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tv   After the Bell  FOX Business  March 21, 2017 4:00pm-5:01pm EDT

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comments, lori. we were down close to 250 points. [closing bell rings. ♪. they are clapping away on the new york stock exchange. closing bell is ringing. connell mcshane is picking it up right here after the bell. >> that's right. we're continuing to monitor the senate confirmation hearing of judge neil gorsuch. president trump's pick for the supreme court. but we can't ignore markets. stocks dropping into the close ending their worst day of the year believe it or not. the dow falling 238 points. at one point 245 points. the bloodbath triggered by a very real possibility that the republican health care bill may not pass the house on thursday. every domino that could fall in president trump's agenda after that. i'm gerri willis in for melissa francis. >> good to be with you, i'm connell mcshane in for david asman. we'll get to the hearings on capitol hill and continue to cover it as we have been.
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let's begin with lori rothman at new york stock exchange. and closing numbers. who is being hit the hardest, lori? reporter: financials are having a tough day. goldman sachs, jpmorgan, caterpillar in there as well as dow's whackest performers. financials as well. some other names, you can see on the screen some of the smaller ones. regions be citizens financial, morgan stanley, look at that 5 and 4%. this is the worst day of the markets all year in fact. tech had a tough day today. facebook hit all-time high, 131.99 but it faded off that level.
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it is down 1%. it's a situation where people here on wall street were so concerned about the market coming so far and so fast it took a break today. i said earlier it is painful but it is healthy. the word on the street looking at some big etfs and qqqs that followed. the dow jones industri avera very, very l volume and that is really a signal that a lot of people are thinking hmmm, maybe we're he seeing a top here especially if you consider what the political climate is here right now especially with the president's policies. back to you. connell: a lot of politics, lori thanks. worst day of the year. gerri? gerri: jonathan hoenig capitalist pig hedge fund, fox news contributor joins me now. jonathan, president threatening republican house members, i don't know if you heard this, 10:25 a.m., the market started tanking, he said if you don't pass the health care bill on thursday you will lose your election.
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one gop lawmaker mark meadows says he is still a no. is that what you blame for this stock market plummet? >> well, no question, gerri, one of many factors. lori rothman talked about a pause that perhaps refreshes but as you pointed out there is no question this consternation over the health care bill, which way it will go. will republicans actually pass it is a major factor wearing on markets. we have the retail weakness. we have a black swan. we have potential weak volume so there is a lot of factors here but what is going on capitol hill can not be underestimated in terms of its weighting on the market today. gerri: another thing happening here. we assume obamacare is happening first. that will be repeal and replace. what the president said over an over again. tough get through that and tax reform. is that what the market is worried about? >> there was a honeymoon after the election where people were already counting infrastructure dollars that would spend and counting taxes as you point out would be cut. from a lot of insts
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perspective looks like health care will be a real big hurdle. we know from the democrats it is enormousurdle. often times a very messy one, investors who planned on tax cuts first it, caused pause putting new money in the market more than already have after the election. gerri: a lot of investors look at this, a clock resetting to a time congress can get absolutely nothing done. they say its the same movie all over again. do you think some of the reaction is to that? >> from investors perspective, often time congress getting nothing done is good time to be in. gerri: good point. >> there are big factors here. look at retail stocks. jcpenney, urban outfitters, target all at 52-week lows. despite the trump bump, there are structural elements of the economy even beyond health care at least for me would give me some pause putting new money to work in this market. gerri: do you think the fundamentals though, we've seen earnings boost, improvement in that arena, do you think
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fundamentals go away if we don't get health care bill done right away, don't get tax reform done right away? >> so much of the fundamentals are predicated on what the new president and administration is going to do. especially tax and regulatory reform. we've seen that take place, already specific in the financial sector. that is bullish. as you said if the tax cuts long promised are not enacted i think a lot of investor essentially throw their hands up, what else is on the table? get me out and get me out fast. gerri: right, right. health care taking it on the chin and banks and financials and retailers r there other sectors you're concerned about going forward here? >> without a question i mentioned the retailers and ancillary to that terri, excuse me, ancillary to that, gerri, real estate investment trusts, simon property group, which house mall retailers, developers who house the mall retailers i think there is something
