Neil M. Gorsuch

Speaker, Title, Party Statements
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Good morning, everybody. I want to welcome everybody to this confirmation hearing on the nomination of Judge Neil Gorsuch, and he is nominated to be Associate Justice of the Supreme Court of the United States. Judge, welcome to the Senate Judiciary Committee.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Pleasure to be here. Thank you.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. This is a big day for you and your family. You have been before this Committee once before for the confirmation hearing to the Tenth Circuit, where you now sit. I imagine that this hearing may be a little better attended than the last time you were here.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Just a little, Senator.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Yes. Before we begin, I would like to give you the opportunity to introduce your family and anybody else you want to introduce.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, this is quite a lot different than it was the last time I was here, and I appreciate all 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.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I have got here somewhere, I am told, in the audience, my brother-in-law, my brother-in-law's folks, Phil and Priscilla Albright, and my nephew Jack. How are you doing, Jack? [Laughter.] Judge Gorsuch. I have got my cousin Meg Hopkins and her daughter with her, Lori. I have got a bunch more family coming. My daughter is watching back home in the West. I have got my longtime assistant, Holly Cody. Where is Holly? There she is. Ten years we have worked together. I consider her family. And I have got a whole bunch of my law clerks here in the audience, and if they would not mind just standing up for a second, I would like to recognize them because I consider them family, too. So, Senator, I am very blessed to have so many family here with me today. Thank you.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you. We thank you, Judge. We are delighted to have your family here as well for this very important moment in your life. Before I give 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 is not fair or it is not very considerate to others. So officers will immediately, under our rules, remove those individuals. Now I would like to take a minute to explain about how we are going to proceed. We will have 10-minute rounds of opening statements. The Ranking Member and I may go a minute or two over the 10 minutes, but I am going to ask everyone else to limit your remarks to 10 minutes. And 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 judge's testimony. Tomorrow morning, we will begin at 9:30 a.m. 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 have discussed with the Ranking Member, later today we will notice a mark-up to consider the judge's nomination for next Monday the 27th. In anticipation of his nomination will be held over for 1 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 best opinions begins with this declaration. It is ``the proudest boast of our democracy that we have a government of laws and not of men.'' The phrase comes from the Massachusetts Constitution of 1780. This infant State constitution linked the Government of laws, and not of men, directly to the separation of powers. Justice Scalia said the Founders ``viewed the principle of separation of powers as the absolutely central guarantee of a just government because without a secure structure of separated powers, our Bill of Rights would be worthless.'' In plain words, it was the desire to preserve and protect liberty and self-government that guided the Framers as they designed our Constitution. And the founding charter they designed is a remarkable document, as we know. The Bill of Rights, of course, preserves liberty by restricting what the Government may do. But the single most important feature of our Constitution is not 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 vertically between State and Federal Governments, and it distributes power horizontally between co-equal branches. It is this very delicate balance of power, entrusted to competing factions, that ensures that liberty for the people will endure. It is the Constitution's design that protects against the mischief 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, ``Every tin horn dictator in the world today, every president for life, has 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 government. Under that system, except where the Constitution has already answered the question, decisions are made by elected representatives. Elected, yes, but also accountable to the voters. But to endure, our system of self-government 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 are not free to update the Constitution. That is not their job. That power is retained by the people, acting through their elected representatives. And when our judges do not 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 not stale concepts. 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 have heard that now more than ever we need a Justice who is independent and who respects the separation of powers. Some of my colleagues seem to have rediscovered an appreciation for the need to confine each branch of government to its constitutional sphere. I do not question the sincerity of those concerns. Some of us have been alarmed by Executive overreach and the threat it poses to the separation of powers. Whether it was the executive branch unilaterally rewriting Federal law, as the Obama administration did dozens of times, or the Executive's repeated failure to enforce and defend the laws passed by Congress, over the last 8 years we have witnessed repeated abuses by one branch at the expense of the other two. Just ask the Supreme Court, which unanimously rejected arguments 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 is 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 those abuses inflict is far more difficult to undo than the policies that animated them. For as John Adams observed, ``Liberty, once lost, is lost forever.'' 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. His grasp on the separation of powers, including judicial independence, enlivens his body of work. As he explains, ``To the Founders, the legislative and judicial powers were distinct by nature and their separation was among the most important liberty-protecting devices of the constitutional design.'' About the Executive, he writes that through ``the hard-won experiences under a tyrannical king, the Founders found proof of the wisdom of a government of separated powers.'' The judge's job, our nominee says, is to deliver on the promise that ``all litigants, rich or poor, mighty or weak, will receive equal protection under the law and due process for their grievances.'' The nominee before us understands that any judge worth his salt will ``regularly issue judgments with which they disagree as a matter of policy, all because they think that is what the law fairly demands.'' 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 am afraid over the next couple of days, you will get some questions that will cause you just to scratch your head. Truth be told, it should puzzle anyone who ever 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 winner 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 is as if you judges write the laws instead of us Senators. But if Congress 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, do not worry. We have heard all of that stuff before. It is an old claim, from an even older playbook. You and I and the American people know whose responsibility it is to correct a law that produces a result that you dislike. It is the men and women sitting here with me. Good judges understand this. They know it is not their job to fix the law. In a democracy, that right belongs to the people. It is for this reason that Justice Scalia said this. ``If you are 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.'' Judge, I look forward to hearing more about your exceptional record, and I look forward to the conversation we will all have about the meaning of our Constitution and the job of a Supreme Court Justice in our constitutional scheme. [The prepared statement of Chairman Grassley appears as a submission for the record.] Senator Feinstein.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you very much, Mr. Chairman. Judge Gorsuch, I want to welcome 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 this vacancy has been in place for well over a year. I just want to say I am deeply disappointed that it is under these 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 is 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 nominee's 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 U.S. 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 healthcare 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 will have final word on whether corporations will be able to pollute our air and water with impunity. Or 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 trailer's brakes 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 repairman or else drive both the truck and the trailer. When no one came, the driver unhitched the trailer to search for assistance because driving with frozen brakes 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's 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 longstanding legal doctrine that allows agencies to write regulations necessary to effectively implement the laws that Congress passes and the President signs. It is 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 ensure 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 7 years ago to combat the rampant abuse that led to our country's worst financial crisis since the Great Depression, it still requires over 100 regulations to be implemented by the Securities and Exchange Commission, the Commodities Futures Trading Commission, and other regulators in order to reach its full effectiveness as intended by Congress when it was passed. Judge Gorsuch's position, were it to be adopted, would take away agencies' authorities to address these necessary details. Such a change in law would dramatically affect how laws passed by Congress can be properly carried out. Two weeks ago, The Washington Post ran an op-ed written by a woman who desperately wanted to have a baby. She described how she and her husband went to great lengths for 4 years trying to get pregnant and were thrilled when they finally succeeded. Tragically, after her 21-week check-up, they discovered her daughter had multicystic dysplastic kidney disease. They were told by three separate doctors that her condition was 100 percent fatal and that the risk to the mother was sevenfold if she carried her pregnancy to term. The mother described 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 1973, the Court recognized a woman's fundamental and constitutional right to privacy. That right guarantees her access to reproductive healthcare. In fact, the Supreme Court has repeatedly upheld Roe's core finding, making it settled law for the last 44 years. I ask unanimous consent, Mr. Chairman, to enter into the record the 14 key cases where the Supreme Court upheld Roe's core holding and the total 39 decisions where it has been reaffirmed by the Court.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Without objection, it is included. [The information appears as a submission for the record.]
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you. If these judgments, when combined, do not constitute super precedent, I do not know what does. Importantly, the dozens of cases affirming Roe are not only about precedent. They are also about a woman's fundamental and constitutional rights. Roe 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 and ``automatically'' 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 ``the intentional taking of a human life by private persons is always wrong.'' 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's 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. Now while Judge Gorsuch has not written decisions on the Second Amendment, he did write an opinion to advocate making it harder to convict a felon who illegally possessed a gun. In this opinion, Judge Gorsuch argued against the Court's own precedent. Specifically, in this case, the defendant had been charged with attempted robbery in July of 2009. After pleading guilty, he was given probation. However, ``he was repeatedly both orally and in writing told that possession of a firearm'' violated his probation, which would mean he could not ``escape the consequences of his felony conviction.'' Less than a year later, he was apprehended by the police holding ``a fully loaded Hi-Point .380-caliber pistol with an obliterated serial number'' in clear violation of his probation. Later, he argued he did not know he was a felon. Six Circuit Courts, including the Tenth, have determined that the Government does not need to prove a defendant knew he was a felon to convict for this crime. Despite this, Judge Gorsuch wrote two separate opinions that argued in favor of making it harder to convict felons who possess guns. In one, he wrote that sometimes following precedent ``requires us to make mistakes.'' 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 also stated that he believes judges 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 ignore the intent of the Framers that the Constitution would be a framework on which to build, but it severely limits 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, the population of the United States was under 4 million. Today, we are 325 million and growing. At the time of our founding, African Americans 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 adhere to originalist interpretations, then we would still have segregated schools and bans on interracial marriage. Women would not be entitled to equal protection under the law, and government discrimination against LGBT Americans would be permitted. So I 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 evaluate legalistic theories and Latin phrases in isolation. They must understand the Court's decisions have real world consequences for men, women, and children across our Nation. Thank you, Mr. Chairman. [The prepared statement of Ranking Member Feinstein appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Senator Hatch for 10 minutes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, thank you, Mr. Chairman. Judge Gorsuch, welcome back to the Judiciary Committee. This will be more of an ordeal than your last. But your fitness for the appointment, it will be just as apparent. I served on this Committee for 40 years, and some things in the confirmation process never change. The conflict over judicial appointments 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 owes the President some deference with respect to his qualified nominees. Qualifications for judicial service include legal experience, which summarizes the past, and judicial philosophy, which describes the present and anticipates the future. Judge Gorsuch's legal experience is well known. My Democratic colleagues have referred to the American Bar Association's rating as 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, competence, and temperament. Judicial philosophy is both the more important qualification and the more challenging to assess. It refers to a nominee's understanding of the power and proper role of judges in our system of government. Over the last several weeks, I have addressed this issue on the Senate floor and in 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, who wants to know which side a nominee will be on in future cases or who demands that judges be advocates for certain political interests, clearly has a politicized judiciary in mind. The New York Times reported last week that the most prominent lines of attack against this nomination will be that Judge Gorsuch is ``no friend of the little guy.'' Something is seriously wrong when the confirmation process for a 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 the seat on the U.S. Court of Appeals in 2006, Judge Gorsuch swore to administer justice without respect to persons and to impartially discharge his judicial duties. His opponents today demand in effect that he violate that oath. Advocates of such a politicized judiciary seem to think that the confirmation process requires only a political agenda and a calculator. When a nominee is a sitting judge, they tally the winners and losers in his past cases and do the math. If they like the result, it is thumbs up on confirmation. If they do not, well, it is thumbs down. What if, for example, Judge Gorsuch's record on the appeals court was as follows? He voted against the plaintiff in 83 percent of immigration cases, against the defendant in 92 percent of criminal cases, denied race claims more than 80 percent of the time, and agreed with other Republican-appointed judges 95 percent of the time. I can just hear the cries of protest, accusations that he favors certain parties and is hostile to others and threats of filibuster. That is, in fact, the record of a U.S. Circuit Court Judge nominated to the Supreme Court, but not the one before us today. It is the record of Judge Sonia Sotomayor, as described by Senator Charles Schumer at her July 2009 confirmation hearing. Not only did he champion her nomination, but he offered that statistical summary of her record as proof that, as he put it, ``She is in the mainstream.'' Oh, 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 opponents say that 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. If simply describing that unprincipled 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 litigants who come before you, and your own oath of office are 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, ``We have to respect that any nominee to the Supreme Court would have to defer any comments on any matters which are before the Court or very likely to appear before the Court.'' Now that was 50 years ago. When Justice Ruth Bader Ginsburg appeared before this Committee in 1993, she said, ``A judge sworn to decide impartially can offer no forecast, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.'' Now in a speech earlier this year, Justice Sotomayor said this. ``What you want is for us to tell you how, as a judicial nominee, we are going to rule on the important issues you find vexing. Any self-respecting judge who comes in with an agenda that would permit that judge to tell you how they will vote is the kind of person you do not want--you do not want as a judge.'' Now I will close by reading from the letter we received from dozens of Judge Gorsuch's Harvard Law School peers. After describing how they were of all political, ideological, religious, geographical, and social stripes, the signers wrote, ``What unites us is that we attended law school with Judge Neil Gorsuch, a man we have known for more than a quarter century, and we unanimously believe that Neil possesses the exemplary character, outstanding intellect, steady temperament, humility, and open mindedness to be an excellent addition to the U.S. Supreme Court.'' I agree with that appraisal by people from all walks of life, from different political views, people who agree with you and do not agree with you, but acknowledge that you are a great judge. And I look forward to this hearing, Mr. Chairman. Thank you. [The prepared statement of Senator Hatch appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Yes, thank you, Senator. The Senator from Vermont.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Thank you, Mr. Chairman. I did find it interesting the Senator from Utah spoke about Justice Sotomayor, saying that these are the reasons her nomination--the speech, these are the reasons why Republicans should vote for her and Democrats vote against her. I would note that, of course, that Senator Hatch voted against her. Today marks the first time the Senate Judiciary Committee has met publicly to take action on a Supreme Court vacancy that resulted from Justice Scalia's death 13 months ago. It was just hours after we learned of Justice Scalia's sudden passing the Republican majority leader declared that the Senate would not provide any process to any nominee selected by President Obama, despite the President having nearly a year left in his term. This was an extraordinary blockade. It was totally unprecedented in our country's whole history. Some liken it to the action of the tyrannical kings who claim that they have sole control, as one of our Senators referred to here a few minutes ago, but it was a blockage backed by then-candidate Donald Trump. Committee Republicans met behind closed doors and declared that they would surrender the independence of this Committee to do the majority leader's bidding, and they ignored the Constitution in the process. In fact, this unprecedented obstruction is one of the greatest stains on the 200-year history of this Committee. Remember, the Judiciary Committee once stood against a Court-packing scheme of a Democratic President that would have eroded judicial independence, and that was a proud moment. Now Republicans on this Committee are guilty of their own Court- unpacking scheme, and the blockade of Chief Judge Merrick Garland was never grounded in principle or precedent. While Senate Republicans were meeting in backrooms to block President Obama's nominee, extreme special interest groups were also meeting in private to vet potential Supreme Court nominees for then-candidate Donald Trump. I do not know of any other Supreme Court nominee who was selected by interest groups rather than by a President in consultation with the Senate, as required by the Constitution. Now Senate Republicans made a big show last year about respecting the voice of the American people in this process. Now they are arguing that the Senate should rubberstamp a nominee selected by extreme interest groups and nominated by a President who lost the popular vote by nearly 3 million votes. That President has demonstrated hostility to our constitutional rights and values. He has leveled personal attacks against Federal judges and career prosecutors who dare to see his promised Muslim ban for what it is, unconstitutional. He called our constitutionally protected free press ``the enemy of the American people.'' When the President's chief of staff says the nominee before us has the vision of Donald Trump, well, that raises questions for people who have actually read the Constitution or care about the rights it protects. More than perhaps any confirmation hearing for the last 30 years, I expect this nominee's judicial philosophy will play a central role. Now Judge Gorsuch has spent more than a decade on the Federal bench. He graduated from Harvard Law School. He clerked for the Supreme Court. He served in the Department of Justice. He received a unanimous ``well qualified'' rating from the American Bar Association. All things very positive for a Supreme Court nominee. And if all those things I have read were a sufficient reason to confirm a nominee to the Supreme Court, of course, Chief Judge Merrick Garland, who had exactly the same qualifications but was refused by the Republicans, would be sitting on the Court today. That is why philosophy becomes important. In contrast to past 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. It is the approach taken by jurists such as Justice Scalia or Justice Thomas, former Judge Bork. While it has gained some popularity within conservative circles, originalism, I believe, remains outside the mainstream of modern constitutional jurisprudence. It has been 25 years since an originalist has been nominated to the Supreme Court. Given what we have seen from Justice Scalia and Justice Thomas and Judge Gorsuch's own record, I worry that it goes beyond being a philosophy and that it becomes an agenda. We know that conservative groups that have vetted Judge Gorsuch, and the millionaires who fund them, have a clear agenda--one that is anti-choice, anti-environment, pro- corporate. And these groups are obviously confident that Judge Gorsuch shares their agenda. The first person who interviewed Judge Gorsuch in this process explained these groups did not ask, who is a really smart lawyer who has been really accomplished? Instead, they saw a nominee who understands these things like we do. After all, Judge Gorsuch has been described by a former leader of the Republican Party as a true loyalist and a good, strong conservative. Now the concerns I have about Judge Gorsuch's judicial philosophy and the process by which he was selected, the views of the President who nominated him, I hope and expect, Judge, that you will answer my questions and the questions of all of the Senators, both parties, 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 role of the courts in protecting the rights of all Americans. I need to know that you could be an independent check and balance on the administration that has nominated you and on any administration that might follow it. Judge Gorsuch, these hearings, occurring the week after Sunshine Week, are the first opportunity for the American people to hear your views on the role of the courts and the meaning of our Constitution. Like the Founders, who did not know what legal questions would be presented in the decades to come, they set this constitutional process. It is important to understand or to determine whether you understand how the Court has a profound impact on small businesses and workers, on law enforcement and victims, on families and children across America. It is not contrary to the duties and obligations of a Supreme Court Justice to consider the effects of their rulings. The Court's aspiration, after all, is to provide equal justice under law. That is inscribed in Vermont marble over the doorway to the Court. Judge Gorsuch, these hearings will help us conclude if you are committed to the fundamental rights of all Americans. Will you allow the Government to intrude on Americans' personal privacy and freedom? Will you 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 with independence or as a surrogate to the President who nominated you or to the special interest groups that provided that President with your name. Now I approach these hearings with these thoughts in mind. I can honestly say I have yet to decide how I am going to vote on this nomination. Unlike those who blocked the nomination of Chief Judge Merrick Garland, I believe it is my constitutional responsibility to fairly evaluate a President's nominee to the Supreme Court. I have voted for Supreme Court nominees, and I have voted against others. I recall going on the floor of the Senate right after our Democratic leader said he would vote against John Roberts for Chief Justice. I was the next speech. I said I would vote for him. But I am going to base my determination on the full record at the conclusion of these hearings, just as I have done for the 16 previous Supreme Court nominations I have been in the Senate. The Supreme Court is the guarantor of the liberties of all Americans. Judge Gorsuch, when you took the oath to sit on the Federal bench, you spoke these following words that are in a judicial oath. ``I will administer justice without respect to persons and do equal right to the poor and to the rich.'' If confirmed, you have to be a Justice for all Americans, not for the special interests of a few. You know, I cannot think of any time in our Nation's history when that commitment is more important than it is now. That is what I have been thinking of all weekend long. The stakes for the American people could not be higher. We know that in Vermont, but America knows that. I thank you, Mr. Chairman. [The prepared statement of Senator Leahy appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Yes, and thank you, Senator Leahy. Now to Senator Cornyn.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Thank you, Mr. Chairman. Judge Gorsuch, welcome to you and your family. As you can already tell, this is going to be a much different experience than you had 10 years ago when you were confirmed by voice vote of the entire United States Senate to the Tenth Circuit Court of Appeals to a life tenure position. The Senate Judiciary Committee undertakes no task more important than the one before us, considering a nominee to the U.S. Supreme Court. As you know, historically, these used to be pretty routine. But that is until judges became seen as policymakers rather than as impartial interpreters and appliers of the law. The Nation is watching, and I think that is a really good thing. At a time when fewer and fewer American citizens know our founding story and the principles upon which it is based, I think this is a wonderful opportunity for a teachable moment, and I would encourage you to take every opportunity to engage in that. We are considering a nominee, of course, left by the death of Justice Antonin Scalia. And as we have 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 was part of the broader project which the nominee before us, Judge Neil Gorsuch, described as ``reminding us of the differences between judges and legislators. That judges should strive to apply the law as it is, not to decide cases based on their own moral convictions or the policy consequences they feel might serve society best.'' In one dissent, Justice Scalia wrote along similar lines that, ``If our pronouncements of constitutional law rely primarily on value judgments, then a free and intelligent people's attitude toward us can be expected to be quite different. The 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 Scalia's and your modest view of the role of judging. Alexander Hamilton wrote, for example, ``The judiciary may truly be 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. In Judge Gorsuch, President Trump chose one of the most accomplished lawyers and jurists of his generation. As we have heard, he is a husband and a father of two daughters, lives in his native Colorado and, if confirmed, would be our only Western Justice. Judge Gorsuch attended Columbia and Harvard Law School and, of course, got his doctorate at Oxford. After clerking for two Supreme Court Justices, Byron White and Anthony Kennedy, he went to work for a startup law firm that grew to be one of the Nation's most prestigious, 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 is critically important, Judge, it means that you understand better than most the impact of your decisions, actually having represented real, live clients. The law is not just an academic or intellectual exercise. It has real consequences for real people, and I would encourage you to talk about those real people that you came in contact with during your legal and judicial career. After serving his country at the Justice Department, Judge Gorsuch, as I mentioned earlier, was nominated and confirmed to the Tenth Circuit. Not one of our Democratic colleagues then in the Senate opposed Neil Gorsuch for the Tenth Circuit Court of Appeals because there was simply no reason to do so. In the decade since, Judge Gorsuch has written hundreds of opinions on the Constitution and innumerable laws. He has demonstrated that he actually reads the text carefully to get the right result. I am reminded that there is a difference between what we sometimes loosely call a strict constructionist and a textualist, and I would invite you to make that point during some of your testimony. As you can see here today, his jurisprudence reflects brilliance and humility, the humility of a man committed to the Constitution and the law. That body of work is the best guide for the kind of judge Judge Gorsuch will be. Answers to questions posed during these hearings we have already heard about specific issues cannot and should not be a guide. You are not a politician running for election, Judge, as you know. In the dissent I mentioned earlier, Justice Scalia warned that ``confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights.'' It should not be the forum in which you seek the nominee's commitment to support or oppose them. So we are not here to ask you, even though some might, how you will vote in specific cases. And it would be wrong for you to prejudge those cases, as you know. And that is the same reason why, for example, Ruth Bader Ginsburg, during her nomination hearing, said, ``A judge sworn to decide impartially can offer no forecast, no hints, for that would not only show disregard for the specifics of a particular case, it would display disdain for the entire judicial process.'' Can you imagine what a litigant might think if the judge before whom he or she was to present their case said before they heard a word how they were going to decide the case? That is why it is improper for you, as you know, to prejudge cases in your testimony before the Committee, and our colleagues know that as well. But I expect them to ask a few questions nonetheless. Well, lately, we have heard from some that they should criticize you for failing to rule for a sympathetic constituency in one case or another. But of course, as you know, Judge, if you follow the law and the facts wherever it may lead, sometimes it is for the police. Sometimes for a criminal defendant. Sometimes it is for a corporation. Sometimes it is for an employee. Sometimes it is for the Government. Sometimes it is 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 is, in the long run, it protects the little guy a lot better than a system rigged to favor one side. Because of your qualifications and a demonstrated record of following the law, other than a few special interest groups, I believe you have got a broad spectrum, really surprisingly broad spectrum of people supporting your nomination. One of your colleagues on the left wrote in The Washington Post, ``The Senate should confirm Judge Gorsuch because there is no principled reason to vote no.'' Another liberal constitutional scholar joined a letter that stated, ``Judge Gorsuch has the unusual combination of character, dedication, and intellect that will make him an asset on our Nation's highest court.'' President Obama's Solicitor General, from whom this Committee will hear, wrote in The New York Times that ``liberals should back Judge Gorsuch because he would live up to the promises to administer justice with respect to persons and to do equal right to the poor and to the rich.'' So, Mr. Chairman, the list goes on and on. So I am very pleased the American 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 would encourage my colleagues to carefully consider the nominee on the merits and nothing else. Thank you.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator Cornyn. Now, Senator Durbin.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Thanks, Mr. Chairman. Judge Gorsuch, welcome to you and your family. I have often read stories about earlier Supreme Court nominees and how little politics played any role in the selection and vetting of the nominees. 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 rings hollow. The journey began with the untimely death of Justice Scalia in February 2016. President Obama met his constitutionally required obligation by nominating Judge Merrick Garland to fill that vacancy in March 2016. Senate Republican Leader Mitch McConnell announced that for the first time in the history of the United States Senate, 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 that 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 Scalia 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 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. Judge Gorsuch, you have been nominated to a lifetime appointment on the highest court in the land, and this Court has the final say on matters of 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 that nominees try their best to dodge most of the questions, but it is our job to try to still seek the truth. At the nomination hearing of Justice Ruth Bader Ginsburg, my friend and predecessor, Senator Paul Simon, set forth the standard for Supreme Court nominees. I have noted this with each Supreme Court nominee that I have questioned. He said, ``You face a much harsher judge than this Committee, and that is the judgment of history, and 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 am not talking about freedom for corporations. ``We the people'' does not include corporations. Senator Simon could never have imagined that the Supreme Court would give corporations rights and freedoms that were previously reserved only for individuals under the Constitution, and yet that is where we find ourselves with the Roberts Court. It is often said the Roberts Court is a corporate Court because of its pro-business tilt. A study by the Constitutional Accountability Center found that the Court ruled for the U.S. Chamber of Commerce 69 percent of the time. The Court has certainly favored big business on issues like forced arbitration, corporate price fixing, workplace discrimination cases, just to name a few. But the Roberts Court has gone further than just 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, and that was followed in 2014 by the Hobby Lobby decision, which allowed for-profit corporations to discriminate against employees based on the corporation's assertion of religious belief. I do not recall ever seeing a corporation in the pews of Old St. Patrick's Church in Chicago. Our Founders never believed that corporations were endowed with certain inalienable rights, but were seeing the Supreme Court expand the rights of this legal fiction, a corporation, at the expense of the voices and choices of the American people. This strikes at the heart of the Supreme Court's promise to provide equal justice under the law. Judge Gorsuch, you took part in that Hobby Lobby case when it was before the Tenth Circuit. As I read the case, I was struck by the extraordinary, even painful, lengths the court went 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, and the burdens that the court's decision placed on them. I want to hear from you about a pattern I have seen in your decisions on the Tenth Circuit. In case after case, you either dismissed or rejected efforts by workers and families to recognize the rights--that recognized their rights or defend their freedoms. Cases like TransAm Trucking, which we have already spoken to. Alphonse Maddin. I had a chance to sit down with him just last week. He was the 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. Al sat there on his cell phone with the dispatcher for the truck company, who told him do not leave this truck no matter what, and if you do, pull the trailer with you. Well, that was a big problem because the brakes were frozen, and it would have been a safety hazard. And so, he waited and waited, and the hours passed, and he started feeling numb and sick. You see, 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, which argued that his firing was lawful. You cited a strict textualistic 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 the Oxford Dictionary supported the majority view. Compass Environmental Incorporated, another one of your cases. Your dissent would have vacated a penalty against an employer who failed to train construction employee Christopher Carder to avoid the electrocution hazard that killed him. Strickland v. UPS, your dissent would have kept Carol Strickland's sex discrimination case from going to a jury, even though your fellow judges said she provided ample evidence that she was regularly outperforming her male colleagues and treated less favorably. I want to hear more about your views on fundamental individual rights that the Supreme Court is tasked to defend: the right to privacy, the right for all faiths to practice their religion, the right to vote, equal protection, and the rights of women. The Committee has received two letters from students who you taught last year that raised some serious concerns. Tomorrow we will get to the bottom of it, I hope. We have learned you were an aggressive defender of Executive power during the time of the Bush administration. In June 2004, after the Abu Ghraib torture scandal, I authored the first bill to ban cruel, inhuman, and degrading treatment of detainees. That legislation became the McCain Torture Amendment, which passed the Senate in December 2005 by an overwhelming 90-to-9 vote. But when President Bush signed the Amendment into law, he issued a signing statement claiming he had the authority to ignore the McCain Amendment. It 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 fundamental human rights. You are going to have your hands full with this President. He is going to 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 23rd, White House chief of staff, Reince Priebus, said, ``Neil Gorsuch represents the type of judge that has the vision of Donald Trump.'' I want to hear from you why Mr. Priebus would say that. Make no mistake, when it comes to the treatment of workers, women, victims of discrimination, people of minority religious faith, and our Constitution, most Americans question whether we need a Supreme Court Justice with the vision of Donald Trump. With my constitutional responsibility firmly in mind, I look forward to questioning tomorrow. Thank you, Mr. Chairman. [The prepared statement of Senator Durbin appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator Durbin. Now, the Senator from Utah.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Thank you, Mr. Chairman, and thank you Judge Gorsuch. Welcome to the Committee. I also want to welcome your friends, family members, supporters, former colleagues, and people you have worked 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 have done and what you have accomplished professionally, but also because of who you are personally: a man of integrity, a man of great accomplishment, a man of character, and a man of faith. Everyone knows that a Supreme Court confirmation hearing can be dramatic, even emotional at times. The stakes are high. As Senators, we understand that there are a few things that are more important than the obligation that we are performing here than the duty that we are carrying out in connection with this process. These days 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 have seen over the last few weeks, there are interest groups out there, some supporting you, some opposing you, out there waging campaigns almost as if they were running a campaign for someone pursuing public office. Maybe that is why, especially on this side of the dais, it can be easy to forget that a nominee is an ordinary citizen, perhaps not ordinary in the usual sense, but at least that person is not a politician. You, sir, are not a politician, which means that the acrimony, the duplicity, the ruthlessness of today's politics are still a little foreign to you, are still quite unfamiliar to you. I hope that 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, and so I know from my own personal experience that you are one of the best judges in the country. You come to oral argument prepared, and you ask 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 are not there to promote a personal agenda or a political agenda, and you are 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 they are well reasoned. And they are even interesting and pleasant to read, which is very difficult to achieve in the world of appellate litigation. Now, I know I am easily entertained. [Laughter.] Senator Lee. But I find your opinions particularly interesting. You have the resume of a Supreme Court Justice, but I think what is most impressive and, for our purposes, what is most important about your career and about the approach you take to the law, is your fierce independence from partisan influence and from any personal biases 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 of our constitutional system, specifically because we allow it to invalidate and interpret the actions of the elected branches. So, we have got two branches of government that are political in that they are run by people who are elected and stand for re-election at regular intervals, thus, making themselves directly accountable to the American people. Our confidence in our entire system, including our confidence in the American judiciary, depends entirely on judges just like you, judges who are independent and whose only agenda is getting the law right, regardless of whether any particular judge, or any particular litigant, or any particular member of the public like--might like or dislike the outcome in that case. You are essential to making us accountable because unless you do your job right, were not held accountable because our laws do not stand. That is what makes your role, and your particular unique approach, and your particular unique commitment to this so important. Now, I want to take a moment to address some of the unique criticisms that you yourself, Judge Gorsuch, might be facing this week. I am sure that during this hearing some of my colleagues might claim that you are outside the mainstream. In fact, we have sadly heard some of that already today. We have heard arguments to the effect that you are an originalist, and we have heard assertions to the effect that originalism is somehow so far out of the mainstream, that it is dangerous. Well, I would remind my colleagues who have raised such concerns or who might be harboring them, that if this is the case, then they are going to have to acknowledge the fact that there is a pretty broad spectrum of people on the U.S. Supreme Court they might be painting with that brush. Justice Elena Kagan, before she was Justice Kagan, when she was standing before this Committee, in the second day of her confirmation hearings said, referring to the Founding Fathers and the need to figure out what the Founding Fathers understood about particular words, about how those particular words were used by the founding generation, said, ``Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do. In that way, we are all originalists.'' That was on June 29th, 2010, before this Committee. Moreover, these out-of-the-mainstream arguments, out-of- the-mainstream approach, for addressing you, referring to you as an originalist, just does not 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 reference to you being outside the mainstream. In fact, your nomination to the United States Court of Appeals for the Tenth Circuit was so remarkably uncontroversial that one Senator and only one Senator--Senator Lindsey Graham from South Carolina--was the only Member of this Committee who even bothered to show up at your confirmation hearing. Now, I would have been there, too, Judge. I was not yet a Member of the United States Senate. [Laughter.] Senator Lee. You were confirmed unanimously by voice vote without a single ``no'' vote. I am sure that some of my colleagues will question your independence because, in their view, perhaps you have not sufficiently criticized 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 are not 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 do not provide advisory opinions. They do not make legislation, they do not legislate, they do not make law, they do not 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, and they do so outside the realm of political influence. In an odd twist, some of the same colleagues who will question your independence will also push you to answer questions that you simply cannot. I am sure that some of my colleagues will pick apart some of your rulings, and they will try to say that you are hostile to particular types of claims or to particular plaintiffs. I do not think it is productive to evaluate someone's judicial record by looking at who wins or who loses in his courtroom, at least outside the context of evaluating how the law was interpreted in that case. It goes without saying that in our system you face the same burden of convincing a court, regardless of who you are. And judges do not decide cases--they certainly should never decide cases--based on their own personal preferences. But to my colleagues who 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 would urge my colleagues to keep in mind that while Judge Gorsuch's reputation will not be affected by how we treat his confirmation, the same cannot always be said of the Senate. The night Judge Gorsuch was nominated, he said, ``The U.S. Senate is the greatest deliberative body in the world.'' I tend to agree, but these days it seems like this title is more of a challenge than an observation. It is more of an aspiration than a present sense description of reality. So, I hope we prove you right this week. Thank you very much, and I really look forward to hearing answers to the questions we will raise to you. [The prepared statement of Senator Lee appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator Lee. Now, Senator Whitehouse.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. 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 cannot help but notice the long array of 5-to-4 decisions, with all the Republican appointees lining up to change the law to the benefit of distinct interests: Republicans at the polls and big business pretty much everywhere. Let us look at the 5-to-4 decisions, first helping Republicans at the polls. All the Republican appointees' 5-to-4 decisions on election law favor Republicans at the polls, 6-to- 0. Helping Republicans gerrymander, paving the way for the Republican red map plan that won the House against the American majority in 2012, Gobeille, 5-to-4, all the Republican appointees. Helping Republican legislatures keep Democrat-leaning minorities away from the polls with targeted voter suppression laws, Shelby County, 5-to-4 all the Republicans; Bartlett v. Strickland, 5-to-4, all the Republicans. Helping corporate money flood elections and boost Republican candidates, McCutcheon, 5-to-4, all the Republicans, counting the concurrence; Bullock, 5-to-4 all the Republicans. And the infamous Citizens United decision, 5-to-4 all the Republicans. In each area, the Court made new law, 5-to-4, and each decision predictably helped Republicans win elections. At 6-to-0, it is a partisan route. Then look at cases that pit corporations against human beings. All the 5-to-4 Republican appointee decisions line up to help corporations against humans. Citizens United and the political money decisions should, again, count here. All three of them, 5-to-4, all the Republicans. Then come decisions to protect corporations who have harmed their employees. In pay discrimination, Ledbetter, 5-to-4 all the Republicans. In age discrimination, Gross, 5-to-4 all the Republicans. In harassment cases, Vance, 5-to-4, all the Republicans. In anti- retaliation cases, Nassar, yes, you guessed it, 5-to-4, all Republicans. Then there are the decisions that protect corporations from class action lawsuits. Wal-Mart v. Dukes, 5-to-4, and Comcast, 5-to-4, both all Republicans. Then there are decisions that help corporations steer customers away from juries and into corporate-friendly mandatory arbitration. Concepcion and Italian Colors Restaurant, both 5-to-4, both all Republicans. The Iqbal decision, 5-to-4, all Republicans, helped bar the courthouse door for all types of plaintiffs. All of this helps keep corporations away from juries, the one element of government hardest for corporations to control. Indeed, as you know, tampering with a jury is a crime. The Court also helps big business against unions. Harris v. Quinn, 5-to-4, all Republicans. Last year Friedrichs was teed up as a 5-to-4 body blow against unions when Justice Scalia died. With a new 5-to-4 Court, they will be back. Throw in Hobby Lobby. Corporations have religious rights that supersede healthcare for their employees, 5-to-4, all Republicans. Add Heller and McDonald, reanimating for gun manufacturers a legal theory a former Chief Justice once called a fraud, 5-to-4, all Republicans. Help insulate investment bankers from fraud claims? Why not? Janus Capital Group, 5-to-4, all Republicans. Chamber of Commerce v. EPA, gave corporate polluters an unprecedented victory, again 5-to-4, all Republicans. That is an easy 16-to-0 record for corporations against humans. To me, every time seems like a lot. There is no coincidence here. Big business has law groups out trolling for test cases to go get those cases before the friendly Court. The Republican politico-industrial complex piles in with amicus briefs 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 rush to get certain cases up pronto to the Court. It is kind of a machine. Special interests set up and fund front groups. The front groups appear as amici before the Court. The amicus briefs or the front groups tell the Court what the special interests want. The Court follows the amicus briefs. The decision benefits the special interests, and the special interests pour more money to the front groups. On it goes like turning a crank. The biggest corporate lobby of them all is winning better than two-to-one at the Court. This 5-to-4 rampage is not driven by principle. Over and over, judicial principles, even so-called conservative ones, are overrun on the Court's road to the happy result. Stare decisis, that is a big laugh. These are law-changing decisions, many upending a century or more of law and precedent. Textualism. The Second Amendment uses the military term, ``arms,'' and talks about militias, but never mind that when the gun lobby wants something. Originalism, there is a particularly good one. Find me a Founding Father who planned a big role for business corporations in American elections, or one who would have countenanced the steady strangulation of the civil jury without so much as a mention of the Seventh Amendment. The Citizens United majority even fiddled with Court procedure to get to the decision it wanted to deliver, dodging its way around a record that would have belied their findings of fact, setting aside that their findings of fact were factually preposterous, as events have shown, and that appellate courts are not even supposed to make findings of fact. It is not just us who notice. Top writers and scholars describe the Roberts Court as essentially 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 contemporary Republican Party.'' Linda Greenhouse in 2014, ``I am finding it impossible to avoid the conclusion that the Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda.'' Norm Ornstein has described what he called the new reality of today's Supreme Court: ``It is polarized along partisan lines in a way that parallels other political institutions and the rest of society in a fashion we have never seen.'' Studies of the Court's decisions show it is the most corporate-friendly Court in modern history, with Justices Roberts and Alito vying to be the most corporate-friendly Justice. And the American public knows something has gone wrong at the Court. A 2014 poll revealed that a majority of Americans think a person will not get a fair shake in this Court against a corporation. Now, where do you fit in? When Hobby Lobby was in the Tenth Circuit, you held for a corporation having religious rights over its employees' healthcare. Your record on corporate versus human litigants comes in by one count at 21-to-2 for corporations. Tellingly, big special interests and their front groups are spending millions of dollars in a dark money campaign to push your confirmation. We have a predicament. In ordinary circumstances, you should enjoy the benefit of the doubt based on your qualifications, but several things have gone wrong that shift the benefit of the doubt. One, Justice Roberts sat in that very seat, told us he would just call balls and strikes, and then led his five-person Republican majority on that activist 5-to-4 political shopping spree. Once burned, twice shy. Confirmation etiquette has been unhinged from the truth. Two, Republican Senators denied any semblance of due legislative process to our last nominee, one I would say even more qualified than you, and that is saying something. Why go through the unprecedented political trouble to deny so qualified a judge even a hearing if you do not expect something more amenable to come down the pike? Those political expectations also color the benefit of the doubt. Finally, the special interests who have done so well in that 5-to-4 extravaganza of decisions are now spending millions and millions of dollars campaigning to push your nomination. They obviously think you will be worth their money. These special interests also supported the Republican majority keeping this seat open. I am afraid at all costs, whoever now sits in that seat, the benefit of the doubt to answer this question. Will you saddle up with the other Republican appointees and launch the Court 5-to-4 again on another massive special interest and Republican election spree? I hope whatever we may disagree about on this Committee, we can at least agree that we cannot have a Court where litigants in these 5-to-4 decisions can predict how they will do based on who they are, because here is what it looks like now. If they are big Republican election interests, they will win every time. If they are corporations against a human being, they will win every time. And, Your Honor, every time seems like a lot. Thank you, Chairman. [The prepared statement of Senator Whitehouse appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you. Senator Graham.