstances of each case. and to live out my judicial oath on whichever court i serve on, there it is the tenth circuit where i've served for the last ten years. >> okay. >> and where my opinions have been unanimous 97% of the time. >> i know. >> senator. >> i understand. again, you've given many times this -- that answer so, if you'll indulge me. mr. priebus went on to say your nomination was central to
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president trump fulfilling his policy objectives. "neil gorsuch represents a type of judge that has a vision of president trump, and it, refer to your nomination, fulfills the promise that he made to all of you, speaking to the conservative activists gathered at cpac. what do you think that mr. priebus was talking about? was he suggesting if confirmed you would be in a position to shape the court's decisions for the next 40 years? or was if a suggestion you could reach back 40 years? roe v. wade turned 44 this year and the president has promised to nominate judges who would overturn "roe." "chevron" is 33 years old. i think this is a legitimate question. was mr. priebus suggesting that you go back and change 40 years of settled law or have an affect on the law moving forward? >> respectfully, senator, mr. priebus doesn't speak for me and i don't speak for him.
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i don't appreciate how people whsh when people characterize me as you don't appreciate it when people characterize you. i like to speak for myself. i am a judge. i am my own man. >> okay. i just want to just -- we've had some talk about this. i don't think we're crazy. to think that the administration and reince priebus -- i don't think he was lying. doesn't it -- doesn't it -- are you comfortable with your nomination being described in such transactional terms? >> senator, there's a lot about this process i'm uncomfortable with. a lot. but i'm not god. no one asked me to fix it. i'm here as a witness trying to faithfully answer your questions as best i can consistent with the constraints i have as a sitting judge. here to answer questions about my qualifications.
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and my record. >> i got it. well, i find it unsettling that the administration's talking about -- chief of staff talking about the supreme court that way. but i want to get back to the panel at cpac. after mr. priebus discussed your nomination, steve bannon talked about the president's agenda. he described three priorities. one of them was, "the deconstruction of the administrative state." here's what mr. bannon meant by that. he said that regulation was a problem from his perspective, "every business leader we've had in is saying not just taxes but it is also regulation." he said that if you look at the president's appointees, "they were selected for a reason. and that is deconstruction." the way the progressive left runs is if they can't get it passed, they're just going to put in some regulation in an agency. that's all going to be -- gonna -- that's all gonna be
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deconstructed. taking steve bannon at his word, do you think only cabinet appointees who are selected to bring about this deconstruction or do you think the white house also sees a role here for its judicial nominees? >> senator, respectfully, i believe that's a question best directed to mr. bannon. >> he's not here. i'm just quoting him. that's all. i think the white house does see judges as a part of this deconstruction. i think that they are seeing your nomination as an important step toward achieving this goal. you've shown a willingness to disregard agencies' interpretations of statutes. you did that in trans am trucking with the department of labor regulation, for example. you've done it in other cases as well. in august you wrote that concurrence to your own unanimous opinion in which you described chevron, the supreme court's landmark administrative
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law case, as "permitting executive bureaucracies to swallow huge amounts of core judicial and slalegislative pow" you wrote, "maybe the time has come to face the behemoth." new generally speaking, as we've discussed, chevron provides the courts should defer to an agency's interpretation of the federal laws that it is tasked with administering. when congress passes laws that require agencies to implement them, say by issuing safety standards for children's toys or rules that ensure that pharmaceuticals or medicines are safe, those agencies turn to experts to develop those policies. experts like scientists at the fda, for example. i think that's a good thing. we want experts doing the work. well, we senators don't want to be doing is deciding how much lead can be in your water, or what the distance in the slats
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are in a baby's crib. i don't trust senator koons should do that. courts should be wearing of stepping in -- this is scalia agrees with "chevron." but i'm concerned that this administration sees commonsense health and safety rules as a burden on big business. i'm concerned that they want to appoint pro corporate judges who are willing to substitute their own judgment on these matters for those of experts. do you believe that "chevron" was wrongly decided? >> senator, i'm a circuit judge. i don't tell my bosses what to do. i do, when i see a problem, raise my hand and tell my bosses i see an issue here. and i did in that case.
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not because of any big corporate interest, but because of what happened to mr. gutierrez, an undocumented immigrant in this country and the whipsaw he was placed in by a change in law affected by an administrative agency, a bureaucracy, overruling a judicial precedent and telling him he had to wait not ten years out of the country but 14. something like that. and, senator, that's part of my job to say these things. when i see problems like that. it is a due process problem i saw. and no one, senator, is suggesting that scientists shouldn't get deference or chemists or biologists. section 706 of the epa is quite clear on facts -- >> you want to address the behemoth. and that's a guess that the comments made by mr. priebus and mr. bannon know exactly what you think about these issues.
