tv Supreme Court Nominee Neil Gorsuch Delivers Opening Statement at... CSPAN March 21, 2017 5:39am-8:06am EDT
>> good morning everybody. i want to welcome everybody to this confirmation hearing on the nomination of judge neil gorsuch. and he's nominated to be associate justice of the supreme court of the united states. judge, welcome to the senate judiciary committee. this is a big day for you and your family. you've been before this committee once before for the confirmation hearing to the tenth circuit where you now set. i imagine that this hearing may
be a little better attended than the last time you were here. >> a little. >> before we begin i would like to give you the opportunity to introduce your family, and anybody else you want to introduce. >> senator kirk this is a lot different than it was the last time i was here. and i appreciate all of the attention. i would like to introduce my family who are here. my wife louise who as you remember stole the show in the east room the day i was nominated. >> yes. >> i got her some water, i've told in the audience, my brother-in-law, my brother in law folks, and my nephew jack. how are you doing, jack? i've got my cousin and her daughter with her, lori. i got a bunch more family coming. my daughter is watching back
home in the west. i've got my longtime assistant holly. where is holly? there she is. ten years we have worked together. i consider her family. and it got a whole bunch of my law clerks here in the audience. it would mind just an app for a second, i'd like to recognize them because i consider them family, too. so senator, i'm very blessed to have so many family here with me today. thank you. >> thank you. we than thank you, judge. we are delighted to have your family here as well for this very important moment in your life. before i get my opening statement i want to set out a couple of ground rules. i want everyone to be able to watch the hearing without obstruction. if people stand up and block the view of those behind them or
speak out of turn, it's not fair or it's not very considerate to others, so officers will immediately under our rules remove those individuals. now i'd like to take a minute to explain about how we're going to proceed. we will have ten minute rounds of opening statements. the ranking member and i nay a minute or two over the ten minutes, but i'm going to ask anyone else to limit your remarks to ten minutes. i hope everybody on both sides of the aisle will respect that. we will then turn to our introducers who will be formally presenting the judge. then we will administer the oath to the judge and we will close today's portion of the hearing with the judges testimony. tomorrow morning we will begin at 9:30 for the opening round of questions. each senator will have 30 minutes for the opening round.
after the first round the senators will have 20 minutes for a second round. and finally as i discussed with ranking member later today, we will notice a markup to consider the judges nomination for next monday the 27th, in anticipation of his nomination will be held over from one week as any senator has that right under our rules to do so. we will then vote on his nomination the following monday, april 3. with that i would turn to my opening statement and then to senator feinstein for her opening statement. one of justice scalia's asked opinions begins with this declaration. it is quote the proudest boast of our democracy that we have a
government of law and not of man, in the quote. the phrase comes from the massachusetts constitution of 1780. this infant state constitution linked the government of laws and not of man directly to the separation of powers. justice scalia said the founders, quote, viewed the principles of separation of powers as it absolutely central guarantee of a just government. because without a structure of separated powers, our bill of rights would be worthless. in plain words it was a desire to preserve and protect liberty and self-government that guided the framers as they designed our constitution. as a founding charter, they
designed, is a remarkable document as we know. the bill of rights of course preserve liberty by restricting what the government may do. but the single most important feature of our constitution is in any particular enumerated right, or even the entire bill of rights taken together. the most important feature of our constitution is the design of the document itself. that design divides the limited power of government uniquely between federal and state governments, and it distributes power horizontally between coequal branches. it is this very delicate balance of power entrusted to competing factions that ensures that liberty for the people will endure. it's the constitutions design
that protects against that mr. that results from the concentration of political power. the founders understood this fundamental principle, and justice scalia understood it better than anyone. he was fond of telling law students called, every tinhorn dictator in the world today to come every president for life as a bill of rights, but the real key to the distinctiveness of america is the structure of our government. our constitutional republic is also designed around the notion that the people, acting through their representatives, retain ultimate authority to govern. it was the people through their representatives who ratified the constitution that establishes our system of governance. under that system, except for
the constitution that already answered the question, decisions are made by elected representatives. elected, yes. but also accountable to the voters. to endure, our system of self governments requires judges to apply the text of our laws as the people's representatives enacted them. so our judges by design play a crucial but limited role. they decide cases or controversies, but in resolving those cases they may look only to the laws the people wrote. judges are not free to rewrite statutes to get results they believe are more just. judges are not free to reorder regulations to make them more fair. for sure, judges aren't free to
update the constitution. that's not their job. that power is retained by the people, acting through their elected representatives. and when our judges don't respect this limited power, when they substitute their own policy preferences for those in the legislative branch, they take from the american people the right to govern themselves. as that happens, inch by inch and step-by-step, representative government is undermined. the carefully constructed balance of power is upset, and individual liberty is lost. these are stale concepts -- are not stale concept. if anything, the enormous size, the enormous power and the enormous complexity of the
modern state renders them more relevant than ever before. in recent months i've heard that now more than ever we need a justice who is independent, and he respects the separation of powers. some of my colleagues seem to have discovered an appreciation for the need to confine each branch of government to a constitutional sphere. i don't question the sincerity of those concerns. some of us have been alarmed by executive overreach, and the threat it poses the separation of powers. whether it was the executive branch unilaterally rewriting federal law as the obama administration did dozens of times, or the executives repeated failure to enforce and defend the laws passed by congress over the last eight years, we witness repeated abuses by one branch at the
expense of the other two. just ask the supreme court, which unanimously rejected arguments of the obama administration made in more than 40 cases. the policies that drove those abuses were of course problematic, but policies can be changed and must be changed. to this senator, what's far more distressing about each executive overreach and each failure to defend the law is the damage that it does to the constitutional order. the damage o those abuses inflicted is far more difficult to undo and the policies that animated them. for as john adams observed, quote, liberty once lost is lost for ever, in the quote. so the separation of powers is just as critical today as it was during the administration, the
last administration. and the preservation of our constitutional order including the separation of powers is just as crucial to our liberty today as it was when our founding charter was first adopted. no matter your politics, for all of these reasons you should be concerned about the preservation of our constitutional order. and most importantly the separation of powers and if you are concerned about these things as you should be, i want you to meet judge neil gorsuch. fortunately for every american we have before us today a nominee whose body of professional work is defined by an unfailing commitment to these principles. is it grasps on the separation of powers, including judicial independence, and livens his body of work. as he explains quote, to the
founders, the legislative and judicial powers were distinct by nature, and the separation was among the most important liberty protecting devices of the constitutional design, and of quote. about the executive he writes, that through quote, the hard-won experiences under a tyrannical king, the founders soundproof of the wisdom of government, of separated powers, in the quote. the judges job, a nominee says, is to deliver on the promise that quote all litigants, rich or poor, mighty or weak, will receive equal protection under the law, and due process or their grievances, end of quote. the nominee before us understands that any judge worth his salt will quote, regularly issued judges with which they
disagree as a matter of policy all because they think that's what the law fairly demands, end of quote. fundamentally, that is the difference between a legislator and a judge. all of us should keep this in mind during the course of this hearing. judge, i'm afraid over the next couple of days you would get some questions that will cause you just to scratch your head. truth be told, it should puzzle anyone, whoever takes a civics class. we will hear that when you rule for one party and against another in a case, it means you must be for the winter and against the loser. senators will cite some opinions of yours, and then we will hear that you are for the big guy and against the little guy.
you will scratch your head when you hear this because it's as if you judges write the laws instead of us senators. but if congress is passes a bad law, as a judge you are not allowed to just pretend that we passed a good law. the oath you take demands that you follow the law, even if you dislike the result. so if you hear that you are for some business or against some plaintiff, don't worry. we've heard all that stuff before. it's an old claim from an even older playbook. you and i and the american people know whose responsibility it is to correct the law that produces a result that you dislike. it's the men and women sitting here with me, good judges understand this. they know it isn't their job to fix the law.