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Thank you, Mr. Chairman. There is a reason I did not do this litany with Democratic nominees that appeared before the Committee. I do not think it would have made any difference in terms of how other people voted, and I did not expect them to vote with the Republican majority. Elena Kagan and Sonia Sotomayor, I could have spent a lot of time talking about how antagonistic they are to the Second Amendment, in my view, how the unborn does not have much of a chance in their Court, how the environmentalists always win, and there is no government too big to be said ``no'' to. The reason I did not do that is because I thought they were qualified, and if you believe this has been a great plan to get a Trump nominee on the Court, then you had to believe Trump was going to win to begin with. I did not believe that. [Laughter.] Senator Graham. Obviously, I did not believe that saying all the things I said---- [Laughter.] Senator Graham [continuing]. Followed closely by Ben. But apparently what I said did not 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 us. No matter who had won our primary, no one could have chosen better than Neil Gorsuch to represent conservatism on the Supreme Court. So, Donald Trump deserves to be congratulated for listening to a lot of people and coming up with, I think, the best choice available to a Republican President in terms of nominating somebody who is going to keep the conservative philosophy alive and well in the Court. And I doubt if you will be disappointed many times with Judge Gorsuch, but he is a pretty independent guy from what I can tell. You will probably be more--I have never been disappointed with Sotomayor and Kagan in the sense I knew what I was getting. They always vote with the liberal block. They are very qualified people. Sometimes the Court comes together 9-to-nothing to reject something, but most of the time people break along the lines of where they came from. And I think Sotomayor and Kagan came from a view of the law that I do not accept in terms of who I would have chosen, but was well within the mainstream of judicial philosophy from the left. I thought they led exemplary lives quite frankly. There were a lot of attacks on them that I did not echo because I thought, give me a break. Really? Are these the two worst women in the world? They lived exemplary lives, were highly qualified, and that is why I voted for them. I thought that is what we should be doing, and I am beginning to wonder now how the game is played. I do remember when I voted for them, how many good editorials I have from papers that nobody in South Carolina read. [Laughter.] Senator Graham. I miss Harry. Harry is around here somewhere, Harry Reid. He said something about me. I cannot find it. But he basically said that I wished more people would follow Senator Graham's lead when it comes to voting for very highly qualified nominees. He said that on the floor. Maybe that will happen in the future. Well, time will tell. Now, as to whether or not this man is highly qualified, I am dying to hear the argument that he is not. You may not like the view he has of the law, but I am dying to hear somebody over there tell me why he is not qualified to be sitting here when a Republican President occupies down the street. Now, when you look at the Federalist Papers, I saw the musical, ``Hamilton.'' It was pretty good. Reading his work was even better. And the Federalist Papers 78, 87--I cannot remember the number. Basically, what he tells us is that the role of the Senate is, make sure that the President does not pick someone specially favored for their State and association to their family, someone really cronyism, I guess, is what we are supposed to be doing. And most Supreme Court Justices, up until modern times, basically were reconfirmed without with a voice vote. So, things have changed, and we cannot lay all the blame on our Democratic friends about politicizing the selection process. What I want to say to the public is, I am glad people like Judge Gorsuch are willing to go through this, and I am sure Justices Sotomayor and Kagan had wished on a couple of days they had not chosen that path, but I think they made it through, quite frankly, with flying colors. So, the issue for me is, I am waiting to hear somebody over there tell me why you are not qualified for the job that you are seeking. Twenty-seven hundred decisions, and you have been overruled once. An academic record. The reason I did not do all the things you did academically, I could not get into any of the schools--into the schools you were able to get into. But the way you have handled yourself, I think you should be proud of the way you have handled yourself on the court. I think all the statements by your colleagues who know you better than anybody up here when no TV camera is rolling say nothing but great things about you, even people who have a different philosophy. So, I just want you to know that from my point of view, you are every bit as qualified as Justices Sotomayor and Kagan. I think you are just as good a man as they are two fine women. And over the course of the next couple of days, the American people are going to get to understand who you are and, within limits, your judicial philosophy. They are going to want you to decide every case they do not like here, and you will have to say ``no.'' And there is a reason I did not ask Justices Sotomayor and Kagan to give me an opinion as to what they would do when they got on the Court because I knew they would not tell me that. I did not really feel comfortable asking them that. As to Judge Garland, the one thing I can say for sure is that when Justice Scalia passed on February the 13th, we had already had three primaries on the Republican side, and the campaign was in full swing on the Democratic side. I thought long and hard about that. Are we doing something unfair here by not allowing the current President to nominate somebody and fill a vacancy in the last year of their presidency after the political process had started? So, when I started looking around at what other people thought, here is what Joe Biden thought in 1992. ``If someone steps down, I would highly recommend the President not name someone and not send a name up. If Bush did send someone up, I would ask the Senate to seriously consider not having a hearing on that nominee. It would be a pragmatic conclusion that once the political season is underway, and it is, action on known Supreme Court nominations must be put off until after the election campaign is over.'' Now, that is what my friend, Joe, said in 1992. The bottom line here is I have no doubt in my mind if the shoe were on the other foot, the other side would have delayed the confirmation process until the next President were elected. In a hundred years, when we have had the President of one party in power and the Senate in the hands of another party, I think we have had one person confirmed in the last year of a term. So, I do not feel like any injustice has been done to anybody here. And the bottom line, when you read Democratic words from the past, they are saying basically what we said. The one thing I can say is that I have been consistent. I have voted for everybody since I have been here, four: Justices Roberts, Alito, Sotomayor, and Kagan. And I feel all four had one thing in common: no Republican would have chosen Sotomayor or Kagan, but how could a Republican say they were not qualified for the job they had? They had lived an exemplary life, well qualified, and had years on the bench. Now, the shoe is on the other foot. I remember after I voted for Ms. Kagan, all the headlines in The Washington Post were, this will ensure that Graham gets primary. They were right. That is not the only reason, to my primary opponents, but that was the main reason, and I made it through just fine. And I do not know how we got here as a Nation. Scalia had 98-to-nothing. Ginsburg I think was 96-to-3. What happened between now and then? How did we go from being able to understand that Scalia was a well-qualified conservative, and Ginsburg was a well-qualified liberal, and recognize that elections matter? I do not know how we got there, but here is what I hope, that we turn around and go back to where we were because what we are doing is going to destroy the judiciary over time.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator Graham. Now, Senator Klobuchar.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Thank you, Mr. Chairman. Welcome, Judge. We have already met once before in my office, and all of us on the Judiciary Committee are looking forward to hearing from you. And welcome to your family as well. This Committee has no greater responsibility than the one before us today. Our Constitution, our laws, and our values all depend on a Supreme Court that is impartial, fair, and just. Your nomination comes before us during an unprecedented time in our country's history. We are witnessing a singular moment of constitutional and democratic unease. In recent months, foundational elements of our democracy, including the rule of law, have been questioned, challenged, and even undermined. So, I cannot evaluate your credentials in the comfort of a legal cocoon. Instead, I must look at your views and record in the real world of America today. You see, you come before us this afternoon not only as a nominee sitting at a table alone with your friends and family behind you, but in the context of the era in which we live. From the highest levels of Government, we have heard relentless criticisms of journalists. Seventeen intelligence agencies have confirmed that Russia, an autocratic foreign government, attempted to influence our most recent election. At the same time, voting rights in the U.S. have been stripped from far too many, while dark money and extraordinary sums, adding up to an estimated $800 million in just 6 years, continues to have an outsized influence in our politics, distorting our representative democracy. Just last month, we saw the President of the United States refer to a man appointed to the Federal bench by President George W. Bush as a ``so-called judge,'' and we have sadly seen hate unleashed toward religious minorities from Jews to Muslims, venom directed at innocent Americans, from kids in restaurants being told to go back to where they came from, to a man gunned down while washing his car in his driveway. The pillars of our democracy and our Constitution are at risk. You are not the cause of these challenges, Judge, these challenges to our democracy, but if confirmed, you would play a critical role in dealing with them. This is a serious moment in our Nation's history, and as representatives of the American people, it is our duty up here to determine if you will uphold the motto on the Supreme Court building itself, to help all Americans achieve equal justice under law. Before I was elected to the Senate, I spent 8 years leading Minnesota's largest prosecutor's office. I have seen firsthand how the law has a real impact that extends far beyond the walls of a courtroom, whether it is crime victims and their families, or people who have seen a loved one sent to jail. The decisions made from the bench affect people living right now in the 21st century with 21st century problems. So, though the U.S. Constitution and its Bill of Rights were written in the 18th century, though the Fourteenth Amendment's guarantee of equal protection of the laws was written in the 19th century, the decisions made today affect not the lives of our 18th and 19th century ancestors, but of all Americans today. So, Judge, these hearings will not just be about your legal experience. They are about trying to understand what you would actually do on the Court, for the law is more than a set of dusty books in the basement stacks of a law library. It is the bedrock of our society. We need to know how you approach the law. After Judge Merrick Garland was nominated to the Supreme Court last year, we often heard about how he is a careful jurist who decides cases on the narrowest possible grounds, who builds consensus across the ideological spectrum, who does not inject political considerations into his rulings. We look forward to hearing what your judicial philosophy would be on the Court. Looking at your past decisions, I have questions about how you would approach your work. In a speech last year, you spoke about the differences between judges and legislators. You said that, ``While legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future, that judges should be none of those things in a democratic society. Judges,'' you said, ``should instead strive to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood 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 laws, these are general and sweeping terms. And the Supreme Court, which has the power of judicial review, has the constitutional duty to be the final arbiter of what the Constitution means, rulings that can impact 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, in fact, never could have considered because of all the social change and innovation that has taken place. We are no longer dealing with plows, bonnets, and colony deaths in England, but instead driverless cars, drones, and cybercrimes. And those were just the topics of the hearings I attended last week. I want to understand how your judicial philosophy, which, as you suggest, looks backward, not forward, may affect the rights of our fellow citizens. I also want to understand the implications of your views on legal precedent. One example of this occurs in the context of the Chevron doctrine. In stating that courts should generally defer to reasonable interpretations of Executive agencies, this 33-year-old case guarantees that the most complex regulatory decisions, ones judges themselves may have little or no expertise to handle, are made by the scientists and professionals best equipped to rise to these challenges. These modern agency decisions include things like rules protecting public safety, requirements against lead-based paint, and clean water protections for our Great Lakes. Last year in your concurring opinion in Gutierrez v. Lynch, you suggested that Chevron should be overturned, yet this act would have titanic real-world implications on all aspects of our everyday lives. Countless rules could be in jeopardy, protections that matter to the American people would be compromised, and there would be widespread uncertainty. Judge, if you believe it is really time to overturn Chevron, then we need to know with what you would replace it. Another opinion that I want to talk about is Riddle v. Hickenlooper. In your concurring opinion, you suggest that the Court should apply 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 rules is in direct contradiction with the express views of the American people. In recent polls, over three-quarters of Americans have said that we need sweeping new laws to reduce the influence of money in politics. While polls, as we know, are not a judge's problem, democracy should be. When unlimited, undisclosed money floods our campaigns, it drowns out the people's voices. It undermines our elections. Other questions about your views in money and politics are raised by your opinion in Hobby Lobby. In that opinion, you found that corporations were legal persons and could exercise their own religious beliefs. This ruling leaves open the troubling argument that corporations have a right to free speech equal to that of citizens, which would invalidate the prohibition of corporations donating. These are not the only First Amendment issues I will raise. I want to talk about New York Times v. Sullivan and freedom of the press, as well as an area you have great expertise in, antitrust. Judge, as I consider your nomination, I am reminded of something a Justice who hailed from Minnesota, Justice Blackmun, once said, ``Surely,'' he wrote, ``there is a way to teach law, strict and demanding though it might be, with some glimpse of its humanness and basic good. There is room for flexibility and different answers, and not all is Black and White. You see, there is a reason we have judges to apply the laws to the facts. It is because answers are not always as clear as we would like, and sometimes there is more than one reasonable interpretation.'' As a prosecutor, I knew that every charging decision that we made, every case we chose to pursue, had real implications. It is the same with judges, for in the end it was not a law professor or Federal jurist who was helped by the Eighth Circuit is reliance on Chevron. It was an hourly Minnesota grocery store worker who got his hard-earned pension. And when the Court stripped away the rules that opened the door to unlimited super PAC spending, it was not the campaign financers or the ad men who were hurt. It was a grandma in Lanesboro, Minnesota, who actually believed that giving $10 to her Senator would make a difference. And as the granddaughter of an iron ore miner, I can tell you it was not a CEO or a corporate board chair whose life was saved by mining safety rules. It was the Minnesota iron ore workers like my grandpa, who went to work every day with a black lunch bucket 1,500 feet underground in a cage. My dad, who ended up as the first kid in his family to graduate from high school, and from there to community college, and then to the University of Minnesota, still remembers as a little boy standing in front of the caskets of those mine workers lining St. Anthony's Church. It was the worker protections, coupled with the ability to organize as a union, that finally made those miners' jobs safe. Judge, you have been rightfully praised for your impressive academic credentials and experience, but at these hearings I want to know more than just about your record. I want to know about how, if you are confirmed, your decisions will, in fact, reflect precedent and the law, whether your judgments and decisions will be good, whether they will be done in a way that will help all Americans, from that grandma in Lanesboro to that Minnesota grocery store worker. That is not politics. That is why we are having these hearings today. Thank you. [The prepared statement of Senator Klobuchar appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator Klobuchar. Now, Senator Cruz.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Thank you, Mr. Chairman. Judge Gorsuch, 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 of last year was a devastating day for those of us who revere the Constitution and the rule of law. On that day, we lost Supreme Court Justice Antonin Scalia. Justice Scalia was one of the greatest Justices to ever sit on the Bench. He was a trailblazing advocate for the original meaning of the Constitution, and a shining example of judicial humility. His death left an enormous hole not only in our hearts, but in the protections for the rule of law, and it left enormous shoes to fill, a daunting task that I know weighs on you as you consider the enormity of what is in front of you. Today there is a sharp disagreement about the very nature of the Supreme Court. Some people view the Court as a hyper- powerful political branch. When they grow frustrated with the legislative process and the will of the people, they turn to the Court to try to see their preferred policies enacted. For conservatives, we understand the opposite is true. We read the Constitution and see that it imbues the Federal judiciary with a 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 role, but had his vacant seat been filled by Barack Obama or Hillary Clinton, Justice Scalia's legacy would have been in grave danger. If they 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 majority. We would have seen a Supreme Court majority that viewed itself as philosopher kings who had 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 here in Washington, DC. That would have been a profound and troubling shift in the direction of the Supreme Court and our Nation's future. 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 had occurred in a Presidential election year, and the Senate majority rightly decided that last year would not become the first in eight decades. The people, therefore, had a choice, a choice between an originalist view of the Constitution represented by Justice Scalia or a progressive 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, indeed, he laid out a specific list of 21 judges, constitutionalists from whom he said he would choose his nominee. Judge Gorsuch was one of those 21. Issuing such a list was a move without precedent in our country's Presidential history, and it created the most transparent process for selecting a Supreme Court Justice that our Nation has ever seen. The voters had a direct choice. The voters understand the 21 men and women from whom the President would pick, and they had a very different vision of a Supreme Court Justice that would be put forth by Hillary Clinton. And in November, the people spoke in what was essentially a referendum on the kind of Justice that should replace Justice Scalia. The people chose originalism, textualism, and rule of law. The people chose judicial humility. The people chose protecting the Bill of Rights, our free speech, our religious liberty, our Second Amendment rather than handing policymaking authority over to judges on the Supreme Court. Given that history, given the engagement of the electorate nationally on this central issue, I would suggest that Judge Gorsuch is no ordinary nominee. Because of this unique and transparent process, unprecedented in the Nation's history, his nomination carries with it a super legitimacy that is also unprecedented in our Nation's history. The American people played a very direct role in helping choose this nominee. Like the renowned Justice he is set to replace, Judge Gorsuch is brilliant and has an impeccable academic record. His judicial record demonstrates a faithful commitment to the Constitution and the rule of law. He has refused to legislate his own policy preferences from the bench, while recognizing the pivotal role the judiciary plays in defending the fundamental liberties protected in the Bill of Rights. On the night he was nominated, Judge Gorsuch channeled Justice Scalia when he explained that, ``A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.'' That is exactly right, and those words should give comfort to the American people and to my Democratic colleagues. And it is worth recalling that our friends on the Democratic side of the aisle understand this and, indeed, not too long ago agreed with it. A decade ago, Judge Gorsuch was confirmed by this Committee for the Federal Court of Appeals by a voice vote. He was likewise confirmed by the entire United States Senate by a voice vote without a single Democrat speaking a word of opposition. Not a word of opposition from Minority Leader Chuck Schumer, not from Harry Reid, or Ted Kennedy, or John Kerry. Not from Senators Feinstein, Leahy, or Durbin, who still sit on this Committee. Not even from Senators Barack Obama, Hillary Clinton, or Joe Biden. Not a one of them spoke a word against Judge Gorsuch's nomination a decade ago, and the question this hearing poses to our Democratic colleagues is, what has changed? What has changed? Ten years ago, Judge Gorsuch was so unobjectionable, he did not merit even a whisper of disapproval. In the decades since, he has an objectively exemplary record. By any measure, he has shown himself to be even more worthy of the bipartisan support he received back then. Unfortunately, modern reality suggests that is probably not something my Democratic colleagues feel they can do in today's political environment. Many probably believe they have no choice but to try to manufacture attacks against Judge Gorsuch, whether they want to or not, just to preserve their own political future and protect themselves from primaries back home. We are seeing some of these baseless attacks already. Most recently, some Democrats have tried to slander Judge Gorsuch as being ``against the little guy'' because he has dared to rule based on the law, the law that Congress has passed, and not on the specific identity of the specific litigants appearing before him. This is absurd. For one thing, many of these same critics who spent the last 8 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. You really need to take a long look in the mirror if one day you find yourself attacking nuns, attacking the Little Sisters of the Poor, and then the next day you find yourself orating on the need to protect the little guy. A judge's job is not to protect the little guy or the big guy. A judge's job and a judge swears an oath to uphold the Constitution and to follow the law fairly, impartially, and equally for every litigant, little or big. In the past weeks as well, some of my Democratic colleagues have questioned Judge Gorsuch's independence and suggested that he needs to answer questions about the actions and statements and even tweets of the President who appointed him. I would ask, was Justice Ginsburg or Justice Breyer asked about the sexual harassment suit that had been filed against President Clinton by Paula Jones? No, neither was asked about that suit. Was Justice Kagan asked about President Obama's incendiary comments at the State of the Union attacking the Supreme Court for a decision he disagreed with? No, of course not. Those questions were not asked because they were inappropriate political questions that have nothing to do with the record of the nominee before this Committee. Justice Ginsburg, Justice Breyer, Justice Kagan were not asked those questions, and Judge Gorsuch should not be either. Instead, we should evaluate this nomination on the record, on the merits, and on that ground I have every confidence that Judge Gorsuch will be confirmed as the next Associate Justice of the Supreme Court. [The prepared statement of Senator Cruz appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator Franken. I mean,
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Now, Senator Franken. [Laughter.]
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Thank you, Mr. Chairman. Judge Gorsuch, congratulations on your nomination. You are a man of considerable qualifications and experience. And having reviewed your decisions, I can say that you are a man of strong opinions. But the task before this Committee is not to determine whether you are a man of conviction. Rather, it is incumbent upon us to determine whether the views that you espouse, and whether 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 to all Americans, Black and White, immigrant, Native American, gay, straight, and transgender. We must determine whether your interpretation of our laws and the Constitution will unfairly favor corporate interests over working families or limit the ability of Minnesotans to get their day in court. The Justices who sit on the Supreme Court wield enormous power over our daily lives, so before this Committee decides whether to advance your nomination, we have an obligation to fully examine your views on these important issues, and to make sure that those views are known to the public. That is really the whole purpose of these hearings, to allow the people of Minnesota, the American people, to meet you, to decide for themselves whether you are qualified to serve. But, Judge Gorsuch, having reviewed your decisions and your writings, I have concerns. In the days ahead, I will use this hearing as an opportunity to better understand your views and perhaps to alleviate those concerns. But in order for the hearing to serve its purpose, in order for the public to determine whether you should be confirmed, you must answer the questions this Committee poses fully, candidly, and without equivocation, so I hope that is how you will approach our exchanges. Now, with that in mind, I think it is important to acknowledge just exactly how it is that you came before us today, and we talked about this, namely through the Committee's failure to fulfill one of its core functions. Immediately following the death of Justice Scalia and before President Obama even named a nominee, my Republican colleagues announced that they would not move forward with filling the vacancy until after the Presidential election. The Majority Leader said, ``The American people should have a voice in the selection of their next Supreme Court.'' The only problem with the Majority Leader's reasoning is that the American people did have a voice in this decision, twice. Nonetheless, when President Obama nominated Chief Judge Merrick Garland, the Republican Members of the 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' unprecedented obstructionism, Justice Scalia's seat on the Court remained vacant until President Trump was able to name a replacement. Now, during the campaign, then-candidate Trump made no secret about what kind of nominee he would select. In fact, he openly discussed his litmus test. He said that he would ``appoint judges very much in the mold of Justice Scalia.'' During the final Presidential debate, then-candidate Trump said, ``The Justices I am going to appoint will be pro-life. They will have a conservative bent.'' Now, Justice Scalia was a man of great conviction, and, it should be said, a man of great humor. But Justice Scalia embraced a rigid view of our Constitution, a view blind to the equal dignity of LGBT people and 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. Judge Gorsuch, while no one can dispute the late Justice Scalia's love of the Constitution, the document he revered looks very different from the one that I have sworn to support and defend. So it troubles me that, at this critical juncture in our Nation's history, at this moment when our 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 in the integrity of our institutions is at an all-time low. But that erosion of trust did not take place overnight, and it did not happen on its own. The American people's loss of confidence in our public institutions was quickened by the Court. A study published in the Minnesota Law Review found that the Roberts Court is more likely to side with business interests than any Supreme Court since World War II. Time and time again, the Roberts Court issued decisions that limit our constituents' ability to participate freely and fairly in our democracy, decisions like Shelby County where the Court gutted one of our landmark civil rights laws and removed a crucial check on race discrimination at the ballot box, or like Concepcion, a 5-4 decision that allows corporations to place obstacles between consumers and the courthouse door. Perhaps 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. It is no surprise that, during the 2016 elections, voters from across the ideological spectrum, Democrats and Republicans alike, described our system as rigged. That is because it is. And the Roberts Court bears a great deal of responsibility for that. Now, in each one of those 5-4 decisions, Justice Scalia was among the majority. So as this Committee sets about the task of evaluating his potential successor, I want to better understand the extent to which you share Justice Scalia's judicial philosophy, and I will be paying close attention to the ways in which your views set you apart. One of the ways in which your views are distinct from Justice Scalia's is in the area of administrative law. Just this past August, you wrote an opinion in which you suggested that it may be time to reevaluate what is known as the Chevron doctrine. Now, in broad strokes, the Chevron doctrine provides that courts should be reluctant to overrule agency experts when they are carrying out their missions, like when the FDA sets safety standards for prescription drugs. This principle, outlined by the Supreme Court, recognized that our agencies employ individuals with great expertise in the laws that they are charged with enforcing, like biologists at the FDA, and that where those experts have issued rules in highly technical areas, judges should defer to their expertise. Now, administrative law can be an obscure and sometimes complicated area of law, but for anyone who cares about clean air or clean water, or about the safety of our food and of our medicines, it is incredibly important. And Chevron simply ensures that judges do not discard an agency's expertise without good reason. Justice Scalia recognized this 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 ``deconstruction of the administrative state,'' which is shorthand for gutting any environmental or consumer protection measure that gets in the way of corporate profit margins. Speaking before a gathering of conservative activists last month, Mr. Bannon explained that the President's appointees were selected to bring about that deconstruction. And I suspect that your nomination, given your views on Chevron, is a key part of that strategy. So this hearing is important. Over the next few days, you will have an opportunity to explain your judicial philosophy, and I look forward to learning more about how you would approach the great challenges facing our country. But if past is truly prologue, then I fear that confirming you would guarantee more of the same from the Roberts Court, decisions that continue to favor powerful corporate interests over the rights of average Americans. During your time on the Tenth Circuit, you have sided with corporations over workers, corporations over consumers, and corporations over women's health. What this moment in our history, and in our Nation's history, calls for is a nominee whose experience demonstrates an ability to set aside rigid views in favor of identifying common ground and crafting strong consensus opinions, someone like Merrick Garland. But your record suggests that, if confirmed, you will espouse an ideology that I believe has already infected the Bench, an ideology that backs big business over individual Americans, and refuses to see our country as the dynamic and diverse Nation that my constituents wake up in every morning. As I said before, I see this hearing as an opportunity to learn more about your views, and perhaps to alleviate some of my concerns, so I hope that we are able to have a productive conversation. Thank you, Mr. Chairman. [The prepared statement of Senator Franken appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Before the Senator from Nebraska goes, I have not talked to the person sitting there and cannot get up and go, but I think, when you are done, we will take 5 minutes, and you can do whatever you want to do. [Laughter.] Chairman Grassley. Go ahead, Senator from Nebraska.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. Thank you, Mr. Chairman. Judge, this is a special moment in the life of our Republic. We have an opportunity to stand back from more than 200 years of our history to evaluate our civic health and to recommit ourselves to a government that is intentionally limited, to powers that are intentionally distinguished and divided. That is what these next few weeks are actually about. Arguably, the most important thing the U.S. Senate will do this year is confirm the next Supreme Court Justice. I want to focus my opening remarks around the simple image of a judge's black robe. It is a strange thing that judges wear robes. You people are odd. But it is not something that we should just look past as an odd convention. It is something that we should look right at. It is not some relic from history that people wore long ago in an era of formality, like a powdered wig. So why do the robes exist, unfashionable and unattractive as they often are? The reasons are better summed up by a current sitting judge than I might be able to put them, ``Donning a robe does not make me any smarter, but the robe does mean something. It is not just that I can hide the coffee stains on my shirt. It serves as a reminder of what is expected of us, what Burke has called `the cold neutrality of an impartial judge.' It serves, too, as a reminder of the relatively modest station we are meant to occupy in a democratic society. In other countries, judges might wear scarlet. Here, we are told to by our own plain, black robes, and I can attest to the standard choir outfit of the local uniform supply store as a good deal. Ours is the judiciary of an honest black polyester.'' The author of these insightful words sits before us, Judge Neil Gorsuch, and that statement is an excellent lens through which to view the work of the Committee this week and, indeed, the work of the Court over the next century and beyond. I want to make three simple overlapping points about that judge's black robe. One, it changes the way that our eyes see the court. Two, it reiterates the calling of a judge to the judge. And three, it gives us a special opportunity to teach our kids something about our--about their Constitution, the enduring paper that defines what our Government can and cannot do. First, then, how does it change the way we see the court? When you look at the nine Justices sitting together in their robes, they blend in with one another. It is hard to tell them apart if you squint. And, thus, it calls attention to the office rather than to the person. That is because when the judge puts on his or her robe, it forces their personalities into the background so that we can focus on the important but the modest job that they have to do, which is to drill down on facts and law. Facts are objective. They do not change based on your personality. They are evaluated against written, objective laws, not against what the judge wishes the law said. Someone famously said that ``empathy'' is an essential ingredient in arriving at a just decision. This belief is well- meant, but it is very foolish. For standing before a court, your gender, your skin, your bank account cannot decide your fate in the same way a judge's race, class, and gender should not decide your fate. Empathy is actually not the role of a Supreme Court Justice. It is, in a sense, our role, for we are men and women who have been hired and can be fired by the American people to empathize. We are to identify with the hopes and the struggles of 320 million Americans. But the judge, instead, has a different job, to faithfully and dispassionately apply the law to the facts of the particular case. The judge's robe is there to remind the judge and us of that--that if the facts are on your side, it should not matter which judge you sit before. Our ideal is one where you can trade out one judge for another judge, and you should get the same outcome. This is the heart of what we mean when we say that we believe in the rule of law, not of men or of women, or of Black or White, or rich or poor. We are not to be ruled by a judge's passions or by a judge's empathy or by a judge's policy preferences. Here is the second thing that the black robe is supposed to do. It is supposed to reiterate the calling of the judge back to the judge. By way of loose analogy, many people across our country sat in church pews yesterday morning and listened to someone preach from behind a big wooden pulpit wearing a robe. Why the pulpit? Why the robe? Because these things make it harder to see the preacher. They help us all understand that yesterday morning, for those of us in that tradition, knew that it was not about the messenger but about the message that was being passed on from above. It was also to remind the minister of the same cloaking. Likewise, a good judge on the bench knows that. It is not about you, so do not make it about you. I said that it is only a loose analogy because, of course, the job of a Supreme Court Justice is absolutely not to deliver some eternal word from God. It is, rather, to interpret a man- made, written Constitution as objectively and faithfully as they can, inserting their opinions as little as possible. When you put on your robe, you are cloaking your personal preferences. You are cloaking your partisan views. There is not a red robe for Republicans. There is not a blue robe for Democrats. We issue here only black robes. This brings us to the third and final point, which is that 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 it is also a coequal one. We have different functions, but we have the same responsibility to be upholding and to teach the Constitution. As a coequal, the Court can examine whether the actions of the other two branches are, in fact, unconstitutional. Time and again, at important moments in our Nation's history, the Court has struck down laws passed by the Congress or put a stop to a President's Executive actions. Here is what that means: 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 opinions of the day. That might sound surprising. Do we not live in a democracy where the majority is supposed to rule? The answer to that question is only a very qualified ``yes,'' for there are critical limits to that statement. The Constitution is a decidedly and intentionally anti- majori- tarian document. The Constitution exists to protect our rights and our liberties, even when we might hold unpopular views. And 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 establishing any state religion, and it guarantees that every citizen can worship or not worship, however their conscience dictates. If, however, at some moment polling showed a 51 percent popular desire in this country to pass a law making church attendance mandatory, or to subsidize a particular religious denomination, the Supreme Court would rightly strike down such flawed laws. 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 so that there are certain things that a majority can never do, like invade 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.'' When Congress 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 do not want them confusing their job with those of other branches. We want them policing the structure of our Government to make sure that each branch does its job, but only its job. Today, Judge Gorsuch sits 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 has policy preferences. He probably has desired outcomes. But I do not know what they are, and that is a good thing. And I expect, by the end of this week, it should be clear that Judge Gorsuch, the judge's judge, will faithfully embody the spirit of that 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 super-legislator, he or she 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.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. In 4 minutes and 59 seconds, I will call on Senator Coons. Stand at ease. [Recess.] Chairman Grassley. Senator Coons, would you proceed, please?
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Thank you, Mr. Chairman. Welcome, Judge Gorsuch, and welcome to your family and your friends. Congratulations on your nomination, and I look forward to the opportunity to question you. I believe my constitutional duty to advise the President on this nomination to the Supreme Court is among my most important responsibilities as a Senator. A nominee confirmed to the Supreme Court shapes our law for decades. Justices decide cases that influence the lives of generations of Americans. This hearing is our opportunity to ask you, Judge Gorsuch, questions in front of the American people to better understand how you interpret the text of our Constitution and how you apply Supreme Court precedent. We will explore how your approach to interpreting our Constitution would impact our lives in the future. I am committed to ensuring the consideration of your nomination by this Committee is thorough and fair, and I am hopeful that as our hearing proceeds, it will promote an important dialogue about the Constitution and the courts. Based on our meeting, Judge Gorsuch, I know that you, too, hope that this moment can serve as a shared civic experience. I am considering your nomination with an open mind, and I would ask that you be forthcoming in your responses to our questions. I would like this hearing to be substantive and to reflect the best traditions of the Senate. However, I cannot let this moment, in commenting on the best traditions of the Senate, pass without expressing my deep regret that Chief Judge Merrick Garland was treated with profound and historic disrespect. The disrespect shown by Senate Republicans to Chief Judge Merrick Garland and to President Obama and to our institutions was unprecedented and deeply damaging. For nearly 300 days, longer than any other nominee, Chief Judge Garland's nomination to the Supreme Court sat without action. My Republican colleagues did not afford him a hearing and would not give him a vote. I believe we have a responsibility to work to re-elevate our democratic institutions above these narrow partisan politics. I will support a process worthy of its important purpose, to carefully evaluate a candidate for the highest court in the land. The American people are entitled to see you answer probing, thorough, and challenging questions about your views on a wide range of constitutional issues because the breadth of the issues that come before the Supreme Court cannot be overstated. Just in the last year, the Supreme Court considered cases involving Executive power, affirmative action, intellectual property, partisan gerrymandering, racial bias in the courtroom, and reproductive rights. The seat you would fill, Judge Gorsuch, if elevated, was occupied by Justice Scalia, and you have been compared to him. While it may seem at times to many that the Supreme Court is engaged in abstract intellectual exercises about originalism or textualism or a living Constitution, even a small subset of landmark decisions Justice Scalia took part in during his nearly 30 years on the Court demonstrates otherwise. It is because of Supreme Court decisions that gay men can no longer be criminally prosecuted for engaging in consensual relationships; that loving same-sex couples can get married in every State in our Union; that women cannot be denied attendance at one of the Nation's premier military academies, and that women are entitled to access the full range of reproductive healthcare; that juveniles and intellectually disabled people can no longer be executed; and that millions of Americans who obtained health insurance under the ACA have been able to keep that care, at least for now. These cases impacted the lives of millions of real Americans, and Justice Scalia applied his understanding of the Constitution and dissented in every one of them. I would like to use these hearings to explore your interpretation of the Constitution. I believe that our Constitution, which I view as our Nation's secular scripture, includes guarantees of equality and privacy, hallmarks of our modern American society. I believe in an independent judiciary that safeguards our rule of law from unlawful intrusions of the most powerful, even the President of the United States. The legitimacy of our Supreme Court transcends the outcome of any one case, but that legitimacy rests on the unyielding responsibility of Justices to put their personal political views aside to decide cases on their merits. Judge Gorsuch, your nomination has been championed by the ideologically driven Federalist Society and Heritage Foundation. Interest groups are already spending millions of dollars advocating for your confirmation. But as I have told you during our meetings, none of those facts will determine my vote on your nomination. I am instead looking to you to demonstrate your ability to separate politics from constitutional interpretation. As my colleague from the State of Utah, Senator Hatch, once noted, ``Judges that say what the law is promote liberty. Judges that say what they think the law should be undermine it.'' I have spent a good deal of time reviewing your record. I appreciate that you are an engaging and careful writer. I also have some serious questions based on your decisions. What stands out to me is your tendency to go beyond the issues that need to be resolved in the case before you. I have seen a pattern in which you have filed dissents, dissents from denials of rehearing, concurrences, or even concurrences to your own majority opinions, to explore broader issues than what is necessary, to revisit long-settled precedent, and to promote dramatic changes to the law. This pattern concerns me because these additional writings hint at an unwillingness to settle on a limited conclusion and forge a narrow consensus with your colleagues. I want to know that you would apply the Constitution and settled precedent to reach consensus and resolve narrowly the disputes before you. And I want to know that our treasured freedoms would be safe in your stewardship. Our Constitution, as you know, is designed to protect our diversity of views. It guarantees to all of us the freedom of expression, the right to privacy, the liberty to make our most personal life decisions, equal protection, and the ability to worship freely. Take the freedom of religion, enshrined in the First Amendment, which says, in part, ``Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.'' I believe we must balance our respect for the significance of faith and free exercise with concerns about impacts on others' liberty. As my colleagues know, I studied both law and divinity in school, and some of the most formative and meaningful experiences of my life have been guided by my Christian faith. The command to care for the most vulnerable among us inspires my work and service as a Senator, and I value opportunities to share with my colleagues in prayer. Throughout our Nation's history, religion has inspired countless acts of charity, kindness, and good works. But when I think about the Founders' wisdom to protect both church and state by ensuring their separation, I am in awe. Our United States were founded by people who came here for many reasons, seeking opportunity, freedom from oppression, and hoping in many cases to be free to practice their faith. From Pilgrims to Mormons, from the Amish to Jehovah's Witnesses, America from its founding to today has been home to many faiths from many parts of the world, and part of our Founders' genius was to abandon the European practice of having a state religion supported by state taxes. Now today across the U.S., churches and mosques, synagogues and temples find their own way, recruit and raise up their own believers and funds free from state interference and unsustained by state support. The Supreme Court over decades has sought to strike and preserve a careful balance between the free exercise rights of religious minorities and the power of legislatures to compel compliance with neutral laws. Recently, the Court has decided several landmark and controversial cases: in the Hobby Lobby case, where the free religious exercise rights of a few were held to permit the infringement on personal liberty of many; and in another important line of cases in which substantive due process rights have been held to guarantee a right to privacy and self- determination even when longstanding practices and religiously motivated statutes are challenged as a result. I look forward to exploring these decisions with you. Religious freedom must be freedom not to have our values and practices pushed into the public square. While other nations are besieged by sectarian wars, inclusion of all faiths and all people have been guiding lights in the success of our democracy. However, at other times in our history, sincerely held religious beliefs have been invoked to deny millions of Americans full equality under the law in defense of laws prohibiting interracial marriage or LGBT relationships or reproductive rights. We live today in tumultuous times, as you know, Judge. The Supreme Court is likely to hear many important cases in the years to come. It will be important that we understand your values and framework for interpreting the Constitution on areas as important as Executive power, national security, the independence of the judiciary, deference to agencies, and personal liberty. There are disturbing developments that I see in our modern environment as affronts to religious freedom and personal liberty. President Trump campaigned on putting in place a Muslim ban and has signed unlawful and discriminatory Executive orders to deliver on that promise. The new administration's Justice Department has withdrawn guidance supporting protections for transgendered individuals. And the Attorney General testified under oath at his confirmation hearing before us that secular attorneys may not have the same claim to understanding the truth as religious ones. Our next Supreme Court Justice will play a pivotal role in sustaining and defending our rights during this critical time for our country and in the years to come. America needs a Supreme Court Justice who will protect the Constitution, not one who will countenance the faith or fear of some as a justification for infringing the liberty of many. It is against that backdrop, Judge, that I will be seeking to understand your commitment to the rule of law, the guarantees of the First Amendment, and individual liberty. I look forward to your testimony. Thank you. [The prepared statement of Senator Coons appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator Coons. Now I go to Senator Flake.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Thank you, Mr. Chairman. And thank you, Judge Gorsuch. Thank you for being here, and thank you to your family as well and your many friends and associates who have come to support you. That says a lot for you to have so many willing to be here, and I have been astounded at the number of op-eds I have read and statements I have heard from those--not just those that you agree with, but those who do not always agree with you. That says a lot about you. I had a speech to deliver a while ago, and when it was fed into the teleprompter, your name was not as familiar as some, and it replaced it with ``Judge Grouch'' throughout the entire time. [Laughter.] Senator Flake. And I had to be careful.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I had similar problems.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. I think it is safe to say by the end of this week every spell checker in the country will know your name, and ``Judge Grouch'' is about as far as you can get from Judge Gorsuch in terms of your temperament. So I commend you. That may change by the end of the week as well, though. [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I hope not.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. I do not think so. As we all know, one of the most consequential decisions a President makes is who he or she will select to fill vacancies on the Supreme Court. This is a lifetime appointment. It means that a man or woman who is selected will likely be interpreting our laws for decades to come. Judge Antonin Scalia demonstrated how much one Justice can impact and shift the gravity of the Court, and no Justice in recent memory has so fundamentally influenced the trajectory of the Supreme Court or our approach to reading the law. He did this with an unshakable commitment to an originalist interpretation of the Constitution and a textualist approach to statutes. Justice Scalia's passing marked a watershed moment for the future of our judiciary. One law professor remarked, ``What lets the legal system survive is that people in power such as Scalia believe that the system controls their individual judgments. What will happen to the law without Justice Scalia to believe in it?'' Now, fortunately, the President has nominated a jurist who believes in the rule of law. Now, in meeting with Judge Gorsuch and learning about his judicial philosophy, I was impressed by his respect for the law and his commitment to service. I have been particularly struck by his recognition that, ``It is for Congress, not the courts, to write new law,'' and that a Justice should make decisions based on what the law demands, not an outcome he or she desires. And as we discussed in my office, you said that when you don that black robe that Ben Sasse talked about, you understand that you are not a legislator. That is important. It was brought up before by one of my colleagues that says that Judge Gorsuch is pro-business or against the little guy. I think the record suggests that he faithfully applies the law and the laws as enacted by Congress. Good judges do not decide cases based on how big the guy is but based on the law and the facts. Now, I am not alone in thinking that. Harvard Law Professor Noah Feldman, a self-described liberal, recently wrote that,``Siding with workers against employers is not a jurisprudential decision. It is a political stance. And Justices, including progressive Justices, should not decide cases based on who the parties are.'' I think Judge Gorsuch's opinions show just that: He decides cases based on what the law says, not who the parties are. Judge Gorsuch has repeatedly reminded us that while we as legislators may appeal to our own moral convictions in shaping the law, judges in a democratic society should not decide cases based on their own moral convictions or their policy preferences. With Judge Gorsuch, I think the record shows that we can be confident that he will read the law as written and not legislate from the Bench. With regard to the separation of powers, Judge Gorsuch has cautioned against ``governmental encroachment on the people's liberties,'' which could occur should the political majorities of the legislative and executive branches be permitted to decide cases and the political unresponsive judiciary branch be allowed to create or execute policies. For my part, I am excited to confirm a Justice who reveres the separation of powers as a central principle of our Constitution. Judge Gorsuch has also demonstrated support for religious liberties. Our country has always valued the right of individuals to practice their faith according to the dictates of their own conscience. He once wrote that our religious freedom statutes ``do not just apply to protect popular religious beliefs. It does perhaps its most important work in protecting unpopular religious beliefs, vindicating this Nation's long-held aspiration to serve as a refuge for religious tolerance.'' The Supreme Court later agreed with Judge Gorsuch that it is the Government's job to protect an individual's ability to practice their religion, not to instruct them how to practice their religion. Now, finally, as an Arizonan, I am proud of the fact that Judge Gorsuch is a fellow Westerner. Where you are from influences your understanding of cultural and regional sensitivities, and the current makeup of the Supreme Court has an unmistakable lack of geographic diversity. Of the eight current Justices, five of them were born in New York or New Jersey. As we say in Arizona and elsewhere, ``New York City.'' This is nice to have someone from the West with a Western perspective, and, fortunately, Judge Gorsuch fits that bill. When I met Judge Gorsuch earlier this week, we talked about our respective Western backgrounds. I told him about my days growing up on a cattle ranch in rural Arizona. He told me that his heart has always been in the American West. You learn a lot about a person by how they spend their time with their friends and family. There is no mistaking it with Judge Gorsuch. He is a Westerner through and through. Now, what makes Judge Gorsuch a true Westerner is more than just where he lives or what his personal interests are. In the West, we pride ourselves on being a free people with strong communities and limited Government. Judge Gorsuch's jurisprudence reflects what every Westerner knows to be true: An intrusive Federal Government cannot interfere with the ability of Western States to govern themselves. And perhaps more than anything, it will be Judge Gorsuch's Western perspective that most enriches debate on the Supreme Court for years to come. Now, there has been a lot said about what happened last year with the nomination of Merrick Garland. I find it striking and very revealing that one of the first calls that Judge Gorsuch made when he received this nomination was to Merrick Garland, his friend. I think that says a lot about the man, regardless of any of our thoughts, and certainly what happened here should not reflect on Judge Gorsuch. But I appreciate the temperament that you have and your willingness to subject yourself and your family and friends to this process. And I look forward to the rest of the hearing. I yield back.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator Flake. Now, Senator Blumenthal.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Thank you, Mr. Chairman. Thank you for being here, Judge. I live in the Western part of Connecticut. [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Close enough.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. I love Colorado, and my first job was on a farm in Nebraska where my grandfather raised corn and cattle, so we can go into other commonalities. But I want to join in thanking you and your family and say that, despite the hardships of going through this process, I suspect there are quite a few lawyers in Connecticut who would not mind changing places with you. But I also want to thank one group that perhaps should be given gratitude, and that is your fellow judges on the Federal bench. Some of them are here. I have no doubt that many are watching. I have had the honor in the last 40 years to appear before many of them, and they make sacrifices that are often unappreciated by most Americans who enjoy the benefits of their service, often financial sacrifices, personal sacrifices, sometimes even physical threats, as happened when the schools were desegregated or when women's clinics were protected in the United States. And so I want to thank them and, through you, express my gratitude. The independence of those judges has never been more threatened and never more important, and a large part of the threat comes from the man who nominated you, who has launched a campaign of vicious and relentless attacks on the credibility and capacity of our judiciary to serve as a check on lawless Executive action. His demeaning and disparaging comments about the judiciary have shaken the foundations of respect for judicial rulings--rulings that hold the President accountable to the people and our Constitution. Respect for the opinions of our judges is fundamental, as you well know. Without it, our democracy cannot function. Alexander Hamilton said that the judiciary is the least dangerous branch because it has the power of neither the purse nor the sword. Essential to its power to protect us is its respect and trust and credibility. And the President has gravely undermined it, and that is why I believe you have a special responsibility here this week, which is to advocate and defend the independence of our judiciary against those kinds of attacks. It is not enough to do it in the privacy of my office or my colleagues' behind closed doors. I believe that our system really requires and demands that you do it publicly and explicitly and directly. We meet this week in the midst of a looming constitutional crisis. Just hours ago, not far from here, the Director of the FBI revealed that his agency is investigating potential ties between President Trump's associates and Russian meddling in our election. The possibility of the Supreme Court needing to enforce a subpoena against the President is no longer idle speculation. It did so in United States v. Nixon. So the independence of the judiciary is more important than ever, and your defense of it is critical. You are also the nominee of a President who set a set of litmus tests, saying that his nominee would be pro-life and pro-Second Amendment and of a conservative bent. In fact, he said that he would nominate someone, and I am quoting almost exactly in one of the debates, ``who would automatically overturn Roe v. Wade.'' So, again, if you fail to be explicit and forthcoming and definite in your responses, we have to assume that you will pass the Trump litmus test. Your nomination also imposes on you a special burden because of the process that brought you here. The President has largely outsourced the selection process to conservative groups. He specifically referred to them on May 11th when he said that a list would be prepared by the Heritage Foundation and the Federalist Society. On June 13th, he said, ``We are going to have great judges, conservative, all picked by the Federalist Society.'' You must be clear that your views are not theirs, and while under ordinary circumstances this Committee might be satisfied with the platitudes of ``I cannot reach conclusions or state conclusions because of the possibility that I may have to consider a case before the Court,'' these times are not ordinary. The rule of law is more than the pillars and the judicial robes that people ordinarily associate with the U.S. Supreme Court. Justice has a human face and a voice and, as you know from being in the trenches, real clients with real lives, and the law has real consequences in their lives. I met with Alphonse Maddin, the trucker who was fired by TransAm Trucking. When he left his truck in sub-zero weather, that truck was disabled. It could not be driven, and he was freezing. I met with Patricia Caplinger, who was denied relief by your court after suffering a very serious injury resulting from a defective product use. I met with the children of Grace Hwang who was denied leave by Kansas State University even though she was suffering from cancer. I am troubled by the results in those cases for those real people, but also for the broader issues that those decisions reflect in workers' safety and consumer protection, as well as the rights of women to healthcare and reproductive decisions that are protected by the Fourth Amendment. And the right of privacy goes beyond just women's healthcare. It also relates to surveillance and Government snooping and a right that is central to our democracy. Let me just close by saying that you have a special obligation to be forthcoming about your views, not to prejudge the merits of a particular case before the Court, but to share your views on longstanding precedent that the President who nominated you indicated would be overturned. And you have an obligation to be forthcoming as well because the decision before us is not about Justice Scalia, nor is it about your confirmation 10 years ago. The Supreme Court is different. The Supreme Court is the ultimate resort of justice in this country. And as much as you may have encountered little difficulty 10 years ago, you now have a record. And we are here to judge that record and to make sure that our decision--and I agree with my colleagues that it will be probably one of the most consequential and profoundly important decisions that I make as a United States Senator--is the right one for the country and will above all make sure that the rule of law is preserved for real people with real lives, and that we assure that the independence of our judiciary will continue to protect us from overreaching and tyranny and the constitutional crisis that is now a real danger before us. Thank you for being here. Thank you, Mr. Chairman. [The prepared statement of Senator Blumenthal appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator Blumenthal. Now, the Senator from Idaho.