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and i think some of my colleagues on the other side of the aisle do as well. this is a big deal. during the entire 114th congress, chevron deference was mentioned only twice on the senate floor. but between the announcement of your nomination on january 31st and last week, that decision was mentioned 30 times by four different senators. each of those four senators discussed the case while speaking in support of your nomination. three of those senators are members of this committee. so i note you're choosing your words very carefully, and i know you're trying not to signal how you might rule in some cases, but i think some of those signals have already ben carson sent. thank you. >> senator sass. >> thank you, mr. chairman. judge, you mentioned that there are a number of things about this that have been
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disappointing to you in the process. i'm disappointed in senator cruz, partly because he stole a lot of my originalism plan of questioning. but also because he went to mutton busting. i was convinced that i was the only guy that had mutton busting in today's pool. my wife also sent me a text a little bit ago -- i'm sure she didn't expect me to read it -- but how in the world is gorsuch able to go so many hours at a time without peeing? [ laughter ] i won't make you answer. but the scotus bladder is something the whole country stands in awe of. you're over half-way through your 11 hours today. so congratulations. judge, let's do biography for just a second. you're a father. remind the ages of your children. >> boy, i don't even know what to say now. you really caught me off guard there, senator sass. >> you're welcome. >> my daughters are 17 and 15. >> okay. so besides fishing, have they ever played sports? >> oh, my goodness.
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yes. >> have you ever gotten to a little league game early, pulled the umpire aside in the parking lot and asked him or her to commit in advance that they will decide the games for the underdog? >> no. but i think some of my buddies have. >> have you ever asked a referee underneath the zebra stripes of their jersey to wear your kids' little league jersey as the undershirt? >> no. it wouldn't have helped. my kids were pretty rotten at basketball. >> we're obviously not going to pursue this very far but i do want to make sure that everybody at home knows a little bit of what's been happening in the room over the course of the last six or seven hours. because some of my colleagues are asking a bunch of tough questions that are really important for you to have to answer. at the same time, there are a whole bunch of questions that have been asked today that are really asking you to take your legal career and your legal ethics and set them aside and play politician on tv today. that really isn't your job, and
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some of this questioning really hasn't been a fruitful use of our time. it's well meaning to talk about the outcome objectives of a whole bunch of these cases, but i would submit that it is dead wrong. i want to give you just a couple of the questions we've heard earlier today. at different times. how can we have confidence that you won't be for the big guy? at another point, how can we know -- how can we know that you feel for the little guy? this sounds noble, but it's fundamentally a corruption of what the judge's job is. to seek assurances from you like this is like seeking assurances from a referee before the game that they will pledge to a certain outcome before the tip-off. if the law is wrong -- and i'm somebody who believes that lots of our laws are wrong and overreaching around here. the question should be directed back at us on this panel and on this dias why we don't fix the
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laws that are wrong, that as a judge if a law is clunky and bad and in conflict you will change the law on the fly. that's not the oath you will take. that's not the constitution that we've all taken an oath to and pledge to and it is not what the american people want. so, frankly, i applaud you for your perseverance and patience with us as we've continually gone down a path of asking you to answer questions, many of which republican fundamentally political questions and that you shouldn't be answering and that we shouldn't be asking. so thank you. i want to go back to something that's a little more productive for the committee and frankly, i think productive for moms and dads at home. i'd like to talk a little bit more about the judge's robe. we both spoke about it yesterday. i would note with no coordination. turns out we both just read your stuff from the past. and the judge's black robe reminds us of the meaning of your job. it reminds the plaintiffs that stand before the court, it reminds the judge as he or sheer dresses in the morning, and it reminds our kids or gives us an
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opportunity to teach our kids. you've spoken eloquently about it in the past. but i think it is fitting for you to unpack it a little bit more in light of some of today's questioning. earlier today you were implored to tell us a little bit more about what is in your heart. and i think that's fundamentally a confusing question for us to be asking of a judge except insofar as we would ask you, are you a man of your word who when you take an oath in your heart are pledging to keep your word and to keep your oath. and i think we all know that the answer to that question is yes. it is why you are going to be confirmed, because people believe you to be a good and fair minded judge. but every american in a more fundamental way needs to know what's in the heart of legislators because we are supposed to speak for the hearts and minds and hopes and dreams of 320 million american people. we are supposed to cast a vision for the country, those things we want to conserve and preserve and those things that we should argue about and change.
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we are the once who are supposed to weigh the pros and cons of various legislative options that are available to us. judges, on the other hand, are supposed to be following the law impartially. your heart is supposed to be inclined neither toward the rich nor toward the poor, nor toward black, nor white, nor people with big bank balances or small bank balances. but your heart is supposed to be your commitment to the law as you find it. so let's engage in a little thought experiment. 30 or 40 years from no you when you retire and hang up your robe and you're out fishing or sitting on the front porch of your surely lovely home, and you look back over your career, how will you know if you were a good judge? >> senator, that's a question i ask my kids every semester when i teach ethics. finish the semester. would ask them to spend five minutes writing their obituary.
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they hate it. they think it is corny. i might be a little corny. and then i ask them if they'll volunteer to read some of them. and people want to be remembered for the kindnesses they showed other people, by and large. what i try to point out to them is, it's not how big your bank account balance is. nobody ever puts that in their draft obituary. or that they build the most hours. or that they won the most cases. it is how they treated other people along the way. and for me, it is the words i read yesterday from sumner's tombstone. and that means as a person, i'd like to be remembered as a good dad, good husband.