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brewing here with all stocks at 52-week lows and still not a lot of fear on the streets. gerri: jonathan. thanks for that. we'll go back to the neil gorsuch confirmmation hearing on capitol hill. >> go with frozen brakes on to the interstate, frozen brakes on my long trailer. he is in the cab, he calls in, moves over to the side calls in for repair. get as dispatcher. dispatcher says, wait, hang on there. we'll wait for you. couple hours goes by. the heater is not working in his cab. it is 14 below zero. 14 below zero. he calls in and he says, my feet, i can't feel. i can't feel my feet. my torso, beginning not to be able to feel my torso. they say hang on. hang on, wait for us. okay. now he actually falls asleep. and at 1:18 a.m. his cousin, i
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think cousin calls him an wakes him up. his cousin says he is slurring his speech. and he doesn't make much sense. mayo clinic in minnesota says that is hypothermia. and, he had fallen asleep. if you fall asleep waiting in 14 below zero weather, you can freeze to death. you can die. he calls him back. and supervisor says, wait. you got to wait. so he has a couple choices here. wait, or, take the trailer out, with frozen brakes on to the interstate. now, when those brakes are locked, and you're pulling that load on a trail are with brakes locked, you can go maybe what,
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10, 15 miles an hour. what is that like on interstate? say you're going 75 miles an hour. someone going 75 miles an hour an hour, come over the hill an slam into that trailer. also he has hypothermia. he is a little woozy. probably figures that's not too safe. i don't think you would want to be on the road with him, judge? >> senator -- >> you would or not, real easy yes or no. would you want to be on the road with him. >> with the hitched trailer or unhitched trailer, senator? >> but either, especially with the hitched trailer with a locked brakes? >> no, i don't think that is good option. >> i wouldn't want to be there either. what he does, he unhitches it and goes off in the cab. >> then i believe he comes back 15 minutes later. >> he comes back, after he is
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warm. so that he can be there when it gets repaired. >> right. >> okay. gets fired. he gets fired. and the rest of the judges all go that's ridiculous. he shouldn't, you can't fire a guy for doing that. it was, there were two safety issues here. one, the possibility of freezing to death. or driving with that rig in a very, very dangerous way. which would you have chosen? which would you have done, judge? >> senator, i don't know what i would have done in his shoes and i don't blame him for a moment for doing what he did do. i empathize with him entire are. >> okay. just, we've been talking about this case. you haven't decided what you would have done? you hadn't thought about for a second what you would have done in this case? >> i have thought a lot about this case.
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>> what would you have done. i'm answer you a question. please answer the questions. >> senator, i don't know i wasn't in the man's shoes. >> you don't know what you would have done. i tell you what i would have done. i would have done exactly what he did. >> i understand. >> i think everybody here would have done exactly what he did. and i think that is an easy answer, frankly, i don't know why you had difficulty answering that. okay. so, you decide to write a thing in dissent. if you read your dissent, you don't say it was like subzero. you say it was cold out. the facts that you describe in your dissent are very minimal, but, here's the, here's the law that, and you go to the language of the law. you talk about that i go to the law. a person may not discharge an employee who refuses to operate a vehicle because the employee
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has reasonable apprehension of serious injury to the employee or the public because of the vehicle's hazard does safety or security condition. that's the law. and you decided that they had the right to fire him even though the law says you may not discharge an employee who refuses to operate a vehicle because he did operate the vehicle. is that right? that is how you decided, right? >> that is the guess gist of it. >> senator, how you decided? >> there are lot of words in the opinion both by my colleagues and my dissent. i happen to agree with you, that is the gist of it. >> right. that is what you have said. and, look i'm not a lawyer but i have been on this committee for about eight years, and i paid some attention. so i know that what you're talking about here is the plain
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meaning rule. here's what the plain meaning is. statute is clear on its face, its meaning is obvious, courts have no business looking beyond the meaning to the statute's purpose. that is what you use, right? >> that was arced to us by both sides, senator. >> that is what you used? >> yep, both sides argue that the plain meaning support their -- >> you use i had it to come to your conclusion. >> but both sides -- >> but the plain meaning rule has an exception. when using the plain meaning rule would create an absurd result courts should depart from the plain meaning. it is absurd to say this company
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is in its rights to fire him because he made the choice, of possibly dying from freezing to death, or causing other people to die, possibly by driving an unsafe vehicle. that's aurd. noi had a career in identifying absurdity. [laughter]. and i know it when i see it. and it makes me, you know, it makes me question your judgment. you stopped by my office a few weeks ago. i asked you about merrick garland. i read somewhere, after you accepted the nomination one of the first calls youd was to chief judge garland, and you said to me, i think the world of merrick garland.