in a democracy, that right belongs to the people. it's for this reason that justice scalia said this, quote, if you're going to be a good and faithful judge, you have to resign yourself to the fact that you are not always going to like the conclusion you reach. if you like them all the time, you are probably doing something wrong, end of quote. judge, i look forward to hearing more about your exceptional record, and i look forward it to the conversation we will all have about the meaning of our constitution and the job of the supreme court justice in our constitutional scheme. senator feinstein. >> thank you very much, mr. chairman. judge gorsuch, i want to you and your family. we are here today under very unusual circumstances. it was almost a year ago today that president obama nominated
chief judge merrick garland for this seat. unfortunately, due to unprecedented treatment, judge garland was denied a hearing, and is a vacancy has been in place for well over a year. i just want to say i am deeply disappointed that it under the circumstances that we begin our hearings. merrick garland was widely regarded as a mainstream moderate nominee. however, president trump repeatedly promised to appoint someone in the mold of justice scalia, and said that the nomination of judge gorsuch illustrates he's a man of his word. for those of us on this side, our job is not to theoretically evaluate this or that legal doctrine, or to review judge gorsuch's record in a vacuum. our job is to determine whether judge gorsuch is a reasonable, mainstream conservative, or is
he not. our job is to assess how this nominees and decisions will impact the american people and whether he will protect the legal and constitutional rights of all americans. not just the wealthy and the powerful. we hold these hearings not because court precedent and stare decisis are something average americans worry about. we hold these hearings because the united states supreme court has the final word on hundreds of issues that impact our daily lives. the supreme court has the final say on whether a woman will continue to have control over her own body, or whether decisions about her health care will be determined by politicians and the government. it decides whether billionaires and large corporations will be able to spend unlimited sums of money to buy elections, and
whether states and localities will be able to pass laws and make it harder for poor people, people of color, seniors, and younger people to vote. it is the supreme court that when a final word on whether corporations will be able to pollute our error and water with impunity. on whether the nra and other extreme organizations will be able to block common sense gun regulations, including those that keep military style assault weapons off our streets. and it is the supreme court that will have the ultimate say on whether employers will be held accountable for discriminating against workers, or failing to protect workers when they are harmed or killed on the job. for example, last year judge gorsuch sat on a case that involved a truck driver who was
stranded in the freezing cold for several hours after his trailers it breaks froze. he had no heat. in fact, it was so cold that the driver was having trouble breathing. his torso was numb and he could not feel his feet. despite this, his employer directed him to wait for a repair man, or else drive both the trot and the trailer. when no one came, the driver unhitched the trailer to search for assistance. because driving with frozen breaks with a fully loaded trailer would have been too dangerous. a week later he was fired. after hearing the case, the administrative law judge ruled that firing the driver was a violation of the health and safety law intended to protect workers. the united states department of labor is administrative review
board and the tenth circuit agreed judge gorsuch dissented and sided with the company. in another case, judge gorsuch wrote a separate opinion, this time to challenge a long-standing legal doctrine that allows agencies to write regulations necessary to effectively implement the laws that congress passes and the president signs. it's called the chevron doctrine. this legal doctrine has been fundamental to how our government addresses real-world challenges in our country, and has been in place for decades. if overturned, as judge gorsuch has advocated, legislating rules are very difficult. in fact, congress relies on agency experts to write the specific rules, regulations, guidelines and procedures necessary to carry out laws we
enact. these are what insure the clean air act and the clean water act to protect our environment from pollution. they are the specific protections put in place by the fda and the agricultural department that safeguard the health and safety of our food supply, our water, our medicines. and they are the details needed to support the infrastructure of our communities, our roads, highways, bridges, dams and airports. we in congress rely on the scientists, biologists, economists, engineers, and other experts to help ensure our laws are effectively implemented. for example, even though dodd-frank was passed nearly seven years ago to combat rampant abuse the lead to our countries worst financial crisis
went to great lengths for four years trying to get pregnant and were thrilled when they finally succeeded. tragically, after her 21 week check up, they discovered her daughter had multi-cystic dysplastic kidney disease. they were told by three separate doctors that her condition was 100% fatal. and that the risk to the mother with sevenfold ashy carried her pregnancy to term. the mother describes their excruciating decision and the unforgiving process the couple endured to get the medical care they needed. the debate over roe v. wade and the right to privacy, ladies and gentlemen, is not theoretical. in nine to 73, the court recognized a woman's fundamental and constitutional right to privacy. that right. tease her access to reproductive
health care. in fact, the supreme court has repeatedly upheld roe's core finding, making it settled law or the last 44 years. i ask unanimous consent, mr. chairman, to enter into the record to 14 key cases where the supreme court upheld roe's core holding and totals 39 decisions where it has been reaffirmed by the court. >> without objection is included. >> thank you. if these judgments when combined do not constitute super precedent, i don't know what does. importantly, the dozens of cases affirming roe are not only about precedent. they are also that implements fundamental and constitutional rights. rove ensured that women and their doctors will decide what
is best for their care, not politicians. president trump repeatedly promised that his judicial nominees would be pro-life end quote, automatically, end quote, overturn roe v. wade. judge gorsuch has not had occasion to rule directly on a case involving roe. however, his writings do raise questions. specifically, he wrote that he believes there are no exceptions to the principle that quote, the intentional taking of a human life by private persons is always wrong, end quote. this language has been interpreted by both pro-life and pro-choice organizations to mean he would overturn roe. the supreme court is also expected to decide what kind of reasonable regulation states and localities can implement to protect our neighborhoods and
schools from gun violence. in fact, just last month, the fourth circuit became the fifth appellate court to uphold a state ban on assault weapons and large capacity magazines under heller. these new cases taken together enable the enactment of prudent and legal legislation to restrict military style weapons from flooding our streets. while judge gorsuch has not written decisions on the second amendment, he did write an opinion to advocate making it harder to convict a silent who legally possessed a gun in his opinion, judge gorsuch argued against the courts on precedent. specifically, in this case, the defendant had been charged with attempted robbery in july about
nine. after pleading guilty, he was given probation. however, quote, he was repeatedly both orally and in writing told the possession of a firearm, end quote, violated his probation, which would mean he could not, quote, escape the consequences of his felony conviction. less than a year later, he was apprehended by the police holding a fully loaded three-point caliber pistol with an obliterated serial number, end quote. in clear violation of his probation. later, he argued he didn't know he was a felon. sixth circuit court, including the 10th have recorded the government does not need to prove a defendant knew he was the alan to convict for this crime. despite this, judge gorsuch
wrote to opinions that argued in favor of making it harder to convict felon to possess guns. and wine, he wrote that sometimes following precedence requires us to make mistakes, end quote. i find this concerning. following precedent in this case was not a mistake. it led to the conviction of a felon who should not have had a firearm. judge gorsuch has stated he believes they should look to the original public meaning of the constitution. when they decide what a provision of the constitution means. this is personal. but i find this originalist judicial philosophy to be really troubling. in essence, it means the judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789.
however, to do so would not only ignored the intent of the framers that the constitution would be a framework on which to build, but it severely limit the genius of what our constitution upholds. i firmly believe the american constitution is a living document intended to evolve as our country evolves. in 1789, a population of the united states was under 4 million. today were 325 million growing. at the time of our founding, african-americans who were enslaved. it was not so long after women had been burned at the stake for witchcraft and the idea of an automobile, let alone the internet was unfathomable. in fact, if we were to dogmatically adheres to originalist interpretation, then we would still have segregated
schools and bans on interracial marriage. women wouldn't be entitled to equal protection under the law and government description against lgbt americans would be permitted. so why am concerned when i hear that judge gorsuch is an originalist and a strict constructionist. suffice it to say, and i conclude, the issues we are examining today are consequential. there is no appointment that is more pivotal to the court than this one. this has a real-world impact on all of us. who sits on the supreme court should not simply legalistic eateries and latin phrases in isolation. they must understand the court's decision have real-world consequences for men, women and children across our nation. thank you, mr. chairman.
>> senator hatch for 10 minutes. thank you, mr. chairman. judge gorsuch, welcome back to the committee. this'll be a more important ordeal than your last for the appointment. i served on this committee for 40 years and found things in the confirmation process never change. the cosmic judicial appointments is other general -- in general and over this nomination in particular is a conflict over the proper role of judges in our system of government. i have long believed that the senate is president than deference with respect to his qualified nominees. the qualification of the judicial service includes legal experience which summarizes the past and judicial philosophy which describes the present. and anticipates the future.
judge gorsuch's experience is well known. the american bar association is the gold standard for evaluating judicial nominees. the aba's unanimous well-qualified rating for judge gorsuch confirms that he has the highest level of professional qualifications including integrity, confidence and temperament. judicial philosophy is the important qualification and the more challenging to assess. it refers to a nominees understanding of the power and proper role of judges in the estimate government. over the last several weeks i've addressed this issue on the senate floor in an opinion pages around the country by contrasting what i have called impartial judges and political judges. an impartial judge focuses on the process of interpreting and applying the law according to
objective rules. in this way, the law rather than the judge determines the outcome. a political judge in contrast focuses on a desired result and fashions a means of achieving it. in this way, the judge rather than the law often determines the outcome. in my experience, a supreme court confirmation process reveals the kind of judge that senators want to see appointed. a senator, for example, want to know which side the nominee will be on a future cases or demands judges to advocate for certain political interests clearly has a politicized judiciary in mind. "the new york times" reported last week at the most prominent lines of attack against the nomination will be that judge gorsuch is quote no friend of the little guy, unquote. something is seriously wrong
when a confirmation process for supreme court justice resembles an election campaign for political office. this dangerous approach contradicts the oath of judicial office prescribed by federal law. when taking a seat on the u.s. court of appeals in 2006, judge gorsuch were to administer justice without respect to persons and to impartially discharge his judicial duties. his opponents today demand and the fact that he violated that oath. advocates of such a politicized judiciary seem to think that the confirmation process seems to require a political agenda and a calculator. when a nominee as a sitting judge, they tally the winners and losers and do the math. if they like the result is thumbs-up on on confirmation. if they don't, it's thumbs down. what if for example, judge
gorsuch record an appeals court is as follows. 83% of immigration cases against the defendant and 92% of criminal cases does not guide more than 80% of the time and agreed with other republican appointed judges 95% of the time. i can just hear the cries of protest, accusation that he favors certain parties in this hostile to others and threats of filibuster. that is in fact the record at a u.s. circuit court judge nominated to the supreme court but not the one before us today. it is the record of judge sonja sotomayor. not only did he championed her nomination, but offered a summary of her record as proof that as he put it, she is in the mainstream, unquote.
what a difference an election makes. alexander hamilton wrote about the importance of judicial independence. what chief justice william rehnquist later called the crown jewel of our judicial system. today, in a bizarre twist on that principle, judge gorsuch's appointment say the only way for him to prove his independence is by promising to decide future cases according to certain litmus tests. in other words, judicial independence requires that he be beholden to them and their political agenda. it simply describing a principled position is not enough to refute it, the confirmation process is in more trouble than i thought. judge, i know that the integrity of the judiciary, fairness to the litigant who come before you in your own oath of office to your highest priorities.