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kind and mild and private life. dignified and firm in public life. and i have no illusions that i'll be remembered for very long. none. if byron white is as nearly forgotten as he is now, as he said he would be, i have no illusions, i won't last five minutes. that's as it should be. the great joy in life, shaw said, was devoting yourself to a cause you deem mighty before you are thrown on the scrap heap. an independent judiciary in this country. i can carry that baton for as long as i can carry it. and i have no illusions i'm going to last as long as you suggest. that will be good enough for me. >> well said. and would it be that more who taught legal ethics and business ethics and medical ethics and
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theological ethics would assign their students the obituary challenge. you might live less in the sound bite culture and more in a way that thinks about service and duty and calling. that's a great assignment. neither cory gardner nor michael bennett have to fear that you're going to challenge them for a senate seat from colorado in the future? >> senator, i admire them both and i think it is a wonderful fact that they were both here to introduce me and that they follow a tradition in the west where senator salizar and senator allard, republican and democrat, introduced me last time around. frankly, tenth circuit nominations, thanks to -- he's not here at the moment, but senator hatch who cares about the tenth circuit. republican and democrat generally gone very smoothly. and it shows. it shows that you all have picked -- i don't know how it
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works. i don't know this crazy process works. but the colleagues you've selected for me over the years are wonderful colleagues. wonderful people. and i have been richly blessed to spend ten years with every one of them. >> so when you distinguish between the rear-view mirror of a justice later or a judge later in life looking back and the rear-view mirror of a senator, we have different callings. and so i think, without putting words in your mouth, you're going to be able to say that you can be proud of your career even if you failed to advance your policy preferences in this calling. but unpack that for the american people. help them understand how the retrospective look of a senator at her or his career is different than a judge's retrospective look? >> i suspect -- but i don't know because i haven't sat where you sit. i wouldn't presume to be able to walk in your shoes.
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but i presume, gingerly, that you will look back on your career and say, i accomplished this piece of legislation or that piece of legislation and change the lives of the american people dramatically as a result. i was fortunate enough to serve as a page in this body many years ago. it was an experience every young person should have. it will give them a life-long love of this body. it is the greatest deliberative body in the world. i believe that even sitting here. a judge looking back, the most you can hope for is you've done fairness to each person who's come before you. decide their case on the facts and the law, and that you just carried on the tradition of a neutral, impartial judiciary that each person can come to with some sense that they're going to receive a fair hearing for their disputes. that's what we do.
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we just resolve cases and controversies. and lawyers are supposed to be fierce advocates. i was once a fear advocate for my clients. but a judge is supposed to rule impartially, to listen courteously and rule impartially. so, frankly, my legacy should look, and will look, a lot smaller than yours. and that's the way the design of the constitution works. >> in an earlier line of questioning, you were asked about 2004 and presidential election and your participation in it. i just want to clarify. you were not a judge in 2004. >> goodness, no. senator. i was a private attorney. >> and when you went on to the bench, what changed in your life? >> justice jackson says, a robe changes a man, or it should. now i'm sure you would add woman today, too. a psychological change comes over that person. he was the fiercest possible
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advocate. attorney general for fdr. and he wrote a dissent as we've talked about earlier. he wrote the steel seizures occurrence. that's a brave man. that's a judge's judge. calling it like he sees it. each case as it comes. and writing clearly so that people can understand exactly what he is up to and he's not hiding behind jargon, legalese or 4 million footnotes. that's the best i can do on that. >> senator cruz earlier asked you a series of questions about originalism. i appreciated your -- i'll probably paraphrase you inartfully. but you said you worry about the labels sometimes put us into boxes that eliminate the requirement or reduce the requirement we have to actually engage each other's ideas. so i won't pin you down hard on the term originalism, but many have critiques originalism,
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including in some statements yesterday and today here, as backward focused or "too rigid in adapting to our changing culture." do you believe that originalism is just one judicial philosophy among many, or is it a description of what judges do? >> i am with justice kagan on this. i think it is what we all want to know. i don't know a judge who wouldn't want to know what the original understanding is of a particular term in the constitution or a statute. that's information that will be valuable to any judge and considered by any judge. again in heller, for example, second amendment case. deeply thoughtful opinions by both sides on that question. it doesn't necessarily decide the case but it provides us a language to talk to one another in which we are trying to seek something outside of ourselves, outside of our own personal beliefs about what constitution or the statute at hand means.
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we're trying to do it in a way that's neutral and that we can say provides fair notice to those whose lives we're affecting, so that we're interpreting the law in a way that we can say, they should have known. they were on notice without putting a person in prison will hely n willy-nilly based on our preferences, or taking away their liberty. but we're preserving it in accordance with the constitution as it was written. >> i would like to talk a little bit about cultural catakesis or civics. as we've talked about in previous meetings, many's of the view we are in a crisis. we are not passing on the meaning of america to the next generation. something like 40% of americans under the age of 35 tell po pollsters they think the first amendment might be dangerous because you might use your freedom to speech of say someone that would hurt someone else's feelings. that's the point of america, right? there are all sorts of things
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people might differ about, want to argue about. our founders came here and different have the same views of heaven and hell and how you achieve salvation. they came together and forged out of the many one policy where we have a shared framework for ordered liberty where we protect each other's rights, even to be wrong about fundamental things, wrong views as we wrestle with these things but we debate big and important questions in washington but more fundamentally in boulder or omaha nebraska and you do it in the town square and the church or in the bar and you fighting about questions but fight free from violence and so we protect each other's rights to argue and to dissent. and we're not explaining that first amendment to the next generation and i believe that all three branches of the legislative, executive and judicial branches are led by people who are taking an oath to a constitution that's about limited government. it's about principaled plurism, it's about intentionally distinguished and divided powers and i think all three branches
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have an obligation to do some of that teaching about civics. president reagan long before he was republican president, before he was a republican governor, when he was a democratic labor union organizer, ronald reagan used to say in any republic you're always only one generation away from the extinction of freedom. if we don't pass along the meaning of america to the next generation, it means the next generation of our rulers aren't going to understand why we have this beautiful inheritance that we have in a constitutional system of limits. as a judge on the 10th circuit and soon to be as a justice on the supreme court, can you explain what you think your responsibilities and freedoms are to teach civics to the american people? >> senator, as a judge on the 10th circuit i've tried hard to do that, literally teaching class, speaking where i'm invited, when i'm invited, going to law schools, talking to
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students who visit the courthouse and it's been a great privilege and a joy. i think here of justice o'connor, and when she retired she did an awfully lot of this. she's done an amazing amount of work. and i do think that there is a need to remind people how to talk to one another, how we talk to one another. the more fundamentally about how brilliant the design of this constitution is. not perfect. but from many one and we are all not republican judges, democratic judges and we're judges and i do think we have an opportunity and that's one of the things i look forward to as a justice, my little talks might be a little better attended on civics and i hope to do that.