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i asked you a couple times, if you are bothered by the way the senate treated merrick garland, who you clearly have a great deal of respect for. you said something to the effect of senator, i try to stay away from politics. now you had been on the bench for 10 years, so that sounded fair to me are and i decided to leave well enough alone. i moved on to another topic but your relationship with politics came up again yesterday. my good colleague senator lee, lamented the extent to which the confirmation process has become political and suggested that you and other nominees are not equipped to navigate that process because confirmmation politics are in his words, quote, still a little foreign to you. or still quite unfamiliar to you turns out that is not really entirely accurate. after you were nominated this
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committee made a formal request for documents relating to your previous nomination and to your time at the department of justice. this is standard procedure. those documents include emails back and forth between former bush administration officials and you in 2004, back before you joined that administration and the neil gorsuch, in those emails seems to be very, very familiar with politics. the neil gorsuch in those emails was looking for a job. here's a message you sent to matt schlapp, president bush's political director. this was in november of 2004, after president bush won re-election. quote, i spent time in ohio working on election, this is you. what a magnificent result for the country. for me personally the experience was invigorating and a great deal of fun. now that doesn't like someone who steers clear of politics to me. you went on to right, quote,
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while i have spent considerable time trying to help the cause on volunteer basis in various roles i included that i would really like to be a full-time member of the team. you attach your resume', which describes in detail your work in support of political campaigns and candidates. basically you worked on republican political campaigns since 1976. you worked for reagan, bush one, bush two. you were cited for distinguished service to the united states senate for work in support of president bush's judicial nominees. by senate republican conference. which suggests that even the police call aspects of confirming judicial nominees is something that you are not unfamiliar with. now, when we met earlier i asked you what you thought of the way senate republicans treated merrick garland.
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rather than answer the question, you replied i try to avoid politics. here you are in 2004, pledging your allegiance to the cause and shopping around a reme' touting your wk on political campaigns dating back to 1976. these messages establish that for a good deal of your prior career you didn't avoid politics quite the contrary. you were very politically-active in light of that i would like to ask my question again. do you think merrick garland was treated fairly by the united states senate? >> senator, couple of things and in response to that if i might. going back, the doctrinal argument was never presented to court. usually applies in cases where there is scribner's error, not when we disagree with the policy of the statute. i appreciate the opportunity to respond there. >> when there is a scribner there? >> scribner's error. >> error, sorry. >> not when we just disagree
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with the policy. with respect to the -- >> well, if i read my statutory interpretation, from, let's see, this is from the notre dame law school national institute for trial advocacy, this is a pretty well-known exception to the plain meaning rule. i think you can apply it without it -- i mean, don't you think it is absurd that this man was put, given that choice and then fired for it? don't you think that was absurd. >> senator, my heart goes out to him. >> never mind. >> my heart goes out to him. that is not my job -- >> how do you think merrick garland was treated? the. >> senator, since i became a judge 10 years ago i have a cannon of ethics preclude me getting involved in any way, shape or form in politics. the reason why judges don't clap at the state of the union and why i can't even attend a
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political caucus in my home state to register a vote in the equivalent of a primary. >> but i don't think this is a, you have to state your political views. that is not what this is about, how a supreme court justice who is nominated by the president of the united states, this is like in the constitution. i think you're allowed to talk about what happened to the last guy who was nominated in your position. you're allowed to say something, without getting involved in politics. you can comment on this. >> i appreciate the invitation. the other said has their views of it. your side has your views of it. that by definition is politics. >> okay. >> senator, judges have to stay outside of politics. i think the world of merrick garland. i think he is an outstanding judge. >> i understand. >> i told you what i think. >> i understand. thank you, thank you.