you will be in good company by resisting efforts to make you compromise your impartiality. when president lyndon johnson nominated judge thurgood marshall to the supreme court, senator ted kennedy, my friend who would later chair this committee said quote, we have to respect that any nominee to the supreme court would have to be for any comment on any matters which are before the court are very likely to appear before the court, unquote. that was 50 years ago. when justice ruth bader ginsburg appeared before the committee in 1993, she said, quote, judge sworn impartially could offer no forecast, no hands for the specifics of the case it would be the entire process, unquote. in a speech earlier this year, justice sotomayor said what she wants is for us to tell you how
as a judicial nominee we will rule on the important issues you find vaccine. any self-respecting judge who comes in with an agenda that would tell you how they will vote. we don't want is a judge. we are receiving dozens of harvard law school appears. after describing with all political religious, geographical and social stripes, the senators wrote, what unites us as we attended law school with judge neil gorsuch, a man with known for a quarter-century in the unanimously believe dell possesses the exemplary character, outstanding intellect, steady temperament, humility and open-mindedness to be an excellent addition to the united date supreme court, unquote. i agree with that appraisal by
people from all walks of life and different political views, people who agree with you and don't agree with you. i look forward to this hearing, mr. chairman. >> thank you, senator. senator from vermont. thank you, mr. chairman. i did find interesting the senator from utah spoke about justice sotomayor saying that these are the reasons in her nomination this speech, these are the reasons republicans did vote for the democrats against her. senator hatch voted against her. today marks the first time the judiciary committee has met publicly to take on the vacancies as a result of the death 13 months ago. just an hour after we learned of
his son's passing, the republican majority declared that the senate would not provide any prices to any nominee selected by president obama. despite president had been nearly a year collective has turned. this is an extraordinary blockade. totally unprecedented in our country's whole history. some liken it to the tyrannical kings who claim they have sole control as our senators referred to here a few minutes ago. it was a blockade that by then candidate donald trump. the committee republicans behind closed doors declared that they would surrender. the independence of this committee to do the majority leader's bidding in the process.
in fact, the unprecedented instruction is one of the greatest things in the 200 year history of this committee. remember, the judiciary committee wants to read against a court packing scheme of the democratic president that would have eroded judicial independence. and that was a proud moment. now republicans on this committee are unpacking schemes and was never grounded in principle they block the nominee of extreme special interest groups were meeting in private to that potential supreme court nominees for then candidate donald trump. i do not know if any other supreme court nominee who was selected by interest groups in
consultation with the senate as required in the constitution. senate republicans made a big show last year about respect and the voice of the american people in this process. now, they are arguing that the senate should stop nominees selected by extreme interest groups and nominated by a president who lost the popular vote they nearly 3 million votes. that president has demonstrated hostility towards our constitutional rights and values. his level of personal attacks against federal judges and career prosecutors who dare to see has promised muslim band for what it is, unconstitutional. he called her constitutionally protected for a price, quote, the anemia he american people. when the president's chief of staff says the nominee before i sent the vision of donald trump, well, that raises questions for people who have actually read the constitution or cares about
the right protects. i expect this nominees will play a central role. judge gorsuch has spent more than a decade, graduated round harvard law school, clerked for supreme court, serve in the department of justice department of justice. he received a unanimous well-qualified rating to the american bar association. all very important to the supreme court nominee. and follow spain's were sufficient nominees to the supreme court. and she's judge merrick garland who had exactly the same qualifications and research used by the republicans on the court today. that's why the philosophy becomes important. in contrast, nominees like john roberts whose judicial
philosophy was not clearly articulated when he appeared before this committee, judge gorsuch appears to have a comprehensive originalist philosophy. the approach taken by justice scalia for justice thomas or judge bork. while it's gained some popularity within conservative circles, originally semi-believe remains outside the mainstream moderate constitutional jurisprudence. it has been 25 years since an originalist has been nominated to the supreme court, given what we've seen from justice scalia, justice thomas and judge gorsuch on record, i believe it would go beyond being a philosophy and an agenda. we know conservatives and the millionaires who fund them have a clear agenda. anti-choice, antienvironment, pro-corporate. and these groups are obviously
confident that judge gorsuch shares their agenda. the first person interviewed judge gorsuch in this process explains these groups did not ask who's a really smart lawyer whose been really accomplished? instead, a nominee who understands these things like we do. after all, judge gorsuch has been described by former leader of the republican party is a true loyalist and a good, strong conservative. now, the concerns i have about judge gorsuch's judicial philosophy and the process by which you selected, the views of the president nominee. i hope and expect that you answer my questions and the questions above the senators as clearly as possible. you know, it is not enough to say in private that the president's attacks on the judiciary are disheartening. i need to know that you understand the roles of the
court to protect the rights of all americans. i need to know you can be an independent check and balance on the administration nominated you in on any administration that might follow it. judge cac gorsuch, occurring afr the first opportunity for the american people to hear your views on the role of the court and many of our constitution. like the founders who did not know a legal question be presented in decades to come accept this constitutional process. it's important to understand how the court has a profound impact on small businesses and workers, online please been a big guns, families and children across america. it is not contrary to the duties and obligations of a supreme court justice to consider the effects of the ruling. the court is aspiration after
all is to provide equal justice under law as subscribed at the doorway to the court. judge gorsuch, these hearings will help us conclude if you are -- will you allow the government to include america's personal privacy and freedom will elevate the rights of corporations over those of real people and will you rubberstamp a president whose administration has asserted that executive power is not subject to judicial review. it is important to know whether you serve as independents or as a surrogate to the president nominates you for special-interest groups that provide the president with your name. now, i approach these hearings with these thoughts in mind as i can honestly say i have yet to decide how i'm going to vote in this nomination. unlike those who block the
nomination of merrick garland, i believe it's my constitutional responsibility to fairly evaluate a president's nominee to the supreme court. i voted for supreme court nominees. i voted against others. i recall going on the floor of the senate right after democratic leader said he would vote against john roberts for chief justice. i was the next speech. i said i would vote for him. i will base my determination on the record of the conclusion of these communications, just as the previous 16 supreme court nomination since i've been in the senate. supreme court is the guarantee of the laboratories of all americans. judge cac gorsuch, when he tooke bench come he spoke the following words. i will administer justice without respect to persons and legal right to the poor and the
rich. if confirmed, you have to be a justice for all americans, not for the special interest of a few. in all, i can't think of any time in our nations history when that commitment is more important than it is now. that's what i've been thinking all weekend long. the american people could not be higher. we know that in vermont and america knows that. thank you, mr. chairman. hispanic thank you, senator leahy. now to senator corgan. thank you, mr. chairman. judge gorsuch, welcome to you and your family. as you can tell this is a much different experience than you had 10 years ago when you were confirmed by voice vote of the entire united states senate to a life tenured position. the senate judiciary committee undertakes no task more important than the one before us considering a nominee to the united states supreme court.
as you know, historically these used to be pretty routine. but that is until judges became seen as policymakers rather than as an impartial interpreters and the players of the law. the nation is watching and i think that's a really good game. at a time when fewer and fewer american citizens know our founding story and the principles upon which it is based, this is a wonderful opportunity for a teachable moment. and i would encourage you to take every opportunity to engage in. we are considering a nominee of course left by the death of justice antonin scalia -- we've heard before, justice scalia was unique. his wit and style brought the constitution to life, for lawyers in their first year of law school and for the american public at-large.
he led the most important legal revolution in our lifetimes, tethering judicial interpretation to the written text. what a concept. this is part of the broader project, which the nominee before us, judge neil gorsuch described as, quote, reminding us of the differences between judges and legislators. judges should strive to apply the law as it is, not to decide cases based on their own moral convictions for the policies, consequences they feel might serve society best. in one dissent, justice kolya rode along similar lines but if our pronouncement of constitutional law rely primarily on value judgments, then a free and intelligent people's attitude towards us can be expected to be quite different. people know that their value judgments are quite as good as those taught in any law school and perhaps better.
the framers, i believe, shared justice goliad and your modest view -- justice scalia of your modest view. alexander hamilton wrote the judiciary may be truly said to have neither force nor will, but merely judgment. after justice scalia's death, senate republicans decided to let the american people in this last presidential election choose his successor. .. he went to work for a startup
law firm where he spent a decade, as he put it, working in the trenches of the law. as a recovering lawyer and judge myself, i think it's critically important, you understand better than most the impact of your decision, actually having represented real-life clients. the law is not just an academic or intellectual exercise but it has real consequences for real people. i encourage you to talk about the real people you have came in contact with during your career. after serving this country at the justice department, judge gorsuch was nominated and confirmed for the tenth circuit. not one of our democratic colleagues then opposed him for the tenth circuit court of appeals because there was simply no reason to do so. in the decade sense, he has written hundreds of opinions on
the constitution and innumerable laws. he has demonstrated he actually reads the text carefully to get the right result. i am reminded there is a difference between what we loosely call a strict constructionist and a textual list. i encourage you to make that point during your testimony. as you can see here today, his jurisprudence reflects humility of a man committed to the constitution and the law. that body of work is the best guide for this judge that judge gorsuch will be. answer two questions, we've already heard about specific issues and cannot and should b t be a guide. you are not a politician running for election him a judge. justice scalia warned that they
should deteriorate question-and-answer sessions. it should not be the form in which you seek the nominees commitment to support or oppose them. we are not here to ask you how you will vote in specific cases, and it would be wrong for you to prejudge those cases, as you know. that's the same reason why, for example, ruth bader ginsburg said a judge sworn can offer no forecast, no hints because i would show disregards for the specifics of the case and the display disdain for the entire judicial process. can you imagine what a litigant might think if the judge said before they heard a word how they would decide the case? that is why it is improper for you to prejudge cases in your
testimony before the committee. our colleagues know that as we well, but i expect they will ask a few questions nonetheless. lately we have heard from some that they should criticize you for failing to rule for a constituent in one case or another. if you follow the law and the facts wherever it may lead, sometimes it is for the police, sometimes for a criminal defendant, sometimes for a corporation, sometimes for an employee, sometimes for the government or against the government. that is how the rule of law works and that is good for all americans. one law professor at harvard wrote following the law regardless of the parties, in the long run, protects the little guy better than a system rigged to protect one side.