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Thank you, Mr. Chairman. Judge, welcome and congratulations on the high honor of your nomination. Much of the discussion surrounding this nomination has centered on answering the key question: What kind of Justice should serve on the U.S. Supreme Court? Some want a judge in their own making--predictable, ideological and political. Others regard the role of judge as a final arbiter of justice--clothed in those dark, black robes, unquestioned, and seated on an elevated platform well above the court proceedings. In recent years, selecting judges has become more about a numbers game with the courts, measured at least in part by comparing vacancies filled by each President. Often, in fact, as recent as last week and this week, we read about Federal court proceedings invariably coupled with the name of the judge and the President who appointed him or her. Because venue shopping has become all too common a practice today, the individual judge can become more important than the facts of the case. In this scenario, the judge serves not justice, but politics in another form. Whenever Congress considers a judicial nomination, people talk earnestly about the importance of independence. For some, that word flows from the central work of the Founders of our Constitution, who created a separate branch of government empowered to review laws passed by the legislature and signed and executed by the President and the executive branch. To others, independence is more about giving judges the power to issue decisions without personal consequence. The true American vision of justice is one in which the judge fairly and impartially finds the facts and applies the law. The law is supreme. The facts decide the day. The judge could be substituted with another and the outcome remains the same. The President who nominated him or her is never mentioned in the article about the decision, and venue shopping is a relic of another era. This is the vision most Americans have of the proper judge on the Federal bench. As I reflect on the nomination of Judge Gorsuch, I think back to our meeting soon after his nomination was announced. I have met several Supreme Court nominees in my service in the Senate. All of them have impressive credentials and legal experience. But Judge Gorsuch stands out for a notable reason. He understands and is focused on the principle that a judge is the servant of the law, not the maker of it. One of his comments during our visit still resonates with me. He said, ``My personal views are irrelevant as a judge.'' Is that not the ideal illustration of a judge steadfastly committed to the law? To quote the late Justice Scalia, ``If you are 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 conclusions you reach. If you like them all the time, you are probably doing something wrong.'' Judge Gorsuch recognizes that the law may be imperfect, being the product of an imperfect system. But there is a remedy to the imperfection of law: the political system, directly accountable to the public. The people choose policymakers, not Federal judges. The law can frustrate. In Black and White it is stark, and change comes slowly and often deliberately, just as our forebears designed. Law that can change in a moment and capriciously is inherently destabilizing. An activist judge who makes law plants insecurity in our system. Rather, our Constitution provides for law to be enacted legislatively with the sanction of the American people through the ballot box. Policy changes advanced by judges can be reversed and reversed again. Law properly grounded in the democratic and political process cannot. ``Equal protection under the law.'' ``Justice is blind.'' These are not just catchy phrases that echo back to our time in civic classes. These are guiding principles of our Republic and reaffirmed in the Fourteenth Amendment to our Constitution. Fundamentally, each of us should know courts will find for us when the law is on our side, whether we are rich or poor, strong or weak, or a big guy or a little guy. That is principled justice. Some may not like a particular law. That is fair and not unexpected. But the remedy for this disagreement is not changing judges but changing the law. Fortunately, our system of Government has the exact solution available to us: passing a new law through the deliberate, careful, and publicly accountable political processes. No one seriously questions Judge Gorsuch's fitness and capability to serve on the highest court in our land. His credentials are exemplary. He is widely respected for his intellect, his judgment, and his modesty. His admirers span the political spectrum. Judge Gorsuch is intelligent and open- minded. He is exactly the model for an appointment to the U.S. Supreme Court. Mr. Chairman, I look forward to hearing from the nominee himself. The next few days will prove extraordinarily insightful as we discuss with Judge Gorsuch his philosophy of jurisprudence, what animates him to interpret the law, and his vision for the Federal judiciary. I look forward to this hearing. Thank you very much, Mr. Chairman. [The prepared statement of Senator Crapo appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator from Idaho. Now, the Senator from North Carolina.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. Thank you, Mr. Chair. Judge Gorsuch, thank you for being here, and congratulations to you and to your family and friends who are either here present or watching on TV. I have had a couple of opportunities to be in your presence, and I really appreciate your calm, respectful demeanor, and I am completely convinced you have an at-rest heart rate of about 4. [Laughter.] Senator Tillis. Before I get into a few brief comments--and I want to be brief so that we can get through the comments and to the questions and move your nomination forward--I do think there is a little bit of confusion right now in terms of the comments made by some of my colleagues. This is not directed to you, Judge Gorsuch, but perhaps to those watching and to my Members. The nominee before us today is not President Trump. The nominee before us today is not Leader McConnell. And the nominee is not Judge Merrick Garland. It is one of the most extraordinarily talented and capable people that we could possibly have going to the Supreme Court. So I hope that this nomination hearing focuses on the one person before us who will go on, I believe, to fill the vacancy on the Supreme Court. This is a very important role that we have. I consider it one of the most important jobs that I have as a U.S. Senator. In the 2 years that I have been here, nothing rises to the level of importance of your nomination and the composition of the Supreme Court. These appointments last for life. They will outlast most Presidents and many Senators. It affects all Americans, and the decisions you render will last for decades. I have no doubt that you have the qualifications. As a matter of fact, Senator Graham--I associate myself with Senator Graham's comments. The only reason I did not pursue your academic line of schools mainly had to do with their admission requirements. I appreciate the hard work that you did academically. I appreciate the hard work that you did as a litigator. And the work that you have done as a judge I think is truly extraordinary. I want to just go back to a comment or a conversation we had in my office. I mentioned to you in my office that I do not like activist judges, period--conservative or liberal. It is not their role. The activists are us. We get elected. We go out to the people. We convince them that we want to make changes. We pass laws. Your job is to interpret them as a judge. And I believe that you responded to me that you fully understood that your role fell squarely within Article III and that mine fell squarely within Article I, and you saw the very bright line between the two. And I think you are going to do a great job. I think in your nomination acceptance, your quote was, ``It is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people's representatives.'' There have been some comments today made about cases that you have taken up, and I think they probably in some cases relate to the instances where you were not really happy about the outcome. And I look forward to getting to some of those. I think that two or three have been mentioned that I intend to go through as a part of my review of your decisions. There are a number of examples where you interpreted the law. You did not become an activist. You did not allow your empathy or your sympathy for a case to influence what your job is. I for one find that inspiring. And so, Mr. Chair, I am going to keep my comments short, not for a lack of a desire to want to speak more about Judge Gorsuch's extraordinary background and history and qualifications for the job, but because I desperately want the American people to get you to spend more time talking and let us spend more time listening so that they recognize the historic opportunity we have to confirm you to the Supreme Court. And I look forward to the remaining testimony. [The prepared statement of Senator Tillis appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator Tillis. And now I will call on the Senator from Hawaii.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Thank you, Mr. Chairman. Aloha, Judge Gorsuch.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Hello.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Thank you as well, of course, for being here. This hearing is about more than considering a nominee for the Supreme Court. It is about the future of our country. It is about the tens of millions of people who work hard every day, play by the rules, but do not get ahead. It is about the working poor who are one paycheck away from being on the streets. It is about Muslim Americans who are victims in a renewed wave of hate crimes asking for protection from the courts. It is about women having the choice of what to do with their bodies, our bodies. It is about LGBTQ Americans who want the same rights as everyone else. For me, this hearing is about the people in this country who are getting screwed every single second, minute, and hour of the day. I have into public service to help these people, and my questions over the coming days will draw on their experience as well as my own. My story might be unique for a United States Senator, but it is a story that is familiar for millions of people in our country. When I was nearly 8 years old, my mom changed my life when she brought me to this country from Japan, fleeing an abusive marriage. Back then there were no religious tests to determine who could immigrate to this country. There were no language requirements. You did not need any special skills. If President Eisenhower pursued the same policies President Trump would like to, it is very possible I would not be here today. I always knew I wanted to give back to my State and my country, but I never thought politics would be the path that I would choose. But the Vietnam War opened my eyes to how public service could create social change. I joined campus protests, questioned why we were sending so many young men to die in a far-off country. A small group of us decided that in order for things to change, we needed to do much more than protest. Many of us ran for office because we needed to take a seat at the table to be able to fight and help make lives better. It is why I am here today. Over the past few months, I have heard from thousands of people who are deeply worried about their families, their kids, and the future of our country under the Trump administration. Many of them are worried about what will happen if you are confirmed to the Bench. Apart from the legal analysis, whenever a case comes before a judge, it invariably involves real people, people who are often there because they have experienced the worst day in their lives. Whether they are victims of a crime, suffered a serious injury due to corporate malfeasance, or because they have lost their livelihood due to discriminatory behavior from their employer, each of them is looking to the Court to protect their interests and their rights. During our meeting, I was encouraged when you said that the purpose of Article III of the Constitution was to protect the rights of the minority through access to the courts. But as I have reviewed your opinions, I have not seen that the rights of minorities are a priority for you. In fact, a pattern jumps out at me. You rarely seem to find in favor of the little guy. In TransAm Trucking, your dissent argued that the company was justified in firing an employee who faced a choice between operating his vehicle in an unsafe manner and freezing to death in his truck. In a number of other cases, including Thompson School District, your decisions made it more difficult for families with special needs children to get the help they needed as the law intended. In Planned Parenthood of Utah v. Herbert, your dissent was far too deferential to the decisions of a Governor who based those decisions on unverified information. In Burwell v. Hobby Lobby, your opinion justified denying access to contraception based on the argument that corporations, like people, can hold religious beliefs. The facts in each of these cases might be different, but there is a clear pattern to your writing. You consistently choose corporations and powerful interests over people. But more than that, you have gone to great lengths to disagree with your colleagues on the Tenth Circuit so that you can explain why some obscure or novel legal interpretation of a particular word in statute must result in finding for a corporation instead of an individual who has suffered real live harm. This tendency demonstrates a commitment to ideology over common sense and, indeed, the purpose of the law, and it is deeply troubling. For example, again, in TransAm Trucking, you fixated on the plain meaning of the word ``operate,'' despite choosing a definition out of context and using it at odds of the clear purpose of the statute, which was a safety purpose. And in Longhorn Service Company, you found a difference between a ``floor hole'' and a ``floor opening'' in order to side with a corporation trying to avoid a citation for a safety issue. You found a difference in these terms, between a ``floor hole'' and a ``floor opening,'' that the rest of your colleagues on the Tenth Circuit did not--truly a case of a distinction without a difference. It is like arguing whether your nomination is because of a vacancy or an opening on the Supreme Court. These decisions affected not just the individuals who came before you. As a Supreme Court Justice, your decisions will have lasting consequences for the rest of us. During the campaign, President Trump made it very clear that he had a series of litmus tests for his Supreme Court nominees. Over a 2-year period, the President said that his nominee must favor overturning Roe v. Wade, denying women access to healthcare on the basis of religious freedom, and upholding the Heller decision on guns, which the NRA believes prevents Congress, States, or local governments from passing commonsense gun safety legislation. Each of these tests would have a profound impact on the lives of every American. Donald Trump's litmus tests for his Supreme Court nominees were crystal clear. In nominating you, Judge Gorsuch, I can only conclude that you met the President's litmus tests. Your ideological perspective or, as some would say here, your judicial philosophy, on these issues matter because if you are confirmed, you will have a lifetime appointment to the Supreme Court. In our courtesy meeting, you said you have a heart, so, Judge Gorsuch, we need to know what is in your heart. We need to understand how you will grapple with a number of important questions the Court will be asked to consider in the years ahead. Will the Court protect the rights of working people and our middle class or side with corporations who want to dismantle organized labor in America? Will the Court uphold a woman's constitutional right to choose or upend decades of legal precedent to overturn Roe v. Wade? Will the Court protect free and fair elections by stopping unfettered campaign spending or allow corporations and the ultra-rich to hijack our democracy with dark money? Will the Court protect the right to vote for all Americans or allow States to use voter fraud as an excuse to disenfranchise vulnerable communities? Will the Court protect our land, water, our earth, or gut decades of environmental regulations? Will the Court protect access to our justice system or slam the courthouse door to all but the wealthiest among us? Judge Gorsuch, my colleagues, this is not merely a hearing to consider the confirmation of one Supreme Court Justice. No. We are considering the affirmation of our country's values. The Supreme Court does not just interpret our laws. The Supreme Court shapes our society. Will we be just? Will we be fair? Will America be a land of exclusivity for the few or the land of opportunity for the many? Will we be the compassionate and tolerant America that embraced my mother, my brothers, and me many decades ago? Make no mistake. A Supreme Court vacancy is not just another position we must fill in our Federal judiciary. A Supreme Court vacancy is a solemn obligation we must fulfill for our future generations. Let us treat it as such. Thank you, Mr. Chairman. [The prepared statement of Senator Hirono appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator from Hawaii. Now, the Senator from Louisiana.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Thank you, Mr. Chairman. How are you doing, Judge?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Great. Thank you very much.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. I walked by the Supreme Court the other day. I live nearby. And on that building, as many of us know, are the words ``Justice, the Guardian of Liberty.'' Now, we live in cynical times, but I think those words are sacred--sacred to most Americans. And they really tell us everything we need to know about the importance of the U.S. Supreme Court, in my judgment. Without justice, without equal treatment by the law, liberty--which is why our country was founded--becomes an empty promise. So even though it is easy to look to elected officials, the President, Congress, Governors as last protectors of liberty, we as Americans have entrusted that, I think we can all agree, to our Supreme Court. And that is why, in my judgment, this hearing is important. And that is why we need, if we can, to go beyond politics, beyond the person who lives in the White House, beyond whatever the issue of the day happens to be, and we need to try to truly understand our role in this process, which is to advise and consent. I hope we can focus on temperament, on legal philosophy, on legal reasoning, on qualifications, on experience. And for just a minute, I hope we can forget that we are all politicians here, you excluded----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you, Senator.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy [continuing]. And focus instead on the judiciary and the role we get to play in affecting that most American of institutions, the U.S. Supreme Court. Now, I have had the opportunity to meet Judge Gorsuch and to read his work, and I like what I see. A former Governor in my State once said of the then-Attorney General, ``If you want to hide something from him, put it in a law book.'' You obviously do not have that problem. You appear to me to be exceptionally well qualified to be a Supreme Court Justice. I was especially impressed with your Doctor of Philosophy in law. That stuck out to me. A D.Phil from Oxford is probably the most difficult terminal degree in the world. You also attended Columbia and Harvard, and they are satisfactory as well. I have read about 20 of your opinions. My favorite is A.M. v. Holmes. Your dissent was very short, four pages, but you packed a lot in those four pages. As far as I am concerned, that dissent should be required reading in every law school. All I can say after reading those 20 opinions--some of which I agreed with, some of which I did not--is that you write really, really well. Your opinions are engaging, whether you agree with them or not. Judge Gorsuch is direct, clear, concise. You are collegial, and you have a clean grasp of the law. There is no boilerplate language that lawyers often put in their briefs, and sometimes judges do as well. I also might add that another thing struck me about your opinions. You show concern for the parties. You use their names. You do not refer to the parties as ``appellants'' or ``appellees'' or ``respondents.'' You call them by their name, and I like that. Judge Gorsuch's respect for judicial independence and for precedent, in my judgment, is apparent in all of his opinions. He is an unyielding supporter of the separation of powers, and I believe that he genuinely understands and values the role of the judiciary as a check on both the legislative and executive branches. And that is very, very important to me. As are we all, I am rather fond of the Constitution and the structure that it creates, separating powers so no branch of government can bully another or bully the American people. One of the main purposes of the United States Constitution, in my opinion, is to tell us when to stop, to reaffirm that the authority of the state over its people is limited and it is finite. Let me be blunt. I am looking for a judge, not an ideologue. I do not want somebody on the U.S. Supreme Court who is blinded by ideology. I am not interested in people who want to use the judiciary to advance their own personal policy goals, whether they are to the right or to the left. I want a judge to apply the law as it is as best he understands it, not to try to reshape the law as he wishes it to be. I also want a person who is intellectually curious, who is earnest in his desire to rule fairly, and who is willing to really fight for his view of justice. I guess what I want is a cross between Socrates and Dirty Harry, and I believe you just might be that person. Let me say one final thing. I am an officer of the court, as a lawyer, as are you. None of the questions that I am going to ask you today are designed to trick you, as if I could. Nor are they designed to suggest that you should violate Canon 3(A)(6) of the Code of Conduct for United States Judges, which says, ``A judge should not make public comment on the merits of a matter pending or impending in any court.'' Nor will my questions be designed to cause you to violate Rule 2.10(A) of the American Bar Association Model Code of Judicial Conduct, which, as you know, states, ``A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in a court.'' And, finally, nor will my questions be designed to ask you to violate Rule 2.10(B) of the American Bar Association Model Code of Judicial Conduct, which states, ``A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of his judicial office.'' If you think any of my questions today or tomorrow or later this week cross those lines, I hope you will speak up so we can talk about it. Thank you, Mr. Chairman. [The prepared statement of Senator Kennedy appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator from Louisiana. Now it is your opportunity to take a rest while other people say what I imagine will be very good things about you. So we are going to call to the bench Senator Bennet and Senator Gardner and Neal Katyal. We will take Senator Bennet and Senator Gardner first. Mr. Katyal was Acting Solicitor General for President Obama. I know you have busy schedules, and I want to thank you for taking time to introduce our nominee today. So would you depart from the table? And the----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. You do not have to ask me twice, Mr. Chairman. [Laughter.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Okay. And then we will have the other people come. Just stand at ease for just a couple minutes here. It will not take very long. [Pause.] Chairman Grassley. It is my understanding that you two have kind of decided that Senator Gardner should go first and then-
Senator Michael Bennet (CO)
Senator
(D)
Senator Bennet. And then when you folks depart the table, we will have Mr. Katyal come to the table.
Senator Cory Gardner (CO)
Senator
(R)
Senator Gardner. Senator Gardner. Thank you, Mr. Chairman. Chairman Grassley, Ranking Member Feinstein, I would like to begin by thanking all of you on the Committee for your hard work during these hearings in the next several days. Today, it is with great pleasure that I introduce, along with my colleague and fellow Coloradan, Senator Michael Bennet, and share my strong support for our outstanding Supreme Court nominee, Judge Neil Gorsuch. If you have ever had the privilege of visiting Confluence Park in Denver, you will notice a plaque bearing a poem by Colorado Poet Laureate Thomas Hornsby Ferril. It is a poem known as ``Two Rivers,'' describing the settlement of the West: ``I wasn't here, yet I remember them, that first night long ago, those wagon people who pushed aside enough of the cottonwoods to build our city where the blueness rested.'' Where the optimistic blueness of our Colorado skies rests against the mountains and the plains, we are reminded about how incredibly diverse our great Nation is, its people and its geography. Judge Gorsuch's nomination helps recognize that, indeed, there are highly qualified jurists west of the Mississippi River. Judge Gorsuch is a fourth-generation Coloradan, skier, fly fisher, serving on a court that represents 20 percent of our Nation's landmass, whose family roots reflect the grit and determination that built the West. Once confirmed, Mr. Gorsuch will join Justice Byron White and be only the second Coloradan to have served on the U.S. Supreme Court and the only Coloradan to be serving on the U.S. Supreme Court who did not break the NFL rushing record. But the good news is, today, he does have the endorsement of number seven, John Elway, of the great Denver Broncos. Should he be confirmed, Judge Gorsuch will make history as he represents the first Generation X Justice of the U.S. Supreme Court, the emerging generation of American leadership. Judge Gorsuch was confirmed to the Tenth Circuit Court unanimously by voice vote in 2006. Eleven years ago, Senator Graham presided over an empty Committee room, empty dais. What a difference a court makes. But when you look at his record, his writing, his statements, it is easy to see why Judge Gorsuch has such overwhelming appeal. Judge Gorsuch is not an ideologue. He is a mainstream jurist who follows the law as written and does not try to supplant it with his own personal policy preferences. As he said, ``Personal politics or policy preferences have no useful role in judging. Regular and healthy doses of self- skepticism and humility about one's own abilities and conclusions always do.'' Judge Gorsuch is not an activist judge but rather a faithful adherent to and ardent defender of our Constitution. He is an originalist, as Justice Kagan even described herself in her confirmation hearing to the U.S. Supreme Court. Judge Gorsuch recognizes that the judiciary is not the place for social or constitutional experimentation, and that efforts to engage in such experimentation delegitimize the court. As he said, ``This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. As a society, we lose the benefit of give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.'' Judge Gorsuch has a deep appreciation and respect for the constitutional principles of Federalism and the separation of powers prescribed by our Founding Fathers. As he stated, ``A firm and independent judiciary is critical to a well- functioning democracy.'' Judge Gorsuch understands the advantage of democratic institutions and the special authority and legitimacy that come from the consent of the governed. As he said, ``Judges must allow the elected branches of government to flourish and citizens, through their elected representatives to make laws appropriate to the facts and circumstances of the day.'' Judge Gorsuch appreciates the rule of law and respects the considered judgment of those who came before him. As he said, ``A good judge will seek to honor precedent and strive to avoid its disparagement or displacement.'' It is this appropriate temperament, this fidelity to the Constitution, this remarkable humility that has made Judge Gorsuch a consensus pick among Colorado's diverse legal and legislative communities. Former Colorado Senator, Democrat Ken Salazar, in praising Judge Gorsuch's temperament during his Circuit Court confirmation, said, ``A judicial nominee should have a demonstrated dedication to fairness, impartiality, precedent, and the avoidance of judicial activism from both the left and the right. I believe that Mr. Gorsuch meets this very high test.'' Jim Lyons, a prominent Colorado lawyer and former adviser to President Bill Clinton, said, ``Judge Gorsuch's intellect, energy, and deep regard for the Constitution are well known to those of us who have worked with him and have seen firsthand his commitment to basic principles. Above all, this independence, fairness, and impartiality are the hallmarks of his career and his well-earned reputation.'' Colorado's former Democratic Governor Bill Ritter and former Republican Attorney General John Suthers jointly said, ``It is time to use this confirmation process to examine and exalt the characteristics of a judge who demonstrates that he or she is scholarly, compassionate, committed to the law, and will function as part of a truly independent, apolitical judiciary. Judge Gorsuch fits that bill.'' According to the Denver Post, Marcy Glenn, a Denver attorney and Democrat, recalls two cases before Gorsuch in which she represented underdogs. And I quote Marcy Glenn, ``He issued a decision that most certainly focused on the little guy.'' Judge Gorsuch has a consistent record of applying the law fairly, and his reputation among his peers and lawmakers is evidence of it. For all of these reasons cited today, I am certain Judge Gorsuch will make Colorado proud and that his opinions will have a positive impact on this country for generations to come. I look forward to Judge Gorsuch receiving a fair hearing and, after that, to working with my distinguished colleagues on both sides of the aisle to expeditiously confirm his nomination. Thomas Hornsby Ferril wrote another poem. This one memorialized on a mural on the walls of the Colorado Capitol rotunda. It ends with these words: ``Beyond the sundown is tomorrow's wisdom, today is going to be long, long ago.'' The wisdom of Neil Gorsuch, guardian of the Constitution, will serve our Nation well for generations to come. Mr. Chairman, Committee Members, thank you. [The prepared statement of Senator Gardner appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator Gardner. Now, Senator Bennet.
Senator Michael Bennet (CO)
Senator
(D)
Senator Bennet. Thank you, Mr. Chairman. I want to thank you and the Committee for allowing me to be here today. It is a distinct privilege to be here with my colleague, Senator Gardner from Colorado, to introduce Judge Neil Gorsuch, a son of Colorado born and raised in Denver with a distinguished record of public service, private practice, and outstanding integrity and intellect. And I welcome as well his wife, Louise, who met the judge during their studies at Oxford and who moved from the United Kingdom to Colorado, where they now live with their two daughters in Boulder. Senator Gardner has done a great job summarizing Judge Gorsuch's professional background. His experience and his approach to his work has earned him the respect of the bench and the bar in our State. Judge Gorsuch's family has deep roots in Colorado. His grandfather grew up in an Irish tenement in Denver and began supporting the family at the age of 8. His other grandfather was a lawyer who worked his way through law school, serving as a streetcar conductor in Denver. And his grandmother was one of the first women to graduate the University of Denver in the 1920s. As a person and as a lawyer, Judge Gorsuch exemplifies some of the finest qualities of Colorado, a State filled with people who are kind to one another, who, by and large, do not share the conceit that one party or one ideology is all right and the other all wrong, and who are conscious of the legacy we owe the generations who forged our State out of a Western territory of the United States. If confirmed, Judge Gorsuch will be the first Justice since Sandra Day O'Connor from the West. No less an authority than Justice Scalia observed this lack of representation when he wrote in dissent that the Court has ``not a single genuine Westerner,'' and then added with parentheses, ``California does not count.'' [Laughter.] Senator Bennet. And with respect to our Ranking Member, I think I speak for my colleague from Colorado that, on this point, and perhaps this point alone, he, I, and Justice Scalia are in agreement. [Laughter.] Senator Bennet. I am also here because I believe the Senate has a constitutional duty to give fair consideration to this nominee, just as we had a duty to consider fairly Judge Merrick Garland, President Obama's nominee to fill this vacancy. I am not naive about the reasons the Senate majority denied Judge Garland a hearing and a vote. The Senate's failure to do its duty with respect to Judge Garland was an embarrassment to this body that will be recorded in history and in the lives of millions of Americans. And it is tempting to deny Judge Gorsuch a fair hearing because of the Senate's prior failure. But, Mr. Chairman, two wrongs never make a right. The Supreme Court is too important for us not to find a way to end our destructive gridlock and bitter partisanship. In my mind, I consider Judge Gorsuch as a candidate to fill the Garland seat on the Supreme Court. And out of respect for both Judge Garland and Judge Gorsuch's service, integrity, and commitment to the rule of law, I suggest we fulfill our responsibility to this nominee and to the country by considering his nomination in the manner his predecessor deserved but was denied. Mr. Chairman, there is a second cloud that hangs over this confirmation hearing. It is President Trump's reckless attacks on the judiciary. These attacks, like the President's attacks on the free press, have no precedent in the history of our Republic. The independence of our courts is an essential strength of our democracy. Attacking the judicial branch erodes the public confidence that gives force to their judgments. It damages the very foundation of our constitutional system. Disagreeing with a court's decision is acceptable. Disparaging a judge is always wrong. I have no doubt that, unlike the President, Judge Gorsuch has profound respect for an independent judiciary and the vital role it plays as a check on the Executive and legislative branches. I may not always agree with his rulings, but I believe Judge Gorsuch is unquestionably committed to the rule of law. Mr. Chairman, it is customary for Senators to introduce nominees from their home State, and I am not here today to take a position or persuade any of our colleagues how to vote. That is a matter of conscience for each of us. I am keeping an open mind about this nomination and expect this week's hearings will shed light on Judge Gorsuch's judicial approach and views of the law. Like many Americans, I look forward to the Committee's questions and the testimony from the nominee. And as one of two Americans privileged to represent the State of Colorado in the United States Senate, I am here this afternoon to uphold a tradition with the hope that, in some small way, it helps restore the Senate's strong history of comity and cooperation, especially in our Nation's most difficult times. Whatever the results of this hearing, we Senators must respond in some way to the expectations of most Coloradans and most Americans who are eager for us to work together and to treat each other with respect, particularly when it comes to extraordinarily important decisions like this one. Thank you, Mr. Chairman. [The prepared statement of Senator Bennet appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator Bennet, Senator Gardner. Thank you very much, and you are dismissed. And we will have Mr. Katyal come to the table now. And as I said, he was Acting Solicitor General in the previous administration. Thank you very much, and you may proceed at your will. INTRODUCTION OF HON. NEIL M. GORSUCH, NOMINEE TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY NEAL KATYAL, NEAL KATYAL, FORMER ACTING SOLICITOR GENERAL, WASHINGTON, DC
Neal Katyal
Mr. Katyal.
(D)
Mr. Katyal. Thank you, Mr. Chairman and Senator Feinstein. It is my privilege to introduce Judge Gorsuch to this honorable Committee. Unlike Senators Gardner and Bennet, I am, unfortunately, only a part-time Colorado resident, but I am very proud to see this distinguished judge with an excellent first name be nominated for this position. [Laughter.] Mr. Katyal. Judge Gorsuch was born in Denver in 1967, the fourth generation of his family to hail from Colorado. He attended Columbia and Harvard Law School, and later clerked for Judge David Sentelle and Justices White and Kennedy. Judge Gorsuch then spent a decade at a law firm. And after serving in a leadership role at the Justice Department, he returned to Colorado as a Federal judge. I suppose the fly fishing in DC just was not good enough. In the few minutes I have, I would like to bring in my world of litigating cases before the Supreme Court of the United States. I have argued 32 cases over the last decade, two more arguments coming next month. My arguments have been on behalf of the most diverse client base imaginable: death penalty inmates, States, the Federal Government, Native American Tribes, our Nation's largest corporations, what the great Senator from Hawaii called the so-called little guy, and everyone in between. I can tell you the one thing you really want when you are in front of the Court is just an opportunity to be treated fairly; to have your position listened to, not caricatured, and treated with the gravity it deserves; to have jurists who work day and night to get the right answer, not motivated by party or politics, but by justice. And honestly, that is how our Supreme Court works. Every time I am up there, I get a lump in my throat because I see it firsthand. And I wish the Court would televise its proceedings so that the American public would see what I get to see every day. [Laughter.] Mr. Katyal. And it is because of that deep need for fairness, on the Court that, I am, like so many Americans are, outraged that Merrick Garland does not sit on the Court today. I have had the pleasure of appearing before him, and he has grilled me, once for over an hour. Indeed, I think maybe using the word ``pleasure'' is probably the wrong word to use. Garland's brilliance, his experience, his fairness and meticulous attention to detail make him perhaps the most qualified nominee ever to have been named to the Supreme Court, and there is no doubt in my mind that if Merrick Garland had been confirmed and another vacancy had opened up, Judge Gorsuch would be sailing through this body with something close to 100- to-0 vote. It is a tragedy of national proportions that Merrick Garland does not sit on the Court, and it would take a lot to get over that. Indeed, there is less than a handful of people that the President could have nominated to even start to rebuild that loss of trust. But in my opinion, Neil Gorsuch is one. I say that knowing many people in my party will disagree and think the damage cannot be repaired, no matter who the nominee is. I can understand that sentiment. For those folks, there is nothing I can say about the nominee to make things right. But if you have not closed your mind to the possibility of a new nominee, despite the undeserved and unprecedented treatment of Merrick Garland, I would like to tell you a bit about Judge Gorsuch. There is a reason why our Supreme Court Bar has lined up behind Judge Gorsuch. There is a reason why the American Bar Association has given him the highest rating. I have seen Judge Gorsuch in action, and I have seen him hearing cases and studied his written opinions. This is a first-rate intellect and a fair and decent man. Judge Gorsuch and I served together on the Federal Appellate Rules Committee. It is complicated work and, quite honestly, not the sort that most people find particularly interesting. But the judge commits himself to it fully, and his work reflects his commitment to resolving disputes according to established standards. That is, the judge's work reflects his dedication to the rule of law. The judge's commitment to the rule of law would endear him well to our Founders. Ours is a government of laws, not of men and women. That principle is the essence of constitutional government and the foundation of our freedoms. Yet, if ours is to remain a government of laws, the subject of the laws must not be allowed to interpret it for themselves. No one can be a judge in his own cause. The Founders forged a judiciary independent of the Executive and legislative branches. ``The complete independence of the courts of justice is peculiarly essential in a limited Constitution,'' Alexander Hamilton wrote in Federalist 78. ``Without this, all the reservations of particular rights or privileges would amount to nothing.'' We live in a unique time. The current President has displayed open contempt for the courts, attacking judges who disagree with him and even questioning their legitimacy and motives. Judges who have questioned the President's authority have had to be placed under increased scrutiny and protection because of the reaction among some Members of the public. Between the President's attacks on the judiciary and his controversial policies, he seems intent on testing the independence and integrity of our court system, and that brings me back once again to my support of Judge Gorsuch. As a judge, he has displayed a resolute commitment to the rule of law and the judiciary's independence. Even those who disagree with him can see the judge's decisions are meticulously crafted and grounded in the law and our Constitution. And when the judge believes the Government has overstepped its powers, he is willing to rule against it. It is very difficult to make the transition to Justice. I have seen Justices Kagan and Breyer go through it firsthand. It is not just the massive power all of a sudden that one wields. It is also the glare of the spotlight, an awareness of becoming part of history, and, most important, getting along with eight new colleagues who will be at your side for decades. To do this well is hard. It requires equal parts and equal servings of humility and ability. That is what Justices Kagan and Breyer brought to their transitions, and what Judge Gorsuch has. In short, to make up a word, Judge Gorsuch has ``humibility,'' humility and ability. In sum, Judge Gorsuch and I come from different sides of the political spectrum. We disagree about many things, but we agree on the most important things, that all people are equal before the law and that a judge's duty is to uphold the law and uphold these principles and the Constitution above all. The judge has done that during his time on the bench, and I know he will continue to do so as a Justice on the Supreme Court. It is, therefore, my honor to recommend that his nomination be reported favorably to the Senate. [The prepared statement of Mr. Katyal appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Mr. Katyal. I know you have a busy schedule. Thank you for being here. We will wait until--do you want to change everything that you have to do? Judge, will you come forward? And before you sit, would you raise your right hand to be sworn? [Witness sworn.] Chairman Grassley. Thank you. Please be seated. And you may tell us what you want us to hear at this point.
Neil M. Gorsuch
Nominee
(R)
STATEMENT OF HON. NEIL M. GORSUCH, NOMINEE TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES Judge Gorsuch. Mr. Chairman, Senator Feinstein, Members of the Committee, I am honored and I am humbled to be here. Since coming to Washington, I have met with over 70 Senators. You have offered me a warm welcome and wise advice. Thank you. I also want to thank the President and the Vice President. They and their teams have been so gracious to me, and I thank them for this honor. I want to thank Senators Bennet and Gardner and General Katyal for their kind introductions, reminding us that long before we are Democrats or Republicans, we are Americans. Sitting here, I am acutely aware of my own imperfections. But I pledge to each of you and to the American people that, if I am confirmed, I will do all my powers permit to be a faithful servant of the Constitution and laws of this great Nation. Mr. Chairman, I could not even attempt to do this without Louise, my wife of more than 20 years. The sacrifices she has made, and her open and giving heart, leave me in awe. I love you so much. We started off in a place very different than this one, a tiny apartment and little to show for it. When Louise's mother first came to visit, she was concerned by the conditions-- understandably. As I headed out the door to work, I will never forget her whispering to her daughter, in a voice I think intended to be just loud enough for me to hear, ``Are you sure he is really a lawyer?'' [Laughter.] Judge Gorsuch. To my teenage daughters watching out West, bathing chickens for the county fair, devising ways to keep our determined pet goat out of the garden, building a semi- functional plyboard hovercraft for science fair, driving 8 hours through a Wyoming snowstorm with high school debaters in the back arguing the whole way, these are just a few of my very favorite memories. I love you girls impossibly. To my extended family here and across Colorado, when we gather, it is dozens of us. We hold different political and religious views, but we are united in our love. And between the family pranks and the pack of children running rampant, whoever is hosting is usually left with at least one drywall repair. To my parents and grandparents, they are no longer with us. But there is no question on whose shoulders I stand. My mom was one of the first women graduates of the University of Colorado Law School. As the first female Assistant District Attorney in Denver, she helped a program to pursue deadbeat dads. And her idea of daycare sometimes meant I have to spend the day wandering the halls or tagging along behind the police officers. She taught me that headlines are fleeting, courage lasts. My dad taught me that success in life has very little to do with success. Kindness, he showed me, is a great virtue. He showed me too that there are few places closer to God than walking in the wilderness or wading a trout stream, even if it is an awfully long drive home with the family dog after he encounters a skunk. To my grandparents, as a boy, I could ride my bike to their homes. They were a huge influence. My mom's father, poor and Irish, worked to help support his family as a boy after losing his own dad. But the nuns made sure he got an education, and he became a doctor. Even after he passed away, I heard stories for years from grateful patients who recalled him kneeling by their bedsides so they might pray together. His wife, my grandmother, grew up on a Nebraska farm, where an icebox was not something you plugged into the wall but something you lowered into the ground. With 7 children, she never stopped moving, and she never stopped loving. My dad's father made his way through college working on Denver's trolley cars. He practiced law through the Great Depression. And he taught me that lawyers exist to help people with their problems, not the other way around. His wife came from a family of pioneers. She loved to fish, and she is the one who taught me how to tie a fly. I want to thank my friends, so many of whom are here, liberals and conservatives and independents from every kind of background and belief. Many hundreds have written this Committee on my behalf, and I am truly touched by their support. They have been there for me always, not least when we recently lost my Uncle Jack, a hero of mine and a lifelong Episcopal priest. He gave the benediction when I took an oath as a judge 11 years ago. I confess I was hoping he might offer a similar prayer soon. As it is, I know he is smiling. I want to thank my fellow judges across the country. Judging is sometimes a lonely and hard job. But I have seen how these men and women work, how hard they work, with courage and collegiality, independence, and integrity. It is their work that helps make real the Constitution and laws of the United States for all of us. I want to thank my legal heroes. Byron White, my mentor, a product of the West, he modeled for me judicial courage. He followed the law wherever it took him, without fear or favor to anyone. War hero, Rhodes Scholar, and, yes, the highest paid NFL football player of his day. In Colorado today, there is God, there is John Elway, and there is Peyton Manning. In my childhood, it was God and Byron White. I also had the great fortune to clerk for Justice Kennedy. He showed me that judges can disagree without being disagreeable, that everyone who comes to court deserves respect, that a case is not just a number or a name but a life's story and a human being with equal dignity to my own. Justice Scalia was a mentor too. He reminded us that words matter, that the judge's job is to follow the words that are in the law, not replace them with those that are not. His colleagues cherished his great humor too. Now, we did not agree on everything. The Justice fished with the enthusiasm of a New Yorker. He thought the harder you slapped the line on the water, somehow the more the fish would love it. Finally, there is Justice Jackson. He wrote so clearly that everyone could understand his decisions. He never hid behind legal jargon. And while he was a famously fierce advocate for his client when he was a lawyer, he reminded us that, when you become a judge, you fiercely defend only one client--the law. By their example, these judges taught me about the rule of law and the importance of an independent judiciary, how hard our forebears worked to win these things, how easy they are to lose, how each generation must either take its turn carrying the baton or watch it fall. Mr. Chairman, these days, we sometimes hear judges cynically described as politicians in robes, seeking to enforce their own politics rather than striving to apply the law impartially. But if I thought that were true, I would hang up the robe. The truth is, I just do not think that is what a life in the law is about. As a lawyer for many years working in the trial court trenches, I saw judges and juries, while human and imperfect, striving hard every day to fairly decide the cases I put to them. As a judge now for more than a decade, I have watched my colleagues spend long days worrying over cases. Sometimes the answers we reach are not the ones we personally prefer. Sometimes the answers follow us home at night and keep us up. But the answers we reach are always the ones we believe the law requires. And for all its imperfections, I believe that the rule of law in this Nation truly is a wonder, and that it is no wonder that it is the envy of the world. Of course, once in a while, we judges do disagree. But our disagreements are not about politics, but about the law's demands. Let me offer an example. The first case I wrote as a judge to reach the Supreme Court divided 5-to-4. The Court affirmed my judgment with the support of Justices Thomas and Sotomayor, while Justices Stevens and Scalia were in dissent. Now that is a lineup some might think unusual. But actually, it is exactly the sort of thing that happens, quietly, day in and day out, in the U.S. Supreme Court and in the courts across this country. I wonder if people realize that Justices Thomas and Sotomayor agree about 60 percent of the time, or that Justices Scalia and Breyer agreed even more often than that, all in the very toughest cases in our entire legal system. And here is another example about my record. Over the last decade, I have participated in over 2,700 appeals. Often these cases are hard, too. Only about 5 percent of all Federal lawsuits make their way to decision in a Court of Appeals. I have served with judges appointed by President Obama all the way back to President Johnson. And in the Tenth Circuit, we hear cases from six different States covering two time zones and 20 percent of the continental United States. But in the West, we listen to one another respectfully. We tolerate. We cherish different points of view. And we seek consensus whenever we can. My law clerks tell me that 97 percent of those 2,700 cases I have decided were decided unanimously, and that I have been in the majority 99 percent of the time. That is my record, and that is how we do things in the West. Of course, I make my share of mistakes, too. As my daughters never tire of reminding me, putting on a robe does not make me any smarter. And I will never forget my first day on the job. Carrying a pile of briefs up the steps to the bench, I tripped on the hem of my robe and just about everything went flying. But troublesome as the robe can be, the robe does mean something to me, and not just that I can hide coffee stains on my shirt. Putting on a robe reminds us judges that it is time to lose our egos and open our minds. It serves, too, as a reminder of the modest station we judges are meant to occupy in a democracy. In other countries, judges wear scarlet, silk, ermine. Here, we judges, we buy our own plain black robes. And as Senator Sasse knows, I can attest the standard choir outfit at the local uniform supply store is a pretty good deal. Ours is a judiciary of honest black polyester. When I put on the robe, I am also reminded that, under our Constitution, it is for this body, the people's representatives, to make new laws, for the Executive to ensure those laws are faithfully executed, and for neutral and independent judges to apply the law in the people's disputes. If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk. And those who came before the court would live in fear, never sure exactly what the law requires of them, except for the judge's will. As Alexander Hamilton said, liberty can have nothing to fear from judges who apply the law, but liberty has everything to fear if judges try to legislate, too. In my decade on the bench, I have tried to treat all who come before me fairly and with respect, and afford equal right to poor and to rich. I have decided cases for Native Americans seeking to protect Tribal lands, for class actions like one that ensured compensation for victims of a large nuclear waste pollution problem produced by corporations in Colorado. I have ruled for disabled students, for prisoners, for the accused, for workers alleging civil rights violations, and for undocumented immigrants. Sometimes, too, I have ruled against such persons. My decisions have never reflected a judgment about the people before me, only a judgment about the law and the facts at issue in each particular case. A good judge can promise no more than that, and a good judge should guarantee no less, for a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for policy results he prefers rather than those the law compels. Mr. Chairman, as a student many years ago, I found myself walking through the Old Granary burial ground in Boston. It is where Paul Revere, John Hancock, and many of our Founders are buried. And there, I came across the tombstone of a lawyer and judge who today is largely forgotten, as we are all destined to be soon enough. His name was Increase Sumner. And written onto his tombstone over 200 years ago was this description of the man: ``As a lawyer, he was faithful and able; as a judge, patient, impartial, and decisive. In private life, he was affectionate and mild; in publick life, he was dignified and firm. Party feuds were allayed by the correctness of his conduct; calumny was silenced by the weight of his virtues; and rancour softened by the amenity of his manners.'' Mr. Chairman, those words stick with me. I keep them on my desk. They serve for me as a daily reminder of the law's integrity, that a useful life can be led in its service, of the hard work it takes, and an encouragement to good habits when I fail and when I falter. At the end of it all, I could ask for nothing more than to be described as he was. And if confirmed, I pledge to you that I will do everything in my power to be that man. [The prepared statement of Judge Gorsuch appears as a submission for the record.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Judge. I have just a few words to say, to read, but before I do that, we will convene tomorrow at 9:30. Each person will have 30-minute rounds. I want to finish the first round tomorrow, so not taking into consideration any of the judge's needs to get away from the table for time to eat and do other things, I would suggest that we have at least 10 hours of work to do, in addition to whatever the judge needs. So I ask you to be prepared for that. And the way I would like to do it, since each person has a half-hour, if you start your last question before the time runs out, I will ask the judge to give a short answer. But I think we have to move on very quickly and get it done. And then the next day, we have 20-minute rounds, and there will be as many rounds as people need, because I would like to get done by Wednesday night. And if we can get it so I can get to bed at 9 o'clock like I like to, I would appreciate it. We have questions for the record being due at 5 p.m. This timeline is consistent with how we have handled past Supreme Court nominations. I want everybody to know that now so that Members and their staffs can be working on written questions throughout the week. With that, we will recess until----
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. When?