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i don't mean to cut you off, but you know we have time. i think it is really important for us to understand how your political work and political views might inform the views of the law and i know this, i don't hold it against you that you did political work. a lot of people did. >> 1976, i was walking with the district with my mom when she ran for statehouse. >> looking again at the email five or so months after your message to mr. schlapp, you emailed ken mehlman. mr. mehlman was your law schoolroom mate. at time you emailed him. he was chairman of the republican national committee. you just interviewed for a job at the department of justice. you wanted him to put in a good word so he did. mr. mehlman emailed the white house and he wrote, neil is a wonderful guy. was my law schoolroom mate. did 72-hour effort in ohio for us and was part of lawyers for bush. mr. he mehlman wrote, quote, he is a true loyalist.
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now, again, being politically active or a loyal republican are not disqualifying characteristics for supreme court nominee, not in my book anyway. let's look back at 2004 election. look at ohio where you volunteered. ohio was one of 11 states in 2004 republicans working to support the campaign worked to put antigay marriage amendments on ballot. these constitutional ballots all passed. all 11 of them. they vary state by state but they define marriage between a man and woman. that sent a clear message to gay couples that their marriages were not equal in the eyes of the law. lawyers for bush-cheney. and as lawyer and student ever constitution how did you feel about the right to marry put to a popular vote? >> senator, i don't recall any involvement in that issue during that campaign. i remember going to ohio.
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>> were you aware of that issue at all? >> certainly i was aware of it. >> how did you feel about it? >> senator, my personal views, any revelation my personal views about this matter would indicate how i might rule as a judge, mistakenly, it might. i have to be concerned about that. >> these discriminatory amendments were part of deliberate effort to drive up the turnout, and we know that because, we know thabecause yourriend, ken mehlman said so, mr. mehlman was inteiewed by "the atlantic" in 2010 and said that the bush campaign had quote, working with the republicans to make sure anti-gay initiatives and referenda would appear on november ballots in 2004 and 2006 to help republicans. to be clear there is nothing to suggest you were involved in crafting that strategy but at the time the tactic received a lot of attention including in ohio where you worked on the campaign. it was profound impact on people's lives.
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but, a lot has changed since 2004. mr. mehlman, announced publicly that he is gay for one. he also voiced regret about what happened. he apologized, he said, at a personal level i wish i had spoken out against the effort. as i have been involved in the fight for marriage equality, one of the things i have learned is how many people were harmed by the campaigns which i was involved. i apologize to them and tell them i'm sorry. that's a brave thing to say. hard to admit regret. mr. mehlman had a personal connection to the issue to be sure but our country has come a long way in a relatively short amount of time. a lot of folks have changed their view about marriage equality. republican and democrat alike. supreme court settled issue. marriage equality is law of the land. you shouldn't have any problem answering this question. how have your views of marriage
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equality changed, if at all since the 2004 election? >> senator, my personal views, if i were to begin speaking about my personal views on this subject, which eve american has, views on would send a misleading signal to the american people that my personal -- >> it is settled law. >> it is absolutely settled law. there is ongoing litigation about its impact and application right now. and i can not begin to share my personal views without suggesting mistakenly to people -- >> can i move on to something else? i understand. you've given a version of this answer before. so i understand. i understand. i'd like to return to something i raised in my opening statement, that is your view of administrative law. standing before conservative activists gathered at cpac, the conservative political action committee, president trump's chief strategist steve bannon and his white house chief of staff reince priebus outlined
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the president's agenda. two top picks were featured prominently, deregulation and your nomination. i don't think that is coincidence. reince priebus started why explaining why nominating you is so important for the president to do out of the gait. referring to your nomination, quote, we're not talking about a change over a four-year period. we're talking about a change of potentially 40 years of law, number one. that's change of potentially 40 years of law. change the law. you and your colleagues here said the job of a judge is to follow the law, even if he dislikes the results, he said that. not change the law. or change 40 years of the law. but that's what reince priebus said this is about. when the white house chief of staff talki to s friends
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at cpac, he says the justice job, your job is to change 40 years of law. yet my colleagues and you say it is to follow the laws as written. well, it can't be both, so which is it? >> senator, it is to be a judge. to be fair, to follow the law, to apply it to facts and circumstances of each case and live out my judicial oath whichever court i serve on the 10th circuit where i served last 10 years. >> okay. >> and my opinions have been unanimous 97% of the time, senator. i've been -- >> i understand. you've given many times this, that answer so, if you will indulge me. mr. priebus went on to say your nomination was central to president trump fulfilling his policy objectives. quote, neil gorsuch represents the type of judge with vision of donald trump and it, referring
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to your nomination, fulfills the promise that he he made to all of you, speaking to the conservative activists gathered at cpac. what do you think that mr. priebus was talking about? was he suggesting that if confirmed you would be positioned to shape the court's decisions for the next 40 years or suggesting you could reach back 40 years, roe v. wade turned 44 this year? and president has promised to nominate judges who would overturn roe. chevron is 33 years old. i think this is a legitimate question the was mr. priebus suggesting that you go back and change 40 years or of settled law or have an effect on the law moving forward? >> respectfully, senator, mr. priebus doesn't speak for me and i don't speak for him. i don't appreciate, when people characterize me as i'm sure you don't appreciate it when people characterize you. i like to speak for myself.