because of your qualifications and demonstration of following the law, other than a few special interest groups, i think you have a broad spectrum of people supporting your nomination. one of your colleagues on the left wrote in the washington post that the senate should confirm judge gorsuch because there's no reason to vote no. another liberal constitutional's dollar signed a letter that said judge gorsuch has become a nation of character, dedication and intellect that will make him an asset to our highest court. in the new york times it was wrote that liberals should back him because he would live up to the promises to administer justice with respect to persons and to equal right to the poor and to the rich.
the list goes on and on. i'm very pleased the people are about to learn why president trump chose you as his nominee for the supreme court i look forward to hearing from judge gorsuch and i encourage my colleagues to carefully consider the nominee on the merits and nothing else. >> thank you senator cornyn. >> thank you. judge gorsuch welcome to you and your family. i've often read stories about earlier supreme court nominees and how little politics played any role in the selection and betting of the nominee. those of us on the democratic side, as you can hear, are frequently warned not to let politics be part of this decision. when i consider the path to this historic hearing, this plea rains follow. the journey began with the untimely death of justice scalia in 2016. president obama met his
constitutionally required obligation by nominating judge garland to fill that vacancy. senate republican leader mitch mcconnell announced for the first time in the history of the united states senate that he would refuse judge garland a hearing and a vote. he went further and said he would refuse to even meet with the judge. it was clear that senator mcconnell was making a political decision hoping a republican president would be elected. he was willing to ignore the tradition and precedent of the senate so you could sit at this witness table today. in may and september 2016, republican presidential candidate donald trump released a list of 21 names including yours, that he would consider to fill the vacancy. president trump thanked the federalist society and the heritage foundation, two well-known republican advocacy groups for providing the list
that included your name. your nomination is part of a republican strategy to capture our judicial branch of government. that is why the senate republicans kept the supreme court seat vacant for more than a year and why they left 30 judicial nominees who had received bipartisan approval of this committee to die on the senate calendar as president obama left office. despite all of this, you are entitled to be judged on the merits. the democrats of the senate judiciary committee will extend to you a courtesy which senate republicans denied to judge garland. a respectful hearing and a vote. you have been nominated to a lifetime appointment to the highest court in the land. this court has the final say on the fundamental importance affecting all americans. you have a lengthy record before the tenth circuit and we will ask many questions. we have found in the past nominees try their best to dodge most of the questions.
it is our job to seek the truth. at the nomination hearing of ruth bader ginsburg, my friend and predecessor paul simon set forth a standard for supreme court nominees. i have noted this with each nominee i have question. he said, you face a much harsher judge than this committee and that's the judgment of history. that judgment is likely to revolve around the question, did you restrict freedom or did you expand it? let me be clear, when i talk about expanding freedom, i'm not talking about freedom for corporations. we the people does not include corporations. senator simon could never imagine that the supreme court would give corporations rights and freedoms that were previously deserved only for individuals under the constitution, and yet that is where we find ourselves with the roberts court. it's often said the roberts court is a corporate court
because of its tilt. they found the coun court ruledr the chamber of commerce 69% of the time. the court has certainly favored big business on things like forced arbitration, price-fixing, workplace dissemination cases to name a few. the roberts court has gone further than ruling the way corporate america wants. in the 2010 citizens united case, the supreme court held, for the first time, that corporations have the same rights as living breathing people to spend money on elections. that was followed in 2014 by the hobby lobby decision which allowed for-profit corporations to discriminate against employees based on the corporations assertion of religious belief. i don't recall ever seeing a corporation accused in old saint patrick church in chicago. our founders never bleed
corporations had certain inalienable rights but we are seeing the supreme court expand the price of this legal fiction, a corporation, at the expense of the voices and choices of the american people. this strikes at the heart to provide equal justice of the law. judge gorsuch, you took part in the hobby lobby case before the tenth circuit. as i read the case, i was struck by the extraordinary, even painful links the court went to to protect the religious beliefs of the corporation and its wealthy owners, and how little attention was paid to the employees. to their constitutionally protected religious beliefs, their choices as individuals. the burden the court placed on them. i want to hear from you. in case after case you do missed or rejected efforts by workers and families to recognize their rights or defend their freedoms.
cases like trans am trucking which we have already spoken too. we had a chance to sit down with them. he was a truck driver from detroit who was driving around chicago in the middle of january when a malfunction in his trailer froze the brakes and he was forced to pull over on the side of the road. he sat there on his cell phone with the dispatcher for the truck company and said don't leave this truck no matter what and if you do pull the trailer with you. that was a big problem because the brakes were frozen and it would've been a safety hazard. so he waited and waited. the hours passed and he started feeling numb and sick. there was no heater in the truck and according to his recollection, it was so cold, it was 14 degrees below. not as cold as your dissent, judge gorsuch, that argued that his firing was lawful.
you cited a strict argument to make your point but you chose the text that you focused on. thank goodness the majority in this case pointed out that common sense and supported the majority view. another one of your cases, your dissent would've vacated a penalty against an employer who failed to train construction employee christopher carter to avoid the electrocution hazard that killed him. strickland versus ups, your dissent would have kept a sexual discrimination case from going to his injury even though fellow judges said she provided ample significancevidence that she was outperforming her mail counterparts. i want to hear about individual rights that they are tasked to defend, the right for all to practice their religion and the
right to vote, equal protection and the rights of women. the committee has received letters from students that raise some serious concerns. we learned you were an aggressive defender during the bush administration. in june 2004 after the torture scandal, i offered the first bill to ban cruel treatment of detainees. that legislation became the mccain torture amendment which passed in december 2005 by a 95 - 9 vote. when it was signed into law, he claims he had the authority to ignore the mccain amendment. turns out you were deeply involved in this unprecedented signing statement. we need to know what you will do when you are called upon to stand up to this president or any president if he claims the power to ignore laws that protect elemental human rights. you are going to have your hands
full with this president. he will keep you busy. it is incumbent on any nominee to demonstrate that he or she will serve as an independent check or balance on the presidency. there are some warning flags. february 23, chief of staff said neil gorsuch represents the type of judge that has the vision of donald trump. i want to hear from you why he would say that. make no mistake, when it comes to the treatment of workers, women, victims of discrimination, people of minorities and religious faith, most americans question whether we need a supreme court justice with the vision of donald trump. with my confirmation vote clearly in mind i look forward to hearing from you thank you. now the senator from utah. >> thank you, mr. chairman. thank you judge gorsuch and welcome to the committee. i also want to welcome your
friends, family members and supporters, former colleagues, and people you work with over the years who have come to show their support. i know they are proud of you and they are proud of you not just because of what you've done, what you've accomplished professionally, but also who you are personally. a man of integrity and great accomplishment. a man of character and faith. everyone knows a supreme court confirmation hearing can be dramatic, even emotional at times. the stakes are high. as senators we understand there are few things more important than the obligation that we are performing here and the duty that we are carrying out in connection with this process. it seems like standing for a confirmation hearing in the united states senate, after being nominated to the supreme court of the united states can
appear a little bit like running for political office. as we've seen over the past few weeks, there are interest groups out there, some supporting you and some opposing you, and they are waging campaigns as if they are running a campaign for someone pursuing public office. maybe that's why, especially on the side of the dice it can be easy to forget that a nominee is an ordinary citizen. perhaps not ordinary in the usual sense, but that person is not a politician. you, sir, are not a politician, which means the acrimony, the ruthlessness of today's hearing are a little foreign to you and unfamiliar to you. i hope they will remain unfamiliar to you. in a former life, when i was a practicing attorney, i had the good fortune of appearing in
front of you on the tenth circuit. i know from my own personal experience that you are one of the best judges in the country. you come to oral arguments prepared. you asked fair probing questions that are designed to get at one thing and one thing only which is what the law says and what the law requires in each individual case, depending on the facts and circumstances of that case. you weren't there to promote a personal agenda or political agenda and you're not there to grandstand. you are there to listen to both sides of the argument in the case. you write thoughtful and rigorous opinions. they are careful and well reasoned. they are even interesting and pleasant to read which is difficult to achieve in the world of appellate litigation. i know i am easily entertained, but i find your opinions particularly interesting. you have a resume of a supreme court justice, but what is most
impressive, and what's most important about your career and about the approach you take to the law is your fears independence from partisan influence and from any personal bias that you might otherwise be inclined to harbor. the judiciary is set apart from, and in a way, set far above the other branches in our republic, the other organs in our constitutional system specifically because we allow it to invalidate and interpret the is actions of the electoral branches. we have two branches that are political in that they are run by people who were elected and stand for reelection, thus making themselves accountable to the american people.
our confidence in our entire system including the american judiciary, depends entirely on judges just like you. judges who are independent and whose only agenda is getting the lot right. regardless of whether any particular judge or litigate or any member of the public might like or dislike in the case. you are essential to make us accountable. unless you do your job right, we are held accountable. that's what makes your role and your approach and commitment to this so important. i want to take a moment to address some of the unique criticism that you might be facing this week. i am sure during this hearing some of my colleagues might blame you are outside the mainstream. in fact we've heard some of that already today.