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Five p.m. when?
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Oh, I am sorry. Friday at 5 p.m. With that, the meeting is adjourned. [Whereupon, at 3:15 p.m., the Committee was recessed.] [Additional material submitted for the record for Day 1 follows Day 4 of the hearing.] CONTINUATION OF THE CONFIRMATION HEARING ON THE NOMINATION OF HON. NEIL M. GORSUCH TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES ---------- 42815 United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 9:35 a.m., in Room SH-216, Hart Senate Office Building, Hon. Charles E. Grassley, Chairman of the Committee, presiding. Present: Senators Grassley, Hatch, Graham, Cornyn, Lee, Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy, Durbin, Whitehouse, Klobuchar, Franken, Coons, Blumenthal, and Hirono.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Welcome back, Judge Gorsuch. Glad to have you back, and I am sure you are glad to be here. Good morning, everybody. I would like to welcome everyone and especially our nominee, as I just did. This is day two of the Supreme Court nominee's hearing. We have a long day in front of us. So we will immediately turn to Members' questions. It is my intention to get through all Members' first round of questions today. So it is important that we all stick to our time limit so that we can stay on that schedule. I realize that 10 hours is a long time for you to sit there and answer questions for 20 of us. So I am going to defer to you when you might need a break. In the meantime, I would anticipate a break about 30 minutes for lunchtime. And I hope for the Members of the Committee, I have not made up my mind on this yet, but we do have a vote scheduled at noon. And I might--I am sorry?
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. There are two votes.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Two? Okay. We have two votes at noon. So it might be appropriate to use that period of time for our lunch break. I will make a decision on that later on. So with that understanding with you and to accommodate you because you are the person that has to sit there and answer questions, and so whatever your needs are, you let us know.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you, Senator.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. I started yesterday morning, Judge and audience, with Justice Scalia's comments that our Government of laws and not men is the pride of our constitutional democracy. Our democracy requires judges to let the people's elected representatives do the lawmaking. You, Judge, said that Justice Scalia's great accomplishment was, to quote you, ``remind us of the differences between judges and legislators.'' Legislators, in other words, consult their own moral convictions to shape law, as we best think it to be. But you said that judges cannot do those things, rightly so from my point of view. Our Constitution is also our charter of liberty. Justice Scalia said that our Constitution guarantees our liberties primarily through its structure. That happens to be the separation of powers. You, Judge, said much the same thing, you, ``What would happen to disfavored groups and individuals'' if we allowed judges to act like legislators? ``The judge would need only his own vote to revise the law willy nilly in accordance with preferences.'' The separation of powers in our system requires an independent judiciary made of judges respectful of the other two branches, but not beholden to them. Judges must be equally independent of the President who nominates them and us Senators who confirm the same judiciary Members. Let us start with independence from the Executive. No one, not even the President, is above the law. One of the most remarkable things about your nomination is the broad bipartisan support that you have received. You have earned great praise from individuals who are not exactly staunch supporters of the President, but who strongly supported your nomination. Yesterday, we heard from one of them, Neal Katyal. President Obama's former Solicitor General said that you ``will not compromise principle to favor the President.'' In 2006, former Colorado Senator Salazar, a Democrat, said that you have ``the sense of fairness and impartiality that is a keystone of being a judge.'' And legal commentator Jeffrey Rosen similarly praised you for your independence. So let us start with my first question. I would like to have you describe, in any way you want to, what judicial independence means and specifically tell us whether you would have any trouble ruling against a President who appointed you.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is a softball, Mr. Chairman. I have no difficulty ruling against or for any party other than based on what the law and the facts in the particular case require, and I am heartened by the support I have received from people who recognize that there is no such thing as a Republican judge or a Democratic judge. We just have judges in this country. When I think of what judicial independence means, I think of Byron White. That is who I think of. I think of his fierce, rugged independence. He did his--he said, ``I have a job.'' People asked him what his judicial philosophy was, I will give the same answer. I decide cases. It is a pretty good philosophy for a judge. I listen to the arguments made. I read the briefs that are put to me. I listen to my colleagues carefully, and I listen to the lawyers in the well. And this experience has reminded me what it is like to be a lawyer in the well. It is a lot easier to ask the questions, I find, as a judge than it is to have all the answers as the lawyer in the well. So I take the process, the judicial process, very seriously. And I go through it step by step and keeping an open mind through the entire process as best as I humanly can, and I leave all the other stuff at home. And I make a decision based on the facts and the law. Those are some of the things judicial independence means to me. It means to me the judicial oath that I took--to administer justice without respect to persons, to do equal right to the poor and the rich, and to discharge impartially the duties of my office. It is a beautiful oath. It is a statutory oath written by this body. That is what judicial independence means to me. Happy to talk about the separation of powers, too, if you would like, Mr. Chairman, which you referenced in there. Or I am happy to answer another question. Entirely up to you.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Well, your record made clear that you are not afraid to fulfill your role independently, and you just emphasized that. You vacated orders of administrative agencies acting outside their authority, and you have ruled on cases where Congress has overstepped its bounds. So I think you can maybe speak about the separation of powers, but at the same time, maybe you could give me a couple of your cases that demonstrate your commitment to that independence of the executive branch of government?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sure. On the first point, you know, I have decided, as I noted yesterday, over 2,700 cases, and my law clerks tell me that 97 percent of them have been unanimous. Ninety-nine percent I have been in the majority. They tell me as well that, according to the Congressional Research Service, my opinions have attracted the fewest number of dissents from my colleagues of anyone I have served with that they have studied over the last 10 years. Now the Congressional Research Service speculates whether that is because I am persuasive or I believe in collegiality. I do not see why it has to be a choice. My law clerks also tell me that in the few cases where I have dissented that I am as likely almost to dissent from a Democrat-appointed colleague as a Republican-appointed colleague, and that is again because we do not have Democrat or Republican judges. According to the Wall Street Journal, I am told that of the eight cases that they have identified that I have sat on that have been reviewed by the U.S. Supreme Court, our court was affirmed in seven of them. Now I think Louise might argue for the eighth because in that case, the Supreme Court did not like a procedural precedent of our court that, as a panel, we were bound to follow. So they remanded it back. We decided it on the merits, as the Court instructed. Cert. denied. Eight out of eight? On the separation of powers, it is, Mr. Chairman, the genius of the Constitution. Madison thought that the separation of powers was perhaps the most important liberty-guaranteeing device in the whole Constitution, and this is a point of civics that I do think maybe is lost today, how valuable the separation of powers is. That you have in Article I the people's representatives make the law. That is your job. And I do not think it is an accident that the Framers put Article I first. Your job comes first. You make the law. Article II, the President's job is to faithfully execute your laws. And our job, Article III, down at the bottom, is to make sure that the cases and controversies of the people are fairly decided. And if those roles were confused and power amalgamated, the Founders worried that would be the very definition of tyranny. And you can see why. Judges would make pretty rotten legislators. We are life tenured, right? You cannot get rid of us. It only takes a couple of us to make a decision, or 9, or 12, depending on the court. That would be a pretty poor way to run a democracy. And at the same time, with respect, legislators might not make great judges because they are answerable to the people. And when you come to a court with a case or a controversy about a past--past facts, you want a neutral, rigidly neutral, fair, scrupulously fair decisionmaker. You want somebody who is going to put politics aside. So the separation of powers I do not think has lost any of its genius over 200 years. In fact, it has proven it.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you. I have heard my colleagues and people not in the Senate say that now more than ever we need a Justice who will be independent of the President who nominated him or her. So I would like to ask about your nomination and your independence. A lot has been made about the list of judges then-candidate Trump proposed as possible nominees. To me, it was the most transparent that we have had in history, and we did not have Secretary Clinton give out such a list. Of course, you were not on the first group that came out and otherwise added later. So I am curious. When did you first learn that you were on candidate Trump's extended list?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Mr. Chairman, you are right. There were two lists, as I recall, over the summer. And I was not on the first list. And I remember having breakfast one day with a friend, who may be here. Bryan? There you are. You remember this? [Laughter.] Judge Gorsuch. We were having breakfast one day, and he said, ``Neil, you are not on the list.'' And I said, ``You are right. I am not on the list.'' He said, ``You should be on the list.'' And I said, ``I love my life in Colorado. I would not change a thing. I am a happy man. I have a loving wife, beautiful home and children, a great job with wonderful colleagues. I am a happy person.'' I am walking away from breakfast, and I get an email from Bryan saying, ``There is a new list--'' [Laughter.] Judge Gorsuch. ``And you are on it.'' That was the first I heard of it.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. And I assume you thanked him.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do not know about that. [Laughter.] Judge Gorsuch. I do not think he--you did not know? I do not think we--we were all surprised.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. I am kidding.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And at any rate, we are where we are.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Okay. Tell me about the process that led to your nomination. Did anyone ask you to make any promises or assurances at all about your view on certain legal issues or the way that you would rule in certain cases?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I think you would be reassured by the process that unfolded. I try to live under a shell during the campaign season, watch baseball and football, go about my business. But I did hear lots of talk of litmus tests from all around. It was in the air. And I do not believe in litmus tests for judges. I have written about that years ago. I was not about to become party to such a thing. And I am here to report that you should be reassured because no one in the process, from the time I was contacted with an expression of interest for a potential interview to the time I was nominated, no one in that process, Mr. Chairman, asked me for any commitments, any kind of promises about how I would rule in any kind of case.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. And that is the way it should be. So we have just discussed your independence from the President, but there is also independence from the legislative branch. It is odd that some of the same folks who will claim that you are not independent from the President will turn around and try to extract from you promises and commitments before they pass judgment on your nomination. The irony, of course, is that extracting commitments during the confirmation process is exactly what would undermine your independence as a judge. One way that they will do this is asking you about precedent. So let us talk about that. For starters, I have a book here that you co-wrote, an 800-page book on precedent. Your 12 co-authors included judges from across the ideological spectrum, such as Bill Pryor, who was also on President Trump's Supreme Court list, and Diane Wood, who was reportedly on President Obama's list. You have also touched on the value of precedent in speeches that you have given or in your opinions. For instance, in the speech you gave honoring Justice Scalia last year, you said this. ``Even when a hard case does arise, once it is decided, it takes on the force of precedent, becomes an easy case in the future, and contributes further to the determinacy of our law,'' especially if more recent opinions have called into question the rationale of the original case. But you have also suggested that there may be circumstances where it is appropriate to revisit precedent. Specifically, you wrote that it may be appropriate to reconsider a decision where it has become a ``presidential island surrounded by a sea of contrary law.'' So there may be times where it is appropriate to reconsider certain decisions, especially if more recent opinions have called into question the rationale of the original decision. I think all of us would agree, for instance, that Brown v. Board of Education, which finally overruled a repugnant ``separate, but equal'' standard in Plessy, is a textbook example of this. So with these things in mind, I would like to explore the approach that you take to Supreme Court precedents. Could you tell us what you believe is the value of precedent in our legal system?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Absolutely, Senator. And if I might, Mr. Chairman, go back just a moment to promises? I have offered no promises on how I would rule in any case to anyone, and I do not think it is appropriate for a judge to do so, no matter who is doing the asking. And I do not because everybody wants a fair judge to come to their case with an open mind and to decide it on the facts and the law. One of the facts and one of the features of law that you have to decide it on is the basis of precedent, as you point out. And for a judge, precedent is a very important thing. We do not go reinvent the wheel every day. And that is the equivalent point of the law of precedent. We have an entire law about precedent, the law of judicial precedent. Precedent about precedent, if you will. And that is what that 800-page book is about. It expresses a mainstream consensus view of 12 judges from around the country appointed by, as you point out, Presidents of both parties, great minds. Justice Breyer was kind enough to write a foreword to it. It makes an excellent doorstop. [Laughter.] Judge Gorsuch. And in it, we talk about the factors that go into analyzing precedent, any consideration of precedent, and there are a bunch of them. You have alluded to some of them. The age of the precedent, very important factor. The reliance interests that have built up around the precedent, has it been reaffirmed over the years? What about the doctrine around it? Has it built up, shored up, or has it become an island, as you point out? Those are all relevant considerations. Its workability is a consideration, too. Can people figure out how to abide it, or is it just too confusing for the lower courts in their administration? Those are all factors that a good judge will take into consideration when examining any precedent. You start with a heavy, heavy presumption in favor of precedent in our system. Alexander Hamilton who said that is one important feature. I think it was Hamilton who said one important feature of judges, if we are going to give them life tenure and allow them that extraordinary privilege, they should be bound down by strict rules and precedents. Francis Bacon called precedent the anchor of the law. So you start with that heavy presumption in favor of precedent. You consider those factors in that light. And yes, in a very few cases, you may overrule precedent. It is not an inexorable command, the Supreme Court has said. That is the law of precedent, as I understand it and I believe is expressed in that book with my very highly respected colleagues.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. As a lower court judge, you are bound by not only Supreme Court precedent, but as you have demonstrated, the precedent of your own court. But as a Supreme Court Justice, part of your job will be to decide when existing Supreme Court precedent need not be reconsidered. How will you decide when you revisit existing precedent?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Mr. Chairman, I do not think the considerations change. It is the same analysis that I would have as a Supreme Court Justice, if I am fortunate enough to be confirmed, that I have when I am considering Circuit precedent as a Circuit Judge. It is the exact same process. The exact same rules apply.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Okay. This is the fourteenth Supreme Court hearing that I have participated in. So I have a pretty good idea of some of the questions that you are going to get today. You are going to be asked to make promises and commitments about how you will rule on particular issues. Now they will not necessarily ask you that directly. For instance, how will you rule on this issue or that issue? Instead, they will probably ask you about old cases, whether they were correctly decided. Of course, that is another way of asking the very same question. They know that you cannot answer, but they are going to ask you anyway. I have heard Justices nominated by Presidents of both parties decline to answer questions like these. That is because, as the nominee put it, ``A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of this particular case, it would display disdain for the entire judicial process.'' Now you probably know that is what Justice Ginsburg said at her hearing, and it is what we call ``the Ginsburg standard.'' The underlying reason for this is, of course, is that making promises or even giving hints undermines the very independence that we just talked about. I would like to ask you if you agree with what I just said?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do, Mr. Chairman.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. So let me ask you about a couple of Supreme Court cases. In Heller, Supreme Court held that the Second Amendment protects an individual's right to bear arms. If I ask you to tell me whether Heller was rightly decided, could you answer that question for me?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I would respectfully respond that it is a precedent of the U.S. Supreme Court, and as a good judge, you do not approach that question anew, as if it had never been decided. That would be a wrong way to approach it. My personal views, I would also tell you, Mr. Chairman, belong over here. I leave those at home. Mr. Katyal yesterday said that what he wants is a fair judge, and that is what I wanted as a lawyer. I just wanted a judge to come in and decide on the facts and the law of my client's case and leave what he had for breakfast at the breakfast table. And part of being a good judge is coming in and taking precedent as it stands, and your personal views about the precedent have absolutely nothing to do with the good job of a judge.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Let me ask you about Citizens United. In this case, the Supreme Court held that the Government cannot restrict independent political expenditure by a nonprofit corporation. Do you agree with that decision?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And Senator, I would give you the same response. I know people have their views personally about lots of Supreme Court decisions and about a lot of other things. We are all human beings. I get that. I am not an algorithm. They have not yet replaced judges with algorithms, though I think eBay is trying and maybe successfully. We are all human beings. But the judge's job is to put that stuff aside and approach the law as you find it, and that is part of the precedent of the U.S. Supreme Court that I am sworn as a sitting judge to give the full weight and respect to due precedent.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Those two cases were 5-4 decisions. So let me ask you about something that was unanimous, Hosanna- Tabor. The Supreme Court ruled 9-0 that the Obama administration could not tell a church who its ministers can be. The only thing controversial about that case was that the Obama administration actually tried to convince the Supreme Court that a bunch of Government bureaucrats could tell a church who its ministers could be. Like I said, that case was 9-0. Can you tell me if that case was decided correctly?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Respectfully, Senator, I would give you the same answer.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Okay. Those are relatively recent cases. Let us talk about cases that have been around for a while. Let us look at Gideon v. Wainwright. It was decided unanimously a long time ago, 50 years or more. It says a criminal defendant has the right to an appointed attorney if he cannot afford one. Everyone who watches cop TV shows know this law. Does that make a difference? Can you tell me if you agree with the principle of Gideon? Is it the same answer, the same reason?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Mr. Chairman, it is certainly a seminal decision of the U.S. Supreme Court. There is no doubt about it. It is a very old decision of the Supreme Court now. It has been reaffirmed many times. There is a lot of reliance interest built around it. So I could talk to you about the factors that a good judge considers in analyzing precedent and the weight due a precedent, but I am not in a position to tell you whether I personally like or dislike any precedent. That is not relevant to my job. Gideon is a seminal precedent of the U.S. Supreme Court, and it deserves respect on that basis. Precedent is kind of like our shared family history as judges. It deserves our respect because it represents our collective wisdom. And to come in and think that just because I am new or the latest thing and know better than everybody who comes before me would be an act of hubris inappropriate to the judicial role.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. What if I asked you about Bush v. Gore?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I know some people in this room have some opinions on that, I am sure, Senator. But as a judge, it is a precedent of the U.S. Supreme Court, and it deserves the same respect as other precedents of the U.S. Supreme Court when you are coming to it as a judge. And it has to be analyzed under the law of precedent.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Well, let us go to kind of a more controversial issue, but along the same lines I have been asking you. I think the case that most people are thinking about right now and the case that every nominee gets asked about, Roe v. Wade, can you tell me whether Roe was decided correctly?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, again, I would tell you that Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed. The reliance interest considerations are important there, and all of the other factors that go into analyzing precedent have to be considered. It is a precedent of the U.S. Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases. So a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. What about Griswold, which was decided a few years before Roe, the case where the Court found constitutional right to privacy? Can you tell me your views on Griswold?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, it is a precedent that is now 50 years old. Griswold involved the right of married couples to use contraceptive devices in the privacy of their own home. And it is 50 years old. The reliance interests are obvious. It has been repeatedly reaffirmed. All very important factors again in analyzing precedent.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Well, I think I am going to stop questioning, but I would kind of sum up what you and I just talked about in regard to precedent so everybody understands the principles that are at stake here. There are two reasons why you cannot give your opinion on these cases. One, I believe, is independence, and the other one is fairness to future litigants. Is that the way you see it?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is, Senator. If I were to start telling you which are my favorite precedents or which are my least favorite precedents or if I view precedent in that fashion, I would be tipping my hand and suggesting to litigants that I have already made up my mind about their cases. That is not a fair judge. I did not want that kind of judge when I was a lawyer, and I do not want to be that kind of judge now. And I made a vow to myself I would not be. That is the fairness problem. And then the independence problem. If it looks like I am giving hints or previews or intimations about how I might rule, I think that is the beginning of the end of the independent judiciary, if judges have to make, effectively, campaign promises for confirmation. And respectfully, Senator, I have not done that in this process, and I am not about to start.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you. I will yield back 8 seconds. [Laughter.] Chairman Grassley. Senator Feinstein.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you very much, Mr. Chair. Welcome, Judge, and good morning to you again.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Good morning, Senator.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Since we are on Roe, I was not going to begin with this, but I well recall the time we spent in my office, and we talked about precedent. And in my opening remarks, I indicated that if anything had super precedent, Roe did in terms of the numbers, and I have put that in the record. Here is why it becomes of concern. The President said that he would appoint someone who would overturn Roe. You pointed out to me that you viewed precedent in a serious way, in that it added stability to the law. Could you elaborate on the point that you made in my office on that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I would be delighted to, Senator. Part of the value of precedent, it has lots of value. It has value, in and of itself, because it is our history, and our history has value intrinsically. But it also has an instrumental value in this sense. It adds to the determinacy of law. We have lots of tools that allow us to narrow the realm of admissible dispute between parties so that we can--people can anticipate and organize their affairs. It is part of the reason why the rule of law in this country works so well. We have statutes. We have rules. We have a fact-finding process and a judicial system that is the envy of the world. And precedent is a key part of that because, as the Chairman pointed out when he quoted an old piece of mine, once a case is settled, that adds to the determinacy of the law. What was once a hotly contested issue is no longer a hotly contested issue. We move forward. And Senator, the value of that is the U.S. Supreme Court takes something like 70 or 80 cases a year. That is a tiny fraction of all the disputes in our Federal legal system, right?
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. My law clerks tell me it is something like .001 percent, and they are unanimous in those cases, which have divided Circuit Judges. That is why the Supreme Court largely takes the case, because it has divided us. It is one of the rare cases where we disagree. They are unanimous 40 percent of the time.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. One other question.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sure.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Do you view Roe as having super precedent?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, super precedent is----
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. In numbers?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It has been reaffirmed many times. I can say that.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Yes, dozens. All right. I would like now to go to--to take you back to 2005, when you were in the Justice Department, and I want to explain to you why I am going here. This has to do with torture. The Intelligence Committee was informed in 2006, and Attorney General Gonzales played a role in this, of the nature of the enhanced interrogation techniques, and we were given a very soft view. Senator Rockefeller became the Chairman of the Committee in 2007 and began a study of three detainees and the enhanced interrogation techniques. When I became Chairman in 2009, I added that, and we took all of the major detainees and looked at them in a 6-year study. The staff spent long hours analyzing every cable, every email, looking at more than 100 interviews, and essentially putting in a 7,000-page report, 32,000 footnotes documenting where the information--there are no conclusions. There are just facts. That 7,000-page report has remained classified. I have read it. We have put out a 450-page summary, which is public. And in that summary, we indicated that those cases that the administration spelled out where torture produced operable intelligence was simply not so. We elaborate on that in the big report, and my hope is that one day, not too distant, that report will be declassified so the American people can actually see. But I wanted to ask you some questions along these lines. It is my understanding that a set of talking points were prepared for a press conference for the Attorney General on November 22, 2005. The talking points asked whether, ``aggressive interrogation techniques employed by the administration yielded any valuable information.'' And in the margin next to this question, you hand-wrote one word, ``yes.'' What information did you have that the Bush administration's aggressive interrogation techniques were effective?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I would have to see the document. I do not recall. I have been sitting here.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. All right. That is fair enough.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It has been a long, long time.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Why do we not do this? I would be happy to share the documents with you. I took these pages out of my binder. I think they were there----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Fair enough.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein [continuing]. So I would not have to pause, and I--but let me just hold up that answer.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sure.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. And we will get you the documents on that.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Because--let me do the next question. In December 2005, after the passage of the Detainee Treatment Act, you advocated that President Bush should issue a signing statement to accompany the law. In an email you sent to Steven Bradbury and others, you said the signing statement would--this is your quote--``help inoculate against the potential of having the administration criticized sometime in the future for not making sufficient changes in interrogation policy in light of the McCain portion of the amendment. This statement clearly and in a formal way would be hard to dispute later, puts down a marker to the effect that McCain is best read as essentially codifying existing interrogation policies.'' To be clear, the context was that earlier in 2005, the Justice Department's Office of Legal Counsel had concluded that CIA interrogation tactics like waterboarding and sleep deprivation did not amount to cruel, inhuman, or degrading treatment. I read your email as advocating a continuation of these interrogation techniques and, worse, saying that Senator McCain's amendment actually codified them, which it did not. Is that true? And does it not mean that when you wrote this in an email that you were condoning waterboarding as lawful?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I would want to see the email. Again, I do not feel comfortable commenting on documents that are not in front of me. But I can say this, that I do remember----
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. My staff has the documents here.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Great.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. They can bring them down to you----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That would be great.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein [continuing]. Right now.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you. That would be wonderful.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Okay. And then I will put aside this part.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Okay.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. You will have the documents because there are more--and I will go on to the next subject.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, that is fine. I am happy to----
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Is that all right?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Of course.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. I know, I want you to look at the documents.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I would like to just know what I am talking about. My recollection generally from 12 years ago----
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Eric, bring him the documents, please.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you, Eric. [Laughter.] Judge Gorsuch. My recollection generally, working on the Detainee Treatment Act, Senator, was that at that time after Rasul was issued by the Supreme Court, there were a lot of habeas petitions coming in from detainees at Guantanamo Bay. Some brought by my friend Neal Katyal. And there was an effort by some in the administration, along with many on Capitol Hill, to try and provide a regime for the processing of those claims in a way that would conform with the Youngstown ideal of Congress and the President acting together in unison, and that Senator McCain and Senator Graham put together legislation that emphasized that not only was torture unacceptable, which it always had been under U.S. law, but that cruel, inhuman, and degrading treatment was also unacceptable under U.S. law.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Let me help you here. I know from the documents that you worked on the Graham effort.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. For example, a self-assessment that you wrote said that you ``helped coordinate the legislative effort on the Graham amendment within DOJ and in consultation with DoD and others.''
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is absolutely right, Senator. I sure did, and I am proud of it because we managed to come up with a bipartisan bill that I think passed this body with over 80 or maybe 90 votes, I do not remember, which did two things. One, affirmed this country's commitment to prevent cruel, inhuman, and degrading treatment and, second, which provided a regime that was agreed by the Congress and the President on how Guantanamo detainees should have their claims processed.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Except after you read the documents, just so you know, the conclusion that we come away with is that when the bill on the McCain amendment was about to be voted on, you forwarded press articles explaining what having these two provisions together meant. That was the McCain amendment prohibiting torture and confining it to the Army Field Manual.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. And the Graham amendment, which would bar habeas. In other words, a detainee could not use the habeas corpus right to file in a court of law and challenge their conditions of detention. So that was looked at as offsetting McCain, but basically preventing habeas corpus from being used. And of course, it was overturned by the Court.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, you are absolutely right that it was eventually litigated, as all these things are. It was a bipartisan effort, and it was between the Department of Defense--Department of Defense wanted congressional approval for something so that they knew what the rules would be. They were desperate to have some congressional involvement and investment in this process. And as a lawyer--that is all I was. I was a lawyer for a client, right? I was advising them on how to go about doing that legally in conjunction with Senator Graham's office and others. And it was a bipartisan effort, and we put together our best effort. The D.C. Circuit upheld it. The Supreme Court of the United States, eventually many, many years later, found that the process was insufficient, and that is the Boumediene case, as you know, Senator. But to say that there was no process would be inaccurate, too, because the Detainee Treatment Act had a long list of prescribed processes, and the question just simply was whether they were adequate enough under the suspension clause. And that was a close case that divided the Court very closely, and I respect that decision as a precedent of the U.S. Supreme Court no less than any other, Senator.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. One last question on this.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sure.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. When President Bush signed the Detainee Treatment Act, he issued a statement that basically said he would only construe the law consistent with his powers as Commander-in-Chief. According to press reports, administration officials confirmed, ``The President intended to reserve the right to use harsher methods in special situations involving national security.'' In other words the signing statement reflected the President's belief that he had the power to not comply with the law he had just signed. According to emails, and this you will verify, and you were involved in preparing that signing statement, and you advocated for the issuance of the signing statement. They even showed you saying to the top State Department lawyer that Harriet Miers, the White House counsel, ``needs to hear from us. Otherwise, this may wind up going the wrong way.''
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, I can tell you what I recall. I have not read----
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Okay. That is fair enough.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I need to read the email. But my loose recollection of something that happened I think 11, 12 years ago is that there were individuals in maybe the Vice President's office who wanted a more aggressive signing statement along the lines that you have described and that there were others, including at the State Department, who wanted a gentler signing statement. And my recollection, sitting here, as best I can give it to you without studying the email, is that I was in the latter camp. John Bellinger, among others, I would have associated myself with there. And I do not know what was in the President's head when he wrote the signing statement. I cannot tell you that. I do not know. I can only tell you what I remember, and I certainly would never have counseled anyone that they could disobey the law.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Okay. I have no reason not to believe you, but if you will read those.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sure.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. And then in my second round, we will go back to it.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sure.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. And I would be very happy to--because I think you will see that we did not make this up, okay?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am not suggesting you are. And I am--there was a tug of war among parties in the White House.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Oh, I am sure of that.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Right. And----
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. I wanted to know which side you were on.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, count me in with John Bellinger most of the time on these things, okay?
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. All right?
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And that is my recollection. And Matt Waxman would be another one. And so that is my recollection, Senator, sitting here, and I will study these.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Okay. Let me ask you a question on wiretapping. In December 2005, news broke that President Bush had ordered the NSA to intercept the content of certain communications of Americans without a court order, outside of the requirements of the Foreign Intelligence Surveillance Act, known as FISA. You helped prepare the public defense of the program. For example, in draft testimony that you prepared for Attorney General Gonzales defending the program, you wrote this: ``These authorities are vested in the President, and they are inherent in the office. They cannot be diminished or legislated away by other co-equal branches of government.'' Paul Clement, President Bush's Solicitor General, ``found this proposition unconvincing, and it was removed from the testimony.'' Do you still believe that the President has inherent authority--this is important--to intercept the communications of Americans in the United States that cannot be legislated away by Congress?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Goodness, no, Senator.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Good.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And I did not believe it at the time. What I was serving at the time, as I recall--again, my recollection, and I would be happy to review whatever you have before you--is that I was acting in the capacity as a speechwriter and taking material produced by the components that were responsible for litigating these issues, including Mr. Clement, Paul Clement, a dear friend of mine, and the Office of Legal Counsel and others and assembling it to put words together that sounded like English. And I think people like my writing, and that was my job. I think I was the scribe.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Okay. Let us move on. I would like to go to the Heller case. When we met in my office, we discussed the Heller decision, which you said you were open to discussing since the case had been decided. At that time, you said you thought both the majority opinion, written by Justice Scalia, and the dissent, written by Justice Stevens, were brilliant examples of originalism, where both Justices sought to explain their reasoning by looking at the original public meaning of the Second Amendment. Which decision did you agree with and why?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, I think we have alluded to my difficulty here. I do think everything you just said is accurate. Both Justice Scalia and Justice Stevens wrote excellent opinions in that case. I am not here, though, to grade my bosses' work. That would be kind of impertinent of me, I suspect, and certainly, I am sure they would think so. I also worry that saying I agree with one or the other will indicate to clients or to litigants in future cases--because it is now a precedent of the U.S. Supreme Court. It is binding. It is the law.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Whether we like it or not, it is the law. And if I start saying I like one opinion or I like the other opinion, I am signaling----
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. All right. I will let you off the hook. Let me go to another one.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you. [Laughter.] Judge Gorsuch. Thank you, Senator.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. In D.C. v. Heller, the majority opinion, written by Justice Scalia, recognized that--and I am quoting-- ``Of course, the Second Amendment was not unlimited.'' Justice Scalia wrote, for example, laws restricting access to guns by the mentally ill or laws forbidding gun possession in schools were consistent with the limited nature of the Second Amendment. Justice Scalia also wrote that ``weapons that are most useful in military service, M16 rifles and the like, may be banned'' without infringing on the Second Amendment. Do you agree with that statement that under the Second Amendment, weapons that are most useful in military service, M16 rifles and the like, may be banned?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, Heller makes clear the standard that we judges are supposed to apply. The question is whether it is a gun in common use for self-defense, and that may be subject to reasonable regulation. That is the test, as I understand it. There is lots of ongoing litigation about which weapons qualify under those standards, and I cannot prejudge that litigation sitting here.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. No. I am just asking you, do you agree with his statement? ``Yes'' or ``no'' would be fine.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Are the statements out of the Heller decision from the United States----
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Justice Scalia's statement.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, whatever is in Heller is the law, and I follow the law.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Do you agree with that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, it is not a matter of agreeing or disagreeing, Senator, respectfully. It is a matter of it being the law. And my job is to apply and enforce the law.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. All right. Fair enough. Let me give you another one. The Fourth Circuit. Judge Harvie Wilkinson authored a separate concurrence in the Fourth Circuit case Kolbe v. Hogan. Here is what he said. ``No one really knows what the right answer is with respect to regulation of firearms. I am unable to draw from the profound ambiguities of the Second Amendment, an invitation to courts to preempt this most volatile of political subjects and arrogate to themselves decisions that have been historically assigned to other, more democratic actors. ``Disenfranchising the American people on this life and death subject would be the gravest and most serious of steps. It is their community, not ours. It is their safety, not ours. It is their lives, not ours.'' Do you agree with Judge Wilkinson that the Second Amendment is ambiguous? If so, should the ambiguity be decided by the courts or by legislatures?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I would begin by saying I hold Judge Wilkinson in high regard. He is a very fine man and a very fine judge.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Can you do a ``yes'' or ``no''?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, I wish I could.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. I wish you could, too.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. But you know, the Supreme Court of the United States is not final because it is infallible, as Justice Jackson reminds us. It is infallible because it is final. And Judge Wilkinson had his view, and the Supreme Court has spoken, and Heller is the law of the land. And Judge Wilkinson may disagree with it, and I understand that. And he may--but he will follow the law no less than any other judge in America. I am confident of that. He is a very fine judge who takes his oath seriously.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Okay. I asked you that question on super precedent, and let me end with one on workers' rights, if I might? As you know, there have been a number of Supreme Court cases where court has made it harder for workers to hold their employers accountable when they have experienced discrimination or be injured on the job, and we have discussed that one case, TransAm, I think three or four of us. Let me give you a short list. Ledbetter v. Goodyear Tire, which limited the ability of women to seek equal pay. Gross v. FBL Financial Services, 2009, which made it more difficult to prove age discrimination. And The University of Texas Southwestern Medical Center v. Nassar in 2013, which made it more difficult for employees to prove they have been retaliated against for reporting discrimination, including based on race, gender, national origin, religion, and other factors. Vance v. Ball, which made it more difficult for workers to prove just plain discrimination claims. As Senator Whitehouse pointed out, each of these cases was 5-4, and Justice Scalia voted with the majority against the employee in every case. President Trump and others have said you are the next Scalia. So I think it is only fair to ask you, do you disagree with any of the majority opinions that Justice Scalia joined in these cases? If so, which ones do you especially disagree with and why? These have already been decided.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I understand, Senator. But again, if I indicate my agreement or disagreement with a past precedent of the U.S. Supreme Court, I am doing two things that worry me sitting here. The first thing I am doing is I am signaling to future litigants that I cannot be a fair judge in their case because those issues keep coming up. All of these issues, as you point out, keep coming up. Issues around all of these precedents will be continued to be litigated and are hotly litigated. I have had post-Ledbetter Act cases in my court, for example.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Then how do we have confidence in you that you will not just be for the big corporations?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh----
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. That you will be for the little man. This is the question that Senator Hirono, I think, so well asked yesterday. You know, those of us, I think, on both sides care very much about workers' rights, but the record is such that one questions whether the Court is capable in its present composition to give a worker a fair shot. So I am just looking for something that would indicate that you would give a worker a fair shot. Maybe it is in your background somewhere that I do not know about, but I would like to have you respond to it any way you can.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I really appreciate that, and I think there is a way you can take a look at this question without me potentially prejudging a case. And I appreciate your respect for that. And just to finish that thought. I am concerned that I have to look the litigant in the eye in the next case. And if I prejudge that case, they can look at me and say you are not a fair judge, and I have no answer for that. I have no answer for that. So what I think can give you comfort in this area is, Senator, I know a case or two has been mentioned yesterday. Respectfully, I would suggest that does not represent the body of my work. I have written 2,700--I have participated in 2,700 opinions over 10\1/2\ years, and if you want cases where I have ruled for the little guy as well as the big guy, there are plenty of them, Senator. The Ute Indian Tribe----
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Would you be willing to submit some of them?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, goodness.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. It is hard to read 2,700 cases.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I will name a bunch of them right now.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. It took me a long time on TransAm.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am sorry, Senator. Of course. Ute 5 and 6. Fletcher. The Rocky Flats case, which vindicated the rights of people who had been subject to pollution by large companies in Colorado, uranium pollution. I point you to the Magnesium case, similar pollution case in the Salt Lake City area. Colorado's effort with renewable energy, upheld that. Orr v. City of Albuquerque, involving pregnancy discrimination in the police department in Albuquerque. W.D. Sports, a discrimination claim. Casey, Energy West, Crane. Simpson v. CU, involving young women who had been harassed by the football team. A.M., Browder, Sutton--I can give you a long, long list, Senator.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. That is helpful. Well, that is helpful. And we will find them, and we will read them.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And Senator, the bottom line, I think, is that I would like to convey to you from the bottom of my heart that I am a fair judge. And I think if you ask people in the Tenth Circuit ``Is he a fair judge?'' you are going to get the answer that you got yesterday from both Senator Bennet and Senator Gardner and from General Katyal, and the same answer you got from Senator Allard and Senator Salazar 10 years ago. And Senator, I cannot guarantee you more than that, but I can promise you absolutely nothing less.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Okay. I have a minute and 21 seconds. Let us talk Chevron. That has been used, you know, thousands of times, and it really perplexes me. Olympia Snowe and I did something that took me 12, 13 years to get to, and that is changing the corporate fuel economy standards. And thanks to Senator Inouye and Senator Stevens, they put it finally in a Commerce bill, and it passed. So now we are on our way to 54 miles a gallon. Here is the point. We could do the rules for the first 10 years, but who knew we needed the experts to do them from that point on? So what we said in the legislation was that science would prevail, and that is still the law. It is working. The goal is--I have read articles that say there will be 54 miles by 2025 if this continues. What is wrong with that? How else could we have done it?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am not aware of anything wrong with that, Senator. I have never suggested otherwise.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. But what you have said is, the Congress could not legislate by leaving some of the rules up to the scientists or other professionals in departments, as I understood it, in Chevron.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I appreciate the opportunity to correct this misunderstanding, Senator.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Sure. Appreciate it.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. The case I think you are referring to is Gutierrez.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. That is correct.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It involved an undocumented immigrant to this country, okay? And the question was, there were two conflicting statutes. One said he could apply for immediate discretionary relief in this country from the Attorney General. The second said he had to wait outside the country for 10 years. We had a judicial precedent that said the first statute controls. That was the ruling of our court. After that, 3 or 4 years, I cannot remember exactly, the Board of Immigration Appeals, in its infinite wisdom, says our interpretation is wrong. Chevron--you have to undo your precedent, the judicial precedent that this man had relied upon and that he now had to wait outside the country not just 10 years, but 13 or 14 because it took them so long to make up their mind. Well, Senator, that reminded me of, you know, when Charlie Brown is going in to kick the ball, and Lucy picks it up at the last second. And that struck me as raising serious due process concerns, fair notice and separation of powers concerns when an Executive bureaucracy can overturn a judicial precedent without an act of Congress. That is what the case was about, and it suggested, respectfully, Senator, that under the APA, the Administrative Procedures Act, this body tasked judges to decide legal questions and left to administrative agencies great deference when it comes to fact-finding, okay? That is how I read Section 706 is, fact-finding by scientists, biologists, chemists. The experts get great deference from the courts. The only question is who decides what the law is? And can a man like Mr. Gutierrez, the least amongst us, be able to rely on judicial precedent on the books, or can he have the ball picked up as he is going in for the kick?