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maybe that's a western thing. i don't know. or mid western thing, senator, but i believe in this country and i'm optimistic about its future. i see the young people -- i teach them, i get law clerks. they really care about this country and they give me hope every day. senator coons and i share the distinction of being truman scholars and go through the selection process of picking the next crop every year. harry truman didn't want a monument as a memorial here in washington. think about that. the humility of that. instead he wanted a living monument, a scholarship to young people who go on to do public service. i got two of them here and every year when i go do that selection process, i don't know about senator coons but it'ses one of
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the best days of the year for me because i see young people full of enthusiasm for this country and anxious to make it better. i look forward to working if i'm so fort nat to be confirmed on just this topic, senator. with you and anyone else. >> talk a little bit about the role of writing in the life of a justice, justice scalia was obviously a writer with a flourish, you've discussed having been tapped in the past to participate in speech writing. talk about the purposes of both traditional dis-sents and what you think the objects are at the appellate levels in your opinion and is there a distinction when you're on scotus? >> when i sit down to write an opinion, people sometimes ask me
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who i'm writing for. i'm writing for myself, trying to convince myself that i've got it right and i go through a lot of drafts and i sometimes, as my law clerks know, change tact as i'm drafting. i don't know how many drafts i've gone through on some opinions but 30 -- more. >> he actually said 130 but whatever. >> i'm trying to get it right and i find i test ideas as i write. it's one thing to say to somebody else, oh, go write this up. it's another thing to have to sit down and write it yourself. and it exposes holes and gaps in your own thinking, causes you to question yourself, wonder whether you have it right for me it's an exercise of getting it right and persuading myself at the end of the day and writing
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in a language that per sads me. a lot of gook and us lawyers are guilty of that, that doesn't persuade me. i want to know through a clear line, i want to be able to see my argument and my topic statements, but i want to see the argument flow. i want to see how it fits together and then i want it torn apart by my law clerks who tell me i'm wrong. so it's a process. at the end of the day that's what it's all about and then it's about the test of my colleagues and i take their comments very seriously. i believe in colleaguality, i believe that two heads, three heads, nine heads are better than one. and so i think a good judge can't have too much pride of authorship, has to except criticism, constructive criticism and try to incorporate or deal with that criticism and
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maybe that's why my opinions have attracted relatively few dissents but i take it very seriously. as to writing separate opinions, i don't do it very often and when i do it, it's usually because i'm just stuck. i might be wrong but i'm just stuck. something doesn't seem right to me and i've tried to discuss it with my colleagues and tried to work it out, i bend as far as i can bend but at the end of the day i take the oath to follow the law where it leads me and i try hard to reach a consensus but when i can't, i write up as i can as respectfully as i can and usually in as few words as i can. sometimes because it's fact bound or just where i'm stuck. sometimes because i see an issue that my bosses need to be aware of like any good employee, hey,
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boss, you might want to think about this one, seems kind of tough to me and i think that's part of the process of a good judge. >> i'm a historian by background and when i was writing my dissertation to your audience question, one of my advisors just kept pounding me saying i don't know who you're writing for here and he finally persuaded me to put a picture of my aunt on the farm and she's smarter than i am but she knows nothing about my topic and he said, if you recognize that your audience should be smarter than you but ignorant of the subject matter you're finally going to find your voice. is there something analogous in the writings of the supreme court where you're not just writing for other justices but you have an obligation to write for the american people? >> i think if you're sitting and writing your dissertation with yourself and a picture of your aunt you're right on target. because i think if i'm writing for myself and trying to
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persuade myself, then i figure everybody will be able to at least track what i did. maybe not agree with every opinion, every single one of the 2,700 decisions i've issued, but they'll understand why i got where i got. i was candid about it. i didn't hide. i stood up. i was clear. i was honest. i was forthright. plain spoken. and you can judge my opinions for better or worse on their merits. and i think that's what a good judge does is candor, the duty of candor. >> we finished voting a day early last week and so a lot of us were back in our states traveling and doing town halls and rotary clubs and schools. i ran into three different teachers who planned to use these hearings on c span to teach civics. i wonder if you could help those teachers explain as one of them asked me about why we have a
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bill of rights, to remind the american people, the constitutions a negative document. it is not the government giving us freedoms, it is us giving the government a limited set of enumerated powers and originally there was no bill of rights and as a part of a compromise they added one. people think of the bill of rights first. why do we have a bill of rights and what fundamental difference would it make if we didn't have one? >> that's a big question for us adults. >> the chairman said i could have an extra hour so take your time. >> i've got four minutes and 19 seconds on that. that's a big question for us adults who are where we are. that's a big question for my middle school and high school aged kids. the constitution is a negative document, the theory behind it in short order was to divide
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liberty -- divide power the better to protect liberty. that's the theory. that you put all power in one set of hands you're going to get tyranny and our founders had too much evidence of that in their own time. it's a hard one inheritance, part inlinement theory, part on the battlefield. they saw what it was like to have power amalgamated in one set of hands. dangerous. so they divided it, they divided it three ways on our -- in our federal system. you, article 1 write the laws and it's tough. it's supposed to be tough. to protect liberty. we don't just have one house, we have two houses and then it has to be signed by the president, two. really hard by the better to
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protect liberty. the president's powers are to execute the laws, not make them, not adjudicate disputes. our role is to decide cases and controversies between the people under law as it is. not as we'd wish it to be, we're judges not legislators. that's not all. then we divide power in a way that was quite unique. unusual. federalism. you can think of separation of powers horizontal access and a vertical access. so that the federal government has certain enumerated powers and authorities and what the federal government doesn't enjoy, the states do as sovereigns. this country as well, we have tribes which also bear sovereignty in our part of the world and bear rec in addition as such and i'm glad to have the opportunity to recognize that fact here as a westerner.