weaves heard arguments that you are originalists and it's so far out of the mainstream that it's dangerous. i remind my colleagues that who have raised concern or are harboring them, if this is the case, they have to acknowledge the fact that there is a broad spectrum of people on the united states supreme court that they might be painting with that brush. justice kagan, when she was standing before this committee in the second day of her confirmation hearing said, referring to the founding fathers and the need to know what they understood about particular words, about how those words were used by the founding generation said, sometimes they lay down specific rules. sometimes they lay down broad principles. anyway, we apply what they tried to do and in that way we are all
originals. that was in 2010, before this committee. moreover, these out of the mainstream arguments or approa approach, referring to you as an originalists just doesn't stick. this is not a description that was attributed to you. the last time you stood before this committee and went through a confirmation process, nowhere in the record is there any record of you being outside the mainstream. your nomination to the court of appeals for the tenth circuit was so remarkably uncontroversial that one senator and only one senator, lindsey graham, was the only member of this committee who even bother to show up at your confirmation hearing. i would have been there too, judge, i was not yet a member of the united states senate.
you were confirmed unanimously. i am sure some of my colleagues will question your independence because in their view maybe you have an sufficiently criticize the comments made by some of today's politicians. personally, i think you have made your views on this subject very clear. i am sure some of my colleagues will complain that you aren't providing any hints as to how you might rule in any particular case, but that however is a reason for your confirmation, certainly not against it. in our system, judges don't provide advisory opinions but they don't make legislation. they don't make law or set policy in the same sense that those things are made in the political branches. they decide cases and
controversies only after each side has had the opportunity to make its case before the bench. they do so outside the realm of political influence. in an odd twist, some of the colleagues that will question your independence will push you to answer questions you simply cannot. i am sure some of my colleagues will pick apart some of your rulings, try to say you are hostile to particular types of claims or particular plaintiffs. i don't think it's productive to evaluate someone's judicial record by looking at who wins or who loses in the courtroom, at least outside the context of evaluating how the law was interpreted in that case. it goes without saying, within our system, you face the same burden of convincing a court regardless of who you are and judges don't decide cases emma they certainly should never decide cases based on their own personal preferences. to my colleagues to go down that
road, the record shows with abundant clarity that you apply the law neutrally in all cases, without regard to the parties. finally i urge my colleagues to keep in mind that while his reputation won't be affected by how we treat his confirmation, the same can't always be said of the senate. tonight data the night he was nominated he said the senate is the greatest deliberative body in the world. these days it seems like this is more of a challenge than an observation. mormon aspiration than a present sense description of reality. i hope to prove you right this week. thank you very much and i really look forward to hearing answers to the questions we raised to you. >> thank you senator lee. now senator white house.
>> judge gorsuch, welcome. as we discussed when we met, the question that faces me is what happens when the republicans get five appointees on the supreme court? i can't help but notice the long array of five -4 decisions with all the republican appointees lining up to change the law to a republicans at the polls and big business pretty much everywhere. let's look at the 5-numfour decisions was helping republicans at the polls. all the republican appointees's 5-numfour decisions favor republicans at the polls. 6-0. helping republicans gerrymander, paving the way for the republican red map plan with one house against the american
majority in 2012. 5-numfour come all the republican appointees. helping republican legislatures keep democrat leading minorities away from the polls with targeted voter suppression laws. shelby county, 5-4. all the republicans. mark versus strickland 5-numfour all the republicans. help incorporate money flood elections and boost republican candidates, mccutchen, 5-numfour. all the republicans, 5-numfour over republicans and the infamous citizens united decision 5-numfour all republicans. in each area, new law 5-numfour, in each decision, predictably help republicans win elections, 6-0, partisan route. then look at cases that had corporations against human beings. all the 5-numfour republican appointee decision this lineup to help corporations against humans. citizens united and the
political money decision, should again count here. all three, 5-4, all the republicans. the come decisions that protects corporations who harm their employees to pay discrimination, ledbetter 5-for all the republicans. age discrimination 5-4, all the republicans. harassment cases 5-for all the republicans. anti-retaliation cases, you guessed it, 5-4, all republicans. then the decision that protects corporations from class-action lawsuits, walmart versus dukes, 5-4, comcast, 5-4, all republicans. then there are decisions that help corporations steer customers away from juries into corporate friendly mandatory arbitration. and italian restaurant number 5-4, both republicans. the decision 5-for all
republicans helped by the courthouse door to all types of plaintiffs. all of this helps keep corporations away from juries. the one element of government hardest for corporations to control. is you know tampering with a jury is a crime. the report helps big business against unions, harris versus quinn 5-for all republicans. last, 5-4 body blow against unions when justice scalia died with a new 5-4 court, they will be back. throw in hobby lobby, corporations have religious rights that supersede healthcare for their employees, 5-for all republicans. heller and mcdonald, reanimating for gun manufacturers, former chief justice once called a fraud 5-4, all republicans, help insulated investment bankers and fraud claims, why not? capital group 5-4 all
republicans. chamber of commerce versus epa gave corporate polluters unprecedented victory 5-for all republicans. that is in easy 16-0 record for corporations against humans. to me every time seems like a lot. there is no coincidence here. big business has law groups looking for cast cases to get those cases before friendly courts. republican, politico industrial complex piles in with amicus brief and floods to tell the republican appointees on the court what it wants. republican justices are even starting to give hints so big business lawyers can get some cases up to the court. it is a machine, special interests set up fund groups, they appear before the court. the briefs to the front groups tell the court what special interests one, the court follows the amicus brief, decision benefit special interests and special interests for more money to the front groups.
on it goes like turning a crank. the biggest corporate lobby of them all, winning better than 2-1 at the court. this 5-4 rampage is not driven by principle. over and over, judicial principles even so-called conservative ones are overrun on the courts road to the happy results. these were not changing, many offending a century or more of law and precedent, textualism, the second amendment uses the military term, and never mind that when the glom is gun lobby wants something. original listen, particularly good one. find me a founding father who planned a big role for business corporations in american elections. and the steady strangulation of the civil jury without so much as a mention of a seventh
amendment. visit linens united majority, court procedure, and wanted to deliver. around a record that would have belied their findings of fact. setting aside findings of fact where factually preposterous as events of shown and appellate courts not supposed to make findings. and not just us who notice, scholars describe the roberts court as a delivery service. jeffrey toobin wrote in 2009 even more than scalia chief justice roberts has served the interests and reflected the values of the temporary republican party. linda greenhouse in 200014 i am finding it impossible to avoid the conclusion that the republican appointed majority have committed to harnessing and ideological agenda. more and more seated the new reality of today's supreme court
polarized along partisan lines in a way that parallels other political institutions in a fashion we have never seen. study of court decisions show the most corporate friendly court in modern history with justice roberts, the most corporate friendly justice. the american public knows something has gone wrong at the court. 2014 paul revealed a majority of americans think a person won't get a fair shake in this court against a corporation. where do you fit in? when hobby lobby was in the 10th circuit you held for corporations have a religious rights over its employees's healthcare. your record on corporate versus human litigants comes in by one count at 21-2 for corporations. tellingly big special interests and different groups are spending millions of dollars in a dark money campaign to push your confirmation.
we have a predicament. in ordinary circumstances who should enjoy the benefit based on your qualifications? several things have gone wrong that shift the benefit of the doubt. justice roberts said in that seat, and led his 5 person republican majority on the activist 5-4 political shopping spree. once burned, twice shy. and unhinged from the truth. and any semblance of legislative process to the last nominee, one, i would say more qualified than you and that is saying something. why go through unprecedented political trouble to deny so qualify to judge even a hearing if you don't expect something more amenable to come down the pike? those political expectations color the benefit of the doubt.
finally the special interests who have done so well in the extravaganza spending millions and billions campaigning to push the nomination. they inc. you will be worth their money. these special interests support the republican majority keeping this seat open. at all costs who ever sits in the seat the benefit of the doubt. and settling with the republican appointee 5-4 again on a massive special interest and republican elections paris. i hope whatever we disagree about on this committee we can at least agree, litigants in 5-4 decisions how they do based on who they are. and here is what it looks like as republican election
interests, they will win. if they are corporations against the human being they will win every time. every time seems like a lot. >> thank you, mister chairman. there is a reason i did not do this litany with democratic nominees that appeared before the committee. i don't think it would have made in terms of how other people voted and i didn't expect them to vote with the republican majority, elena kagan and sonja soto mayor, talking about how antagonistic they are to the second amendment, how the unborn doesn't have much of a chance in their court, how the environmentalists always win and there is no government too big to be said no do. the reason i do that is i thought they were qualified.