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. I think I have exceeded my time.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, I am sorry.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. I apologize. Thank you very much.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, I apologize.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. I want to make clear to everybody you did not exceed your time because I said if you asked your question before the last second is up, and you did, that we would give whatever time it took for that to be done. If everybody follows that rule, I think we will be treating everybody fairly. Before I call on Senator Hatch, I would like to enter into the record an article in the Wall Street Journal editorial titled this: ``Neil Gorsuch: How Would You Vote? Democrats Demand the Nominee Declare Himself on Cases,'' end of the title. I will just quote the first paragraph. ``Democrats have come up empty trying to find something scandalous that Neil Gorsuch has said, so now they are blaming him for what he will not say: To wit, they want him to declare how he would rule in specific areas of law, questions that every Supreme Court nominee declines to answer.'' Without objection, I enter that in the record. [The information appears as a submission for the record.] Chairman Grassley. Senator Hatch.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, thank you, Mr. Chairman. Judge, as I said yesterday, my goal in this confirmation process is to get an understanding or a handle on your understanding of the proper role of judges in our system of government. Now, you gave an interesting lecture last year at Case Western Reserve School of Law about Justice Scalia's legacy. ``Justice Scalia,'' you explained, ``emphasized the difference between judges and legislators. He reminded us,'' as you put it, ``that legislators may appeal to their own moral convictions and to claims about social utility to shape the law as they think it should be in the future. But the judges should do none of these things in a democratic society.'' I think that accurately describes Justice Scalia's view. Is that also your own view?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, it is, though I have to confess, that lecture was attended by about 20 people, and it has a lot more attention since. [Laughter.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, we are making sure it gets some more. In your opinions on the Appeals Court, you take great care to identify what issues the court may or may not address. In one opinion last year, for example, you used phrases such as, ``It is not our job,'' and, ``It simply is not our business.'' What is an appellate court's job in your view?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is a limited, vital role in our separated powers. A judge is there to make sure that every person, poor or rich, mighty or meek, gets equal protection of the law. It is chiseled above the Supreme Court entrance in Vermont marble, though I believe the Lincoln Memorial is made out of Colorado marble. And that is a--that is a profound and radical promise, that every person is protected by our laws equally, and in all of human history, that may be the most radical promise in all of law. And what it means to me is that when I sit on the bench and someone comes to argue before me, I treat each one of them equally. They do not come as rich or poor, big guy or little guy. They come as a person. And I put my ego aside when I put on that robe, and I open my mind, and I open my heart, and I listen. And I tell my clerks that their very first and most important job is to tell me I am wrong and to persuade me I am wrong as I read the briefs and listen to the arguments. And if they manage to do that, I tell them their next job is to try and persuade me I am wrong again, because I want to make sure I leave no stone unturned. I want to get to the bottom of it. I have one client. It is law. And it is a great joy, and it is a great privilege, and it is a daunting responsibility to come in every day and to try and get it right. And then, I go listen to the arguments of the lawyers. I do not treat them as catspaws. They are not there to be toyed with. I treat them, I hope, always as respected colleagues who have lived with the arguments, studied the cases, know the facts far better than I do. I might actually learn something from them. I go in with the questions I actually have that I want answered, and then I sit and I listen to my colleagues after that. And, Senator Hatch, I cannot tell you how many times in the Tenth Circuit I have gone through that whole process. I go to conference, and I think I know my mind. And then one of my colleagues--Harris Hartz was here yesterday--he is often the one. There are plenty of others, who say something absolutely brilliant, changes my mind. And that is the judicial process, and that is the role I see for the appellate judge.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, thank you. That is very good explanation. We held a confirmation hearing for Justice Sonia Sotomayor in 2009. Senator Charles Schumer, now the Minority Leader, was a Member of this Committee and praised the nominee in this way. ``Judge Sotomayor puts the rule of law above everything else. Judge Sotomayor has hewed carefully to the text of statutes, even when doing so results in rulings that go against so-called sympathetic litigants.'' Do you agree with Senator Schumer that your duty as a judge is to follow the law even when it requires ruling against sympathetic litigants?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, Senator. I cannot tell you that when I go home and take off the robe I am not a human being and that I do not think about some of those cases. But my job is to apply the law as fairly as I can in each and every case without respect to persons. That is my oath. There is not every law in the book I love, you love. I am sure of that. But my job is not to write the laws, it is to apply the laws. And I try to do that, and that enough is enough for a day's work, and it is enough for a life's work.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. In my opening remarks yesterday, I mentioned a letter we received from dozens of your peers at Harvard Law School. And, Mr. Chairman, I ask consent of this letter be included in the record at this point.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Without objection, it will be included. [The information appears as a submission for the record.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. The signers were of all parties and ideologies and represented many different faiths, lifestyles, and views. They all support--strongly support your nomination. The letter said that you ``personify a disinterested philosophy that respects judicial modesty combined with compassionate appreciation of the lives impacted by your decisions.'' Now, how can you do both?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am just a person, and I remember how hard it is to be a lawyer. I remember what it was like to represent clients who had problems. I told my kids when they asked me what my job was when I was young, it is to help people with their problems, and as a judge, I have to resolve their problems. One of the hard things about being a judge is that somebody has to win and somebody has to lose. You make half the people unhappy 100 percent of the time. That is the job description. But you have to believe in something larger than yourself and that you are part of something larger than yourself. And I believe in the rule of law in this country, and I believe an independent judiciary is one of the keys to it. And I feel it has been a calling to be part of it and an honor.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, the Fourth Amendment protects the right to be free from ``unreasonable searches and seizures.'' It was written in the late 18th century when the tools used by law enforcement to investigate crime and monitor suspects were radically different than they are today. In your view, how should a judge approach interpreting and applying constitutional provisions like the Fourth Amendment in cases where the technologies or--and/or methods at issue were obviously not even imagined by the Founders?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. May I offer an example, Senator, I think might be helpful?
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Sure. Sure.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I take United States v. Jones, a recent case from the U.S. Supreme Court, involving whether police officers might attach a GPS tracking device to a car, modern technology. How do you apply the original Constitution written 200 years ago to that? And the Court went back and looked at the law 200 years ago. And one of the things it found was that attaching something to someone else's property is a trespass to chattels, a common law, and would be considered a search. And the Court held that if that is a trespass to chattels in a search 200 years ago, it has to be today, though the technology is obviously different. So, the technology changes, but the principles do not. And it cannot be the case that the United States Constitution is any less protective of the people's liberties today than it was the day it was drafted.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, you were--you authored the opinion in Meshworks v. Toyota Motor Sales. Now, this 2008 case applied principles from earlier cases involving photography, a relatively old technology, to determine the intellectual property protections for digital modeling, a new medium. How should judges approach questions of intellectual property in cases that involve new technologies or new applications of old technologies? Should they confine themselves to analogous technologies, or may judges create new doctrines or case law that they believe better addresses the changing technological landscape?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, I think it is actually a very similar sort of question, right? We look back, we find what the law was at the time, the original understanding, if you will, and we make analogies to our current circumstance. We judges love analogies. We work with analogies, and that is how lawmaking through the judicial process happens. That is proper judicial decisionmaking. It is a very different thing if you want to create a revolution in the area and change the law dramatically. That is for this body to do. It is for judges to interpret the law as best they can from the original understanding to current circumstances, and apply it to current circumstances. So, in Meshworks that is exactly what we did, and looked at old case law having to do with copyright and applied it to digital media, the same principles from the beginning of the Copyright Act, just applied to a new medium.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, several of your writings have called into question the so-called Chevron doctrine that has been raised here already. Most Americans probably wonder why a Supreme Court nominee would talk about a gas station, but the concept of Chevron is very straightforward. It commands Federal judges to defer to an agency's interpretation of the law. In effect, this deference allows unelected, unaccountable bureaucrats to rewrite the law. Any middle schooler, however, should be able to see how Chevron is inconsistent with the basic duty of judges under the Constitution. Now, as you probably know I am a Chevron skeptic, and have led the fight to overturn this decision legislatively with my Separation of Powers Act. I introduced this bill last Congress with the support of several colleagues on this Committee and will soon reintroduce it. Now, I chose its title for a reason. Reexamining Chevron is not about being anti or pro-regulation. Rather, it is about restoring the constitutional allocation of powers between the three branches. It is about maintaining fidelity to the laws passed by Congress and the exact bounds of authority granted to regulatory agencies. And it is about ensuring that the bureaucracy abides by the law, no matter what its policy goals, liberal or conservative. Judge, do you agree that there is nothing extreme or inherently ideological when the Supreme Court said in Marbury v. Madison that, ``It is emphatically the province and duty of the judicial department to say what the law is?''
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, Marbury v. Madison is the cornerstone of----
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. It sure is.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Of the law in this country. I do not know anybody who wants to go back and reconsider that. I hope not.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. I feel the same way. Last week, The New York Times reported that the primary line of attack against you is that you are ``no friend of the little guy.'' We have had that come up time and again in these proceedings in the last couple of days. Harvard Law School professor, Noah Feldman, who does call himself a liberal, wrote an opinion piece on the subject that appeared last week on Bloomberg.com. He opens this way: ``I do not know who decided that the Democratic critique of U.S. Supreme Court nominee Judge Neil Gorsuch would be that he does not side with the little guy.'' It is a truly terrible idea. Now, Mr. Chairman, I ask that this column by Professor Feldman be placed in the record at this point.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Without objection, so ordered. [The information appears as a submission for the record.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Now, Judge, some of your critics question whether you have a solid track record of judicial independence and objectivity. In particular, they question whether you would stand up to the current President if he were to exceed his authority under the Constitution and laws Congress has enacted. So, Mr. Chairman, I ask consent to place in the record an essay I wrote on the subject that appeared at Scotusblog.com.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Without objection, so ordered. [The information appears as a submission for the record.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Now, Judge, how would you respond to that type of criticism?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, a good judge does not give a whit about politics or the political implications of his or her decision, decides where the law takes him or her fearlessly. I walk past every day a bust of Byron White in my courthouse. My courthouse is named for Byron White. And when I do that, I think about his absolute determination just to get it right, no matter where it took him. He said, it is a job. You do your very best, and you go home, and that is how I approach things. And if you look at my record, Senator, respectfully, I think it demonstrates that. According to my law clerks again, when I do dissent, which is very rarely, I do so in about equal numbers between judges who happen to be appointed by Democrat Presidents and who happen to be appointed by Republican Presidents. And I hate to even use those words because they are all just to me judges. I do not think of them that way. But my decisions have always been independent, regardless of who I am agreeing or disagreeing with. And have I ruled against the Government? My goodness. Ask the U.S. Attorney's Office in Colorado. I give them a pretty hard time. I make them square their corners, Senator Hatch, all right? And if you want to some examples, I would point you to Carloss, Krueger, Ackerman, three recent Fourth Amendment cases ruling for the accused, the least amongst us, against the Government.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, in 2005, before being appointed to the Appeals Court, you wrote an op-ed piece for National Review in which you criticized the reliance on the courts by litigants seeking to achieve policy results that they could not achieve through the regular political process. Not that long ago, there was a consensus that courts are not the appropriate place to make policy. Now you are criticized for that same common sense idea, and I want to give you a chance to respond. How does relying on courts to make policy undermine both democracy and the legitimacy of the Federal judiciary?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, again, it goes to our separation of powers. Judges would make very poor legislators. We are not equipped for it. We are not responsive to the people. Cannot elect us, cannot get rid of us. You are stuck with us. And we do not have the opportunities to talk to people, to have hearings like this one in places like this. I am permitted four law clerks for 1 year at a time right out of a law school. It is kind of an evanescent crowd. It replenishes itself every year. Now, if you were to make laws, I do not think you would design a system where you let three older people with four young law clerks straight out of law school legislate for a country of 320 million. That is just not how anyone would design the railroad. And so, those are some of the problems I see, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, thank you. And that----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. With all respect to my law clerks. I love them very much. [Laughter.] Judge Gorsuch. They are like family, but they are not the same as your staffs and the investigative powers you have.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, they are lucky to be with you is all I can say. In that same--in that National Review piece, you pointed out some liberal policies of lawyers have sought to achieve through litigation. Some of your critics have tried to turn this into one of those gotcha moments, claiming that your real qualm was with those policies that were liberal, not that they were achieved through litigation. Again, I want to give you a chance to respond.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, I would say that in that article--I would say a couple things about it. First, as I pointed out and I believe, the courts are a very important place for the vindication of civil rights and for minorities.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is a place where unpopular voices get heard the same as popular voices. In a democracy and the legislature, majorities win. That is not the case in courts. The best argument should prevail. So, they play an important role. And, second, I pointed out that one thing that we lack as judges to make good policy decisions as legislators is the ability to compromise. These bodies, legislative bodies, you can put together a compromise. Judges, somebody has to win, somebody has to lose, Senator. It is not a great place to compromise, and, again, we are not great--we are not well- equipped to do your work. At the same time, I did criticize--I pointed out a column by a liberal columnist, self-identified liberal columnist, very fine man, and I agreed with him that his side had done some-- spent perhaps too much time in court instead of in front of the legislature. I can report to you, having lived longer, as I did report to you in 2006, that the problem lies on both sides of the aisle, that I see lots of people who resort to court perhaps more quickly than perhaps they should.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, some liberal organizations are claiming that in private practice you represented only big corporations. Your former law partner, David Frederick, who happens to be on the board of directors of the liberal American Constitution Society, has a very different take. In an opinion piece published in The Washington Post, he describes your work at the firm this way: ``Over the course of his career, he has represented both plaintiffs and defendants. He has defended large corporations, but also sued them. He has advocated for the Chamber of Commerce, but also filed and has prevailed with class actions on behalf of consumers. We should applaud such independence of mind and spirit in Supreme Court nominees.'' Now, Mr. Chairman, I ask consent that this column appropriately titled, ``There is No Principled Reason to Vote Against Gorsuch,'' be included in the record at this point. [No response.] Senator Hatch. Mr. Chairman.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Without objection, it is ordered. [The information appears as a submission for the record.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Judge, is that an accurate description of your work in private practice?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is, and I am grateful that David is here today with me.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, I am grateful he is here, too.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I represent--I wanted to go to a place where I could represent plaintiffs as well as defendants, not pick one side of the ``v.'' I thought that would make me a better lawyer, and I would see more of life that way, and I did. And we represented small plaintiffs. My very first trial, I represented a man who bought a gravel pit, and the prior owner would not leave, and he stole the gravel, and we had to kick him out. And then he brought a bunch of lawsuits, we thought malicious use of process, trying to kick my guy out. Well, we found an old statute that said when you furtively mine another person's property, you get statutory damages. It was quite an unexpected find. It was like a hundred- year-old law, no furtive mining, the no furtive mining statute. And we brought suit, and we won a claim for conversion and malicious use of process, among other things, in county court. It may have been one of the highlights of my career when one of the jurors came up afterwards and said to me, son, you are a young Perry Mason. [Laughter.] Judge Gorsuch. That was my first trial, Senator. I represented large defendants. I represented large plaintiffs as well, along with a very significant team, my partners. We won what was at that time--I do not know if it still is, they probably have done better now--the largest plaintiff side antitrust verdict that had been affirmed in American history. We represented class actions of consumers, some dry holes, some successful, all sorts of clients--individuals, companies, nonprofits. Represented pension funds, public employee pension funds, a variety of clients. It was a great and wonderful practice, and I loved every minute of it.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. You are a person with great experience for your young age, I have to say. Liberal groups also claim that you favor employers over employees. In fact, they suggest that you actually--you are actually biased in that direction. An analysis published in the Stanford Law Review, however, came to a very different conclusion. Now here is the conclusion: ``After surveying his labor and employment decisions, it is clear that Judge Gorsuch does not favor or oppose employees, employers, unions, or the NLRB. His opinions do not show pro-labor or anti-labor tendencies.'' The author says that parties who come before you, ``can rely on a record of fair analysis and resistance to simply rubber stamping business interests or Executive agency actions.'' Now, Mr. Chairman, I ask that this essay be included in the record at this point.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Without objections, so ordered. [The information appears as a submission for the record.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Judge, is that your goal to focus only on the facts on the law in every case?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sir, I am heartened by that article. I had not read that one, and----
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. It is a good article.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. But to answer your question, when I became a judge, they gave me a gavel, not a rubber stamp, and nobody comes to my court expecting a rubber stamp.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. That is good. The Supreme Court recently decided two cases coming from your court that involved the Religious Freedom Restoration Act, a bill that I was instrumental in. I was one of its authors. I talked Senator Kennedy into coming on board. When Clinton signed it on the South Lawn, Kennedy was the biggest duck in the puddle. He was very proud of that particular bill. RFRA makes it difficult for the Government to substantially burden the exercise of religion, and applies this protective standard to everyone and to every exercise of religion. Now, these cases addressed whether the Affordable Care Act's birth control mandate violated RFRA, or the Religious Freedom Restoration Act. You were in the majority deciding that RFRA applied to the plaintiffs in both cases, and that the birth control mandate failed to meet RFRA standard. Opponents of your nomination do not like this result, and they accuse you of being anti-woman. That, of course, is not true at all, and any fair person would have to conclude it is not true. Your critics simply demand that as a judge, you must follow of their political priorities that availability of birth control is more important than religious freedoms. Now, I have two questions about your decision. Is that not really a policy dispute that should be addressed by Congress, and was your job in these cases to impose your or anyone else's priorities, or to interpret and apply those statutes the way Congress enacted them?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, our job there was to apply the statute as best as we could understand its purpose as expressed in its text. And I think every judge who faced that case, everyone, found it a hard case and did their level best, and that is all any judge can promise or guarantee. I respect all of my colleagues who addressed that case.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, we respect you for doing so. You wrote a concurring opinion in the Hobby Lobby case. You wrote about the Religious Freedom Restoration Act this way: ``It does perhaps its most important work in protecting unpopular religious beliefs, vindicating the Nation's longstanding aspiration to serve as a refuge of religious tolerance.'' In other words, Congress enacted RFRA to apply broadly and robustly to ensure that, among other things, the little guy would be protected as much as the big one. Is it fair to say that the Court's decision in Hobby Lobby and your concurring opinion upheld this purpose, and in doing so, effectively promoted religious tolerance?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, I might give you even a couple other examples of RFRA's application that I have been involved in that might shed some light on this. It is the same statute that applies not just to Hobby Lobby. It also applies to Little Sisters of the Poor and protects their religious exercise. And it has also been applied in a case where I appointed counsel because I saw something potentially meritorious there. And our court held it applied to a Muslim prisoner in Oklahoma who was denied a halal meal.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is also the same law that protects the rights of a Native American prisoner who was denied access to his prison sweat lodge, and appeared solely in retribution for a crime that he committed, and it was a heinous crime, but it protects him, too. And I wrote those decisions as well, Senator, yes. I wrote the Native American prisoner case, and I participated in and I wrote a concurrence in the Muslim prisoner case.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, thank you for doing so. I also want to give you a chance to answer and respond to a few things that were said during statements on Monday. One of my Democratic colleagues said, ``It is important to know whether you are a surrogate for President Trump or for particular interest groups.'' Are you?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Of course not. Another Senator mentioned just a few of the thousands of cases in which you participated and said, ``I am troubled by the results in those cases.'' He never took issue with how you applied the law in those cases. He said only that the results troubled him. And as I described Monday in my opening statement, I contrasted judges who focus on the process or arriving at a result with judges who focus on what they want the result to be. Which approach do you associate with?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I associate myself with the approach I think all good judges attempt, to follow the law wherever it leads.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. My time is up, Mr. Chairman. I am sorry.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Senator Leahy.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, thank you, Judge Gorsuch. Good to have you back. Now, you know from our earlier discussions, and I had told you very frankly that, of course, I felt that if the Republicans had followed the Constitution and practice, Chief Judge Merrick Garland would be on the Supreme Court today. I also respected you for calling Chief Judge Garland when your nomination was announced, and I understand you respect him as a jurist. Is that correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Very much so, Senator. Whenever I see his name attached to an opinion, it is one I read with special care. He is an outstanding judge.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Do you think he was treated fairly by this Committee, yes or no?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, as I explained to you before, I cannot get involved in politics. And there are judicial canons that prevent me from doing that, and I think it would be very imprudent of judges to start commenting on political disputes between themselves or the various branches.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. The reason I ask that question, since this Committee began holding hearings--public hearings of Supreme Court nominations began in 1916. I was not here at that time, but it has never denied a hearing or a vote to a pending nominee ever until Chief Judge Garland. I can express an opinion. I think it was shameful. I think it has severely damaged the reputation of this Committee. I think it has severely damaged the reputation of Senators who concurred with that. We were anything but the conscience of the Nation in that regard, and those who proudly held their hand up and swore that they would uphold the Constitution of the United States did not. Now, it becomes more of a problem because it appears the President outsourced your selection to the far right, big money, special interest groups. And you may not like that terminology, but even Republican Senators have praised the fact that the President had gone to this group and had a list when he was running for office of who he could select from. A list given not by--prepared by him, but by these special interest groups, and they want--they have an agenda. They are confident you share their agenda. In fact, the first person who interviewed you for this nomination said they sought a nominee who understands things like we do. And, Mr. Chairman, I would ask that an article in the Wall Street Journal entitled ``Trump's Supreme Court Whisperer,'' be included in the record.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Without objection, so ordered. [The information appears as a submission for the record.]
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. And another one which The New York Times, ``In Gorsuch, Conservative Activist Sees Test Case Reshaping the Judiciary,'' that those be included in the record.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Without objection, so ordered. [The information appears as a submission for the record.]
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Now, the two far right interest groups that recommended you to the President, and I want you to have a chance to talk about this, the Federalist Society and the Heritage Foundation, applauded the Citizens United decision, which allowed unrestricted corporate money to pour into elections. You have suggested that the Constitution and laws should be grounded solely in the original meaning of the text. You said judges should, I quote, ``should strive to apply the law as it is, focusing backward, not forward.'' If they do that--let us go to the First Amendment. Do you believe that James Madison and the other drafters of the First Amendment understood the term ``speech'' to include corporate money being funneled into campaigns?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I can tell you that the Supreme Court of the United States has a lot of precedent in this area, as you are well aware, quite a lot of it permitting Congress to compel disclosure, to limit contributions, and a lot of other case law in this area. There is a lot of precedent in this area.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, is there--is there precedent from the drafters that ``speech'' include corporate money being put into corporations and being put into campaigns?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, that was exactly what was at issue in part in Austin, and then again in Citizens United. And the Supreme Court issued a variety of opinions on that subject, on that very subject, looking back to the original understanding of the First Amendment to see whether it embraced the speech at issue in those cases. And different Justices came to different conclusions on that score.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. But nothing in the Federalist Papers that talked about corporate money going into campaigns. Is that correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator----
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. That is an easy ``yes'' or ``no.''
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I think there is an awful lot in the Federalist Papers and elsewhere that were relevant to and considered by both concurrences and dissents in Citizens United.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. But nothing about corporate money.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do not remember that term, no, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Trust me--trust me, there was not.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I trust you.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Entirely. [Laughter.]
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. No, you do not have to.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Not that much? [Laughter.]
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. I will let it go. [Laughter.] Senator Leahy. In Citizens United, Justice Kennedy indicated that restrictions on campaign donations could only be justified by concerns about quid pro quo corruption. Now, President Trump has said, that the reason he made campaign donations was so that when he needs something from them, ``they are there for me.'' His campaign contributions buy favors. Shouldn't Congress, not the courts, make the determination about the potential for corruption, especially if we are talking about quid pro quos?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I think there is lots of room for legislation in this area that the Court has left. The Court indicated that if, you know, proof of corruption can be demonstrated, that a different result may be obtained on expenditure limits.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. You do not believe that putting an unlimited amount of money by somebody who has a particular interest in the outcome of actions by the Congress, putting an unlimited amount of money into specific campaigns, that is not enough to show the intent to buy favors, or enough to show corruption?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am not sure I tracked the question, Senator. I am sorry.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. If you have corporate money that is basically unlimited under Citizens United that can be funneled through various special interest groups, does that at least raise concerns about quid pro quo corruption?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I think Citizens United made clear that quid pro quo corruption remains a vital concern and is subject for potential legislation. And I think there is ample room for this body to legislate, even in light of Citizens United, whether it has to do with contribution limits, whether it has to do with expenditure limits, or whether it has to do with disclosure requirements.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. If somebody were to out and out buy a vote or buy a favor, we would all agree that is corruption, is it not?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I think Justice Kennedy would agree with you, yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, would you agree with me?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I would follow the law, and that is my understanding--that would certainly fall within my understanding of the law.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. When I was a prosecutor, we would call that corruption.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. All right. I will trust you there, too, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. And I did. Now, but influence is different ways. For example, when you became a judge, you were here in Washington. You were working in Washington. I understand there were three extremely well-qualified Coloradan women attorneys who were on the short list being considered by the Bush White House. The Denver Post did a profile of these women, and at that point--and your name was not on that list. At that point, a billionaire, a conservative donor, intervened. He lobbied the White House to appoint you. You were his lawyer. He liked you. He made donations to the same far right interest groups that were on the list that recommended you to President Trump. Are these areas of concern?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, with respect to my nomination, as I recall----
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. I am talking about the Circuit.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, yes. As I recall, all of my clients, or an awful lot of them, came out of the woodwork to say nice, supportive things about me. And Phil Anschutz was one, and I think there are probably letters in there from the fellow with the gravel pit, too, and----
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Which one do you think the White House listened to the most, Mr. Anschutz or a gravel pit owner? I mean, let us---- [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator----
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy [continuing]. Let us be realistic. Judge Gorsuch. Senator, I think what they probably listened to was the fact that they had seen me in action at the Department of Justice. That is my guess if you ask me to guess, but that is a guess because I did not make the decision.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I think what they probably listened to was the fact that they had seen me in action at the Department of Justice. That is my guess if you ask me to guess, but that is a guess because I did not make the decision.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. I raise this because some of these same people helped to fund the group that put you on the list for President Trump. Now, President Trump, as you know, has attacked judges who dared to uphold the Constitution. He is going after them. He has said things that I do not think any one of us would do. So, you have to prove that you will be an independent judge. You have heard that from both sides here. Let me ask you a question in this--in this regard. You are a person who believes in religious freedom. You said that before. In December 2015, the Senate Judiciary Committee adopted my sense of the Senate that ``The United States must not bar individuals from entering into the United States based on their religion.'' This passed almost every Senator with the exception of then-Senator Sessions, and a couple others voted for it. Now, does the First Amendment allow the use of a religious litmus test for entry into the United States?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, this is an issue that is currently being litigated actively, as you know, and I----
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, I am not asking about the litigation in the Ninth Circuit or anything. I was--I am asking about the fact, is a blanket religious test, is that consistent with the First Amendment?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, we have a free exercise clause that protects the free exercise of religious liberties by all persons in this country. If you are asking me how I would apply it to a specific case, I cannot talk about that for understandable reasons.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, because the President----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. The understandable reasons, just so I am frank and candid with you as I can be. Senator, when you ask me to apply it to a set of facts that look an awful lot like a pending case in many Circuits now, my worry----
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. I will try a hypothetical. Would the President have the authority to ban all Jews from the United States or all people that come from Israel?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator----
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Would that be an easy question?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. We have a Constitution, and it does guarantee free exercise. It also guarantees equal protection of the laws and a whole lot else besides. And the Supreme Court in Zadvydas has held that due process rights extend even to undocumented persons in this country, okay? I will apply the law. I will apply the law faithfully and fearlessly, and without regard to persons. I do not care----
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. How about with regard to religion?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Anyone, any law is going to get a fair and square deal with me. My job as a judge is to treat litigants who appear in front of me as I wished to be treated when I was a lawyer with my client, large or small. I did not want them discriminated against because they were a large company or a small individual with an unpopular belief. And that is the kind of judge I have tried to be, Senator, and I think that is my record.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, Judge, let me ask you this. Do you--do you agree with me that there should not be a religious test in the United States?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I need to know more specifics.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, let me give you an example. Should there be a religious test to serve in the military?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, Senator, that would--that would be inappropriate, yes. That is against the law. That is against the law.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, of course, we go right back to the-- should we ban people based solely on their religion, solely on their religion?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, we have the Religious----
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Not on whether they form a threat or something, but you ban somebody solely on their religion?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, we have not just the First Amendment free exercise clause in this country, very important protection. We have not just the equal protection guarantee of the Fourteenth Amendment, which prohibits discrimination on the basis of race, gender, ethnicity. We also have the Religious Freedom Restoration Act that Senator Hatch mentioned, which was a bipartisan bill passed by this body with the support of Senator Kennedy and Senator Schumer when he was in the House. And that imposes an even higher standard on the Government than the First Amendment when it comes to religious discrimination. It says that there--if there is any sincerely held religious belief, earnestly held religious belief, the Government must meet strict scrutiny before it may regulate on that basis, strict scrutiny being the highest standard known in American law.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, the reason I ask these questions, there is a legitimate concern. I hear stories from my grandparents when signs used to say ``No Irish Need Apply'' or ``No Catholic Need Apply.'' I am sure Senator Feinstein can speak about those of her religion. President Trump promised a Muslim ban. He still has on his website to this day, he has called for a total and complete shutdown of Muslims entering the United States. And a Republican Congressman recently said, ``The best thing the President can do for his Muslim ban is to make sure he has Gorsuch on the Supreme Court before the appeals get to that point.''
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, a lot of people say a lot of silly things.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. That sounds silly.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. My grandfather----
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, that is more than silly. That is a--he wants--this Congressman wants you on the Court so they can uphold a Muslim ban.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, he has no idea how I would rule in that case. And, Senator, I am not going to say anything here that would give anybody any idea how I would rule in any case like that could come before the Supreme Court or my court of the Tenth Circuit. It would be grossly improper of a judge to do that. It would be a violation of the separation of powers and judicial independence if someone sitting at this table, in order to get confirmed, had to make promises or commitments about how they would rule in a case that is currently pending and likely to make its way to the Supreme Court.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, the President's national security determinations, are those reviewable by the Court?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, no man is above the law.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Okay, because they have asserted that their national security determinations are unreviewable by the Court. I have heard Presidents--other Presidents say that in the past. I disagree when they say that. Do you disagree?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, as a judge--as a judge, I apply the law, and the law here I think is Youngstown. I look to Justice Jackson, okay, and Justice Jackson wrote a brilliant opinion in Youngstown. Now, it is really important to know who he was. He was the fiercest----
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. I wrote a paper on that, so I know it.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I know you did. I know you did. Well, I know--we talked about it. And, you know, here was the fiercest advocate of Executive power as FDR's Attorney General. Fierce advocate of Executive power. And when he became a judge, he said, ``The robe changes a man or it should.'' And you go from being an advocate to being a neutral adjudicator. In the Youngstown system of analysis when it comes to presidential power and foreign affairs, has three categories. One, the President acting with the concurrence of Congress. That is when the President is acting at his greatest strength because there are shared responsibilities in our Constitution. He has Commander-in-Chief power. This body has power of the purse and the power to declare war assigned to it in Article I. When the--when the Congress and the President are in disagreement, that is the other end of the spectrum. The President there is acting with the--at the lowest ebb of his authority. And when Congress is silent, that is the gray area in between. That is how a court, as opposed to a lawyer or advocate, approaches the problem.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well then, let us go to that then. President Trump has declared that torture works. And he said, I quote him: ``Bring a hell of a lot worse than waterboarding.'' A 2002 memo authored by Jay Bybee from the Office of----
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Legislative----
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy [continuing]. Legal Counsel, claimed that any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander-in-Chief in the President. Now, considering the fact that Congress has passed a law on this, what controls?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, have a Convention Against Torture and implementing legislation which ban torture. We have the Detainee Treatment Act, which we talked about earlier, which bans cruel, inhuman, and degrading treatment. We also happen to have an Eighth Amendment.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, let me ask you this. Does the President have the right to authorize torture if it violates the laws that have been passed by Congress and any other ones you cited?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, no man is above the law.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well then, let me ask you another question. President Bush's warrantless surveillance program, when you were working there, resulted in the illegal collection of thousands of Americans' communications. Now, many of us felt that was a direct violation of our surveillance laws. Justice Department Attorney John Yoo justified the program. He said, ``The statutes passed by Congress cannot infringe on the President's inherent power under the Constitution to conduct national security searches.'' So, do you believe that President Bush's warrantless surveillance program was justified because the President had ``inherent power'' to override our surveillance laws to conduct national security searches?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, as a judge, before I even try to decide a question like that, I would want briefs and argument, and I would want to go through the whole judicial process. I would not begin to try and attempt to offer an off-the-cuff opinion like that.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, let me ask it a different way. If Congress passed a specific law on surveillance, and if a President said I am going to violate that law because I am President, does he have that power?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No man is above the law, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Senator Lee, who was here a minute ago--I do not know if he--Senator Lee led the efforts to pass the USA Freedom Act to end the NSA bulk collection of Americans' phone records, had a clear decree from Congress that dragnet collection of Americans' phone records is not permitted. Is it still your answer that the President does not have the power to supersede that law?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I cannot issue advisory opinions at this table in cases or controversies and how they would come out.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Not----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And I just--I cannot do it. It would not be responsible.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Is that law----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. But every law that this body passes I take seriously. I respect this body, and nobody is above the law in this country, and that includes the President of the United States.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Well, when you were there, and I do not know whether these are among the things that Senator Feinstein gave you. But when Jay Bybee wrote, ``Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting in the Commander-in- Chief and the President,'' and you appeared--advocated for a similar view when you attempted to give President Bush the flexibility not to be bound by Senator McCain's legislation.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, my recollection is that Mr. Bybee was long gone from the Department before I ever showed up, and that by the time I got there, the Department and the President were willing to work with Congress to try and establish a regime that would govern operations at Guantanamo. That is my recollection. And my role was a lawyer and predominately overseeing litigation filed by others against the Government. I had a role as a lawyer, a significant one, but I was not a policymaker, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Were you involved in Hamdan v. Rumsfeld?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, Hamdan, I recall, was a decision that passed in the first instance on the Detainee Treatment Act. So, to the extent I was involved and providing advice as a lawyer about the Detainee Treatment Act, I am sure, yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. You have read the Shelby County decision. If you were on the Court, which side would you have voted with?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I admire the various ways---- [Laughter.] Judge Gorsuch. You would be a formidable companion in the courtroom.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Yes, Senator Feinstein said, ``Do not let it go to your head, Pat.'' [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, he should.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. And I am not. I am not. I am just--I am a lawyer from a small town.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, right. I have heard that story. [Laughter.] Judge Gorsuch. Whenever a lawyer says, ``I am just a lawyer from a small town,'' watch out. He is about--last time--you got to watch your wallet, because it is gone quickly in my experience. And I might have played that line once or twice myself.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. No, but I ask these questions because there were--both Justice Alito when he was before us and Justice Roberts, and Judge Alito and Judge Roberts, answered some precedent questions. And you say there are no precedent questions you could answer?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, no, Senator, I am happy to say Shelby is a precedent of the U.S. Supreme Court. It is a recent one. It is a controversial one. I understand that. What its precedential reach will prove to be remains to be seen because, for example, as I read it, the decision left room for Congress to legislate in this area if it wishes, to make new findings, and to express a new possible regime for Section Four and Section Five coverage. And that possibility is live and could yield further litigation, undoubtedly would.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. You have been critical of class actions, and Justice Scalia in the Ledbetter case and the Wal-Mart v. Dukes case made it more difficult, I believe, for Americans to have their day in court. Would you join Justice Scalia's decision in Wal-Mart? Just whatever answer you want.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I would tell you that my record on class actions, I think, will reflect, if you look, and I know you have, that I represented class actions. I represented people fighting class actions. I have ruled against class actions, and I have ruled for class actions. And in each case, it depends upon the facts and the law presented to me. The most recent class action case, significant one that I can think of, involved residents who live near Rocky Flats, a uranium processing plant that made nuclear weapons outside of Denver. And those folks filed a class action for damage to their property, and it took 25 years for that case bouncing up and down and back and forth across the legal system before I finally issued a decision saying stop, enough, they win. They had a trial, a jury found for them, and they win. Finish the lawsuit. And I believe it has been finished, and I believe they have been finally paid, though, of course it has been so long, many of them, it is their children who are getting the money.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Before Senator Graham, I thought I would give some directions. We have this vote at noon. It is just one roll call vote, and Senator Graham should finish about 12:11 or 12:12. And then we will adjourn, depending on when your last word is--answer to his question, 30 minutes later. So, somewhere around 12:40, 12:45, I will gavel the Committee back into session. And you need to be reminded that you should not be offended as Members go to vote, and you will have your 30 minutes, and I hope that is enough because I want to keep this moving. You can be back here around 12:45 or thereabouts. I will wait until you get the orders. [Laughter.] Chairman Grassley. Does that detract from anything?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. We are okay. [Laughter.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Okay.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. And, Senator Graham, if I go ahead of time, you will recess the Committee? Senator Graham. Yes, sir.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Until that time?