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i am a judge. i am my own man. >> okay. i just want to just, you know, we've had some talk about this i don't think we're crazy to think that the administration and reince priebus, i don't think he was lying. and doesn't it, doesn't it, are you comfortable with your nomination being described in such transactional terps? >> senator, there is a lot about this process i'm uncomfortable with. a lot. but i'm not god. i'm not, no one asked me to fix it. i'm here as a witness, trying to faithfully answer your questions as best i can, consistent with the constraints i have as a sitting judge. here to answer questions about my qualifications. >> okay. >> and my record. >> i got it. i find it unsettling that the
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administration is talking about the, chief of staff is talking about the supreme court that way. get back to the panel at cpac. after mr. priebus discussed your nomination, eve bannonalked about the president's agenda. he described three priorities. one of them was quote, the deconstruction of the administrative state. here is what mr. bannon meant by that he said that regulation was a problem from his perspective. quote, every business leader we've had in is saying not just taxes but it is also regulation. he said that if you look at the president's appointees, quote, they were selected for a reason. and that is deconstruction. the way that the progressive left runs is if they can't get it passed they will put in some sort of regulation, in an agency. that is all going to be, gonna, all gonna going to be deconstructed. taking steve bannon at his word, do you think only cabinet appointees were selected to bring about this he deconstruction or do you think
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the white house also sees the role here for its judicial nominees? >> senator, respectfully i believe that is question best directed to mr. bannon. >> he is not here. i'm just quoting him. that's all. i think the white house does see judges as a part of this deconstruction. i see your nomination as a important step towards achieving this goal. you have shown a willingness to disregard agencies interpretations of statutes. you did that in trans am trucking, with the department of labor regulation, for example. you've done it in other case as well. in august you wrote the concurrence to your own unanimous opinion in which you described chevron, the supreme court's landmark administrative law case as quote, permitting executive bureaucracies to swallow huge amount of core judicial legislative power.
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you wrote, quote, maybe the time has come to face the behemoth. now generally speaking as we've discussed chevron provides the courts should defer to an agency's interpretation of the federal laws that it is tasked with administering. when congress passes laws that require agencies to implement them, by issuing saved standards for children's toys or rules to ensure pharmaceuticals or medicines are safe, those agencies turned to experts to develop those policies. experts like scientists at the fda for example. i think that's a good thing. we want experts doing the work. well, we, senators don't want to be doing is deciding how much lead can be in your water, or, what the distance in baby, in the slats are in a baby's cribs. i don't trust senator coons to
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do that. chevron provides when agencieshy of stepping in to overrule them without a good reason. this is scalia's, agrees with chevron. but i'm concerned with that this administration sees common sense health and safety rules as a burden on big business. and i'm concerned that they want to appoint pro-corporate judges who are willing to substitute their own judgment on these matters for those of experts. do you believe that chevron was wrongly-decided? >> senator, i'm a circuit judge. i don't tell my bosses what to do. i do, when i see a problem, raise my hand and tell my bosses i see an issue here. and i did in that case. not because of any big corporate interestbut because of what happened tor. gutierrez, an undocumented immigrant of this country.