if you believe this has been a great plan to get a trump nominee on the court, you believe trump was going to win to begin with i didn't believe that. obviously i didn't believe that, saying all the things i said. followed closely by then. what i said didn't matter and that is okay with me. the american people chose donald trump and here is what i can say about the man in front of him. and no one could have chosen better to represent conservatism on the supreme court. and donald trump deserves to be congratulated for listening to a lot of people coming up with the best choice available to a
republican president in terms of nominating somebody who is going to keep the philosophy alive, and he is a pretty independent guy from what i can tell, probably -- i have ever been disappointed with sonja soto mayor or elena kagan. i knew what i was getting. they always vote for the liberal lock, they are very qualified people. the court comes together to reject companies but most of the time people break along the lines of where they came from and they came from a view of the law i don't accept in terms of who i would have chosen but was well within the mainstream of judicial philosophy from the
left. i thought they let exemplary lives quite frankly. there are a lot of attacks on them that i didn't echo because i thought give me a break. and exemplary lives are highly qualified and voted for them. i thought this is what they should be doing and i'm beginning to wonder now. i remember when i voted for them how many good editorials i got from papers nobody from south carolina read. i miss harry, harry is around here somewhere, harry reid said something nice about me. i can't find it. he basically said that i wished more people would follow senator graham's lead, highly qualified nominee. maybe that will happen in the
future. whether this man is highly qualified i'm dying to hear the argument that he is not. you may not like the view he has of the law, i am dying to hear somebody over there tell me why he is not qualified to be sitting here, occupied down the street. when you look at federalist papers, i saw the musical hamilton, was pretty good. reading his work, he did better. the federalist papers, 78-87, basically what he tells us is the role of the senate, make sure the president doesn't pick someone especially favored for their state and association to their family, cronyism is what we are supposed to be doing. most supreme court justices
until modern times confirmed with the vote. canned way all the blame on democratic friends about the election process. what i want to say to the public is i'm glad people like neil gorsuch are willing to go through this and i'm sure sonja soto mayor and elena kagan wished they had not chosen that path but i think they made it through with flying colors. the issue for me is i am waiting to hear somebody over there, whether i'm not qualified for the job you are seeking. and academic record and the reason i didn't do all the things academically couldn't get into the schools you were able to get into. the way you handled yourself i think you should be proud of the
way you handled yourself on the court and colleagues who know you better than anybody, no tv cameras were rolling, nothing but great about you, even if they make a different philosophy. you are every bit as qualified as justice sonja soto mayor and elena kagan, just as good a man as they are to find women, over the course of the next couple days, to understand who you are and within limits the judicial philosophy, every case you made here. that is a reason i didn't ask sonja soto mayor and elena kagan to give me an opinion what they would do when they get over four because they wouldn't tell me that, didn't feel comfortable
asking them that. as to merrick garland, one thing i can say for sure is when justice scalia passed on february 13th we had three primaries on the republican side, the campaign was in full swing on the democratic side. are we doing something unfair here by not allowing the current president to nominate somebody to to fill a vacancy in the last year of their presidency after the political process had started. when i started looking around at what other people thought here is what joe biden thought. if someone steps down i recommend the president not name someone, not send up a name if bush did send someone up i would ask the senate to consider not having hearings on that nominee. it would be a pragmatic conclusion that once the political season is underway and
it is, action on supreme court nominations must be put off until after the election campaign is over. that is what my friend joe said in 1992. bottom line is i have no doubt in my mind if the shoe were on the other foot the other side would have delayed confirmation process until the next president is elected. and hundred years when we had the president of one party in power, and one person confirmed in the last year, i don't feel any injustice has been done to anybody here at the bottom line, democratic words from the past, there has been what we said. one thing i say is i have been consistent. i voted for everybody since i have been here. for alito, justice roberts, sonja soto mayor and elena kagan
and all four have one ring in common is no republican would have chosen sonja soto mayor and elena kagan but how can republican say they are not qualified for the job? they lived an exemplary life, years on the bench. now the shoe was on the other foot and i remember after i voted for elena kagan, all the headlines in the washington post will ensure that graham gets primary. they were right. that is not the only reason for my primary opponent but that was the main one. i don't know how i got here is a nation. scalia had 98-096-3. what happened between now and
then, how did we go from understanding scalia is well-qualified, recognized elections today. here is how we hope we go back to where we were to restore the judiciary over time. >> welcome, judge, and everything on the judiciary looking forward to -- welcome to your family as well. no committee has greater responsibility than the one before us today. our laws and values depend on a supreme court that is impartial, fair and just, your nomination, during an unprecedented time in history. we are witnessing a singular moment of constitutional and
democratic unease. in recent months foundational elements of our democracy including rule of law have been questioned, challenged and undermined. i cannot -- i must look at your views and record in the real world of america today. you come before us this afternoon not only is a nominee sitting at a table alone with friends and family behind you but in the context of the era in which we live. from the highest level of government we have heard relentless criticism of journalists. 17 intelligence agencies have confirmed russia, and autocratic foreign government attempted to influence our most recent election. at the same time voting rights in the us have been stripped from far too money while dark any and extraordinary sums adding up to an estimated $800 million in eight years continues
to have an outside influence on our politics distorting representative democracy. and referred to a man appointed to the federal bench by resident george w. bush as a so-called judge. we have sadly seen hate unleashed towards religious minorities from jews to muslims. from kids in restaurants told to go back to where they came from to a man guns down while in his driveway. the pillars of our democracy and our constitution are at risk. you are not the cause of these challenges, these challenges to our democracy. but if confirmed we would play a critical role in dealing with them. this is a serious moment in our nation at history and as representatives of the american people it is our duty to determine if you uphold the
motto on the supreme court building itself to help all americans achieve equal justice under law. before being elected to the senate, i spent eight years with the largest prosecutor's office. i have seen firsthand the law has an impact beyond the courtroom whether it is crime victims and their families or people who have been sent to jail. the decisions made from the bench affect people living in the 21st century with 21st century problems. and the bill of rights and constitution were written in the 18th century, the 14th amendment guarantee of equal protection of the law was written in 19 century. at tackling the 18th and 19th century ancestors but all americans today. it is not just about legal experience but trying to understand what you would do on
the court. the law is more than a set of dusty books in a law library. it is the bedrock of our society. after judge merrick garland was nominated to the supreme court we often heard careful gerace decide the cases on the narrowest possible grounds to build consensus on the ideological spectrum, doesn't inject political considerations. we look forward to hearing what your judicial philosophy would be. this is how you would approach your work. in a speech last year you spoke about differences between judges and legislators. you said legislators may appeal to their own moral convictions and claims about social utility to reshape the law as they think it should be in the future the judges should be none of those things in a democratic society.
should instead strive to apply the law as it is looking backwards, not forward and looking to text structure and history to decide what a reasonable reader of the three at the time of the events in question understand the law to be. i want to understand better those views of the constitution and how they square with modern-day life. due process, equal protection of the law, these are generally sweeping targets and the power of judicial review has the constitutional duty to be the final arbiter of what the constitution means. rulings that affect voting rights, civil rights and the right of people to marry. many of the issues we face today are ones that this country's founders never considered. and never could have considered because of the social change and innovation, we are no longer dealing with colony debts in
england but driverless cars, drones and fibercrimes and those are just the topics of the hearings i attended. i want to understand how your judicial philosophy which as you suggest was backward, not forward, may affect the rights of our fellow citizens. i want to understand the implications of your views on legal precedent. one example occurs in the context of the chevron doctrine. in stating the courts should generally defer to reasonable interpretations of executive agency, this 33-year-old case guarantees the most complex regulatory decisions judge themselves have little or no expertise to handle, are made by scientists and professionals best equipped to rise to these challenges. modern agency decisions include things like rules protecting public safety, requirements against lead-based paint, clean
water protections for our great lakes. last year, in your concurring opinion in gutierrez versus lynch, you suggested chevron should be overturned. this would have titanic real-world implications on all aspects of our everyday life. how much could be in jeopardy, protections that matter in the american people would be compromised and there would be widespread uncertainty. if it is time to overturn chevron, with what you would replace it. another opinion i want to talk about, in your concurring opinion, you suggest the court should apprise strict scrutiny to laws restricting campaign contributions. if the supreme court adopted that view it could well compromise the few remaining campaign-finance protections that are still on the books. the notion that congress has little or no role in setting
reasonable campaign-finance is in direct contradiction with the express views of the american people coming in recent polls 3 quarters of americans said sweeping new laws increase -- reduce the influence of money in politics. that is not a judge's problem. unlimited, and disclose money in the campaign, drowned out the people's voices and undermines our elections. other questions about your views and money and politics are raised by your opinion in hobby lobby. and exercising their own religious belief leaving open the troubling arguments, corporations have right to free speech equal to that of citizens which would invalidate the prohibition of corporations donating. these are the only first amendment issues i will raise but i will talk about new york times versus sullivan and freedom of the press as well as
an area you have great expertise in, antitrust which i consider your nomination and reminded of something justice hails from minnesota, justice blackmun once said, surely, he wrote, there is a way to teach law, demanding as it might be, with some glimpse of his humaneness and basic good. there is room for flexibility and different answers and not all is black and white. we have judges to apply the law, because answers are not always as clear as it is like and there's more than one reasonable interpretation. as a prosecutor, every charging decision we made, every case we chose to pursue had real implications, the same with judges. is an end it wasn't a law professor or federal jurist, the reliance on chevron. it was an early minnesota grocery store worker got a
hard-earned pension. the rules that opened the door to unlimited super pac spending, it wasn't the campaign financers who were hurt, it was a grandmother in waynesboro, actually believed giving $10 to her senator would make a difference and as the granddaughter of an iron or minor i can tell you it wasn't a ceo or corporate board chair whose life was saved by my new safety. it was the minnesota iron or workers like my grandfather who went to work every day with a black lunch bucket 15 feet underground. my dad who ended up the first kid and his family to graduate high school and from there to community college, still remember as a little boy standing with those mineworkers lining saint anthony church.
and organizing the union. judge, you have been rightfully praised for academic credentials and experience, and i want to know more than your record. if you are confirmed, your decision will reflect president and the law. with your judgments and decisions will be good, whether they will be done in a way that will help all americans from the grandmother in waynesboro to the minnesota grocery store worker. that is not politics was that is why we are having these hearings today. >> thank you, mister chairman, welcome, thank you for your decades of service honorable service, thank you for your family being here today and thank you for your willingness to endure the spectacle of this confirmation hearing.