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Yes, sir.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Judge, I want to read a statement here that I associate myself with. ``I certainly do not want you to have to lay out a test here in the abstract, which might determine what your vote or your test would be in a case you have yet to see that may well come before the Supreme Court.'' Does that sound like a reasonable standard?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, Senator.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. That is what Senator Leahy said on July 21st, 1993. I think it was good then. I think it is good now. You are not a political person. I am, so I am going to take a bit of a moment here to talk about the fairness of what is going on, in terms of you and Judge Garland. Judge Garland was a fine man. I am sure I would have voted for him. At the time his nomination came about, we were in the middle of selecting a new President. We were in the last year of President Obama's term. To my Democratic colleagues, I want to remind you of some things that people on your side have said. June 25th, 1992, it was an election year. There was a suggestion that maybe one of the judges on the Supreme Court would step down before the election in November. This is what the Chairman of this Committee, Joe Biden, said about that possibility then. ``It would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. ``If someone steps down, I would highly recommend the President not name someone, not send a name up.'' If Bush did not send someone up, I would ask the Senate to seriously consider--if Bush ``did send someone up, I would ask the Senate to seriously consider not having a hearing on that nominee.'' That was Joe Biden on the possibility of a vacancy coming about by somebody stepping down, not dying, once the campaign season was afoot. Justice Scalia passed away in February. There had already been three primaries. The campaign season, in my view, was afoot. This is what Senator Reid said on May 19, 2005: ``The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give presidential nominees'' a vote. This is Senator Schumer in the last--July 27th, 2007: ``We should reverse the presumption of confirmation. We should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.'' That was the last year of President Bush's last term. To my Democratic colleagues, on November 21st, 2013, you decided, when you were in charge of this body, by a 52-to-48 vote, to change the rules of the United States Senate with the nomination of executive branch appointments and all judges below that of the Supreme Court. I am not going to ask you whether you think that was fair or not, because that is not your job. I will say to the public, I thought it was incredibly unfair. I thought it was a power grab by our Democratic colleagues that will change the nature of the judiciary for the rest of our lives, because what you have done is you made it that you can confirm a judge now within one party if you have over 50 votes, not having the requirement to reach across the aisle to pick up a vote or two, which is a moderating influence. That is lost forever, for all judges below the Supreme Court. I was in the Gang of 14 that was formed to deal with a wholesale filibuster of all Bush nominations. New to the body, I felt it would be bad to change a 100-and-something, almost 200 years, I guess, plus precedent of how we deal with nominations coming from a President. But there was a wholesale filibuster of everything Bush, and there were 14 of us--I think I am one of two or three left--that believed that it was wrong to filibuster Supreme Court judges and judges in general because you do not like the outcome of the election. And we came up with a standard that you should only filibuster in extraordinary circumstances, which I think is consistent with what Hamilton had in mind in terms of the role of the Senate, that you expect a Republican nominee or a Republican President to pick someone different than a Democrat President because that is what the campaigns are all about. Qualified judges--and I believe that Sotomayor and Kagan were well within the reasonable mainstream of judges who would be to the left of center in the judicial philosophy world. That is why I voted for them. But now things are different. I believe that vote November 21st, 2013, forever changed the way the Senate works when it comes to Executive appointments of judicial nominations and will do long-term damage to the judiciary as a whole because the most ideological will be rewarded. We do not have that requirement yet for the Supreme Court, and I hope we never will. Time will tell. I am not optimistic. At the time of that vote, the Senate had confirmed 19 of President Obama's judicial nominations. That same time in President Bush's second term, there had been four confirmed. I thought it was a manufactured crisis. I thought it was politically motivated. And when it comes to cries of being unfair, they fall on deaf ears. As to Judge Garland, a fine man. I fully expected Trump to lose. He won. I think he deserves the right of every President to pick qualified people. And that is just not me saying that. This is what the Federalist Papers No. 76 said about the requirement of advise and consent. This is what Mr. Hamilton wrote a very long time ago, in 1788. ``The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them. . . . To what purpose then require the co-operation of the Senate? . . . It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.'' That was the check and balance, advise and consent rules of the game that were established in 1788. When you look at the history of the Senate's role in confirming Justices to the Supreme Court, it has changed dramatically. Many of the judges to the Supreme Court were confirmed without a hearing, some without even a recorded vote. I am not here to say that my party is without fault in the area of judges. We are not. I am here to say that, in 2013, November 2013, the game changed in a way that I think Mr. Hamilton would be very disappointed in. And it is not that I do not understand. I very much do. When my time came for Sotomayor and Kagan to appear before this Committee, I knew what awaited me if I applied the Hamilton standard. Partisan people abound on both sides of the aisle. The ferocity by which people wanted me to vote ``no'' was real, apparent, and I could feel it. I believed that if Strom Thurmond could vote for Ginsburg, and that 98 Senators could vote for Scalia, that there was a point in time where it was expected that you would vote for somebody you would not have chosen. You would use the qualifications of that person. So we find ourselves here today, confronting a nomination of one of the most qualified people, I think, President Trump could have chosen from the conservative world. You are not an unfit person. I do not think there is any reason to suggest that you are his favorite. Had you ever met President Trump personally?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Not until my interview.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. In that interview, did he ever ask you to overrule Roe v. Wade?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, Senator.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. What would you have done if he had asked?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I would have walked out the door. It is not what judges do. They do not do it at that end of Pennsylvania Avenue, and they should not do it at this end either, respectfully.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. This is what the Democratic Leader in the House said about you: ``Neil Gorsuch is a very hostile appointment and a very bad decision, well outside the mainstream of American legal thought. If you breathe air, drink water, eat food, take medicine, or in any other way interact with the courts, this is a very bad decision.'' I want to ask you to respond to what I think is complete, absolute political garbage. And statements like that were also directed against Justices Sotomayor and Kagan. I remember Sotomayor being called a racist because she gave a speech that was edgy. I remember Elena Kagan being called unpatriotic because she was involved in a decision at Harvard to kick the ROTC unit off the campus. And the reason I did not buy one was a racist and the other was unpatriotic is because I took the time to look at the way they lived their lives, and I listened to what people had to say who had interacted with them all their lives. To my Democratic colleagues, if you take the time to listen to people who have interacted with Judge Gorsuch throughout his entire career, you will find pretty quickly that he is a fine, decent man who has tried to be a good father, a good husband, a good lawyer, and a good judge. And if you do not want to take the time, it says more about you than him. All I can say is, it is impossible to conclude that what Nancy Pelosi said about you is anything other than political talk because there are no facts to justify that. The ABA gave you the most highly qualified rating they could give anybody. I just want you to know that I believe you have led a life you should be proud of, that you have tried your best to be a good father, a good husband, a good lawyer, and a good judge. Now, let us talk about our interaction a long time ago.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you, Senator, for those very kind words.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, it was something you have earned, not something that you need to thank me for. The bottom line is, are we at war, in your view, as a Nation?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, all I know is that there are a lot of young men and women out there in harm's way so that we may sit here and have this conversation.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. It would be news to them we are not at war.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am sure that is right.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. It would be news to the families who have lost a loved one in this fight. So I think we are at war. Would you agree with me it is not a traditional war?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Certainly not, Senator.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. There is no capital to conquer, no air force to shoot down, and no navy to sink. There is no taking of Berlin and Japan. Do you agree with me it would be hard to determine when the war is actually over?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, that was a question that the Court struggled with in the Hamdi case, as you know.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. And we had a lot of conversations about how to proceed forward when you were in the Bush administration. Is that correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. We did.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. And you were in the camp of the--the Youngstown steel camp, that if Congress is involved, the President is stronger, not weaker. Is that right?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is right, Senator.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. But there are some authorities that the President as Commander-in-Chief has that cannot be taken away by the Congress. They are inherent to the job. Is that true also?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. There are certainly people who believe that, Senator.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, I am one of them. Having said that, because you cannot have 535 Commanders- in-Chief, Senator McCain and myself were trying to pass legislation that basically codified the practices of the Bush administration post-waterboarding. Is that a fair summary of the conflict?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, Senator. I believe it is.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. There were people in the Bush administration who did not want to go down the road that waterboarding was torture. That was not the view of Senator McCain or myself. At the end of the day, the Detainee Treatment Act codified how we treat enemy combatants in a time of war, in terms of practices we can employ in terms of interrogation standards. Is that correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. And it also tried to come up with a system of judicial review. I was in the camp that we are at war, and, in past wars, you do not give enemy prisoners lawyers. I do not remember any German or Japanese prisoner having a lawyer when they were captured. So, traditionally, is it the Commander-in-Chief's job to determine who the enemy force is?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. There is certainly legal authority suggesting that, Senator.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. And it is the Court's job to determine if the procedures in question pass muster.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is correct, Senator. Of course, this body plays a role too.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. So the dilemma was that I believed it was the Department of Defense, the Commander-in-Chief's job to determine the enemy force, because that is their expertise. And Congress could regulate the naval and land forces, and we had a say about how they could do that, and the courts have a say as to whether or not the procedures used by the President or Congress pass constitutional muster. Is that the general layout of this situation?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is the separation of powers at work.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. And there was a crosscurrent here. There was an email that you were not part of, you were not included on the email, but it says: Neil and I have just been told separately this is not what the White House wants. We have been given authorization to engage on the Graham amendment, not just authorization. They want us to engage to eliminate, if possible, but if not, to fix. DoD, not DOJ, has lead, which may be what led to DOJ-LA's confusion. But the key point for us is that we have greenlight to engage on Graham. And what I was trying to do was preserve the Combatant Status Review Tribunal concept, the ARB, Administrative Review Board concept, and allow the courts to judge the work product at the D.C. Circuit Court of Appeals, to have judicial review, but let the CSRT go first. Do you remember that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay. And it was settled in the Congress where the Combatant Status Review Tribunal would have the first shot at determining whether somebody is an enemy combatant and the D.C. Circuit Court of Appeals could review their work product to see if it was capricious, arbitrary, if it made sense. The Supreme Court in Boumediene struck that down, saying it was not an adequate substitute for habeas. Is that correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is absolutely correct, Senator.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. And your role in all this was trying to find out a way to engage Congress on the Detainee Treatment Act, because it was your view that Congress being involved would strengthen the President's hand.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. As a lawyer?
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I was not a policymaker, but I did advise.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. As a lawyer.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. As did many others. There were many other very fine lawyers too, Senator, who advised the administration that engaging Congress would be a good idea, because we had read our Youngstown and our Justice Jackson.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Any lawyer, I think, who understands this area of the law would suggest the President is stronger when he has congressional support. The signing statement, is it fair to say there was a conflict between the Vice President's office and other parts of the Bush administration about what the signing statement should say or look like?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is my recollection, and that is about all I can recall.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. I remember it very well because Vice President Cheney's signing statement was going to be, we have inherent authority to do whatever we think we need to do. And there were a lot of other people saying, no, you do not have the authority just to set aside a law. You have to have a reason to object to it. So I just want the public to understand that, when it comes to this man, I have seen him in action in very complicated, emotional matters, where you had one group of people who could give a damn about the terrorist and another group of people that wanted to criminalize what I thought was a real-world fight. And we tried to find that middle ground. And in a 5-4 decision, the Supreme Court struck down my proposal, and we fixed it later with a huge bipartisan vote so that every enemy combatant today has a habeas proceeding where the Government has to prove by a preponderance of the evidence you are, in fact, an enemy combatant. Then if they reach that conclusion, you can be held under the law of war as long as you are a threat to our Nation. Is that a fair summary of where we are at?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is my understanding, Senator. Along the way, your legislation did prevail in the D.C. Circuit, and in the Supreme Court, of course, it was a close call. It was 5-4, as I recall.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. And that just proves that five people can be wrong. [Laughter.] Senator Graham. While I disagree, I certainly respect the Court's decision.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. You are not going to get me to commit on that one either.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. No, do not worry. I am not even going to try. The bottom line here is, there will be more legislation coming regarding the role of the Government in gathering information. But from sort of a civics point of view, which Senator Sasse is going to take you through, there is a difference between the law of war and domestic criminal law. Do you agree with that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, Senator.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. That a common criminal, the goal of the law is to prosecute a crime that one individual or group committed against another individual or group. That is correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is right.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. The law of war is about winning the war.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, there are----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. How you fight the war.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. There are, as you know, rules about that, too.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Laws about that.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Yes. And we are fighting an enemy who has no rules that would do anything. And I have always been in the camp that I do not want to be like them. I think that is their weakness. And the strongest thing we could do is stand up for a process that stood the test of time, which is intelligence- gathering in a humane way. Because they would cut our heads off, it does not make us weak because we will not cut their heads off. It actually makes us stronger, over the arc of time. So that is my commercial about that. So there will be more litigation, and there are no bad guys or girls when it comes to challenging precedent. Do you agree with that? People have the right to do that.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. To challenge precedent?
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Every person is allowed to come to court to bring whatever claim they have. That is how our system works.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. That is how Brown v. Board of Education came about.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. You are exactly right, Senator.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay. Let us talk about Roe v. Wade. What is the holding of Roe v. Wade, in 30 seconds? [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. The holding of Roe v. Wade, in 30 seconds, Senator, is that a woman has a right to an abortion. It developed a trimester scheme in Roe that specified when the state's interests and when the woman's interests tend to prevail.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay. So let me just break it down. The Court said there is a right to privacy, that the Government cannot interfere with that right in the first trimester. Beyond the first trimester, the Government has more interest as the baby develops. Is that fair to say?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That was the scheme set forth.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. And I think medical viability was the test that the Court used.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, that is the test that the Court came around and applied in Casey in 1992.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And so viability became more of the touchstone rather than a rigid----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Is it fair to say that medical viability in 1992 may be different than it is in 2022, medically?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am not a scientist or a doctor.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. I would suggest that medical viability may change as science progresses, so you may have people coming in and saying, in light of scientific medical changes, let us look at when medical viability occurs. That is one example of litigation that may come before you. I have legislation that says, at 20 weeks, the unborn child is able to feel excruciating pain. And the theory of the legislation is that the state has a compelling interest to protect an unborn child from excruciating pain, which is caused by an abortion. I am not asking you to agree with my legislation. I am saying that I am developing--we are one of seven nations that allow wholesale, on-demand, unlimited abortion at 20 weeks, the fifth month of pregnancy. I would like to get out of that club. But we are going to have a debate in this body and the House about whether or not we want to change the law to give an unborn child protection against excruciating pain at 20 weeks because you can--the standard medically is that, if you operate on an unborn child at 20 weeks, the medical protocols are such that you have to provide anesthesia because you do not want to hurt the child in the process of trying to save the child. So medical practice is such that, when you operate on an unborn child at 20 weeks, which you can do, you have to provide anesthesia. And my theory is, well, let us just look at it the other way. Should you allow an abortion on-demand of a child that can feel excruciating pain? Is that what we want to be as a Nation? Does that run afoul of Roe v. Wade? I am going to make the argument that there is a compelling state interest at that stage of the pregnancy to protect the child against death that is going to be excruciatingly painful. You do not have to say a word. I am just letting everybody know that, if this legislation passes, it will be challenged before you, and you will have to look at a new theory of how the state can protect the unborn. And here is what I think. You will read the briefs, look at the facts, and make a decision. Am I fair to conclude that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I can promise you no more than that, and I guarantee you no less than that, in every single case that comes before----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, this is a real-world situation that may develop over time because 70-something percent of the American people side with me on the idea that, at 20 weeks, we should not be in the club of seven nations that allow abortion on-demand, because that is in the fifth month, and that does not make us a better nation. There will be people on the other side saying, no, that is an erosion of Roe, and it will go to the Court, maybe, if it ever passes here. And the only reason I mention this is that everybody who wants to challenge whatever in court deserves a person like you, a person like you, no matter what pressures are applied to you, will say over and over again: I want to hear what both sides have to say. I want to read their legal arguments, look at the facts, and I will decide. That, to me, is reassuring, and that is exactly the same answer I have from Sotomayor and Kagan, no more, no less. And we can talk forever about what you may or may not do. If you do anything different than that, I think you would be unworthy of the job. Now, about what is going on in the country with President Trump, whether you like him or you do not, he is President. But you have said several times that he is not above the law as President. Is that correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, Senator.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. You told Senator Leahy, if there was a law passed that a Muslim could not serve in the military, you believe, based on current law, that would be an illegal act.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, yes. I see that having all sorts of constitutional problems, under current law.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. So if we have laws on the book that prevent waterboarding, do you agree with me that the Detainee Treatment Act prevents waterboarding?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, Senator. That is my recollection of it.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. So in case President Trump is watching, which he may very well be, one, you did a good job from picking
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Number two, here is the bad part---- [Laughter.]
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham [continuing]. If you start waterboarding people, you may get impeached. Is that a fair summary?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, the impeachment power belongs to this body.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay, that is even better. Would he be subject to prosecution?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am not going to speculate.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. But he is not above the law?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No man is above the law.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No man.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Thank you. I think you are a man of the law, and I really want to congratulate the President that picked you. Quite frankly, I was worried about who he would pick. Maybe somebody on TV. [Laughter.] Senator Graham. But President Trump could not have done better in choosing you, and I hope people on the other side will understand that you may not like him--I certainly did not agree with President Obama, but I understood why he picked Sotomayor and Kagan. And I hope you can understand why President Trump picked Neil Gorsuch. I hope you will be happy with that, because I am.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you, Senator.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham [presiding]. We will recess until 12:45. [Recess.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Senator Durbin.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Thanks, Mr. Chairman, and thanks, Judge. Just to be clear, going back to Senator Graham's line of questioning, you helped draft the provision stripping the courts of jurisdiction which was struck down by the Supreme Court in Hamdan, and you were not involved in the drafting of the McCain section of the bill on the Detainee Treatment amendment.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, that would not fit quite with my recollection.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Please.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. My recollection is that Senator McCain and Senator Graham wrote the legislation with input from the Department of Defense and the Department of Justice, and a whole lot of others besides. And I was one voice among a great many, and that in terms of when it was struck down, Hamdan held that the Detainee Treatment Act did not apply retroactively, it only applied prospectively; and then several years later--gosh, I want to say it was 2008, maybe?--the Court came back around in Boumediene.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. So what I am driving at, though, is the McCain section relative to cruel, inhuman, and degrading treatment. And I assume or I hope you have had a chance to take a glance at the emails that Senator Feinstein gave you. You said in your email you wanted a signing statement to the effect that the view is that McCain is best read as essentially codifying existing interrogation policies. So what interrogation policies did you think the McCain amendment was essentially codifying?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I have not had a chance to look at that. I am sorry. I just scarfed down a sandwich over the break, and I will be happy to read it, but I am not sure what I can answer you, here sitting, off the top of my head. It was 12 years ago, and I am doing the best I can with my recollection. My recollection----
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. I am trying to get this leap from your memory of this email, which I understand there were 100,000 pages of emails.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Exactly.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. In fairness to you.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I think the Department of Justice has produced something like 200,000 pages of stuff.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. I will concede that point. But your lack of memory at the moment, and contrast that with your clear statement that you believe that the McCain bill, which I supported, outlawed waterboarding.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sitting here, that would be my understanding, Senator.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. The problem with what I have just described is when you were talking about a signing statement, waterboarding was still happening, and you were saying in your email, ``I want to essentially codify existing interrogation policy.'' There is an inconsistency there which we are going to have to wait until the second round to resolve.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Okay.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Okay. Let me read something to you and ask you for a reaction. It is a statement that was made about 8 days ago by a Congressman named Steve King of Iowa, and here is what he said: ``You cannot rebuild your civilization with somebody else's babies. You have to keep your birth rate up, and that you need to teach your children your values. In doing so, you can grow your population, you can strengthen your culture, and you can strengthen your way of life.'' The reaction to that statement was overwhelming. Civil rights leader Congressman John Lewis called it ``bigoted'' and ``racist.'' Republican House Speaker Paul Ryan said he clearly disagreed with King's comments, went on to say, the Speaker ``clearly disagrees and believes America's long history of inclusiveness is one of its great strengths.'' What would your reaction to that statement be?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I can talk about my record, and I can tell you that as a Federal judge, when a defendant comes to court with an allegation that the sentencing judge made improper comments based on his ethnicity, me and my colleagues--my colleagues and I have removed that judge from the case. I can tell you that when an immigration lawyer fails to provide competent counsel time and time again, I have sent him to the bar for discipline. I can tell you that when it comes to access to justice, I have written on this topic; I have worked on this topic for the last 6 years, together with many wonderful people on the Rules Committee, trying to make our civil litigation system cheaper and faster, because it takes too long for people to exercise their Seventh Amendment liberties. And I can tell you together with my colleagues, when we found that the level of representation of inmates on death row was unacceptable in our Circuit, a whole bunch of us--I cannot take too much credit--tried to do something about it. I can tell you that when prisoners come to court, pro se, handwritten complaints, and I see something that might be meritorious in them, I appoint counsel. That is my record, Senator.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Can you describe your relationship with Professor John Finnis?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sure. He was my dissertation supervisor.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. When did you first meet him?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Whenever I went to Oxford, so it would have been 1990----
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. 1992.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, it could have been two or three. Somewhere in there.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. And what was his relationship with you or you with him?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. He was my dissertation supervisor, and I would describe that as a relationship between teacher and student, and he was a very generous teacher, particularly generous with his red ink on my papers. I remember sitting next to the fire in his Oxford office, like something out of ``Harry Potter,'' and he always had a coal fireplace burning, and sometimes whether I was being raked over the coals. He did not let an argument that I was working on go unchallenged from any direction.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. So that was over 20 years ago that you first met him?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Whatever it is, it is, yes.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Do you still have a friendship, a relationship with him?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Last time I saw him, gosh, when he--I know I saw him when he retired, and there was a party held in his honor. And I remember seeing him then, and that was a couple of years ago.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Did he know you were from Colorado?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do not know. It must have at some point come out in our conversations. I do not know when.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. And do you recall saying some words of gratitude for his help in writing your book?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. He did not write my book, Senator.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Help write?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. He did not help write my book. I wrote my book. I certainly expressed gratitude to my dissertation supervisor in a book that is basically my dissertation.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. I think you were quoted as saying, in 2006, you thanked Finnis for his ``kind support through draft after draft.''
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And there were a lot of drafts, Senator. I mean, golly, that was a very tough degree. That was the most rigorous academic experience of my life, and I had to pass not just him but an internal examiner and an external examiner, and that was hard. That was hard.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. In 2011, when Notre Dame ran a symposium to celebrate his work, you recalled your study under him, and you said, ``It was a time when legal giants roamed among Oxford's spires.''
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, yes. Yes.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. You called him one of the great scholars.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, and Oxford has a stable--and it is part of the reason why it was such a privilege. I mean, here I was a kid from Colorado, and I have a scholarship to go to Oxford. I had never been to England, to Europe before. And at Oxford at that time, they had John Finnis, Joe Raz, Ronald Dworkin. H.L.A. Hart was even still alive then.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. So let me, if I can, read a couple statements from Professor Finnis. In 2009, Professor Finnis wrote about England's population. He said England's population had ``largely given up bearing children at a rate consistent with their community's medium-term survival.'' He warned they were on a path to ``their own replacement, as a people, by other peoples, more or less regardless of the incomers' compatibility of psychology, culture, religion, or political ideas and ambitions, or the worth or viciousness of those ideas and ambitions.'' He went on to say, ``European states in the early 21st century move . . . into a trajectory of demographic and cultural decay . . . population transfer and replacement by a kind of reverse colonization.'' Had you ever read that before?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Nope.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Had you heard it before?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Nope. Not to my recollection.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Could you distinguish what he said with what Congressman Steve King said?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am not here to answer for Mr. King or for Professor Finnis. We----
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. But I am asking your reaction to these things. Do you feel that what Professor Finnis wrote about purity of culture and such is something that we should condemn or congratulate?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, before I expressed any view on that, I would want to read it, and I would want to read it from beginning to end----
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. I just read it to----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Not an excerpt. And, Senator, I have had a lot of professors. I have been blessed with some wonderful professors. And I did not agree with everything they said, and I would not expect them to agree with everything I have said.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Well, let me ask you this specific one. It was 1993, and you were at Oxford, and this is when you believe you first met this professor. Professor Finnis was tapped by the then-Colorado Solicitor General, Timothy Tymkovich, to help defend a 1992 State constitutional amendment that broadly restricted the State from protecting gay, lesbian, and bisexual people from discrimination. During the course of the deposition which he gave in support of that effort, Finnis argued that antipathy toward LGBT people, specifically toward gay sex, was rooted not just in religious tradition but Western law and society at large. He referred to homosexuality as ``bestiality'' in the course of this as well. Were you aware of that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I know he testified in the Romer case. I cannot say sitting here I recall the specifics of his testimony or that he gave a deposition.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. I guess the reason I am raising this is this is a man who apparently had an impact on your life, certainly your academic life, and I am trying to figure out where we can parse his views from your views, what impact he had on you as a student, what impact he has on you today with his views.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, I guess, Senator, I think the best evidence is what I have written. I have written over--oh, gosh, written or joined over 6 million words as a Federal appellate judge. I have written a couple of books. I have been a lawyer and a judge for 25 or 30 years. That is my record, and I guess I would ask you respectfully to look at my credentials and my record, and some of the examples I have given you are from my record about the capital habeas work, about access to justice. I have spoken about overcriminalization publicly. Those are things I have done, Senator.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. And what about LGBT and Q individuals?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, there are--what about them?
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Well, the point I made is----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. They are people, and----
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Of course. But what you said earlier was that you have a record of speaking out, standing up for those minorities who you believe are not being treated fairly. Can you point to statements or cases you have ruled on relative to that class?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I have tried to treat each case and each person as a person--not a this kind of person, not a that kind of person. A person. Equal justice under law. It is a radical promise in the history of mankind.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Does that refer to sexual orientation as well?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, the Supreme Court of the United States has held that single-sex marriage is protected by the Constitution.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Judge, would you agree that if an employer were to ask female job applicants about their family plans but not male applicants, that would be evidence of sex discrimination prohibited by Title VII of the Civil Rights Act?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I would agree with you it is highly inappropriate.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. You do not believe it is prohibited?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, it sounds like a potential hypothetical case that might be a case or controversy I might have to decide, and I would not want to prejudge it sitting here at the confirmation table. I can tell you it would be inappropriate.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Inappropriate. Do you believe that there are ever situations where the costs to an employer of maternity leave can justify an employer asking only female applicants and not male applicants about family plans?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, those are not my words, and I would never have said them.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. I did not say that. I asked you if you agreed with the statement.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And I am telling you I do not.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Thank you. In Hwang v. Kansas State, the case involved a cancer- stricken professor. You wrote an opinion that noted that EEOC guidance commands deference ``only to the extent its reasoning actually proves persuasive.'' EEOC's enforcement guidance on pregnancy discrimination provides as follows: ``Because Title VII prohibits discrimination based on pregnancy, employers should not make inquiries into whether an applicant or employee intends to become pregnant. The EEOC will generally regard such an inquiry as evidence of pregnancy discrimination where the employer subsequently makes an unfavorable job decision affecting a pregnant worker.'' Do you find this instruction to be persuasive?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, there are a lot of words there, and if you are asking me to parse them out and give you a legal opinion--and I fear that you may be--I would respectfully say I would have to study it in the course of a judicial case.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Well, let me bring it right down to the operative words: whether employers should or should not make inquiries into whether an applicant or employee intends to become pregnant.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I would need to--it sounds like you are asking me about a case or a controversy, and with all respect, when we come to cases and controversies, a good judge will listen. Socrates said the first virtue of a good judge is to listen courteously and decide impartially.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. I think you know why I am asking these questions.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No. This one I do not.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. The reason I am asking about your views on pregnancy, women, and the workplace is because two of your former students from legal ethics and professionalism class last spring wrote to this Committee to say how troubled they were by your comments in an April 19th class. It was a gender- targeted discussion regarding the hardship to employers of having female employees who may use maternity benefits. One of these students signed her name publicly to her letter, which is a pretty brave thing to do. That student did not just make this issue up after you were nominated. Last night, the University of Colorado Law School confirmed that she had voiced her concerns with administrators shortly after your April 19th class and also confirmed that the administrators told her they would raise this matter with you, though they never actually did so. When we receive information like this which raises questions about your views and conduct on important issues, I want to get to the bottom of it. I mentioned it to you yesterday in my opening statement that I would be bringing this up, so I just want to ask you to confirm. Did you ask your students in class that day to raise their hands if they knew of a woman who had taken maternity benefits from a company and then left the company after having a baby?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, Senator, and I would be delighted to actually clear this up.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Please.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Because the first I heard of this was the night before my confirmation hearing. I have been teaching legal ethics at the University of Colorado for 7 or 8 years. It has been a great honor and pleasure. I teach from a standard textbook that every professor--well, I do not know if every professor--a number of professors at CU and elsewhere use. It is an excellent textbook, Professors Lerman and Schrag. One of the chapters in the book confronts lawyers with some harsh realities that they are about to face when they enter the practice of law. As you know and I know, we have an unhappy and unhealthy profession in a lot of ways. Lawyers commit suicide at rates far higher than the population. Alcoholism, divorce, depression are also at extremely high rates. Young lawyers also face the problem of having enormous debts when they leave law school, and that is a huge inhibition for them to be able to do public service like you and I are so privileged to be able to do. We talk about those things. There is one problem in the book, and I would be happy to share with you the book and the teacher's manual so that you can see for yourself, Senator, which asks a question, and it is directed to young women, because, sadly, this is a reality they sometimes face. The problem is this: Suppose an older partner woman at the firm that you are interviewing at asks you if you intend to become pregnant soon. What are your choices as a young person? You can say yes, tell the truth--the hypothetical is that it is true--and not get the job and not be able to pay your debts. You can lie, maybe get the job. You can say no. That is a choice, too. It is a hard choice. Or you can push back in some way, shape, or form. And we talk about the pros and the cons in a Socratic dialogue so that they can think through for themselves how they might answer that very difficult question. And, Senator, I do ask for a show of hands--not about the question you asked but about the following question, and I ask it of everybody: How many of you have had questions like this asked of you in the employment environment, an inappropriate question about your family planning? And I am shocked every year, Senator, how many young women raise their hand. It is disturbing to me. I knew this stuff happened when my mom was a young practicing lawyer, graduating law school in the 1960s. At age 20, she had to wait for a year to take the bar. I knew it happened with Justice O'Connor, could not get a job as a lawyer when she graduated Stanford Law School and had to work as a secretary. I am shocked it still happens every year that I get women, not men, raising their hand to that question. Thank you for the opportunity to clarify that, Senator.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. And I wanted to give you that opportunity. I told you yesterday we would get to the bottom of this and I would give you your chance to tell your side of the story. You made a point yesterday of talking about your four heroes, and one of them was Justice Jackson. And I went back to look at some of his cases. I just know of him. I do not know much about him. And I found his dissent in Korematsu, and this was a case which I thought was fascinating because his dissent was not that long, but it had an impact. It was profound. The question, of course, was the military orders in the United States and the treatment of Japanese Americans. Fred Korematsu was caught up in it and was basically told he had no choice, he had to go off to the internment camp, and that whole military directive was challenged in this case. And it was interesting that it was upheld in an opinion by Justice Black, but among the dissenters was Robert Jackson. In his dissent, he said some things that I thought were pretty interesting, and I would like to ask your thoughts on them. He gave a constitutional condemnation of what he considered the military's racist exclusion orders, but what he articulated in the second half of the opinion is what I would like to ask you about. He really raised a question about the role of the courts, even the Supreme Court, in time of war, in time of fear, when it came to military orders, and whether the courts and the Constitution were up to it. That was really an amazing challenge to us as a Nation, a Nation of laws. So what do you think about the role of the Court challenging the military or the Commander-in-Chief in time of war? And as Senator Graham reminded us, many people believe we are at war, and I believe you confirmed that as well. Are we up to it in terms of constitutional protection and the role of the Court?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. We better be. Senator, a wise old judge, kind of like Judge Johnson, you are going to hear from; he is going to come talk to you, from Colorado, a hero of mine, known me since I was a tot. He taught me that the test of the rule of law is whether the Government can lose in its own courts and accept the judgment of those courts. That does not happen everywhere else around the world. We take it for granted in this country. It is a remarkable blessing from our forefathers, and it is a daunting prospect as a judge to have to carry that baton. And to do it on the Supreme Court of the United States is humbling, that prospect, to me. And I pledge to you that I will do everything I can to uphold the Constitution and the laws, as a good judge should, at all times.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Let me ask you about another case that has been referred to. Yesterday, many of us mentioned Al Maddin sitting in that truck--it was about 3 in the morning--on I-88, west of Chicago. I have driven it many times. It was in January. The temperature in the cab was 14 degrees below zero. He had no heater in his cab. His dispatcher told him, ``Sit tight. You either drag that trailer with the frozen brakes behind you out onto that highway, or you wait.'' And so he waited for hours, and finally, feeling numb and life- threatening cold, he unhitched the trailer and took his tractor to a place for some gas and to warm up and then returned to it when they fixed it. Seven different judges took a look at those facts and came down on Al Maddin's side, except for one: you. Why?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, this is one of those you take home at night. The law said that the man is protected and cannot be fired if he refuses to operate an unsafe vehicle. The facts of the case, at least as I understood them, was that Mr. Maddin chose to operate his vehicle, to drive away and, therefore, was not protected by the law. He would be protected if he refused to operate, but he chose to operate. Now, Senator----
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. But you know the distinction, though, because his dispatcher told him, ``Do not leave unless you drag that trailer.''
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Right.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. And he said, ``I cannot do it. You know, the brakes are frozen.'' And he went out there in 14 below and unhitched that trailer, he thought, because he was in danger. And when you wrote your dissent in this, you said it was an unpleasant option for him to wait for the repairman to arrive.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I said more than that, Senator. I said----
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. I know you did. You went on to say that you thought that the statute which we thought protected him, you said, especially ends in the ephemeral and generic phrase ``health and safety.'' You went on to write, ``After all, what under the sun, at least at some level of generality, does not relate to `health and safety'?'' We had a pretty clear legislative intent for a driver who feels he is in danger of his life, perhaps, and you dismiss it, the only one of seven judges, and say, ``No. You are fired, buddy.'' And, you know, he was blackballed from trucking because of that. Never got a chance to drive a truck again.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, all I can tell you is my job is to apply the law you write. The law as written said that he would be protected if he refused to operate. And I think by any plain understanding, he operated the vehicle. And if Congress wishes to revise the law, I wrote this--I wrote, I said it was an unkind decision. I said it may have been a wrong decision, a bad decision. But my job is not to write the law, Senator. It is to apply the law. And if Congress passes a law saying a trucker in those circumstances gets to choose how to operate his vehicle, I will be the first one in line to enforce it. I have been stuck on a highway in Wyoming in a snowstorm. I know what is involved. I do not make light of it. I take it seriously. But, Senator, this gets back to what my job is and what it is not. And if we are going to pick and choose cases out of 2,700, I can point you to so many in which I have found for the plaintiff in an employment action or affirmed a finding of an agency of some sort for a worker or otherwise. You know, I would point you, for example, to W.D. Sports or Casey, Energy West, Crane, Simpson v. CU. That is just a few that come to mind that I have scratched down here on a piece of paper.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Judge, we up here are held accountable for our votes, and I have been in Congress for a while, and I have cast a lot of them. Some of them I am not very proud of; I wish I could do it all over again. I have made mistakes. But your accountability is for your decisions, as our accountability is for our votes. And if were picking and choosing, it is to try to get to the heart of who you are and what you will be if you are given a chance to serve on the Supreme Court. I would like to go, if I can for just a moment, to this famous case, which you and I discussed at length, Hobby Lobby. I still struggle all the way through this--and it was a lengthy decision--with trying to make a corporation into a person. Boy, did the Court spend a lot of time twisting and turning and trying to find some way to take RFRA and say that Congress really meant corporations like Hobby Lobby when they said ``person.'' It was the Dictionary law and so many different aspects of this. What I was troubled by--and I asked you then, and I will ask you again. When we are setting out, as that court did, to protect the religious liberties and freedom of the Green family, the corporate owners, and their religious belief about what is right and wrong when it comes to family planning, and the Court says that is what will decide it, what the Green family decides when it comes to health insurance, you made a decision that thousands of their employees would not have protection of their religious beliefs and their religious choices when it came to family planning. You closed the door to those options in their health insurance. And by taking your position to the next step, to all those who work for closed-in corporations in America, 60 million people had their health insurance and their family planning and their religious belief denigrated, downsized, to the corporate religious belief, whatever that is. Did you stop and think when you were making this decision about the impact it would have on the thousands and thousands if not millions of employees if you left it up to the owner of the company to say, as you told me, ``There is some kind of family planning I like and some I do not like''?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I take every case that comes before me very seriously. I take the responsibility entrusted in me in my current position very grave. I think if you ask the lawyers and judges at the Tenth Circuit am I a serious and careful judge, I think you will hear that I am. And I am delighted to have an opportunity to talk to you about that decision. As you know, in RFRA, the Religious Freedom Restoration Act, Congress was dissatisfied with the level of protection afforded by the Supreme Court under the First Amendment to religious exercise. The Court, in a case called Smith v. Maryland, written by Justice Scalia, said any neutral law of general applicability is fine. That does not offend the First Amendment. So laws banning the use of peyote, Native Americans, tough luck, even though it is essential to their religious exercise, for example. This Congress decided that was insufficient protection for religion and, in a bill sponsored by Senator Hatch, Senator Kennedy, Senator Schumer when he was in the House, wrote a very, very strict law, and it says that any sincerely held religious belief cannot be abridged by the Government without a compelling reason, and even then it has to meet--it has to be narrowly tailored, strict scrutiny, the highest legal standard known in American law. Okay. I have applied that same law, RFRA and RLUIPA--they are companion statutes--to Muslim prisoners in Oklahoma who seek halal meals, to Native Americans who wish to use an existing sweat lodge in Wyoming, and to Little Sisters of the Poor. Hobby Lobby came to court and said, ``We deserve protections, too. We are a small family held company.'' A small number of people who own it, I mean. They exhibit their religious affiliations openly in their business. They pipe in Christian music. They refuse to sell alcohol or things that hold alcohol. They close on Sundays though it costs them a lot. And they came to court and said, ``We are entitled to protection, too, under that law.'' It is a tough case. We looked at the law, and it says any person with a sincerely held religious belief is basically protected, except for strict scrutiny. What does ``person'' mean in that statute? Congress did not define the term. So what does a judge do? A judge goes to the Dictionary Act, as you alluded to, Senator. The Dictionary Act is an act prescribed by Congress that defines terms when they are not otherwise defined. That is what a good judge does. He does not make it up. He goes to the Dictionary Act. In the Dictionary Act, Congress has defined ``person'' to include corporation. So you cannot rule out the possibility that some companies can exercise religion. And, of course, we know churches are often incorporated, and we know nonprofits like Little Sisters or hospitals can practice religion. In fact, the Government in that case conceded that nonprofit corporations can exercise religion. Conceded that. So that is the case. Then we come to the strict scrutiny side.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. I do not want to cut you off.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, I am sorry.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. I am going to get in big trouble with the Chairman----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, I do not want to get you in trouble.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin [continuing]. From Iowa here.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. I think I would want you to continue your answer to his question.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am sorry, Mr. Chairman.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. No, please. I want you to continue.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Okay. All right. So then you have the religion, the first half of the test met. All right? So then you go to the second half. Does the Government have a compelling interest in the ACA in providing contraceptive care? The Supreme Court of the United States said we assume yes; we take that as given. And then the question becomes: Is it narrowly tailored to require the Green family to provide it? And the answer there the Supreme Court reached, and precedent binding on us now, and we reached in anticipation, is no, that it was not as strictly tailored as it could be because the Government had provided different accommodations to churches and other religious entities. The Greens did not want to have to write down and sign something saying that they were permitting the use of devices they thought violated their religious beliefs. And the Government had accommodated that with respect to other religious entities and could not provide an explanation why it could not do the same thing here. And that is the definition of ``strict scrutiny.'' Now, Congress can change the law. It can go back to Smith v. Maryland if it wants to, eliminate RFRA altogether. It could say that only natural persons have rights under RFRA. It could lower the test on strict scrutiny to a lower degree of review if it wished. It has all of those options available, Senator, and if we got it wrong, I am sorry. But we did our level best, and we were affirmed by the U.S. Supreme Court, and it is a dialogue like any statutory dialogue between Congress and the courts.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Thank you, Judge, and thank you, Mr. Chairman.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. The Senator from Texas.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Thank you, Mr. Chairman. Before I start, yesterday in my statement I mentioned an op-ed in The New York Times written by Neal Katyal. My apologies to him if I have butchered his name. With a name like Cornyn, I am used to it, but I apologize.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I get a lot worse. I have a lot worse the other day.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. The title of the op-ed is ``Why Liberals Should Back Neil Gorsuch.'' I would like to ask consent that this be included in the record, along with other supportive letters.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Without objection, all documents will be included. [The information appears as submissions for the record.]
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. So, Judge, I have a pretty basic question for you. Does a good judge decide who should win and then work backward to try to justify the outcome?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is the easiest question of the day, Senator. Thank you. No. And I have to correct myself. Senator Durbin, it is not Smith v. Maryland. That is third-party doctrine. It is Employment Division v. Smith that we are talking about. I apologize to you for that.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Well, I am glad to hear you answer my question the way you did. I expected that you would. But that seems to be implied in some of the questioning that you are getting, that you look at who the litigants are and who you would like to win, the little guy, as we have heard--and I will get to that again in a minute--and then go back and try to justify the outcome. But I agree with you; that is not what good judges do. I want to return briefly to, I know, something you have talked to Senator Feinstein and Senator Durbin about, again, just to give you every opportunity to make sure this is crystal clear. I remember back when George W. Bush was President of the United States. There was a practice of signing statements that went along with his signing legislation into law that was criticized by some of our friends on the other side of the aisle as somehow undermining Congress' intent or the President's own signature enacting a bill into law. And so Senator Feinstein raised the question of back when you worked with Senator McCain and Senator Graham on the Detainee Treatment Act, the signing statement that the President ultimately issued that went along with his signing that legislation into law. Did I characterize that correctly?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I think so, Senator, to the best of my recollection.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Okay. So the question is this, Judge: There were some in the administration who wanted a single statement basically that the President was signing the law, but, you know, if you could find an argument that the President did not have to pay attention to the law, or perhaps had authorities that were not otherwise laid out in the statute, that the President could disregard what Congress has passed and what the President had signed into law. On the other hand, there were those like you in an email who laid out the case for a more expansive signing statement. You made the point that on the foreign public relations front, allowing us to speak about this development positively rather than grudgingly would be helpful. You said that while we all appreciate the appropriate limitations and the usefulness of legislative history, it would be helpful, as this provision is litigated--which it inevitably would be--to have a statement of policy from the executive branch on why this law was enacted. And, third, that you said it would help inoculate against the potential of having the administration criticized in the future for not making sufficient changes when, in fact, all the bill did was to codify existing law with regard to interrogation practices. Senator McCain made that comment. So you at least--I hate to put it in these terms. You lost that argument in a sense because the Vice President's lawyer prevailed in that argument, and they had a single statement in the signing statement basically making reference to--well, here, I will just read it. It says, ``The executive branch shall construe Title X of the act in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander-in-Chief and consistent with the constitutional limitations on judicial power.'' So that is the statement in the signing statement that you sought to make more expansive and accommodate the three concerns that you raised. Is it not correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, your understanding of events is a lot fresher than mine, but sitting here, I cannot disagree with anything you have said.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Well, and I understand this is, what, 12 years ago.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Something like that.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. And you were asked questions initially by Senator Feinstein without the benefit of actually being able to refresh your memory from reading the emails. But I think we have covered that enough, I hope, and laid that to rest. I want to talk a little bit about the little guy. You know, in these confirmation hearings, sometimes very complicated and complex issues are dealt with in a rather simplistic and misleading sort of way. But, first of all, I want to talk to you a little bit about an article that you wrote in the Judicature magazine called ``Access to Affordable Justice.'' And I know as somebody who has actually practiced law in the trenches, as you said you have and you did, you were concerned and write in this article about your concerns for access to justice for the little guys--and little gals, I guess. And you point out that litigation had become so expensive and so time- consuming that essentially it was out of reach. Justice in our courts of law to resolve legitimate disputes was out of reach for people of modest means. Could you expand on those concerns that you raise in that article?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I really appreciate this opportunity and venue to be talking about these things because these I care about and I can talk about as a judge. I wrote that article in conjunction with some input from a lot of wonderful people, so I cannot take total credit for it. And I thank them, and you can see who I thank. My point there was threefold, starting with the fact that too few people can get to court with legitimate grievances today. That is a fact. Too few people can get lawyers to help them with their problem. I teach young folks law who leave law school unable to afford their own services. Think about that. Think about that. And hundreds of thousands of dollars in debt. How do they go be Main Street lawyers? How do they help people who need legal services? And I pointed to three potential sources of problems where we lawyers maybe should look internally rather than blame others for the problem. There is plenty of blame to go around. I am not a big blame guy. But I am a look-inside guy. And what do I see in our profession? There are three things that I pointed to in that article. First, our own ethical rules. It is a very unusual profession where we are allowed to regulate ourselves. It is quite an extraordinary privilege. Usually it is the legislature, right? But lawyers basically regulate themselves. And do all of our ethical rules necessarily help our clients or do some of them help us more than they help our clients? And I point to some that, for instance, regarding the unauthorized practice of law, why is it you have to be a lawyer to help parents with disabled children in administrative proceedings to seek relief under IDEA? That was an example I pointed to. Why is it that every time certain companies that provide online legal services for basic things get sued every time they move into a new State? Why is it I can go to Walmart and get my hair, teeth, eyes taken care of but I cannot get a landlord-tenant contract drawn up? Those are all results of our ethical rules, and I am not sure whether they are worth the price that we pay for them. It is estimated, I have heard--I cannot verify it--that our ethical rules result in a $10 billion a year surplus to lawyers from clients every year. That was one. Number two was our own rules of procedure which yield cases like the one we talked about that took 25 years to resolve. That is wrong. That is wrong. We should be able to resolve cases in less time than it takes for my law clerks to be born, raised, and get through law school. And the third thing I pointed to was our legal educational system, where we have 3 years of post-graduate education for everybody who wants to have anything to do with lawyering. The best lawyer in the country in this history came from your State, Senator Durbin, and he did not ever go to law school. And he always said the best way to become a lawyer, read the books. Still true. And other countries around the world do not have 3 years of post-graduate legal education. Now, this is where Justice Scalia and I--this is a disagreement. He thought 3 years was necessary for everybody. I am not convinced. In England, where I studied, you could become a lawyer through 3 years of an undergraduate degree or 1 year as a post-graduate degree, all followed by a lot of on-the-job practical training. And I wonder whether all that debt is worth it or whether it induces people to pick jobs that they have to pick to pay their debt rather than to serve the people they would like to serve. Those are the problems I talk about in that article.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Judge, you make this statement, that the ``rules sometimes yield more nearly the opposite of their intended result, expensive and painfully slow litigation that itself is a form of injustice.'' Can you think of many things more unjust for people of modest means in America than being denied access to the courts because our system is so expensive and so time-consuming they just simply cannot afford it?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I think it is a problem when 80 percent of the American College of Trial Lawyers, the best lawyers in the country, arguably--they certainly think they are. Sorry. [Laughter.] Judge Gorsuch. When 80 percent of them say that good claims are priced out of court and 70 percent of them say that cases are settled based on litigation costs rather than the merits of the litigation, that is a problem both ways. And these are lawyers who operate on both sides of the ``v.''