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and the whipsaw that he was placed in by a change in law affected by an administrative agency, a bureaucracy, overruling a judicial precedent and telling him he now had to wait not 10 years out of country, but 14, something like that. and senator, that is part of my job, to say these things when i see problems like that. it's a due process problem i saw. and no one, senator, is suggesting suggesting that scientists shouldn't get deference or chemists or biologists. section 706 of the apa is quite clear on facts -- >> do you want to address this behemoth and that suggests that the comment made by mr. priebus and mr. bannon know exactly what they, what you think about these issues. and i think some of my colleagues on the other side of the aisle do as well. this is a big deal.
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during the entire 114th congress chevron deference is mentioned only twice on the senate floor. but between the announcement of your nomination on january 31st and last week, that decision was mentioned 30 times by four different senators. each of those four senators discussed the case while speaking in support of your nomination. three of those senators are members of this committee. so i know you're choosing your words very carefully, and i know you're trying not to signal how you might rule in certain cases but i think some of the signals have already been sent. thank you. >> senator sasse. >> thank you, mr. chairman. judge, i, you mentioned that there are a number of things about this have been disappointing to you in the process. i'm disappointed in senator -- connell: you're watching live coverage of confirmmation
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hearings of judge neil gorsuch on capitol hill we continue to cover on fox business network. senator al franken wrapping up his questioning of the justice. we'll continue with senator sasse here in just a moment. senator franken trying as he might to bring justice gorsuch into any discussion surrounding politics on a number of occasions trying to get the justice to talk in political terms but maybe more foresful terms than we heard earlier in the day, justice gorsuch would not to for that. when asked whether or not it was his job to change the law. he said it was his job to be a judge. he was quite forceful at another moment. saying i'm a judge. i'm my own man. as they move on to the senator from nebraska, we move on gerri to talk about the markets which had a rough day today. gerri: very rough day. stocks ending, get this, the worst day of the year. the dow dropping more than 237 points. both the dow and s&p 500 wrapping a 190 day streak
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without a drop of 1%. the drop triggered by very real possibility that the house republican health care bill might not pass on thursday. every domino that could fall in president trump's agenda after that. let's go to the hearing where senator ben sasse started his questioning. >> we're obviously not going to pursue very far but i do want to make sure everybody at home knows a litt bit what has been happening in the room over the course of the last six or seven hours because some of my colleagues are asking a bunch of tough questions that are really important for to you have to answer. at the same time there are a whole bunch of questions that have been asked today that are really asking to you take your legal career and your legal ethics and set them aside and play politician on tv today. and that really isn't your job and some of this questioning really hasn't been a fruitful use of our time. it's well-meaning to talk about the outcome of objectives of a
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whole bunch of these cases but i would submit it's dead wrong. i want to give you a couple questions we heard earlier today. at different times, how can we have confidence that you won't be for the big guy? at another point, hour can we know, how can we know you feel for the little guy? this sounds noble but it's fundamentally a corruption of what the judge's job is. to seek assurances from you like this is like seeks assurances from a referee before the game they will pledge to a certain outcome before the tipoff. if the law is wrong, and i'm somebody who believes that lot of our laws are wrong and over reaching around here, the question should be directed back at us on this panel and on this dais, why we don't fix the laws that are wrong. we shouldn't be asking you as the judge to commit that when our laws are clunky and bad and in conflict, you will divine how to change the law on the fly.
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that is not the oath you will take. that is not the constitution we've all taken an oath to and pledged to and not what the american people want. so frankly i applaud you for your perseverance and patience with us as we continually go down a path asking you questions which are fundamentally political questions and you shouldn't be answering and we shouldn't be asking. thank you for your endurance. i would like to go back something a little more productive for the committee and frankly i think productive. for the moms and dads at home and i would like to talk a little bit more about the judge's rib. i we spoke about it yesterday. with no coordination. we both just read your stuff from the past and the judge's black robe reminds us of the meaning of your job. it reminds the plaintiffs that stand before the court it, reminds the judge as he or she dress notice the morning and givers a an opportunity to teach our kids and you speck eloquently for us about it in
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the past. it is fitting to unpack it more in light of today's questioning. earlier today you were implored to tell us a little more what is in your heart. i think that's fundamentally a confusing question for us to be asking of a judge except in insofar we ask you are you a man of your word, when you take an oath in your heart, are pledging to keep your word? and to keep your oath? and i think we all know the answer to that question is yes. it is why you're going to be confirmed because people believe you to be a good and fair-minded judge but every american in a more fundamental way needs to know what's in the heart of legislators, because we are supposed to speak for the hearts and minds and hopes of and dreams ever 320 million american people much we are supposed to cast a vision for the country, those things we want to conserve and preserve and those things we should argue about and change. we are the ones who are supposed to weigh the pros and cons of various legislative options that are available to us. judges on the other hand are
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supposed to be following the law impartially. your heart is supposed to be inclined neither towards the rich, poor, nor black or white or people with big bank balances or small bank balances but your heart is supposed to be your commitment to the law as you find it. so let's engage in a little thought experiment. 30 or 40 years from now when you retire and hang up your robe and you're out fishing or sitting on the front porch of your surely lovely home, you look back over your career, how will you know if you were a good judge? >> senator, that is a question i ask my kids every submitter when i teach ethics. finish the semester and ask them to write five minutes writing their obituary. they hate it. they think it is corny. i might be a little corny.