february 13th last year, one -- was a devastating day for those of us who revere the constitution and rule of law. on that day we lost supreme court justice antonin scalia. justice scalia was one of the greatest justices ever to sit on the court. he was a trailblazing advocate for the original meaning of the constitution and a shining example of judicial humility. his death left than enormous hole not only in our hearts but in the protection for the rule of law and it left enormous shoes to fill, daunting task that i know ways on you is you consider the enormity of what is in front of you. today there is a sharp disagreement in nature of the supreme court, some people view the court as a hyper-powerful political branch. when they go frustrated with the legislative process and will of the people they turn to the courts to try to see their
preferred policies enacted. for conservatives we understand the opposite is true as we read the constitution and the that abuse the federal judiciary which is much more modest role than the left embraces. judges are not supposed to make law, they are supposed to faithfully apply it justice scalia was a champion of this modest view of the judicial but had his vacant seat been filled by barack obama or hillary clinton justice scalia's legacy would have been in great danger. if they had filled his seat we would have seen a supreme court where the will of the people would have been repeatedly cast aside by a new activist supreme court, we would have seen the supreme court majority that viewed itself as philosopher kings with the power to decide for the rest of us what policies should govern our nation and control every facet of our
lives. we would have seen our democratic process controlled by five unelected lawyers in washington dc. that would have been a profound and troubling shift in the direction of the supreme court. that is why after justice scalia's untimely death the senate chose to exercise our explicit constitutional authority and we advised president obama that we would not consent to a supreme court nominee until the people in the midst of a presidential election were able to choose. for 80 years the senate had not filled a supreme court vacancy that occurred in a presidential election year and the senate majority decided last year would not be the first. the people have a choice, a choice between an originalist view of the constitution represented by justice scalia, and activist view of the
constitution represented by barack obama and hillary clinton. during the campaign president trump repeatedly promised to nominate justices in the mold of justice scalia and laid out a specific list of 21 judges. constitutionalists from whom he said he would choose his nominee, neil gorsuch was one of those 21. issuing such a list with a move without precedent in our country is presidential history and created the most transparent process for selecting a supreme court justice the nation has ever seen. the voters understood the 21 men and women who the president would pick, and that supreme court justice was put forward by hillary clinton. in november the people spoke. in what was essentially a referendum on the kind of justice that should replace justice scalia, the people chose
original is in, textualism and of law, the people chose judicial humility, the people chose protecting the bill of rights, free speech, religious liberty, second amendment rather than handing policymaking authority to judges on the supreme court. given that history, the engagement of the electorate nationally on the central issue, i suggest judge neil gorsuch is no ordinary nominee. because of this unique transparent process unprecedented in the nation's history, his nomination carries with it a superlegitimacy that is unprecedented in our nation's history. the american people played a very direct role in helping choose this nominee. the renowned justice he is said to replace neil gorsuch is a
brilliant and has an impeccable academic record. his judicial record demonstrates a faithful commitment to the constitution and rule of law. refused to legislate his own policy preferences from the bench, recognizing the pivotal role judiciary plays in defending the fundamental liberties protected in the bill of rights. the night he was nominated neil gorsuch channeled justice scalia when he explains the, quote, a judge like every outcome he reachedes is likely a bad judge, stretching for result he prefers rather than those the law demands. those should give comfort to the american people and my democratic colleagues. it is worth recalling our friends on the democratic side of the aisle understand this and
indeed not long ago agreed with it. a decade ago, neil gorsuch was confirmed by this committee with federal court of appeals by a voice vote. and the entire united states senate by a voice vote without a single democrat speaking a word of opposition. and chuck schumer, not by harry reid or ted kennedy or john kerry. not by feinstein, leahy or durbin on this committee. and barack obama, hillary clinton or joe biden, not one of them spoke a word against neil gorsuch's nomination a decade ago. the question this hearing poses to our democratic colleagues is what has changed? what has changed we 10 years ago, neil gorsuch was so unobjectionable, he didn't there
is even a whisper of disapproval and the decade since, and an exemplary record. by any measure, shown himself to be more worthy of bipartisan support he received back then. unfortunately, modern reality suggests probably not something my democratic colleagues feel they can do in today's politically situation. many believe they have no choice but to manufacture a text against neil gorsuch whether they want to or not just to preserve their own political future and protect yourselves from primaries back home. you are seeing some of these baseless attacks already, most recently some democrats have tried to slander neil gorsuch as being, quote, against the little guy because he dared to based on the law, the law congress
passed, not on the specific identity of specific litigants. this is absurd. for one thing, many of these same critics spent the last eight years attacking the little sisters of the poor. a catholic charity of nuns for having the audacity to live according to their deeply held religious beliefs. we need to take a long look in the mirror. if one day you find yourself attacking nuns, attacking little sisters of the poor and the next day find yourselves on the need to protect the little guy. and the little guy or the big guy, a judge's job, a judge swears an oath to uphold the constitution and follow the law fairly and equally for every litigants. in the past week as well, some
questions neil gorsuch's independence and suggested he needs to answer questions about actions and statements and tweets of the president who appointed him. i would ask, justice ginsburg, asked about the sexual harassment suit that had been filed against president clinton by paula jones. neither was asked about that. was elena kagan asked about president obama's incendiary comments in the state of the union attacking the supreme court for a decision he disagreed with, of course not. they were inappropriate political questions who had nothing to do with the record of the nominee of this committee. justice ginsburg, justice breyer, do not ask those questions and neil gorsuch should not be either. we should evaluate this nomination on the record on the
merits, on background, no question neil gorsuch will be confirmed as next associate justice of the supreme court. >> senator franken. >> congratulations on your nomination, and considerable qualifications and experience and having your decisions you are a man of strong opinion. decision is not whether you are a man of conviction but incumbent upon us to determine whether the views you have espoused and with your interpretation of the constitution take proper measure of the challenges the american people face every day. we must determine whether your understanding of our founding document is one that will make real its promise of justice and
equality. immigrant, native american, gay, straight, transgender. we must determine, whether your determination of the laws and constitution will favor corporate interests over working families or limit the ability of minnesotans to get their day in court. but just ass did on the supreme court wield enormous power over daily lives and before the committee decides whether to advance your nomination we have an obligation to examine your views on important issues and make sure they are known to the public. that is the purpose of these hearings, allows people of minnesota, the american people to decide for themselves whether you are qualified to serve but neil gorsuch having reviewed your decision, i have concerns. in the dates ahead i will use this hearing as an opportunity
to better understand your views and alleviate those concerns. and whether you should be confirmed, you must answer the questions this committee poses fully, candidly. that is how you will approach these. with that in mind, and the committee's failure for those core functions. and before president obama and even neve nominee by republican colleagues announcing they would not move forward with filling the vacancy until after the presidential election. american people should have a voice in the selection of the next supreme court, the only problem with majority leader's reasoning is the american people
did have a voice in the decision twice nonetheless when president obama nominated chief judge merrick garland republican rivers of committee responded by refusing to hold a hearing, a truly historic dereliction of duty of this body and a tactic as cynical as it was irresponsible. as a result of my republican colleagues's unprecedented obstructionism justice scalia's seat on the court remained vacant until president trump was able to name a replacement. during the campaign then candidate trump made no secret was kind of nominee he would select. he openly discussed his litmus test. he said he would, quote, appoint judges very much in the mold of justice scalia. during the final presidential debate then candidate trump said, quote, justices i'm going to appoint will be pro-life,
they will have conservative bent. now, justice scalia was a man of great conviction and great humor but justice scalia embraced a rigid view of our constitution blind to the equal dignity of lgbt people, hostile to women's reproductive rights and a view that often refused to acknowledge the lingering animus in laws and policies that perpetuate the racial divide. neil gorsuch, no one can dispute the late judge scalia's love of the constitution, the document he revered looks very different than what i have sworn to support and defend. it troubles me at this critical juncture in our nation's history at this moment where the country is so fixated on things that divide us from one another that president trump would pledge to appoint jurists whose views of
our founding document seek to reinforce those divisions rather than bridge them. this is an important moment in our history, the public's trust in our government and the integrity of our institutions is at an all-time low but that erosion of trust in take place overnight and didn't happen on its own. the american people at loss of confidence in republican institutions was quickened by the court. a study published in the minnesota law review found the roberts court is more likely to side with business interests than any supreme court since world war 2 roback. time and time again the roberts court issued decisions that limit constituents ability to participate freely and fairly in our democracy, decisions like shelby county, the court gutted one of our landmark civil rights laws and removed a crucial check
on race discrimination at the ballot box. or like concept the own, the 5-4 decision that allows corporations to place obstacles between consumers and the courthouse door. most egregious of all was citizens united which paved the way for individuals and outside groups to spend unlimited sums of money in our elections,stices
to be true. but to those who subscribe to president trump's extreme view, chevron is the only thing standing between them and what the president's chief strategist, steve bannon, called the, quote-unquote, deconstruction of the administrative state. which is short hand for gutting any environmental or consumer protection measure that gets in way of corporate profit margins. speaking before a gathering of conservative activists last month, mr. branyon explained speaking before conservative activists last month steve bannon explained the president's appointees were selected to
bring about the deconstruction. i suspect your nomination given your views on chevron is a key part of that strategy.l this hearing is important. you will have an opportunity to explain your judicial philosophy and i look forward to learning more about how you will approach the challenges facing our country but if pastors truly lo prologue then i fear confirming you would guarantee more of the same from the roberts court, decisions that favor corporate interests over the rights of average americans. during your time on the 10th circuit you sided with corporations over workers, corporations over consumers, corporations over women's health. this moment in history and our nation's history calls for a nominee who experienced an ability to satisfy rigid views in favor of identifying common
ground and strong consensus opinions, someone like merrick garland.ideology that your record suggests if confirmed, us thousand ideology i believe has already affected the bench, and ideology that ha backs big business over er individual american and refuses to see our country as a dynamic and diverse nation that my constituents wake up in every morning. as i said before i see this hearing is an opportunity to learnn more about your views a perhaps alleviate concerns, hopefully we are able to have a productive conversation. thank you, mister chairman. >> senator from nebraska. i haven't talked to the person k sitting there, but when you are done, take 5 minutes and do whatever you are going to do. >> go ahead, senator from
nebraska. >> this is a special moment in the life of the republic, we have an opportunity to stand back from 200 years of history to evaluate our civic counsel and recommit ourselves to a government that is intentionally limited to powers that are intentionally distinguished and divided. that is what theseth t next few weeks are about. the most important thing the u.s. senate will do this year is confirmed the next supreme court justice. i want to focus my opening remarks on the simple images of the judge's black robe.thing thj a strange thing the judges wear robes but it is something we should just look past as an odd convention but something we should look at, not some relico from history that people wore long ago in an era of formality like a powdered wig so why did the robes exist? unfashionable and unattractive n as they often are? the reason i better summed up by a current sitting judge, donning
a rope does not make me any smarter but it does mean something. not just to hide the coffee stains on my shirt, it serves as a reminder of what is expected of us, cold neutrality of an impartial judge. it serves as a reminder of relatively modest station meant to occupy in a survey, judges might wear scarlet, here we are told to buy the black robes and attests to the outset with the uniform supply store is a good deal.good deal. ours is the judiciary of an honest black polyester. the author of these insightful words sits before us, neil gorsuch. that statement is an excellent lens through which to view the work of the committee this the court work of over the next century and beyond. i would make three overlapping pointshe about that judge's bla robe. it changes the way our eyes see the court.