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so we have the separation of powers between horizontally and vertically. that wasn't thought enough to protect liberty, the drafters of the constitution, many of them thought that that would be more than sufficient, that that, in fact, was the main way to preserve liberty. but our founders were very suspicious and very jealous of their liberties. they added the bill of rights and they enumerated ten of them as you know starting with the freedom of speech, freedom of religion, no establishment of religion, the right to bear arms, the third amendment which i'm glad we don't litigate much, i wonder how many of the high school kids now watching know what the third amendments about. go look it up. >> and get 20 bucks out of your pocket at the same time. >> that's what the bill of rights is about. ensuring not just these negative protections but some positive
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affirmative guarantees against governmental encroachment. >> thank you. i want to ask a few more questions about the bill of rights but i'll save it for my next round since we're at 40 seconds remaining. thank you, sir. >> thank you. >> i'd like to ask unanimous consent to enter into the record a letter from 19 different faith based and sec ula organizations expressing concerns about judge gorsuch's rulings on church and state and free exercise. >> without objection is centered. >> good afternoon, judge. >> good to see you. >> it has been a very long and hopefully very informative and instructive day and i'll suggest -- >> we won't take this away from your time but i want everybody to be aware that after you get done senator coons we're going to take a ten minute break. >> thank you. the third amendment some would suggest was rooted in the delaware constitutions so although obscure, it is still
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beloved by some in the first state. let's have a conversation if we could about religious free exercise and about liberty interest. there is an enduring tension or contest in our history between individual liberty and religious free exercise and the ability of government to enact and enforce neutral laws and i want to better understand how you view the proper balance between these competing core values and to that end i found hobby lobby and your contribution to it concerning and interesting. the case centrally involves access to health care coverage including contraception for about 13,000 employees across 500 stores of hobby lobby and the religious views of the owners of that corporation and you judge, joined the 10th circuit opinion holding that this for profit business could because of the businesses' religious beliefs refuse to provide its employees with access to family planning but you went even further than the
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majority writing an additional concurring opinion emphasizing that the owners, the green family, were entitled to personally raise their religious objections not notwithstanding that they operated the business through trusts and corporations. in coming to that conclusion you opened your opinion by writing and i quote, all of us face the problem of come plisty. all of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. i'm it's not a concept i've seen widely discussed. why did you choose to lead your opinion with this concept of kplisty and what's it mean as we're trying to assess free exercise rights. >> so under the religious freedom -- senator, thank you. interesting good question. i mean this is -- this is what it's all about. the religious freedom restoration act protects this exercise of sin seller held
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religious beliefs and affords them the highest protection known in american law, strict scrutiny. that's a law that this congress passed because it wasn't satisfied with the degree of protection that the supreme court was affording the exercise of religious liberty under the first amendment, under smith. this congress found smith written by justice scalia to be insuftly protective of the right to free exercise. >> if you could, judge, help me with your choice of the term kplisty which doesn't appear in that statute and hadn't previously appeared in free exercise juris prudence. >> thank you for prodding me along. what's a sincerely held religious belief? the individuals there were devout christians and as they interpreted their religion, it
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was a violation, a sin, for them to participate in any way in signing papers even to allow the provision of certain contra septive devices, those that they believed had the effects of destroying a fertilized egg. >> right. excuse me, judge. that's exactly why the question of your use of this term complicity is so interesting to me. it opens up very remote connection between sincerely held religious beliefs by this devout family through a trust, through a corporation of for profit corporation to impact the choices and life decisions of 13,000 people. it's a truly unprecedented decision, if i could just quote for a moment what i suspect is familiar to you, the dissent of the chief judge in your circuit. this opinion was nothing short of a radical revision of first
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amendment law as well as the law of corporations, holy unsupported by the language of free exercise clause or the streak's free exercise juris prudence, she claimed that there was literally no support for the proposition that for profit corporations enjoy free exercise rights in the supreme court's previous juris prudence and i'm struck by the extent to which come plisty of a burden on a sincerely held religious beliefs opens possibly flood gates for litigation on behalf of those who have sincerely held religious beliefs. the issue here was access to family planning. there were more than 20 forms of contraception that could potentially be cover. there was only a handful that the greens objected to. how far does this newly concept go? >> it's not a new concept at all
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with respect because in enacting congress revived some older free exercise case law much of it written by justice brennit. thomas would be a leading example involving a jehovah's witness who was okay in producing certain goods that could be used but not others. complicity in war making. >> the key distinction between thomas and this was in that case here's an individual who's belief made him say i can't make turits for tanks so the question is uniformly law, unemployment insurance, can he benefit, fine. but it doesn't in any way implicate others' liberty interest the core concern with the choice to recognize a very large multi-billion dollar nationwide for profit corporation and privilege the religious interests of its
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owners through the legal fiction as it impacts 13,000 individuals. that wasn't the case in thomas. >> senator, respectfully we're mixing apples and oranges because the first consideration is whether we have a substantial burden on a sincerely held religious belief. the second is whether the government has a compelling interest narrowly tailored to override it and i think we're mixing apples and oranges because on the first one complicity is very much in play. how far does my religious faith, your religious faith permit us to engage in things that our religion teaches are wrong, sinful? that's a matter of religious faith and, in fact, i don't recall anyone doubting or the government disputing that the greens religious faith was sincerely held. >> that's right. >> so i think it's a given. this complicity discussion i think frankly, senator, is a red herring to mix my metaphors because everyone accepted it.