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then i ask them if they will volunteer to read some of them? and people want to be remembered for kindness they showed other people by and large. when i point out to them, what i try to point out it is not how big your bank account balance is nobody ever puts that in the draft obituary, or they billed the most hours or they won the most cases. it is how they treated other people along the way. and for me, it's the words i read yesterday from sumner's tombstone, and that means as a person i'd like to be remembered as a good dad, good husband, kind and mild and in private life. dignified and firm in public life. and i have no illusions that
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i'll be remembered for very long, none. if byron white, as nearly as forgotten as he is now, as he said he would be. i have no illusions. i won't last five minutes. that is as it should be. the great joy in life shaw said, devoting yourself to a cause you deem mighty. before you're thrown on the scrap heap. an independent judiciary in this country, i can carry that baton for as long as i can carry it, and i have no illusioni'm going to last as long as you suggest. and that will be good enough for me. >> well-said, and would it be moore who taught legal ethics and business ethics and medical ethics, theological ethics would assign their students the obituary challenge. might live less than the sound
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bite culture and more in a way thinks of service of duty and calling. it's a great assignment. neither cory gardner or michael bennet have to fear you will challenge them for a senate seat in colorado in the future? >> senator, i admire them both. i think it's a wonderful fact that they were both here to introduce me. and that they follow a tradition of the west. where senator salazar and senator allard, republican, democrat, introduced me last time around. frankly 10th circuit nomination thanks, he is not here at the moment, but senator hatch cares about the 10th circuit. republican and democrat, generally going very smoothly. and it shows. it shows. that you all have picked, i don't know how it works. i don't know how this crazy process works. but the colleagues you've selected for me over the years
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are wonderful colleagues. wonderful people. and i've been richly-blessed to spend 10 years with everyone of them. >> so when you distinguished between the rear view mirror of a justice later or judge later in life looking back, in the require view mirror of a senator, we have different calls. and so i think without putting words in your mouth, you're going to be able to say, that you can be proud of your career even if you failed to advance your policy preferences in this calling, but unpack that for the american people. help them understand how the retrospective look of a senator and his or her career is different than a judge's retrospective look. >> i suspect, but i don't know, because i haven't sat where you sit. i wouldn't presume to be able to walk in your shoes. but i presume, gingerly, that you will look back on your career and say i accomplished
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thisiece of legislation or that piece of legislation and changed the lives of the american people dramatically as a result. i was fortunate enough to serve as a page in this body many years ago. an experience ever young person should have. it will give them a life-long love of this body, that is the greatest deliberative body of the world. i believe that sitting here. a judge looking back, the most you can hope for is you've done fairness, to each person who has come before you, decide their case, on the facts and the law, and you just carried on the tradition of a neutral, impartial judiciary that each person can come to in some sense they will receive a fair hearing, their disputes. we just resolve cases and controversies. lawyers are supposed to be fierce advocates. i was once a fierce advocate for
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my clients. but a judge is supposed to rule impartially, listen courteously, and rule impartially. so, frankly my legacy should look and will look a lot smaller than yours. and that is the way the design of the constitution works. >> in an earlier line of questioning you were asked about 2004 and presidential election and your participation in it. i just want to clarify, you were not a judge in 2004? >> goodness, no, sir. >> correct. >> i was a private attorney. >> and when you went on to the bench, what changed in your life? >> justice jackson says a robe change as man, or it should. now i'm sure you would add woman to that too. a psychological change comes over that person. he was fiercest, possible, advocate. attorney general for fdr. and he wrote it and said as we talked about earlier in