it reiterates the calling of the judge to the judge and 3, it gives us a special opportunity to teach our kids something about their constitution. the enduring paper that defines what our government can and cannot do.r when you look at the 9 justices sitting together in their robes, they blend in with one another, hard to tell them apart and calls attention to the office rather than the person. when the judge puts on his or her robe it forces their personalities into the he background so that we can focus on the important but modest job they have to do which is to drill down on facts and law. facts are objective. they don't change based on your personality. they are evaluated against writtenst objective laws, not against what the judge wishes the law said. someone famously said québec empathy is an essential ingredient in arriving at a just
decision. this belief is well meant but it is very foolish. standing before a court, your gender, your skin, your bank account cannot decide your fate. in the same way a judge's class and gender should notou decide your fate. empathy is not the role of a supreme court justice. it is, in a sense, our role, we are men and women who have been hired and can be fired by the american people to empathize, we can identify with hopes and struggles of 320 million americans but the judge instead has a different job, to faithfully and dispassionately apply the law to the fact of a particular case. and to remind the judge and thus, if the facts are on our side it should matter which judge used it before. are ideal is one where you can trade outou one judge for anoth judge and you should get the same outcome. this is the heart of what we
mean when we say we believe in the rule of law, and out of men or of women or of black oror whe or rich or poor. we are not to be ruled by a judge's passions or empathy or policy preferences. is the second thing the black robe is supposed to do, reader rate the calling of the judge back to the judge by way of loose analogy many people across the country set yesterday y morning in church pews and listen to someone preach from behind a big wooden pulpit wearing a robe. why the pulpit? why the robe? these things make it harder to see the preacher. they help us understand that that, yesterday morning, those of us in that tradition knew not about the messenger but the message passed on from above. it is also to remind the minister of the same cloaking.e likewise a good judge on the bench knows that. it is not about you. don't make it about you. i said it is a loose analogy because of course the judge of
the supreme court justice is not to deliver some eternal word from god but to interpret a man-made written constitution as objectively and faithfully as they can inserting their opinions as little as possible.f when you put on your robe your cloaking your personal preference, your cloaking your partisan views. there is not a red rope for republicans, there is not a blue robe for democrats.and final we issue only black robes. this brings us to the third and final point which is the judge's robe is also to teach our kids how they should understand their constitution. as all of us learned in schoolhouse rock the judiciary is not only a separate branch of government from the president and the congress but also a coequal one. we have different functions but the same responsibility to be upholding and teach the constitution.. as coequal, the court can't examine whether the actions of the other branches are in fact
unconstitutional. time and again an important moment in our nation's history, the court has struck down laws a passed by the congress or put a stop to a president's executive action. here is what that means was the primary job of the supreme court is not to uphold the will of the majority of the moment. the primary job of a supreme court justice is not to reflect the popular opinion of the day. that might sound surprising. don't we live in a democracy where the majority supposed to rule? io question is hat only a very qualified yes. l there are critical limits to that statement. the constitution is a decidedly and intentionally anti-majority document. pr the constitution exists to ot protect our rights and our liberties even when we might hold unpopular views. the role of the supreme court in protecting those rights and liberties is sometimes precisely to frustrate the will of the majority.
think about how the constitution deals with religion and public opinion. the first amendment prohibits the government from establishini any state religion and guarantees that every citizen can worship or not worship however their conscience dictates. this, however, at some moment polling showed a 51% popular desire in this country to pass a law making church attendance mandatory or to subsidize a particular religious denomination. the supreme court would likely strike down such laws.se this is because in the constitution we decided that we would limit our own power. we the people decided in the founding of this republic that we would restrain our own majoritarian impulses by enacting the constitution, we intentionally decided to tie our own hands though that there are certain things that a majority can never do like in fate someone's conscience and if the
majority in its arrogance should at some point in the future seek to cross that line the supreme court will rightfully shout no. ..gress passes an unconstitutional law, it is in fact the congress that is violating the long-term will of the people. for the judiciary is there to assert the will of the people as embodied in our shared constitution, over and against that unconstitutional but perhaps temporarily popular law. each branch serves the people but in unique ways. it is the job of the congress and the president to act. it is the job of the court often to react. each branch holds the others in check. each branch faithfully seeks to uphold and teach the constitution. each branch serves the american people. but with distinct offices. when a supreme court justice puts on his or her robe we don't want them confusing their job with those of other branches. we want them to policing the structure of our government to make sure that each branch does
its job, but only its job. today, judge gorsuch is in front of us wearing a suit and tie. before he can put back on the black robe he must answer this committee's questions. and i expect that mr. gorsuch, the citizen, that policy prefer reins and has desired outcomed but i don't know what they are. and that's a good thing. and i expect by the end of this week, it should be clear that judge gorsuch, the will faithfully embody the spirit of the black robe, for the american people deserve the comfort of a judiciary that is cold and impartial, not seeking to be super legislators. for if a judge seeks to be a superlegislator, they should run for office so the american people can choose to hire them or fire them. but that is not the calling you have before us today. thank you, and thank you to your family for being willing to endure this calling and this service and this hearing.
>> four in four minutes i'll call on senator kunes. >> judge neil gorsuch against the second day at the supreme court confirmation hearing today at 9:30 am eastern. judge gorsuch will take questions from senate judiciary committee members with questioning expected to last through wednesday. on thursday the committee will hear from outside witnesses. watch our live coverage starting at 9:30 a.m. eastern on c-span3. you can see it on c-span.org or listen on the c-span radio app. president donald trump will visit capitol hill today to urge house republican lawmakers to support the gop plan to repeal and replace the affordable care act. the house will take up the republican health care law bill thursday. watch live coverage of the
debate and vote on c-span starting at 9 a.m. eastern. >> this week is c-span scanners three-week. 38 years ago on march 19, 1979, the house of representatives opened its debates the tv cameras for the first time, and the cable television industry launched c-span to bring the congress into america's homes. >> the gentleman from tennessee. >> mr. speaker, on this historic day the house of representatives opens its proceedings for the first time the televised coverage. i wish to congratulate you for your courage in making this possible, and the committee who has worked so hard under the leadership from congressman charles roe to make this a reality. television will change this institution, mr. speaker, just as it is change the executive branch that the good will far
outweigh the bad. from this day forward every member of this body must ask himself or herself how many americans are listening to the debate which are made? when the house becomes comfortable with the changes brought by television coverage, the news media will be allowed to bring their own cameras into this chamber. in the meantime there is no censorship. every word is available for broadcast coverage, and journalists would be able to use and edit as they see fit. the solution for the lack of confidence in government, mr. speaker, is more open government at all levels. i hope, for example, that the leadership of the united states senate will see this as a friendly challenge to begin to open -- >> the time of the gentleman has expired spewing this medium and, mr. speaker, to revitalize representative democracy. >> and in 1986 the cable industry launched c-span2, to
carry the senate live. all of our congressional coverage is webcast live, archived and searchable for free at c-span.org. c-span tv, radio and online are provided as a public service of our cable and satellite affiliates across the nation. >> the supreme court has taken up a case that could determine if the family of the mexican national can sue a u.s. border patrol agent for shooting and killing a 15-year-old unarmed boy on the mexican side of the border. the 2010 shooting took pl. and and a concrete culvert that separates el paso texas and juárez mexico with a boy on the mexican side of the border and agent on the u.s. side. a lower fifth circuit court of appeals panel ruled the family could sue but that decision was overruled by the full fifth