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. So basically you either have to be able to pay a lawyer's hourly rate or you have to agree to some contingent fee arrangement, and lawyers are not going to take a contingent fee case unless there is at least some reasonable prospect for their being compensated out of any settlement and judgment, ordinarily.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Ordinarily. Some do. What we are seeing today, though, Senator, is an explosion of pro se, that is, filings by the person without a lawyer. And that is what I was trying to address there. I do think access to justice in large part means access to a lawyer. Lawyers make a difference. I believe that firmly. My grandpa showed that to me, what a difference a lawyer can make in a life.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Judge, let me ask you about another case involving the little guy. This was an immigration case that you will recall was a conflict between two provisions of immigration law, Gutierrez-Brizuela v. Lynch. I hope I pronounced that approximately correctly. Do you recall the case?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do, and we have talked a little bit about it with Senator Feinstein, and I would be happy to----
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Well, I am happy to hear it again because I heard, I believe it was, Senator Feinstein--maybe I am mistaken there--or maybe one of our other colleagues--I apologize if I misstated that--that talked about this deference to administrative agencies as being necessary and a fundamental doctrine. But can you explain how that ended up hurting the little guy in that case?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. So, Senator, in that case there were two statutes that this undocumented immigrant faced. He was trying to remain in the country. One statute said that he had the right to apply for immediate discretionary relief from the Attorney General. No promises about the outcome, but he could at least apply to the Attorney General. The other statute seemed to suggest that he had to wait 10 years out of the country before he could seek relief. Now, I am not criticizing Congress' handiwork here, okay? But those two statutes appeared a little in conflict. So the case came to our court in the first instance, and our court held that the first statute trumped, that the man had a right to apply for immediate discretionary relief and did not have to wait 10 years out of the country. And then some number of years later--I cannot remember whether it was 3 or 4, I want to say. Do not hold me to that. The Board of Immigration Appeals in its infinite wisdom comes back and says we are wrong. The Court of Appeals got it wrong; the 10-year statute trumps. Okay. It says, though, that we are not just wrong, but we are wrong retroactively. So it is as if our decision never existed. And this man, who had relied on our holding to apply for immediate discretionary relief, was denied the opportunity to do so and told now he had to go start his 10-year waiting period. Now, instead of 10 years, it is now equivalent of, what, 13 or 14 years. And to me, that just seemed like he had the rug pulled out from underneath him. And I think a person in this country should be able to rely on the law as it is, and it is a matter of due process and fair notice. When he is told that is the law, he should be able to rely on it. And I also think it is a separation of powers question. When, with all respect, a bureaucracy can overrule neutral, dispassionate judges on the meaning of a law based on their political whims at the moment, that is a separation of powers issue, I think, and maybe an equal protection issue, too, because a political branch can single out people for disfavor. Judges are sworn to treat every person equally in that Vermont marble.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. In this case the little guy was actually relying upon a judgment of a court of law----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, he----
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn [continuing]. And was effectively, or at least the attempt was to overrule that court decision by an administrative regulation or interpretation. Is that correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. And if you had applied the Chevron test--we have talked about that a little bit--said if it is ambiguous, the statute is ambiguous, and the agency's interpretation is a legal one, then you are obligated to enforce the agency decision rather than the judgment of the court of law.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, we did apply the Chevron case faithfully because we had to, and I also wrote separately to ask questions, because I am a Circuit Judge. You know, I never dreamt I would be sitting here, I can tell you that, when I wrote this opinion. And part of my job as a Circuit Judge is to tee up questions for my bosses. And it struck me, here is a question. Is this result consistent with the Administrative Procedures Act? Which says in Section 706 that we are supposed to defer to agencies when it comes to questions of fact, to the scientists, to the biologists. But when it comes to questions of law, APA Section 706 entrusts courts to decide what the law is. And is this consistent with our values of equal protection, due process, and separation of powers? Those are questions I raised, Senator, to tee up for my bosses.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. So you actually applied the Chevron test in your judgment and wrote a separate opinion raising these questions perhaps for review by the Supreme Court.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I follow precedent.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. It sounds like it, even when you disagree with the outcome.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, we got to an outcome we could live with there, too, Senator, and applied Chevron. But I did raise it in the separate concurrence to raise these questions. You know, I do not know how I would rule if I were a Supreme Court Justice on the question. I have to be honest with you, Senator Cornyn, because I would want to do what a good judge does. Keep an open mind, read the briefs. And I could change my mind. I think here of my old boss, Dave Sentelle, who, when I clerked for him, he wrote a panel opinion going one way at the beginning of the year, and by the end of the year he wrote an en banc opinion, an opinion for the full court, reversing his own panel opinion. Now, some people say that is a man who does not have a spine, something like that. I say that is a judge with an open mind.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Well, speaking for myself, the idea that agencies, unelected bureaucrats, have the latitude to interpret their own legal authorities if the Congress is ambiguous and their interpretation is deemed reasonable is a troubling concept, because if there is one part of the Federal Government that is completely out of control of the regular voters in this country, it is the bureaucrats who do not stand for election like Members of Congress do. And so I hope it is something that we legislatively can look at as a way to help rein in the regulatory state, which, in my humble opinion, hasten out of control. Let me talk to you about the Establishment Clause, if I may. I firmly believe the Supreme Court has lost its way in limiting religious expression in this country. That is my opinion. And part of my conviction stems from an experience I had 20 years ago when I had a chance to argue before the U.S. Supreme Court. I had that chance on two occasions when I was Attorney General of Texas. This case was called the ``Santa Fe Independent School District v. Doe.'' The school district in southeast Texas, around Galveston, had a practice before football games of inviting a student to offer a prayer or a poem or maybe just an inspirational thought before the football game. They got sued by the ACLU, and that case ended up going to the U.S. Supreme Court where the Court held by a vote of 6-3 that student-led prayer was unconstitutional. That led the late Chief Justice Rehnquist to make the statement that rather than neutrality toward religious expression, that the Court now exhibits ``hostility to all things religious in public life.'' We do not seem to have many limits on expressions of sex, violence, or crime in the public square, but we do seem to have compunctions about religious expression in the public square. And I wonder if you could just talk to us a little bit about your views, not prejudging cases but the sorts of considerations that you believe the Founders, for example, had in mind. And, of course, as I am asking you the question, I am already thinking through my head here. I am not asking you to prejudge any future case, so let me give you the latitude to answer the question any way you deem fit. But I have to tell you, I am very troubled by what Chief Justice Rehnquist called ``hostility to religious expression in the public square'' and what that has done to change our country, not in a good way.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I appreciate your thoughts, and it is a very difficult area doctrinally because you have two commands in the First Amendment that are relevant here. You have the Free Exercise Clause on the one hand, and you have the Establishment Clause on the other. So you are guaranteed free exercise of religion, and you are also guaranteed no establishment of religion. Those two commands are in tension because, to the extent we accommodate free expression, at some point the accommodation can be so great that someone is going to stand up and say you have established or you passed a law respecting the establishment of religion. It is a spectrum and it is a tension. And as in so many areas of law, judges have to mediate two competing and important values that our society holds dear. The Court has struggled in Establishment Clause jurisprudence to provide a consistent, comprehensive test. I think that is a fair statement. The current dominant test is called the ``Lemon test,'' and it asks whether the intent is to establish a religion, promote a religion, whether the effect is to help advance a religion, and whether there is too much entanglement between state and religion. It has proved a difficult test, according to six Justices at least who have expressed dissatisfaction with this test, but never at the same time. So Lemon endures, and academics have thoughts about various options and alternatives, I know, and the Justices themselves have expressed various and sundry ideas. I can tell you as a lower court judge just trying to faithfully do what the Supreme Court wants us to do, it is a bit of a challenge in this area. We struggle along.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Well, just as one citizen to another, let me tell you I think it is a morass, and, unfortunately, the result is like Chief Justice Rehnquist said, ``hostility to religious expression in the public square,'' and I think our country is poorer for it. My final topic, at least for this round, let me ask a little bit about originalism and textualism. Our mutual friend, Bryan Garner, mentioned to me that textualism is not the same thing as being a strict constructionist. I know we use that phrase, at least colloquially some. But if a judge is not going to be bound by the text of the Constitution or the text of a statute, what is a judge going to be bounded by?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, I hope it is not what he had for breakfast. And, you know, when I was a lawyer, all I wanted was a judge who put all of his personal things aside, her personal views, and come to the law and the facts in each case fairly. And I do think when we are talking about interpreting the law, there is no better place to start than the text. Maybe here I have to blame Sister Mary Rose Margaret. She taught me how to read, and she taught me how to diagram a sentence. And it was under pain of the hot seat paddle, which hung above her desk for all to see. I used to say she could teach a monkey how to read. I think she did: Me. And I think that is where we want to start for a couple of reasons, with the text of the law. First, we go back to the due process considerations, the fair notice considerations we spoke of earlier. Before I put a person in prison, before I deny someone of their liberty or property, I want to be very sure that I can look them square in the eye and say, ``You should have known. You were on notice that the law prohibited that which you are doing.'' I do not want to have him say, ``How am I supposed to tell?'' I need an army of lawyers to figure that out. Some people can afford armies of lawyers. Most Americans cannot. It is a matter of fair notice and due process. The other part, again, is separation of powers considerations. If I start importing my feelings, if I treat statutes or laws as Rorschach inkblot tests, I have usurped your role. I have taken away the right of self-government by the people, for the people. I took a jog to the Lincoln Memorial the other morning before the start of all this. Second Inaugural address. There it is. Believe in government for the people, by the people. Maybe that is the--gosh, is that the----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Gettysburg.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is the Gettysburg Address, isn't it? I read them both. Thank you, Senator. It is the Gettysburg Address. It is the Gettysburg Address.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Well, Judge, let me ask you--I am sorry to interrupt you.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No. I am sorry. It is just a matter of separation of powers. It is not my job to do your job.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Well, what sort of escapes me is if people who argue that somehow judges are not bound by the text of a statute, it is the text of a statute that Congress votes on. So how in the world, if it is something else other than the text that ought to direct the outcome, how could anybody have that kind of fair notice that we depend upon so people can align their affairs consistent with the law?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Right. And it is not a matter of strict construction. Strict construction in my mind sounds like I am putting the finger on the scale toward a particular interpretation, maybe even a pro-government interpretation. I do not see it that way at all. A judge should try and reach a fair interpretation, what a reasonable person could have understood the law to mean at the time of his actions. That is a pretty good starting place for fair notice and for separation of powers, I think, Senator.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Thank you, Judge.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Mr. Whitehouse.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Thank you, Chairman. Let me ask unanimous consent to put into the record a letter from over 100 groups dated March 14, 2017, regarding what they describe as Judge Gorsuch's troubling money and politics record and a letter from Demos dated March 9, 2017, urging opposition to Judge Gorsuch's confirmation, and a New York Times article captioned ``Neil Gorsuch has web of ties to secretive billionaire.''
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Without objection, all three documents will be included. [The information appears as submissions for the record.]
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Thank you. Before we get into that, Judge, let me--since we we are talking about separation of powers, could you just reflect on whether the constraint that an appellate court is obliged to take the findings of fact as lower courts have found them and cannot indulge in its own fact-finding or fact-making. Does that have a separation-of-powers element to it in terms of constraining the free-range wanderings of a court that could make up its own facts and then go in that direction?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I have not thought about that, Senator, to be honest with you. I know----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. How about the question presented? Should the Supreme Court in the question presented try to keep the question narrow to the case presented so that it is not using an expansive question presented to enable itself to wander throughout the legal landscape beyond the constraints of the case?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, it is generally, as you know, on the facts the practice of an appellate court not to review or overturn the facts of a trial court except in the presence of clear error.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Very rare, yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And that is very--that is a very important standard.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It may--I have not thought about it in separation of powers, but it is a very important principle that I take seriously. I was a trial lawyer for a long time.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And in terms of the constraint to narrow the question, does that have separation-of-powers overtones as well?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And I give you kind of a similar answer on that, Senator. I do not know about that, but I would say it is an important general practice. Sometimes there are exceptions that a court can and should go beyond a question presented, but it is pretty rare. Usually, we stick within--well, we do not-- the questions presented are whatever the parties present to us on an intermediate court. They get to choose. We do not get to choose.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. That is part of what separation of powers is about in terms of constraining the judicial branch to actual cases and controversies, correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, we generally refrain from examining arguments that have not been adequately developed or made for risk of improvident mistakes.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Now, let me turn to another topic. Let us talk for a minute about money, and in particular, let us talk about dark money. Are you familiar with that term?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. In the loosest sense.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. How would you describe it in the loosest sense just to make sure you and I are on the same wavelength?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I--as I understand it, you may be referring to money that is not spent by a candidate or a party in connection with----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And where you actually do not know who the true source of the money is.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Okay.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Is that a fair enough definition for us to----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sure.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse [continuing]. Agree on? Okay. Could you let us know first what you know about the campaign that is being run to support your confirmation? There has been a lot of talk about how this is outside of politics and we are above politics, but there is a group that is planning to spend $10 million on TV ads in which their own press release describes as a comprehensive campaign of paid advertising, earned media, research, grassroots activity, and a coalition enterprise, all adding up to the most robust operation in the history of confirmation battles. That sounds pretty political to me. And I am wondering what you know about that.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I have heard a lot about it, Senator, from you, from others. I have heard a lot about it.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Do you know--what do you know about it?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I know that there is a lot of money being spent in this by, as I understand it, both sides. I think it is----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Well, I would not leap to that conclusion at this point.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Okay. I know what I have read; I know what I have heard from friends and family and acquaintances. I know what you are saying, what you have just indicated.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Do you know----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. There appears to be a lot of money being spent----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Do you know who is spending the money?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I could speculate based on what I have read and what I have heard, but I do not know individuals who are contributing. I do not know that.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Do you know if your friend Mr. Anschutz is contributing?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do not know.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Do you think that it should matter who is contributing? Do you think that there is a public interest in the public knowing who is contributing?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, I think we have a long tradition from Buckley v. Valeo indicating that this body has robust authority to regulate disclosure. And----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Yes, but my question is do you think there is a public interest----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse [continuing]. In disclosure of political funds in a democracy? That is, I do not think, a prejudgment. That is just a values proposition and one of the considerations that you ought to be able to answer without much hesitation.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And, Senator, what I am prepared to say is I recognize that, as a matter of First Amendment interests, the Supreme Court has validated the proposition that disclosure serves important functions in a democracy. At the same time the Supreme Court has also acknowledged that those disclosure functions can sometimes themselves have unintended consequences, as with the NAACP case, which I know you are familiar with, where you can use disclosure as a weapon to try and silence people. And we have a long history in this----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. That is hardly the case with respect to the dark money operation that is funding this campaign in your favor, is it not?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am not prejudging any case. What I am suggesting to you is that there are interests here in this area of First Amendment disclosure. That is what we are talking about----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. In my mind generally, okay, that are competing. On the one hand in order for informed voters and citizens to be able to make decisions, the Supreme Court in Buckley has validated the interest that this body has in regulating disclosure.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And in theory so did the Court in Citizens United.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And in theory in Citizens United. At the same time, the Court has also recognized in NAACP, for example, that disclosure can be used as a weapon to silence voices. And we have a long history of anonymous speech serving valuable functions in this country----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. So here is a----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. A Publius.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Here is a live example right now. We have this $10 million that is being spent on behalf of your confirmation. Do you think, for instance, that we on this panel ought to know who is behind that and--well, answer that, and then I have will go on to a related question.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, that is a policy question for this body. And this----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Well, it is also a question of disclosure. You could ask right now that as a matter of courtesy, as a matter of respect to the process, that anybody who is funding this should declare themselves so that we can evaluate who is behind this effort.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Right? That would not be a policy determination. That would be your values determination.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It would be a politics question, and I am not, with all respect, Senator, going to get involved in politics. And if this body wishes to pass legislation, that is a political question for this body. And there is ample room for this body to pass disclosure laws for dark money or anything else it wishes to that can be tested in the courts. So, Senator, with all respect, the ball is in your court.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Do you really think that a Supreme Court that decided Citizens United does not get involved in politics?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I think every Justice on the Supreme Court of the United States is a remarkable person trying their level best to apply the law faithfully. I am just not----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And got deeply involved in politics, did they not? They changed the entire political environment, the entire political ecosystem with one decision. You must recognize that.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, it is a precedent of the U.S. Supreme Court. There were thoughtful opinions by Justices on both sides.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. I did not say that they were not thoughtful. I was responding to your question that they do not--your response that they do not get involved in politics. What could be more involved in politics than to open this ocean of dark money that flooded into our politics?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, what I mean to suggest is that I believe every Justice on the Court is trying to apply the First Amendment and the laws of this country faithfully. You may disagree with them. Many people do. I understand that. It is hard. Judges make half the people unhappy 100 percent of the time. That is our job description. And people do criticize judges. I understand your criticism.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. This is a little different.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. But I do not question their motives, Senator.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. This is a little different. I think you have seen more like 90 percent of the public unhappy with Citizens United because they see the problem that it caused in our democracy. And in that case it was not just a question of two parties and you are going to make one of them angry because you decided for the other. This is the Supreme Court operating in its role as the legal constitutional guide to the operation of American democracy. And if they get that wrong, that is a much, much bigger deal whether their motivations were pure or impure. When or whether they got that wrong is a bigger question than just which party won, would you not agree?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, if a court errs as a matter of law, there are various remedies. There is a legislative remedy because there is always another law to be passed and another case to test. Every case comes on its own facts with its own record and can be analyzed anew. And then there is the law of precedent, which we have discussed, I wrote this 800-page book on, makes a great doorstop, gift for Christmas. I have a really bad deal on royalties.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And another way for the Court to clean up after itself if it----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, that is what I am suggesting. There is a way to do that, right? Precedent is not an inexorable command, and so the Court can reverse itself. It happens.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. If a question were to come up regarding recusal on the Court, how would we know that the partiality question in a recusal matter had been adequately addressed if we did not know who was spending all of this money to get you confirmed? Hypothetically, it could be one individual. Hypothetically, it could be your friend Mr. Anschutz. We do not know because it is dark money. But if you were to ever find that out or even if you were to have suspicions I think in any challenge as to whether recusal was appropriate or not where that to happen say in a lower court, these would be facts that would be noteworthy and that we would be entitled to have an answer to. So it is kind of odd to be sitting here in a U.S. Supreme Court nomination hearing with a $10 million spend taking place for you out there in the political world and absolutely no idea who is behind it. Is that any cause of concern to you?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am not sure what the question for me is.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Is it any cause of concern to you that your nomination is the focus of a $10 million political spending effort and we do not know who is behind it?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, there is a lot about the confirmation process today that I regret, a lot.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Yes?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. A lot. When Byron White sat here, it was 90 minutes. He was through this body in 2 weeks, and he smoked cigarettes while he gave his testimony. There is a great deal about this process I regret. I regret putting my family through this.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. But to my question----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, the fact of the matter is, it is what it is, and it is this body who makes the laws. And if you wish to have more disclosure, pass a law and a judge will enforce it, Senator.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. There are going to be--that is just not--that just does not do, Judge Gorsuch. There are going to be questions that you will be asked to decide on the U.S. Supreme Court that are going to be dependent on the values you bring to this. I do not think you can avoid talking about those values here. You are an expert on antitrust law, correct? You are very good at that.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I would not count myself an expert, Senator. I----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And when you write about antitrust law, you understand that there are values to which the law should be directed if it is going to be successful. You have written about the values of competition, that the antitrust laws should operate in such a way as to maximize and support competition and that the antitrust laws that should be read in such a way as to maximize and support innovation. Those are proper values for a judge applying antitrust law to pursue, are they not?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, a judge applying antitrust law looks to precedent predominantly for guidance as to what----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. A lower judge does?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes. And so----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. The Supreme Court, usually it is a new question; otherwise, it would not be there for you.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, respectfully, I disagree. A Supreme Court Justice is bound by precedent to.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. No, but the question likely presented in the case is one that is new. Otherwise, it would not be in the Supreme Court. They would not have taken it for review, and it would have been settled at the Circuit or Judge--at the District Judge level, no?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, the precise question may be new but the notion that precedent would not bring to bear instructions and information on how it should be decided would be mistaken as well.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. I guess what I am saying is that the part of the decision that is guided by precedent is not the part that I am asking about. The part that I am asking about is the values determination, and I am trying to determine if you think that openness with respect to the money that flows around in our democracy in such large numbers right now is a value that is worth pursuing. Is it a touchstone, is it a lodestar, or is it just a burden on people's communication?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I would refer you again to Buckley v. Valeo and the NAACP.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. I am asking actually you, not----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And I am giving you my answer, Senator, as best I can----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Which is the First Amendment, which I am sworn to uphold as a judge. It contains two competing messages here. On the one hand, it has regularly recognized the rights of this body to legislate in this area if it wishes to do so. If it has not done so, with respect, that is not my fault. Okay. It is on legislators to legislate. And Buckley recognizes their authority. On the other hand, it is recognized there may be limits when it chills expression, as it did in the NAACP case. And we have to be worried about that because there is room in our democracy----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. So if we have to be worried about the chilling of expression, which is a value proposition that you have just enunciated, should we not--am I not also entitled to ask the question about whether we should be worried about the influence of dark money essentially corrupting our politics?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, what I am saying----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. I am taking a lot of time to get what I would think would be a fairly simple answer.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, I am sorry, but I do not think this is simple stuff at all, Senator. I think this is hard stuff. And I think you have First Amendment concerns and precedents, all right, in the area----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That would have to be considered. We would have to see what law Congress enacted. I would then want to go through the full judicial process, Senator. I would want to read the briefs. I would want to keep an open mind. I would want to----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. But you just asserted right here that the value of not chilling speech was something that we should consider, right?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I said the Supreme Court of the United States in NAACP recognized that the First Amendment protections we all as people in this country enjoy----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Which is a value that we should consider.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Can be chilled sometimes.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And not chilling is a value that we should consider.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is a First Amendment right we are talking about, Senator.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And where does anonymity--let us say $1 billion in anonymous funding into our elections, where does that fit in in your--into the values that you bring to this?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. In the first instance, Senator, it is for this body to legislate----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And then it would come to court and the record will be made.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Of course, Citizens United did actually overrule a law that we had written, so that is hardly the be all and the end all.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is a dialogue. It is a separation-of- powers dialogue that we have in all areas. Congress passes a law, a lawsuit is brought, a record is made, a factfinder makes facts, judges determine the law, a ruling is issued, Congress responds, and the cycle continues. And, Senator, that is our history in this area and so many others. Our founders were brilliant. They did not give me all the power. I do not wear a crown; I wear a robe. They did not give you all the power. They provided it----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. When it comes to the determination to state what the law is, particularly in constitutional matters, they actually did give the Supreme Court the power, and that is why it is important to us to ask these questions now before you go on to the Supreme Court and we have no accountability left. And so the values that you bring to that in those areas where you are not just implementing Congress' will but are bringing your own values to the constitutional document that we treasure, that is why I think these questions are important. Let me ask something slightly different. You said you knew Judge Garland?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do. I would not claim him as my closest personal friend but someone whom I admire greatly. And it----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And would you describe--how would you describe any differences that you may have in judicial philosophy with Chief Judge Garland?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I would leave that for others to characterize. I do not like it when people characterize me, and I would not prefer to characterize him. He can characterize himself.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. What is interesting is that this group sees a huge difference between you that I do not understand. The dark-money group that is spending money on your election spent at least $7 million against him getting a hearing and a confirmation here and indeed produced that result by spending that money, and then now we have $10 million going the other way. That is a $17 million delta, and for the life of me I am trying to figure out what they see in you that makes that $17 million delta worth their spending. Do you have any answer to that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. You would have to ask them.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. I cannot because I do not know who they are. It is just a front group. There is a--it has been I think fairly and fully documented that there is a small group of billionaires who are working very hard to influence and even to control our democracy: Kochs, Mercers, DeVoses, and, yes, Anschutzes. They often network together. They attend planning conferences. They pool their resources. As a candidate, President Trump made fun of the beg-a-thon, to use his word, that the Koch brothers run every year to bring candidates to their conference. They set up an array of benign- sounding front groups to both organize and conceal their manipulation of our politics. And Supreme Court Justices socialize with this small group, and then they go and they tender--render decisions that give that small group immense political advantage, particularly the ability to hide the political expenditure of their money. And then they go back and socialize some more with that group and they even speak at the beg-a-thon political retreats. Does that look right to you? How, as a judge, do you think--as a Justice of the Supreme Court should you comport yourself in terms of keeping a distance from interests that are before the Court?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I have no information about anything you have just described. I do not know about that.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And--wow, because guess what? You are going to be asked to make decisions on the Supreme Court that if you do not know that, you are going to have a very hard time figuring out how to make the right call. That is a--it is a real concern. You know, this is the first Supreme Court in the history of the United States that has nobody on it who has ever run for political office ever, and yet it makes these wild leaps like Citizens United that completely deform democracy and then I do not know if they do not know what they are doing; I do not know what the motivation is. You--I sure do not know, but I do think it is a concern to be asked to make decisions like that without a real grounding in what is going on around you. Let me ask a little bit just about--to narrow it down more to just the judicial branch. What do you think the Court's approach should be to the sort of machinery of corporate influence that surrounds the Supreme Court? There are corporate front groups that have been described as the think tank--as disguised political weapon that surround the Court and constantly pelt it with amicus briefs on behalf of big corporate and industrial interests. At this point they are--in the 5-to-4 decisions I listed yesterday, their record is 16-to- 0 with the Supreme Court in terms of helping the corporate interests, so it looks like they are doing really, really well, these frequent-flier corporate front amici. When they turn up at the Supreme Court, should they disclose more about whose interests they represent? Would it be good for the reputation of the Supreme Court and for our democracy if people knew who actually funded them when they turn up?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, to your earlier question, I think I can talk about my record. I am not a philosopher king, but I can talk about my record. And my record is that in the last 10 years I do not think there has been a single motion to recuse me. I have tried to be very careful in which cases I hear.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. This is a----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Go ahead.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I take that very seriously as part of my obligation as a judge. I cannot claim I am perfect but I have tried awful hard, and I have not had a motion filed against me because I do take seriously impartiality and the appearance of impartiality.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. So----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And, Senator, all I can say to you is I commit to maintaining my impartiality as best I can and to recuse where the law suggests I should. And----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. So back to my question about these amicus briefs and not knowing who is behind the front groups who turn up and pelt the Court with the briefs.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, there is a----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. The corporate rule----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Corporate disclosure statement rule as I recall.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Yes, but it is not much of one because here is what it says. It says that the filers shall identify every person other than the amicus curiae, its Members, or its counsel who made a monetary contribution to fund the preparation or submission of the brief. As you know, the preparation and submission of a brief is not particularly expensive, and the monetary contribution is not ordinarily reported as being the funders of the organization. So if an--as I understand it, if an organization gives $100 million to a front group and says go in there and do not put my name on any of this stuff but this is what I want you to do, as long as the front group then pays for the brief itself, there is no filing that reports who the interest is behind it. And I worry that we have an operation going--surrounding the Court that the Court itself is actually blind to the true roots of and should the Court not understand what the interests are behind these front groups?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, I think that is a very interesting suggestion and one I will take to heart, Senator. Obviously, this Congress has a role in rulemaking process as well, and there is a rulemaking Committee and a Rules Enabling Act process for the lower courts, and the Supreme Court has its own rulemaking process. And I appreciate that information for both functions----
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And as a----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And welcome your involvement.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse [continuing]. Supreme Court Justice, you will also have a role in policing the judiciary as the top court. One of the things that has cropped up is special interest training camps basically at lush resorts for lower court judges. As much as 40 percent of the Federal judiciary has gone to these special-interest-funded training sessions described by one writer as a ``cross between Maoist cultural re-education camps and Club Med.'' There has been a wide array of condemnation of this practice from editorialists of all stripes. And is that something as a matter of kind of protecting the integrity of the courts to which the Supreme Court should attend itself?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I know as a sitting judge I disclose every trip I take that is not official business that anybody else pays for.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And to your credit you went to none of these as far as I can tell.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you, Senator. I appreciate that acknowledgment. I do go to a lot of moot courts and things like that and, you know, and everything I have done is disclosed. So that is--it is all there, there. You have all the information.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Yes. I will just note that some of the editorializing about this, ``It creates an egregious ethical conflict of interest bordering on wholly improper out-of-court communication with special interest lobbyists or representatives of people who have filed lawsuits.'' Another said, ``It looks like an interest group has put part of the Federal judiciary in its saddle.'' A third said, ``The conflict is clear and the judge's participation is mindboggling.'' And, by the way, all of those came from newspapers below the Mason- Dixon line. That is not just Yankee elitists talking. So my time is expired, but I look forward to further rounds. And I appreciate your time with me.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Who am I to tell you how you should answer questions, but if I were sitting where you were and values were brought up, it seems to me it is the Congress that deals with values, as Representatives are people and you look at the law. And when it comes to briefs, I would assume that you do not care who paid for them. You are only interested in what the brief says.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Senator Lee. Thank you, Mr. Chairman, and thank you, Judge. What you are seeing here is the confluence that occurs by operation of the Constitution between law and politics. And you as a textualist understand as well as anyone where the word politics comes from. You break the word down into its two Greek roots and you have poly, which means many, and ticks, which are bloodsucking parasites. [Laughter.] Senator Lee. It works out. I would also like to echo something said by our Chairman a moment ago. When we are focused on the identity of the parties, on the identity of those speaking to the Court, the identity of those people might matter more if your focus is on their identity. If, on the other hand, your focus is on the law and what the law requires, the focus is likely to be different. Judge Gorsuch, are you a lawmaker?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, Senator.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Have you ever held a position as a State legislator?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, Senator.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Have you ever held a position as a Member of Congress?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Goodness, no.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Have you ever held any public office in a policymaking arena outside the Federal judiciary?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I have served on my kids' schoolboard----
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Have you----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. But that is about as close to policy as I care to get.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Have you had any role in setting Federal--in establishing and making laws governing Federal campaign finance?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, Senator. That is this body's province.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Okay. It seems to me, Judge, that it would be unfair for anyone to state or to imply that you then are responsible somehow for the expressive conduct of third parties, third parties who are not you. It would be unfair for me to attribute to you something that someone else is saying. And it would seem to me to be especially unfair to say to you as a sitting Federal judge and nominee for Supreme Court of the United States to say to you that you have to tell someone else something that they should not say because otherwise that might cause problems for you when you did not make the set of laws to begin with. By the way, were you involved in the Citizens United case?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I was not involved in the Citizens United case, and I appreciate the opportunity to clarify that fact. I would also like to clarify that nobody speaks for me, nobody. I speak for me. I am a judge. I do not have spokesmen. I speak for myself.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Thank you for clarifying that for us. Judge, yesterday, you referred to the fact that you had some of your law clerks here with you yesterday. I suspect some of them are here today as well. Tell us a little bit about the relationship that exists between a judge and the judge's law clerks. It is more than just a job, is it not, more than just a job or an adventure? It is sort of part of the legal education experience that many lawyers are able to go through, is that right?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. As your father knew well. It is one of the great joys of this job and one of the great surprises, right? You practice law for 20 years, you are used to working with pretty senior people, and then all of a sudden you show up, as I did my first day, and there is a pile of briefs waiting in a tiny office that has not been decorated, there is a chair, have at it. And you get to hire four brand-new young folks straight out of law school who do not know a darn thing. Have at it. Have fun.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Did you acknowledge that when you were a law clerk?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, you know, part of the reason why I am a judge is because of my experience as a law clerk, a shared experience with the same fellow your dad clerked for, Byron White, and we used to race writing opinions. And this is the humility of maybe the smartest lawyer I knew. I am talking about a Rhodes Scholar, first-in-his-class-from-Yale type stuff. And he would say first one done with the draft wins. What does it mean to win drafting an opinion? That was not real clear to me. But he was a pretty competitive guy, and what it meant was whoever got the first draft done, the other one went in the bin and we worked off the draft of the guy who won. I never won. And he could only type with these big paws--he had these big hands, thick, you know, pulling up sugar beets. And so he would hunt and peck and he could still beat me. It is a very close relationship. It is an intimate working relationship. And it becomes one of the great joys of your life. You see these young people--I have been out to pasture for 10 years. I thought I was done, you know. That was my life. I love my life. I love my home State. I hope I am making them proud. And you see these young people come and go and you get to see what they go on to do, and they go on to do such wonderful things. I have had young people who go on to clerk for the Supreme Court, about a dozen of them, for all kinds of Justices, Justices Scalia and Thomas, Justices Kennedy, Kagan, and Sotomayor. And that is a deep and inspiring thing. And you watch them go on beyond that, some of them are teaching, kids at Harvard, Vanderbilt, Notre Dame. Some people--a young lady who is doing fishery policy in South Africa, all sorts of really wonderful things, and it just gives you hope and heart for the future. You know, as I tell my students, somebody has to run the zoo, and you want it to be the best and the brightest. And it is so heartening to see these young people, some of whom are the first in their family to go to college, immigrants to this country, rise to the very top.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Winston Churchill was known to have said that we shape our buildings, and then our buildings shape us. There seems to be a corollary here with law clerks, and you shape your law clerks. They end up probably having an influence on you as well. At a minimum I would think that you develop the kind of relationship with them to where they know you. They know your jurisprudential style. They know your quirks. They know most likely what you like to have for lunch. But you would say there develops a pretty close relationship between a law clerk and the judge during a clerkship. Would you agree with that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I always think that a family that skis together, stays together. We skied together.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Yes. And it is much more true of skiing than snowboarding I think. Just snowboarding is a lot more painful.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is a value judgment I am happy to make.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Yes. One of the reasons I ask about this is because I have some letters that I would like to introduce for the record. There is a piece written by three lawyers who clerked both for you and Justice Scalia. I tried really hard to think of a great term for this, the Scalia-Gorsuch combo or something like that, but I could not come up with anything interesting. But that is a good duo for whom these lawyers had clerked. And they have written a great piece talking about you. It is entitled ``A Principled and Courageous Choice.'' I would like to submit that for the record.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Without objection, it will be submitted. [The information appears as a submission for the record.]
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. They write, ``Judge Gorsuch's opinions reflect the principle Justice Scalia spent his career defending, that in a democracy the people's elected representatives, not judges, get to decide what the laws should be and what laws we should have.'' They go on to say that they believe that you, Judge Gorsuch, will be, quote, ``as principled, as courageous, and as committed to the Constitution and our country,'' close quote, as Justice Scalia was. So they go on to urge that we confirm you to the Supreme Court. I would also like to enter into the record another letter that is written by someone else who clerked for you, Judge Gorsuch, and who also clerked for Justice Kagan on the Supreme Court. He writes, quote, ``Gorsuch will make an exceptional Supreme Court Justice. He possesses a rare combination of intelligence, humility, and integrity, not to mention a fierce commitment to the rule of law. In fact, he is remarkably similar on these metrics to Supreme Court Justice Elena Kagan.'' He also goes on to write, quote, ``This zeal for the rule of law gives me every confidence that Gorsuch, like Kagan, will stand firm against any effort by the Trump Administration to abuse Executive power,'' close quote. He writes that ``Liberals should welcome a nominee like Gorsuch.'' I would like to enter this one into the record also, Mr. Chairman.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Without objection, so ordered. [The information appears as a submission for the record.]
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Thank you, Mr. Chairman. Let us move on. One of my colleagues earlier today asked some questions about remarks that you assisted in preparing, remarks that were prepared for delivery by then-Attorney General Alberto Gonzales in connection with the Senate Judiciary Committee Oversight hearing concerning the terrorist surveillance program. This was a hearing that occurred on February 6, 2006. One of my colleagues referred to this this morning. Are you familiar with what I am describing?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Very vaguely.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Okay. My understanding is that at the time you were serving as the Principal Deputy Associate Attorney General. Would that be correct to say you were in that position?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Quite a mouthful.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Yes, quite a mouthful. That is why it is commonly known as the PDAAG, but most people might not immediately recognize the term PDAAG, as I am sure they would in your household. So the issue in that hearing as I understand it was whether or not this TSP program was unlawful. And you were involved, as I understand it, not on the basis of your expertise in this area but on the basis of your writing ability, based on the fact that people recognized your ability to write, a talent that has now become apparent to many of us as we have reviewed your judicial writings. You were brought in as a scrivener of sorts, someone who would give voice so to speak to what the Attorney General might say and not based on your expertise of this TSP program. Is that consistent with your recollection of these events?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is, Senator.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Okay. It is also my understanding that not only were you not thoroughly familiar with this TSP program, but you legally could not have been. It was impossible for you to be familiar with that program for the simple reason that you did not even have the clearance necessary to know the details of the program and therefore could not speak to those details.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sitting here, that is my recollection, too.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Okay. So as a result of that, any work that you did on those prepared remarks, it would have been done based on your limited understanding, based on a limited set of facts that you were given in preparing. And then anything you would have done from that moment forward you would have said, look, I do not know the facts of this, I cannot know the facts of this, you all are going to have to fill in the details. I have done the best I can based on assumptions I have drawn and the limited facts I have been given about this program.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes. That is my recollection, too.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Thank you. Some of my colleagues have suggested that your rulings reflect a particular bias, a bias in favor of the big guy and against the little guy. It is not always apparent in every case whether there is in fact a big or a little party. I suppose in some cases it is open to dispute. In other cases it might be very apparent that one out-powers the other in terms of economic heft and access to good lawyers and so forth. But I have reviewed your work, and I would like to say that, yes, in some instances it is easy to identify a party that might thusly be described as little. And I cannot discern any bias in your work that favors one type of party over another. In fact, there are a whole lot of cases where you have ruled in favor of the little guy. Among those cases was one discussed just a few minutes ago in your conversation with my colleague Senator Cornyn in Gutierrez-Brizuela v. Lynch. That was a ruling that was most decidedly in favor of a little guy. In fact, it does not get much more little guy than a David going against a Goliath that is the Federal Government, a David who is someone in a very precarious position relative to the Federal Government against the entity with more money and more lawyers than any enterprise that has ever existed on planet Earth. Other cases in which I know you have ruled in favor of the little guy include but are by no means limited to Fisher v. City of Las Cruces and Holmes, Orr v. City of Albuquerque, Williams v. W.D. Sports, and Walton v. Powell. Now, these cases do not all fit into a common framework. In fact, they involve a pretty wide range of issues, including cases involving qualified immunity against police officers, cases arising under the Family Medical Leave Act, sex discrimination cases, and cases involving politically motivated firings. So these are just a few examples, but just to be clear and going into this as a judge, do you have any bias that you can detect? How do you approach a case? Do you look at a case and say this person is well-represented and powerful; this one is less well-represented and not powerful? Does that influence how you approach the law in any case?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, you try to treat each person as a person. We are all just people at the end of the day. And that equal-justice promise, the equal protection under law is the most radical guarantee I am aware of in the history of human law, a recognition that no one is better than anyone else. And, Senator, all I can tell you are some facts. These are the facts of my record. Ninety-seven percent of the time out of 2,700 cases, we have ruled unanimously. Ninety-nine percent of the time, I am in the majority. According to the Congressional Research Service, as I understand it, of the judges studied in the Tenth Circuit, my opinions attract the fewest dissents. They are not sure whether it is because I seek consensus or because I am persuasive. I do not care which it is. My law clerks tell me as well that I am as likely to dissent from a Democrat as a Republican-appointed colleague, not that that matters.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. By the way, what if this were not the case? What if you were dissenting in a lot more cases? What if you were a lot more likely to dissent from one type of judge versus another? Would that----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I know the men and women of the Tenth Circuit. I know the judges with whom I served. I question the motives of none, ever. We disagree sometimes, but when we disagree, it is about the law, not politics. And I think sometimes really in this country we are kind of like David Foster Wallace's fish. He wrote about a fish swimming in an aquarium, and it spent so much time in water and is so surrounded by it that the fish does not even realize it is in water. And I feel like sometimes when we nitpick and we complain about the quality of justice in this country--which leaves a lot to be desired; there is much room for improvement. I am not here to say it is perfect or anywhere close to it. We are a work in progress. But the rule of law in this country is so profoundly good compared to anywhere else in the world that we can complain and know that we are protected because of the rule of law. I think we are a little bit like David Foster Wallace's fish. We are surrounded by the rule of law. It is in the fabric of our lives so much so we kind of take it for granted. You know, just to go on, you know, my work on Access to Justice in the Rules Committee and outside the Rules Committee, speaking on it, I mean we are talking about overcriminalization, capital habeas. I have removed judges and lawyers when I have had to or sought their removal. I believe in our Seventh Amendment jury trial right. I have ruled for the least amongst us when it comes to immigrants--we have talked about a couple of examples--and criminal defendants. I can give you a whole long line of cases I can cite where I have ruled for Fourth Amendment claimants and other criminal defendants: Ford, Makkar, Farr, Games-Perez, Sabillon-Umana's, Spaulding, Carloss, Ackerman, Krueger. That is just criminal that I have just jotted down here. Environmental cases: Rocky Flats, Magnesium in the renewable energy case. Civil rights you mentioned: Orr, W.D. Sports, K.C., Energy West, Crane, C.U. v. Simpson. Those are just some that come to mind.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. So does this tell us that you are in fact objective or does it just tell us that you are really, really good at covering up the fact that you are not objective? I mean, it seems to me that if you were biased and determined to rule only for the big guy, only for large, wealthy corporations, it would be an awful lot of work to go to, in order to rule for the little guy as often as you have.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am not buying into any of that, with respect. With respect, I view my job to be fair. It is what General Katyal said to you all yesterday. What he wants is a fair judge. That rang true to me when I heard it. I did not know he was going to say that. That is exactly what I thought when I was a lawyer. I just wanted to go into court and have the judge hear my client, hear them, really hear them as a person on the facts and the law and leave everything else alone, at home where it belongs. And that is hard. I am not here to tell you it is easy and I am not here to tell you I am perfect, okay? I am a human being. I am not an algorithm. But I try really hard, and it is almost like an athlete. It is something judges practice. And hopefully, we get better at it with time.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. When you say fair, you are not talking about fairness necessarily in some abstract ethereal sense, in some Solomonic way in which you are just being wise in your own mind. You are being fair in a manner that is consistent with and dictated by your judicial oath and your oath to uphold and protect and defend and operate within and subject to the constraints of the United States Constitution, a Constitution that puts the power to prescribe laws with prospective general applicability in the political branches of government, in the legislative branch and in the executive branch insofar as the Executive is involved in the lawmaking process and then insofar as the Executive is involved in the execution of those laws. The judicial branch, on the other hand, is there to give effect and meaning to those words not just based on what is fair in some abstract sense but also what is fair in the sense that you have to decide who the decisionmaker is, who makes the law and how to give effect to those words. One of the many cases that comes up from time to time is one called TransAm Trucking v. Administrative Review Board. You wrote in that case, ``It might be fair to ask whether TransAm's decision''--meaning the decision to fire the driver in question--``was a wise or kind one.'' But then you say, ``It is not our job to answer questions like that.'' So you do not have to respond to this, but let me tell you how I interpret the language that was an issue in that case as someone who has served as a law clerk in the Federal judiciary and as someone who has litigated cases. If I were involved in that case, a case in which the judge wrote those words, I might think to myself, regardless of whether I like the law and regardless of whether I like the decision made by the employer in that case, this is a judge who is bound by the law and is acknowledging as much in his opinion. So I would like to ask about the law in that case, in the TransAm Trucking case. The applicable statute said that you cannot fire someone for, quote, ``refusing to operate a vehicle.'' Is that consistent with your recollection?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sitting here, that is my recollection.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. In that case, the trucker was fired because he operated his vehicle, the vehicle that he was assigned to, against company orders. Is that a fair summary based on what you remember from that case?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, Senator.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. So one could argue--and I think one could argue conclusively, and I think it was argued and decided in that case, that this was a fairly clear application of the law because if what the law said that the person could not be fired for refusing to operate a vehicle and that statute were being invoked not in the context of where the person was fired for refusing to operate a vehicle but where the person in fact operated a vehicle, those are two different things, are they not?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I thought so, Senator. That was my judgment in that case.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Dickens wrote that the law is an ass, and sometimes you might encounter cases where that is true. Sometimes you can look at those who make the laws and say, exhibit A, Your Honor, as to why this law is an ass, but it is not your job to rewrite the law. It is not your job to write it in the first place, and it is not your job to rewrite it after the fact, is it?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do not believe so, Senator.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. You had another case under the same statue that was involved in the TransAm case. It is a 2007 case called Copart, Inc. v. Administrative Review Board. In that case a trucker had been fired for refusing to drive a truck that he considered unsafe. You wrote an opinion ruling in favor of the trucker and awarding him attorney's fees, is that right?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, your recollection is better than mine on the attorney's-fees issue.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. Courts do not always award attorney's fees, but as I recall, the Court did in that case. So I do not really understand the argument that some are making or the implication some are trying to raise that you were somehow unfair in the TransAm case because, after all, in the TransAm case you applied the law, it did not apply in the way the terminated employee wanted it to apply in that case, but you applied it fairly in the other case. I also wanted to bring your attention to another case that has been mentioned by some of my colleagues, and that is the Hwang case. It is the case where a professor with cancer wanted to extend her leave. The university said no, and the professor sued. The panel ultimately concluded that the law required her to show that she could continue to perform her job if the university provided an accommodation. And all the parties in that case agreed that she could not, that she could not continue to perform it. That, as I recall, was a unanimous opinion. Is that correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, that was another very hard case to go home after. The individual there had--was sick, very sick and had been given I think 6 months off I think already if I remember correctly. And I cannot remember whether it was University of Kansas or Kansas State. And then she was asking for another 6 months off and the university said no, and she sued under the Rehabilitation Act, which prescribes that reasonable accommodations must be provided to workers to perform their essential job functions. But to prevail, they have to show they can perform their essential job functions. And it was undisputed in that case she just could not through no fault of her own. And the District Court said that is just not a claim under the Rehabilitation Act, maybe for breach of contract, maybe something else, but not under Federal statutory law. That is my recollection sitting here. And my panel of three judges unanimously agreed that was the correct application of law in those facts. No one is here to say that-- love the law in every case and the results it yields. I am here to say that I promise to apply the law faithfully, and I can guarantee you no more and promise you no less than that, Senator, in every case.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. If I am remembering that case correctly, Judge Lucero was on that panel with you, is that right?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do not recall.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. I will check to make sure. I think he was, and Judge Lucero was not nominated by a Republican President.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Judge Lucero is one of my dear friends and colleagues, and he was appointed by President Clinton. That is true. He did an excellent job.