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kormatsu, wet steel seizures occurrence that is a brave man. that's a judge's judge, calling it like he seize it, each case as it comes, and writing clearly so that people can understand exactly what he's up to. he is not hiding behind jargon, legalese or four million footnotes. that's at best i can do on that. >> senator cruz asked you earlier questions about originalism and i appreciated your, i will probably paraphrase you inartfully, but you said you worry that the labels sometimes put us into boxes that eliminate the requirement or reduce the requirement we have to actually engage each other's ideas. so i won't pin you down hard on the term originalism but many critiqued originalism, including in some statements yesterday today and here, backward focused or too rigid adapting to the
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changing culture. doou belie original system one judicial philosophy among many or a what judges do? >> i agree with justice kagan. that is all we want to know. i wouldn't know a judge who would want to know what the original understanding is of a particular term in the constitution or a statute. that is information. it will be valuable to any judge and considered by a judge. again in heller, for example, second amendment case, deeply thoughtful opinions by both sides on that question. it doesn't necessarily decide the case but it provides us a language to talk to one another which we're trying to seek something outside ever ourselves, outside of our own personal he beliefs, about what the constitution or the statute at hand means. we're trying to do it in a way that is neutral and we can say provides fair notice to those
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whose lives we're affecting, so we're interpreting the law in a way we can say, they should have known. they were on notice, not putting a person in prison willy-nilly, believed on our preferences or taking away their liberty but we're preserving it in accordance with the constitution as it was written. >> i would like to talk a little bit about cultural catkesis or civics. as you and i discussed in previous meetings i'm of a view we have a crisis. we're not passing on the meaning of america to the next generation. something like 40% ever americans under age 35 tell pollsters they think the first amendment might be dangerous because you might use your freedom of speech to say something that would hurt somebody else's feelings. actually that is quite the point of america there, are all sorts of things people might differ about, might want to argue b our founders came here and they didn't have the same views o heaven and hell and how you achieve salvation. they came together, they forged
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out of the many one polity we have ordered framework for ordered liberty we protect each other's rights even to be wrong about fundamental things, wrong in our own views as we wrestle with these things. but we debate big and important questions in washington but more fundamentally and bolder in omaha, nebraska, and the town square and do it in the church and synagogue, you do it in a bar and you fight about questions but fight free from violence. so we protect each other's rights to argue, and to dissent. and we're not explaining that first amendment to the next generation. and i believe that all three branches, the legislative, executive and judicial branches are led by people who are taking an oath to a constitution that's about limited government. it is about principled pluralism. it is about intentionally distinguished and divided powers. and i think all three branches have an obligation to do some of that teaching about civics. president reagan, long before he was republican president, before he was a republican governor,
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when he was a democratic labor union organizer, ronald reagan used to say, in any republic, you're always only one generation away from the extinction of freedom. if we don't pass along the meaning of america to the next generation, it means the next generation of our rulers aren't going to understand why we have this beautiful inheritance that we have in a constitutional sim of limits. as a judge, on the 10th circuit and soon to be as a justice on the supreme court, can you explain what you think your responsibilities and freedoms are to teach civics to the american people. >> senator, as a judge on 10th circuit i've tried hard to do that, literally teaching class, speaking where i'm vited, when i am invited, going to law schools, talking to students that visit e courthouse. it has been a great privilege and a joy. i think here of justice
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o'connor, sandra day o'connor. when she retired she did an awful lot of this. she has done an amazing amount of work. and i do think there is a need to remind people how to talk to one another, how we talk to one another, the more fundamentally about how brilliant the design of this constitution is. not perfect but e pluribus unum. from anyone. and which are all, not republican, judges, democrat judges, we're judges. and i think we do have an opportunity, that's one of things i look forward to as a justice. my little talks my be a little better-attended on civics and i hope to do that. maybe that's a western thing. i don't know, or midwestern thing, senator, but i really he believe in this country and i'm
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optimistic about its future. i see the young people, i teach them. i get law clerks. they really care about this country.
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