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>> we've got apples, oranges and red herrings. >> i know it's terrible. >> let me take if i could -- let me take you to a number things because several other senators have referenced hobby lobby one of the things that judge brisco was saying was precedent shadowing, the recognition of a for profit corporation that sells crafts and hobby materials as being a religious corporation previously, only incorporating churches or synagogs or associations explicitly -- nonprofit religiously affiliated organizations had been recognized. in the interpretation of rifra you choose to define person to include for profit corporations. help me with why you made that move. >> be delighted to, senator and thank you for the opportunity. i think i point to a couple things. first, it's a statute and it
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uses the term person and it doesn't define the term person and when congress doesn't offer us a specific definition we go to the dictionary which congress has passed for just these circumstances and there it says persons include corporations. that's the law as congress wrote it and if congress wishes to change the law and say only natural persons enjoy the rights of rifra, i'm a judge, i follow the law but the law as drafted doesn't distinguish between natural persons and corporations, it includes them both and the government, senator, if i might just finish, conceded as i recall. my recollection may not be great on this. that nonprofit corporations can exercise religion. >> that's right and that's exactly why this was seen as such a departure. there was a long settled expectation that religious free exercise rights adhere to individuals living breathing people and to nonprofit
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corporations. it was a big leap for it to for the first time apply to for profit corporations and i appreciate that the opinion of the majority and you're concurrence referenced the dictionary act but it actually says, that it applies in less the context indicates others and the reality is as i think one of the dissents points out, all congress was intending to do as expressed by a number of members of congress was to simply restore strict scrutiny, not to open up a whole new line of free exercise rights for for profit corporations, so i think the context clearly indicated otherwise and to simply say all i did was pull a dictionary off the shelf, look it up, person can include corporations we're done with the analysis in some ways the idea that a for profit corporation could have religious free exercise rights was nowhere in the earlier case law that congress explicitly intended to
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be the narrow purpose of rifra. does congress's intent when it passes a statute, have any relevant to your interpretation especially where the dictionary act actually urges you to look at the context. >> senator, i offer you two thoughts on that. first, as i recall sitting here, and i have to go study my books, but the supreme court in an earlier first amendment case did recognize a challenge by an orthodox jewish shop keeper to sunday closing laws. >> that's right. >> that was a corporation, for profit, so respectfully i'm not sure it's accurate to say there's no precedent for it. second i would say to you the position you're advocating is a fine position, respectable position, it's a good position. it was adopted by precisely two justices of the supreme court. and only two. >> so the question i want to ask you now is at what point given
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this newly adopted fairly broad interpretive standard, when do we stop deferring to an employer's religious beliefs when they conflict with generally applicable laws of neutral meaning? when do we allow the right of one to implicate the others? i think it was justice holmes who was attributed to have said you're right to swing your arms stops at the end of my nose and part of what i think made hobby lobby striking to so many was the choices of 13,000 individuals about their method of family planning were overridden by the sincerely held religious beliefs of a very successful family. so i'm looking for how you find a limiting principal in this newfield? what's the limiting principal now. >> i don't believe that's accurate either, senator. all the court held was the government had to come up with another alternative to provide the contra septive care it wished to provide. the court acknowledged, the supreme court acknowledged there was a compelling interest in
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providing the contra septive care and simply said an accommodation could be reached that didn't involve of the greens or require them to give up their sincerely held religious beliefs. the government couldn't explain why it couldn't accommodate other entities like hobby lobby as well or little sisters of the poor. >> if i might briefly judge, in the 10th circuit opinion in which you participated you didn't recognize as a compelling interest gender equity in providing health insurance to millions. the supreme court did. why didn't you think that that was a compelling interest to provide access to health care for millions? >> senator, i think it was just a matter of what the record was in that particular case before us. >> that's also a striking point for me. this was a preliminary injunction. it's a significant ground breaking opinion where one of your colleagues, one of the other 10th circuit judges said,
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we really shouldn't be deciding something of this import on a p.i., we are to be remanding develop the facts below. the larger point i'm trying to make is that i think this could lead to some very troubling applications so let's just take a minute and look at a few of the contours of what this i think precedent setting decision might mean. let's imagine the greens were from a different religious perspective, if they were sign toll gists for example, who reject the use of antidepress sants or christian scientists who reject really modern medicine largely all together. could their sincerely held religiously beliefs lead to the conclusion that 13,000 employees could reasonably denied access to antidepress sants or blood transfusions or to health care whatsoever. >> no, senator. it doesn't mean that at all.
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all it means is that the government under the law as passed by this congress with overwhelming bipartisan support at the time. >> the aca was not passed with overwhelming support. >> i'm talking about rifra. >> in the aca you could override rifra any time you want. that's another alternative. you can abandon it. you can say it doesn't apply to this particular statute. you can stay it applies only to natural persons. you can say doesn't apply to contra septive care. congress controls this decision, senator. it's your decision, it's not mine. with all due respect. we're just trying to implement what you've asked us to do. senator, on your hypotheticals, okay, justice brennan wrote these first amendment cases that you were seeking to revive, i'd remind you of that. justice brennan. all right? and the fact of the matter is, sometimes the government can
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prove a compelling interest and it's got the most narrowly tailored way to get there and sometimes it can't and each case has to be taken on its facts in the particular context in which it arices. >> help me walk through if you would given we already know how you draw the compelling interest line in this particular instance of access to family planning or contraception. how else might you weigh these equities or draw these lines if the greens for example, in hobby lobby knew that several of their employees would spend their paychecks on other things that were immoral, could they refuse to endorse their paychecks? >> senator, it would go back -- we do the analysis. the same analysis. do they have a sincerely held religious belief? sometimes people don't. i've had claims, for example -- >> but in this instance wouldn't you agree their sense of the complicity that you referenced in your opinion would likely
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apply. >> it depends. >> the choice of their employee to spend their opinion in a way they disapprove isn't that different than the choice of the employee to choose from 2 dozen contraceptions. >> so for example, it depends on the facts of the case. i had a case where a number of people came before us and said we have a sincerely held religious belief that marijuana is god. it turned out it was a drug distribution ring and what they really worshipped was the all mighty dollar. they were just trying to make a buck and the district court found that wasn't sincerely held religious belief so you can get off the train there. that's one place where you may get off the train in your hypothetical. you got another place you can get off the train, is it a substantial burden. another place is compelling interest by the government. another place is narrowly
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tailoring so there are four steps in the process and you have to go through all four of them as a good judge with the facts of each case as it comes and senator, again, it's all statutory. you can abolish tomorrow. >> let's take an example that i think was central to a lot of this analysis, united states versus lee p it's an older case. it's one where an amish business man declines to pay for social security taxes at not just for himself but for a few of his employees and the court rejected his claim because the restriction on religious freedom in their view unanimously was essential to accomplish an overriding governmental interest. is lee still good long? >> i think lee would be the sort of law when you're apply rifra. >> because it simply restored that lee was decided under. >> the religious freedom restoration act. that's a very good example senator of where the government
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was able to prove compelling interest and narrow tailoring yes. >> because the ability to have a social security scheme nationally that is sustainable is a compelling interest. >> yes. >> but a nationwide plan to provide access to health care isn't. >> no, senator. i think we're mixing our apples and our oranges because the government in the aca was spotted the compelling interest. the problem was the narrow tailoring. you could get there without forcing the greens to do something their religion prohibited. so it wasn't like the system of social security which depends upon everyone's participation. that was the distinction the supreme court drew. >> let me just quote if i could justice scalia who addressed this same issue in employment decision and you said it's precisely because we're a cosmopolitan nation made up of people of every conceivable religious perceptions that we
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cannot afford the luxury of deeming presume activelily every regulation of conduct that doesn't protect an interest of the highest order. now obviously the laws changed in terms of the review standard but do we because of hobby lobby now have to deem every law to be presume actively invalid if it owe depends any conceivable religious preference. >> it's a four part test effectively. and for every challenge you ask those questions, is there a sincerely held religious belief, is there a substantial burden on it? if check, check then you go to the government side of the legislature. that's the law you've set forth, senator, because this body didn't like, frankly, justice scalia's decision in smith and if this court -- if this -- the old trial lawyer in me, getting tired. if this congress wishes to say justice scalia was right in smith and we've changed our
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minds, that's entirely up to this congress. >> well, i'm going to move on to another line of questioning but i just want to say that one of the challenges i face in a couple of different gaits through the analysis as laid out was how you decided to interpret the underlying relativera statute. how the balance was struck between what i think are the mediating decisions of thousands of individuals versus the free exercise of the greens. you've talked about being a westerner. you've i think entertained us with mutton busting something i haven't seen yet and clearly i should and i'm interested. >> i recommend it. >> i'm interested in your view of privacy and the autonomy of adults to make their decisions. it was, in fact, justice scalia there isn't a california doesn't count. my extended family was from the west and i think of westerners as steadfastly independent folks, justice douglas, a
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famously western justice said the right to be let alone is the beginning of all freedom. so in 2006 you authored a book the and when reviewing your book i was expecting you to conclude that people have the right to be let alone because i think of that as an inherently western trait to make important and difficult personal decisions without the inference of government but you didn't. instead you expressed a belief in the viability of human life. what did you mean by that? >> senator, respectfully, i'm not sure i'd agree with your characterization. >> of the book or of being a westerner? >> of the book. i agree with your characterization of being a westerner. the book does conclude that
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cruzan is absolutely correct, that there is a right to be left alone at the end of life. these are hard decisions. i don't pretend to have any perfect answers here. i was writing this book, it was my dissertation, trying to contribute to what i thought was a very hard question. i still think a very hard question. one we all have had personal struggles with, senator, as i know you have and i have. and this is a human problem, we're mortal. cruzan held that people have a right to be left alone presum actively under the law to stop care, go home and die in your own bed as a lot of my family members have done. the question is whether you should also have an additional
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right to have someone kill you, involve doctors in killing and there are good arguments on both sides of that ledger as i explore in the book. >> if i can judge i'd like to help walk through that exploration of what you looked at in the book and i think the cruzan decision is very important one. because essentially the tension here is between whether there's a right for a conscious terminally ill adult to end their own life by refusing live saving hydration and nutrition as the supreme court assumed in cruzan or with the help of a doctor and a lot of this rests in whether there is a right to privacy. do you believe the constitution contains a right to privacy? >> yes, senator, i do. privacy is in a variety of places in the constitution. the first and most obvious place back to the bill of rights is the fourth amendment, the right to be free from unreasonable searches and seizures in your
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homes, papers and effects. that's privacy, right? the third amendment which i alluded to but didn't want to reveal. >> quartering. >> no quartering of troops. stay out of my house with your troops. happily we don't litigate that much. the first amendment, right, the right to free expression which we've been talking about and the freedom of religious belief, expression, that requires a place of privacy and the 14th amendment senator over now about 80 or 90 years, supreme court of the united states has held that the liberty prong of the due process clause protects privacy in a variety of ways having to do with child rearing and family decisions going back to myers which involved parents who wished to have the freedom to teach their children german at a time when was unpopular in this country. so senator, yes, the
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constitution definitely contains privacy rights. >> one of the things that you say in your book is that and i think i quote, all human beings are intrinsicfully valuable and the intention altaking of human life by private persons is always wrong and i think that's a dividing line you draw between the facts in cruzan and what has been proposed or adopted in states like oregon. can you point to any principal of constitutional law that says that or has that principal as you annunciated it ever been offered by the supreme court or recognized by the supreme court? >> i was speaking as a commentator before i became a judge, not expressing views as a judge, all right? my views as a commentator i'm happy to talk about, though. i found this very difficult to question. the supreme court has held this is an issue for the states to decide. for the people to decide on the state level. i agree with those decisions. i say so in the book.
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my concern about legalization that i express in the book is a common tater has to do with equal protection principals we've been talking about today, equal justice and i am concerned in the book i express concerns as a commentator about what legalization might mean for the least amongst us, the most vulnerable, the disabled, the elderly who might be pressured into accepting an early death because takes cheaper option than more expensive hospice care, things like that that might cost more so that was a concern i expressed. senator, i don't pretend, though to have the last word on that or to know the right answer. i was contributing as a commentator to what i thought was a hard discussion -- >> -- >> it's a hard discussion and something that has enormous impact on the terminally ill and their families. there was a case that i think was active at the time you were
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department of justice where the u.s. attorney general was suing oregon to block their death with dignity law that permits in that state physician assisted suicide and in the documents you produced to this committee, you send a message expressing hope that the federal government would win that particular case. why did you want the federal government to win that case? >> i was an advocate for the government at the time, senator. that's my job. all right? when you represent the government you want the government to win. when you represent somebody against the government, you want the government to lose. and as a judge, senator, it's a very different mind set. >> and when you're up for consideration for the supreme court, it's important to know what you view as subtle precedence so let me in my last two minutes ask a question or two about that. about physician assisted suicide, justice stevens avoiding intolerable pain and indignity of living one's final days incould pass tated and in
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agony, citing the casey decision. what's your view of the application of casey's mystery of human life language here? >> senator, the supreme court in gluchlburg the majority held that this issue is for the states to decide and the people to decide. the people of oregon had made their decision to legalize it for example. it was just legalized in november in my home state in colorado. that's their right. >> how did you feel about that? >> my personal views have nothing to do with my job as a judge. >> let me ask one platform question if i might. there was a line in your book that reminded me a great deal of justice scalia. you said that a libertarian principal legalizing physician assisted suicide would require the government to allow mass suicide pakts, duals, the sale of one's own life not to mention prostitution, the sale of one's
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organs help me understand in closing why finding a constitutional right to physician assisted suicide would directly yield to this long list of perhaps more shocking constitutional rights to prostitution or drug use or the sale of organs. help me understand that leap. >> in each chapter i analyze each potential argument one of which was this libertarian argument. and it applied faithfully to its end it leads to where it leads as some of the authors of the argument acknowledge. i'm not making it up. there are other arguments, though, that one might deploy that i analyze as well. that's not the only available argument for legalization by any means. >> thank you, judge. >> we'll recess for ten minutes so that would be approximately
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[ gavel banging ] you need help with that? >> before -- i'm sorry. >> never mind. >> before i call on senator flake, this is how i would like to go forth for the rest of the evening. we have a vote scheduled at 6:10 that will be about the time that senator flake w