Senator Mike Lee (UT)
Senator
(R)
Senator Lee. So if you were wrong in this case, then so was he. You did write in that case also something that I thought showed a fair amount of reflection on the plight of the plaintiff in that case, writing, quote, ``By all accounts, the plaintiff was a good teacher suffering a wretched year,'' close quote, indicating that you were aware of her plight. This is hardly the kind of statement made by a judge who is unsympathetic. This is in context the kind of statement made by a judge who understands the deeply human context of every case and also understands the deeply sacred nature of the oath you took to uphold and protect and defend the Constitution of the United States and to operate within the constraints of the Constitution. For that, I thank you and I respect you.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you, Senator.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you, Senator Lee. I want to make an announcement that we will take a 10- minute break after Senator Klobuchar. Judge, just so you know the plan, we are going to take that 10-minute break, and I hope it will not be 11 or 12 minutes.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Senator Klobuchar. All right. Thank you very much, Mr. Chairman. Thank you, Judge. As I said yesterday, your nomination comes before us during an unprecedented time in our Nation's history. In recent months, foundational elements of our democracy have been challenged and questioned and even undermined, and for that reason I just cannot look at your nomination in the comfort of a legal cocoon, and I believe we should evaluate your record and philosophy against the backdrop of the real world today. So starting with something easy with the real world, Senator Grassley and I are leading a bill on cameras in the courtroom. I am not going to ask you specifically about that bill for Federal courts, but a number of your fellow people who are sitting at that table in years past, including Justice Sotomayor, have said that they were open to it and were positive about bringing cameras into the Supreme Court. And just to give you a sense of why this is so interesting, only a few people can get in there, yet the decisions affect everyone in America. Even just last month, 1.5 million Americans tuned in to CNN's broadcast when the Ninth Circuit heard arguments challenging the President's refugee and travel ban. So what is your opinion on having cameras in the Supreme Court?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, that is a very important question. I appreciate the opportunity to discuss it with you. I come to it with an open mind. It is not a question that, I confess, I have given a great deal of thought to. I have experienced more cameras in the last few weeks than I have in my whole lifetime by a long, long way. I have to admit, the lights in my eyes are a bit blinding sometimes, so I would have to get used to that.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. But would you favor it or not?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I would treat it like I would any other case or controversy. That is what I can commit to you, that I would want to hear the arguments. I know there are Justices on both sides of this issue, right?
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. I think Justice Souter said over his dead body would they have cameras, but I was hoping that things have changed. I was hoping that things have changed since then and that we see just more and more interest in these decisions, and I hope that you will remain open to it and will favor it. My second question, which also pertains to transparency, is a discussion you had with Senator Whitehouse about the Federal rules for Federal judges in terms of disclosing trips and things like that, and you had said that you had not taken those trips, but if you had you would have disclosed them, and I appreciate that. Do you think that there should be that same kind of Federal ethics standard for Supreme Court Justices?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, what I said is I disclosed every trip that is reportable.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay, I am sorry. Yes. But the specific question is on Supreme Court Justices.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes. I know that the rules are different. I do not know how different they are. I have not studied that, Senator.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Would you favor them having the same set of rules that apply to you right now?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I would say two things. First, I have no problem living under the rules I have lived under. I am quite comfortable with them. And I have had no problem reporting every year, to the best of my abilities, everything I can. So I can tell you that. It does not bother me what I have had to do. I consider it part of the price of service, and it is a reasonable and fair one. I would also say I do not know what the arguments are. I have not studied them, and I would want to commit to you that I would give it very fair consideration, and I would want to hear what my colleagues have to say.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay. Yes. It is pretty straightforward to me, because it applies to the other Federal judges. I do not think this is a matter of precedent or what has happened. You are going to be, in the words of Hamilton, if you get confirmed, in the room where it happens. So all we are trying to do is to make this as transparent as possible of what people's interests are. So I just hope you will consider that.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Of course I will.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. And I think I will move on to some of the harder stuff here.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I pledge to you I will consider both of those things.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay. Thank you. On the issue of precedent, I think this idea of an independent judiciary is important, now more than ever, so I want to start with that. When you accepted the President's nomination you said, ``A judge who likes every outcome he reaches is very likely a bad judge.'' And in your book you said again that good judges often decide cases in ways antithetical to their own policy preferences when the law so requires. So I want to ask, can you give me an example of a Supreme Court case that you believe was wrongly decided under the law but that you will continue to follow if you are confirmed because the precedent is so strong?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I think that is just another way, honestly, of trying to get at which Supreme Court precedents I agree with and I disagree with.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. I do not think it is. It is something that you actually said when the President nominated you, and you said it in public. You said that this is a definition of a judge, someone who respects precedent so much that they are still going to enforce the law. So I just thought there could be one example, even if it is a really old one.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, I think Senator Lee and I were just talking about a couple of cases where the results were not attractive to me as a person where I followed the law to the best of my abilities, and did so with my colleagues.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Yes. One of the reasons I am asking this is that several past nominees have made this promise about respecting precedent before this Committee, and these are people you respect and admire, Justices. At the same time they said they would respect precedent, and then they later became Justices with a lifetime appointment and they overturned precedent. One of those examples is Citizens United. Two past nominees who later became Justices stated they would honor precedent during their hearings, and then they joined an opinion that not only broke from precedent but gutted a law passed by Congress, releasing this unprecedented wave of money. So do you view Citizens United as a departure from prior precedent?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, Citizens United did overrule Austin. So in that respect, it is an example of a court that, in part, overruled a precedent, and that is part of the law of precedent too, as we have talked about, that you start with a strong presumption in favor of precedent. That is the anchor of the law. It is the starting point. But there are instances when a court may appropriately overrule precedent after considering a lot of factors, and we have talked about them, and I am happy to discuss them with you again if you would like, but I do not want to waste your time either, so you tell me.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. So you see this as something where there was precedent--I mean, you can go back to Buckley v. Valeo. As you know, parts of that, as you discussed earlier with my colleagues, stayed in place, but it overturned parts of that: Austin, McConnell. There was just a number of cases that it overturned. To us up here, it was a major overturning of precedent. So that is why we are so concerned when people say, oh, we are going to respect precedent, and then they come in and do that. And, actually, you have suggested that you would actually go further than Citizens United, and that was in Riddle v. Hickenlooper, a 2014 case. While it was a narrow case about campaign finance caps on individual contributions to major political candidates, the outcome of the case is not really one I want to talk about. That was all the judges--I think there was an agreement on the case. But you alone wrote a concurring opinion, and that is what I wanted to focus on, suggesting that making a political contribution was a fundamental right that should be afforded the highest level of constitutional protection, which is strict scrutiny. If the Supreme Court adopts the standard that you suggested, the few remaining campaign finance limitations that we have in place and left on the books could fall. So do you believe that strict scrutiny is the appropriate standard for reviewing campaign finance regulations?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I welcome the opportunity to clarify Riddle v. Hickenlooper. In that case, the law in Colorado allowed individuals to contribute more money to major- party candidates than to minor-party candidates.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. I know, I really do. I read the case. I understand that. But I just want to, with my limited time, focus on that concurring opinion, because that is what the actual opinion said. But then you took it a step further to talk about this possibility. You cited an opinion by Justice Thomas in your concurrence, joined by Justice Scalia, suggesting that all contribution limits should be subject to strict scrutiny. So could you clarify for us, do you think there is any basis for applying strict scrutiny to contribution limits that apply evenly across the board? Why else would you have cited that opinion?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am happy to try and explain again. So, the facts of the case, and that is what I was deciding, were uneven contribution limits. It was permissible to give more to major- party candidates than to minor-party candidates. And the law, as I know you are well aware, Senator, under Buckley, says the contribution to candidates is a First Amendment, fundamental right. It says that, and I was quoting Buckley, I am sure, or citing Buckley to that effect. And then the question becomes what level of scrutiny should we apply to that case? Buckley suggests that it is something less than strict scrutiny in the First Amendment context for contributions. That is the instruction that I as a lower court judge have in the First Amendment context. But this was an equal protection challenge, okay? Saying it is not just contributions. It is the inequality of contributions that is the problem here, that this system favors major-party candidates over minor-party candidates. And normally when we have a fundamental right in equal protection analysis, we apply strict scrutiny. So I was faced with a situation where do you take this little less than strict scrutiny out of the First Amendment context and import it into the equal protection context, or do you apply the normal strict scrutiny of the equal protection context? And I pointed to two excellent opinions by wonderful District Judges in the area, Judge Boasberg and Judge----
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. All right, all right. I really did read it. Okay, okay. I understand that, but here is the deal, that the other judges were happy to just decide it on that narrow basis, right? So then you write the concurring opinion to bring up this other issue, and I think again about Justice White, who is your mentor or was your boss, and there is a Law Review article by the Dean of Tulane: ``Time and time again, Justice White avoided broad theoretical bases for a decision when a narrow fact-specific rationale would suffice.'' And yet you write this concurrent----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Can I answer you, Senator?
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Because I am almost there, okay? So I write to point out this conflict in the Supreme Court's directions that I saw.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. All right? And then I said in our case, Byron White, it does not matter, because Colorado could not meet even a rational basis test. Forget about whether it is strict scrutiny or something close to strict scrutiny. It could not meet rational basis test because Colorado could not articulate any good reason, any--maybe there is one out there. I do not know. But I said they have articulated nothing.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay, but let us just continue on now with some other cases, because it is a bit of a pattern.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Okay.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Not a concurring opinion, but in the Hobby Lobby case you found that corporations were legal persons and could exercise their own religious beliefs. And for me, when it comes to campaign finances, it opens up the possibility that you would strike down, then, this idea that corporations should not be giving money directly to campaigns. Do you think these creatures of statute have the same constitutional rights as living, breathing human beings?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Goodness no, Senator. Hobby Lobby had nothing to do with the First Amendment of the Constitution.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. But it was about corporations.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It was, under RFRA.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. So you do not think, then--maybe we can end this line here. So you do not think that they would have these rights, a corporation would have these rights under the First Amendment?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do not think Hobby Lobby speaks to the question of the First Amendment at all. What it speaks to is a question of the Religious Freedom Restoration Act, and what a person is, is defined under that statute by reference to the Dictionary Act, which is Congress' direction to us, when we are dealing with statutes, what words we are supposed to use and what definitions are. And, Senator, if in RFRA, again, if this body wishes to say only natural persons enjoy RFRA rights, that is fine, and I will abide that direction. I am not here to make policy; I am here to follow it.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay. On to another policy that is pretty important. That is the Chevron case. In your Gutierrez concurrence, and this is where you wrote the actual opinion and then wrote your own concurring opinion, which I noted is better than writing a dissent to your own opinion, but you wrote a concurrence to your opinion, and to me this move, as you imply in your concurrence--you do not imply; you say--it could have titanic real-world implications when it comes to our rules, 13,500 cases on the books since 1984. In your book you say you do not overturn precedent unless it is universally accepted, affirmed by courts repeatedly, and people have extensive reliance on the decision. So my question is why, in your concurring--and Senator Feinstein asked you about the facts of the case. I do not want to talk about that because she already did and I have your answer. That was good. But in the concurring opinion you say, ``There is an elephant in the room with us today.'' Sorry, guys, he was not referring to the Republican Party. ``There is an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit Executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate Federal power in a way that seems more than a little difficult to square with the Constitution of the Framers' design. Maybe the time has come to face the behemoth.'' That sounds to me like, again, you are going a step further and talking about overturning a major precedent, and I want to know if that is what you mean, if you think it should be overturned, and if you have considered the ramifications of that when Justice Scalia himself was the original champion of the Chevron doctrine.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, all I can do is explain to you why I was concerned about Chevron in that case. And I was concerned because, again, we had an undocumented immigrant who was following judicial precedent----
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. I really do understand the facts, but I want to know why you did a concurring opinion to your own opinion in order to make this broader sweep and talk about--you said the time has come to face the behemoth. You were clearly talking about overturning Chevron.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am trying to answer your question as best I can. And I was concerned about the due process implications that arise in cases like Mr. Gutierrez where an individual, who is not aided by an army of lawyers or lobbyists, can they anticipate changes in law by agencies back and forth, willy nilly, even to the point of overruling judicial precedent? And that is a due process concern I raised. I raised an equal protection concern about the ease with which individuals like Mr. Gutierrez can be singled out by the political branch in a way that judges are supposed to protect. I raised a separation of powers concern about whether judges should be the ones saying what the law is.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. But as a Supreme Court Justice, if you were to make this decision to overturn Chevron, would you consider the implications on all of the cases in the U.S., and the rules and the uncertainty that it would create?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Goodness, Senator, yes.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. And would you overturn it? Is that what this means when you talk about maybe it is time to face the behemoth?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, my job as a Circuit Judge is when I see a problem, I tell my bosses about it, like any good employee. And my job there as I conceived it was to say, hey, listen, look at some of the implications, the real-world implications of what we are doing here.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay, but you would be the boss if you were the Supreme Court Justice, and what rule do you think should replace it? Should we have de novo review? Is that better? What do you think should replace Chevron deference?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I do not pre-judge it. I can tell you what did pre-exist it. It was Skidmore deference, which was an opinion written by Justice Jackson, actually. That is what pre-existed. So there was deference before, and we had the administrative state for 50 years, and agencies would issue rules and decisions. I do not know what all the consequences would be, and I would pledge to you--I was not thinking about being a Supreme Court Justice then. I was identifying an issue for my bosses. If I am so fortunate as to become a Justice, I would try and come at it with as open a mind as a man can muster. And I would tell you, remind you, what I bear in mind would be David Sentelle. When I was with him as a law clerk, he issued a panel opinion at the beginning of my year with him, going one way; and then by the end of the year wrote for the en banc court, the full court, reversing himself. Now, some people think that does not show a lack of sufficient steel. I think that shows an open mind and a lack of ego that a judge should bring to bear when he or she puts on the robe, and that is what I would commit to you.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay. Let us go to another piece of this philosophy, and that is originalism; in other words, where the words and phrases in the Constitution should be interpreted according to their original public meaning or how the Founders and their contemporaries would have understood them. Regardless of whether you characterize yourself as an originalist, you have applied originalism in several decisions, including last year in Codova v. City of Albuquerque, where in a separate concurring opinion you described the Constitution as a ``carefully crafted text judges are charged with applying according to its original public meaning,'' which are the buzzwords for originalism. Criticisms of the principles underlying originalism are not new. In fact, I believe some lines from Chief Justice John Marshall's opinion in McCulloch v. Maryland in 1819, almost two centuries ago, are still relevant to our discussion of the point today. He wrote that, ``The Founders must have intended our Constitution to endure for ages to come, and consequently to be adapted to the various crises of human affairs.'' He continued, ``To have prescribed the means by which government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide immutable rules for exigencies which, if foreseen at all, must have been seen dimly and which can be best provided for as they occur.'' He added, ``If we apply this principle of construction to any of the powers of the Government, we shall find it so pernicious in its operation that we shall be compelled to discard it.'' Do you agree with the point that Justice Marshall made in McCulloch?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, I would certainly agree that the Constitution must endure, and that it is a lot bigger than any of us, and it will live in that sense, hopefully, a very great deal longer than any of us, our children's children. I do think it is important to try and understand law according to its original understanding, public meaning. Words have meaning.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. So you do not agree with McCulloch about adapting to the crises of human affairs----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, Senator.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. So you do agree.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am trying to answer----
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. I just want a yes or no, that is all.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, I think it takes--these are complicated things that take more than a yes or no, respectfully. What I would say is the Constitution does not change. The world around us changes, and we have to understand the Constitution and apply it in light of our current circumstances. That is what we are trying to do as judges. So, for example, one of my favorite cases in this area is Jones, right? The Supreme Court of the United States is faced with a GPS tracking device attached by the police onto a car. Is that a search? And the Court goes back and looks, at the time of the founding, what qualified as a search, and found that would have qualified as a trespass to channels and a search by the Government, and says if that would have been offensive 200 years ago, that sort of thing, it has to be offensive now. The Constitution is no less protective of the people's liberties now than it was 200 years ago.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. So when the Constitution refers 30-some times to ``his'' or ``he'' when describing the President of the United States, you would see that as, well, back then they actually thought a woman could be President even though women could not vote?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am not looking to take us back to quill pens and horses and buggies.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay. But if you could just answer that question? It is pretty important to me.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am trying to.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Of course women can be President of the United States. I am the father of two daughters, and I hope one of them turns out to be President of the United States.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Great. Okay, that is wonderful. How about the Air Force? I agree with you; that is good. So in that case you would say, well, we cannot take it at its literal words. So then the Constitution also says Congress has authority to oversee the land and naval forces, but there is no mention of the Air Force, and I assume you believe that would also include the Air Force because if they knew an Air Force existed, they would have included the Air Force back then.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I think the generals in the Air Force can rest easy.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay, great.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Let me give you another----
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. How about Virginia--let us keep going here because I am almost out of time here. In United States v. Virginia, the Court held that the Virginia Military Institute violated the Equal Protection Clause of the Fourteenth Amendment by excluding all women from VMI's military training. In his dissent, Justice Scalia stuck to his signature originalism and criticized the majority, saying the decision is not the interpretation of a Constitution but the creation of one. Is the interpretation of the Equal Protection Clause in U.S. v. Virginia consistent with the original public meaning?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And the majority in that case argued that it was.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And the majority said that the words ``equal protection of the laws,'' whatever the secret, harbored intentions of the writers, had an original public meaning that is quite radical and significant, and that was what the majority of the Supreme Court of the United States held.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. So would you agree, then, that when you look at other things, would you be willing to apply this same approach to equal rights for minority groups, women, LGBT, including transgender people, racial minorities, the same approach you used when you just made the statement about the ``he'' and ``his'' in the Constitution, about not having the Air Force, about the Virginia Military decision?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, a good judge applies the law without respect to persons. That is part of my judicial oath.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay. So do you see it--your textualism, the original public meaning, then, would you apply it to these other contexts as well that I just mentioned?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, what I am trying to say to you is I do not take account of the person before me. Everyone is equal in the eyes of the law.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay. I am just trying to figure out this, because I think for some things, a lot of people who subscribe to this theory, they say we can have originalism for some cases but not for others, and I call it selective originalism. It just seems to me when you look at some of the opinions that use originalism that you have and some do not, but I have one----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, if I might respond to that?
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I would ask you to take a look at Jones again; Kyllo, the search of a home using a heat-seeking device. I would ask you to maybe take a look at Crawford, the right to confront witnesses, maybe as well the Apprendi-Booker line written by Justice Stevens, a very originalist opinion about the right of an accused to be able to have all of the elements of an offense that increases his sentence tried by a jury of his peers. Those are all what one might characterize as originalist opinions protecting individual liberties.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. You know what? We could do it on the second round. That would be good.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. All right.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Just some minor things here at the end. When the Supreme Court temporarily blocks a lower court ruling, they need five votes. A practice known as the ``courtesy fifth'' has developed in which a fifth Justice will provide the vote needed to stay the lower court ruling even if that Justice might not have otherwise been inclined to do so. Do you think the practice of the courtesy fifth is a good thing?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I have not studied that, and it would be presumptuous of me to offer an opinion in a court that I have not sat upon.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay. Well, it may be very relevant when this refugee case comes up, so you might want to study up on it. I am going to end here. I am going to do a lot of work on antitrust in the next round. I know you are an expert. Senator Lee and I have been heading up that Subcommittee for a long time. But I am going to end with freedom of the press in honor of my dad. He was a newspaper reporter his whole life, and I am especially concerned in today's world, where we are seeing these attacks on the media, about maintaining the press' role as a watchdog. Our Founders enshrined freedom of the press in the First Amendment. As Thomas Jefferson said, our first objective should be to leave open all avenues to truth, and the most effective way to do that is through the freedom of the press. In New York Times v. Sullivan, the Court issued a landmark ruling in support of First Amendment protections for the press by affirming that when newspapers report on public officials, they can say what they want--maybe we do not always like that, but they can--unless they say something untrue with actual malice. Do you believe under New York Times v. Sullivan that the First Amendment would permit public officials to sue the media under any standard less demanding than actual malice? And can you explain to the people here today and those watching on TV what that standard means to you?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. New York Times v. Sullivan was, as you say, a landmark decision, and it changed pretty dramatically the law of defamation and libel in this country. Rather than the common law of defamation and libel, applicable normally for a long time, the Supreme Court said the First Amendment has special meaning and protection when we are talking about the media, the press in covering public officials, public actions, and indicated that a higher standard of proof was required in any defamation or libel case. Proof of actual malice is required to state a claim. That has been the law of the land for, gosh, 50, 60 years. I could point you to a case in which I have applied it, and I think it might give you what you are looking for, Senator, in terms of comfort about how I apply it, Bustos v. A&E Network. It involved a prisoner who was concerned that he had been misrepresented as a member of the Aryan Brotherhood. He claimed he was not a Member, just a fellow traveler, and sought damages for that. Our court declined to grant that relief, saying that substantial truth is protected even if it is not strictly true, and much more is required by the First Amendment in order to state a claim.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay. In Branzburg v. Hayes, a Supreme Court case, they did not recognize the reporter's privilege, at least in the context of criminal grand jury testimony. Could you just end here by talking about the scope of the Branzburg decision and whether there are instances where courts should recognize a reporter's privilege?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I know those cases come up from time to time, so I have to be very careful.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Your description of the case is entirely accurate.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Thank you very much.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Okay. Before we recess, I would like to enter into the record a commentary in the Chicago Tribune called ``Crying Wolf Over Neil Gorsuch,'' written by Dennis Hutchison, a lifelong registered Democrat. Specifically, he talks about concerns over Chevron deference. He writes, ``There are two sides to deference, however. My guess is that pro-Chevron advocates will soon be begging Federal courts not to defer to interpretive findings of agencies.'' End of quote. I enter that in the record without objection. [The information appears as a submission for the record.] We will recess for 10 minutes, so that means we will reconvene at 3:31. [Recess.] Chairman Grassley. Senator Cruz, it is your turn now.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Thank you, Mr. Chairman. Judge Gorsuch, congratulations on making it through more than half of a long day and making it through with flying colors. And I think this hearing has been helpful for illustrating the proper temperament and approach that we should expect of a Federal judge, and I think you are acquitting yourself in an excellent manner. This hearing has focused on a lot of weighty matters. So let me start with something lighter and a topic on which I believe you have some familiarity. What is the answer to the ultimate question of life, the universe, and everything? [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Forty-two.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Thank you, Judge. And for those who are watching who may be a bit confused at this exchange, could you explain what it is to which we are referencing?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, sometimes we have young people who come to court to be sworn in. Often, they are my law clerks. There are a couple of them right there. They have not enjoyed this privilege yet, and they come to court and they are very nervous. And the clerk tells us about their career and their record and submits them to the court. I move their admission to the bar. Are there any questions from the bench? And it is sort of like this. It is a bit intimidating. This has been a reminder to me of what it is like to be down here rather than up there. And the last time I had this kind of interaction with Senator Lee, it was when he was down here and I was up there. Any rate, I sometimes ask them that question to put them at ease, and they all know the answer, and they all know the answer because they have all read Douglas Adams' ``Hitchhiker's Guide to the Galaxy.'' And if you have not read it, you should. It may be one of my daughters' favorite books, and so that is a family joke.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Well, it is a book I very much enjoyed as well, and it is, I think, a delightful example of the humanity of a judge that we--that your record has demonstrated. You began your career with the opportunity to serve as a law clerk to Byron White. Byron White was an extraordinary man. Byron White was the only Justice that John F. Kennedy put on the Supreme Court. Byron White is, I believe--in fact, I am quite certain--the only Supreme Court Justice in history to lead the NFL in rushing and also to graduate first in his class from Yale Law School. Could you share with this Committee what it was like to be a law clerk for Byron White and to interact with him every day during your clerkship?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. You know, as I said, he really was my childhood hero. And to actually get picked out of the pile to spend a year with him, as Senator Lee's dad did--that is something we share in common, too--was and remains the privilege of a lifetime. And it has everything to do with why I am here. I would not have become a judge, but for watching his example. And the humility with which he approached the job, and I do not mean a phony humility. I mean real humility, every day. He always said two heads were better than one. He would sit down in my office, plunk himself down in a chair across the desk. He would be talking about a case and say, ``Ugh.'' It always started with a grunt. I mean, that is how he started a conversation. It was like ``hello''--``ugh.'' ``So what does the great Judge Gorsuch think about this one?'' And you were expected to have a view about pretty much anything and everything that he asked, and he would just sit there and chuckle at you. And he would laugh at you, and you were wondering what he thought. He never revealed his hand, and he would just walk out of the office. He would say, ``Oh, that is what Judge Gorsuch thinks. Okay.'' And then he would go back, and he would think about it himself. And then he would come back in again, and just the whole thing would repeat itself as he was working through each case himself. He would want to bounce ideas off of this know- nothing 20-year-old, 20-something-year-old kid. And that, to me, taught me everything about what it means to be a judge and the fact that when asked his judicial philosophy in this sort of setting, he said it is to decide cases. And I know a lot of people think that is just mundane or maybe cover dishonesty in some way. It is just not true. It was the humility of the man. He knew that lawyers worked really hard because he had been a lawyer, a workaday lawyer for 14 years, I think it was, in a law firm. He tried cases--small cases, big cases--and he knew what it was like to have to be the lawyer in the well and how hard it is to have all the answers, how easy it is to ask the questions.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Now you and I both had the experience of clerking at the Supreme Court after Justice White had ended his time on the basketball court.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes. Well----
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Or maybe you were luckier than I? For those who do not know, above the Supreme Court, above the roof of the courtroom, is a basketball court, which is referred to tongue- in-cheek as ``the highest court in the land.'' And Justice White, for many years, would play in the basketball games, NFL Hall of Fame football player with a bunch of pencil-necked law clerks.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. And his elbows and fouls were legendary. When I was clerking, he was no longer playing. Were you lucky enough to get him up on the basketball court?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. He would come up for a game of horse with the clerks, former law clerks at reunions.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. How is his jump shot?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. His best shot at that age, and we are talking in his seventies, late seventies, was from the free throw line back up over his head like that. And he could hit it pretty regularly. [Laughter.] Judge Gorsuch. His eye-hand coordination was just uncanny. So I remember those, those law clerk reunions at the basketball court where he would come up and stiffly throw it up and sink it. I remember walking through with him in the basement, arm in arm, liked to walk arm in arm at that age, and we walked past all the portraits of all the former Supreme Court Justices, which are down at ground level. And he would ask me, ``Ugh,'' grunt, ``how many of these guys do you honestly recognize?'' And I was one of those pencil-necked law clerks, and the truth was I thought I knew a lot about the Supreme Court, the law, and the answer was about half, the honest answer. And he said, ``Me, too.'' And he said, ``The truth is we will all be forgotten soon enough, me included.'' And I remember saying, ``Justice, that is impossible. You are one of the greats. No way you are going to be forgotten.'' His portrait now hangs down in the basement.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Well, there is wisdom in that humility. Let us shift to another topic, a topic that has been raised some in this hearing, which is there are some Democratic Senators on this Committee who have raised a challenge to the notion of originalism and, indeed, have painted originalism as some quaint and outdated mode of interpreting the Constitution. Have suggested that their view of the Constitution, it is a living, breathing, changing document, flexible enough to become--to accommodate whatever policy outcome the particular judge might desire. The alternative is that a judge is obliged to follow the Constitution, the text of the Constitution as informed by the original understanding at the time it was adopted. Do you share the view of the Democratic attacks that originalism is somehow a quaint and outdated notion of reading the Constitution for what it says?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I want to say a few things about that, and I appreciate the opportunity. The first is that sometimes we, in our discourse today, our civil discourse, use labels as a way to not engage with other people, to treat and divide us and them. And as a judge, I just do not think that is a very fair or appropriate or useful way to engage in discourse. So I am worried about using labels in ways that are sometimes an excuse for engagement with the ideas, sometimes pejoratively. The truth is I do not think there is a judge alive who does not want to know about whatever legal text he or she is charged with interpreting something about its original meaning, as enacted. And I do not think this is an ideological thing. I look at decisions like Jones, which we have talked about, or decisions like Kyllo, the thermal imaging of a home. Is that a search under the Fourth Amendment? The Supreme Court goes back and looks at the original history and says it is equivalent to Peeping Toms, which, of course, would be a search under the Fourth Amendment. The Constitution is no less protective today of the people's liberties than it was 200 years ago. Or when we look at Crawford and the right to confront witnesses and not just have pieces of paper flying in evidence that you cannot confront reasonably. To cross-examine your opponent, fundamental right of the Sixth Amendment. Look back to the original understanding. That informs us. Or in the Fifth Amendment, Justice Stevens in Apprendi wrote a very fine examination of the original history of the Constitution and said it is not right that an individual should be sentenced to prison and then hand sentence on the basis of facts a jury has not found. Those are all originalist, if you want to put that label on it, opinions. Every one of them. You could look at Powell v. McCormack about the qualifications of Members of Congress. That was written by Chief Justice Warren. It is a very careful--you might agree or disagree with it, but it is a very careful examination of the original history and understanding of the relevant provisions of the Constitution. Or Heller, Second Amendment case. Justice Scalia and Justice Stevens both, majority and dissent, wrote opinions that are profoundly thoughtful in examining the original history of the Constitution. I guess I am with so many other people who have come before me, Justice Story, Justice Black, and yes, Justice Kagan, who, sitting at this table, said we are all originalists in this sense, and I believe we are.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Well, Judge, I thank you for that very scholarly and erudite answer. You are right that Justice Kagan gave an answer that had many similar aspects and said we apply what they say, what they meant to do. So in that sense, we are all originalists. And you know, you referenced the Kyllo case. I think it does--it serves well to rebut the caricature that some on the left try to paint of originalism. There, dealing with thermal imaging, you know, the notion that, gosh, how could the Framers possibly imagine modern contrivances, modern contraptions? Well, thermal imaging did not exist in the 1700s.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Right.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. The Framers had no idea what it was. And so under the caricature that some of the Democrats have suggested, you would assume the originalists in the case would all line up on the side of saying, well, gosh, the Fourth Amendment does not cover that. And yet, the Kyllo case, the majority opinion, 5-4, was written by Justice Scalia, perhaps the leading originalist on the Court. It was joined by Justice Thomas, and indeed, Justice Stevens dissented in that case. And so I think that case illustrates that any judge doing his or her job, a thorough understanding of the original understanding of the language is essential to effectively doing your job. Would you share your thoughts about how the Constitution intersects with modern technology? How a 200-plus-year-old document can possibly be applied in a world of internet and technology and changing--changing reality?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, it is just these discussions we have been having, right? You go back and you look to the evidence of what it was understood at the time to protect. Of course, Madison did not know about thermal imaging or GPS tracking devices or DNA or email. And no one is looking to take us back to the horse and buggy day or quill pens or to turn back the clock on anything. The point is to apply the law in a way that allows us to be able to say as judges it is not what we wish. It is what the law was understood to mean. It has a fixed meaning, as Madison said, in the fixed meaning canon of construction. That the Constitution should have a fixed meaning, all right? And the judges may disagree over what that is. We disagree once in a while. Not as often as some would like to portray, once in a while. But our disagreements are not political disagreements. They are disagreements over what the law is. That has been very important to me. And the other thing it does is it is a due process value. We are interpreting the law in a way that we can charge people with notice of because we are judging them for their past conduct. People lose their liberty, their property on the basis of our interpretations of the law. That seems to me that it should only be fair that there are interpretations we can charge them with notice of, right? Similar thing when we come to statutory interpretation, right? What does that text mean? What could a reasonable reader understand that text to mean? You know, my favorite case in statutory interpretation when I teach this stuff and talk to my law clerks about it is the fish case. There the statute read something like, I am not going to get it exactly right, but if you destroy email documents or other tangible objects when you know the cops are after you, you go to jail. Well, what does that mean in the context of a fisherman who knows that the Coast Guard is after him, and he has an illegal catch and he throws it overboard? That case went to the U.S. Supreme Court. It is a great case. And it divided in a way that people do not expect, right? Justice Ginsburg wrote the majority opinion and along with Justice Alito writing a concurrence, saying fish? This statute is about email. Nah, no, no. Justice Kagan and Justice Scalia wrote a dissent, saying fish? That is a tangible object, right? He had notice. He should not have done it. And so these things do not divide along any kind of ordinary ideological line. I am confident that there are Justices who in that case or in Heller or in any of these cases would, as a matter of policy, have come out differently than they did as in a matter of judging. And that, to me, is all the difference in the world. We are not doing what we would like, but what we think the law is.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Let us turn to another topic. Some of my colleagues on the Democratic side have raised some questions about the Federalist Society and have raised it with a tone that suggests it is some nefarious and secret organization. Indeed, I was waiting to see the question ``Are you now or have you ever been a member of the Federalist Society?'' [Laughter.] Senator Cruz. And given that context, for the sake of candor, I will go ahead and self-report now. I am and have been a member of the Federalist Society since I was 21 years old and a first-year law student, when I happily joined. And indeed, there are over 60,000 Members, law students and lawyers and, indeed, those just interested in the Constitution and the rule of law. And one of the things that has struck me about the Federalist Society is the incredible range and diversity of opinions within the Federalist Society. You have conservatives. You have libertarians. You have those with--who believe in fidelity to law and would not ascribe to either of those labels. And I understand you gave a talk at a Federalist Society event at the problems of over-criminalization. Can you tell us a bit about that talk?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, I think it is fun to go into audiences and challenge them sometimes a bit. I think it is important. And as to the Federalist Society, I do not have a card either, and I really do not want a back statement for past dues. [Laughter.] Judge Gorsuch. But I attend maybe one event a year or something like that. It is all alumni forums that you all have. And at that speech, I did talk to the society about the problem of over-criminalization as I saw it. On the Federal statutory books today, we have approximately 5,000 criminal laws. That does not count, of course, all the criminal laws at the State and local level, and Congress pours out a lot of new criminal laws all the time. Most of those laws are of relatively recent vintage. I asked my law clerks to go find out, okay, now how many of those--how many laws do we have that have criminal penalties that are in regulations, too, right? Just out of curiosity. And I thought they'd be able to come back with a number. And apparently--they reported back, and I trust them. They are pretty smart. They came back and said that scholars have given up trying to count the number. They gave up at around 300000 And Madison warned, you know, he lived in a time when there were too few written laws, so that the king could pretty much do as he wished. Tyrannical king. That is the experience they had. But he foresaw a world and warned about a world in which we have too many laws to the point where the people cannot know what the law is. And of course, there is the great example of Caligula, right, who posted laws, ancient Roman emperor, deliberately posted laws written in a hand so small and up so high that nobody could tell what the law was. Better to keep the people on their toes. Sorry. And that is a problem, too, right, for due process, fair notice. And the truth is in like so much else in life, we are aiming for the golden mean. Not too much, not too little. A point where people have enough fair notice, but are not overwhelmed. That is what I spoke about.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Well, and I agree with you. It is a significant problem, one that this Committee has addressed multiple times, and I hope will continue to address. Indeed, I am reminded of one legal thinker who famously observed, ``In heaven, there is no law, and the lion lies down with the lamb. In hell, there is nothing but law, and due process is meticulously obeyed.'' And living in a situation where, by the account you just shared, there are over 300,000 potential crimes in a regulatory sense, at some point makes it exceedingly difficult for an honest citizen to conduct himself or herself in a way that does not run afoul of the law. And then that is something that should concern all of us. You know, I would note when you gave this speech, would you say it is fair to say that not everyone at the Federalist Society who heard your speech agreed with everything you said?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, goodness. That was the whole point of this speech, Senator.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Well, and in my experience, a great many Federalist Society debates--events are structured as debates, where you have sometimes sharply contrasting views for the purpose of intellectual discussion and, hopefully, thinking in addressing hard problems.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And there is a counterpart to the Federalist Society now, the American Constitutional Society. One of my friends who was just here is on the board. It does similar good work.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Sure.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I think these societies, debating societies, useful to ideas percolating, being shared in a civic way, in a way that we can discuss with one another calmly, coolly, thoughtfully. Not yelling at one another, not using labels to dismiss one another. That is what I get out of it. I learn things.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. I would note that the Federalist Society describes its purpose as ``It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.'' And I can think of very few people qualified to be a judge who would not agree with those basic precepts about the foundation of our country. Let me turn to a different topic, which is several of my colleagues on the Democratic side have focused on corporations and have been critical of decisions such as the Supreme Court decisions in Citizens United or Hobby Lobby and have put forth the proposition that corporations are not people and, hence, cannot have First Amendment rights, cannot have free speech rights, cannot have religious liberty rights. And while that may be a perfectly fine debating point in a Committee of the United States Senate, in a courtroom, it runs foursquare into decades, if not centuries, of precedents on the other side. The New York Times is a corporation. Judge Gorsuch, is there any credible argument that The New York Times enjoys no First Amendment protections whatsoever?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, Senator.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. The NAACP is a corporation. Is there any credible argument that the NAACP has no First Amendment protections?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I think these are long-settled precedents we are talking about.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. And the same, I would note, is true for the NRA, for La Raza, for the ACLU. Every one of those is corporations, the Sierra Club, and every one of those the Supreme Court has for decades held--Simon and Schuster, a major book publisher. There is--every one of those, the Supreme Court has held, are protected by the First Amendment. Is that a fair characterization?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I believe it is.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. I think that is important to note in the public debate that part of the reason we have such a robust arena of free speech, part of the reason I think it is a good thing that on gun issues we have the NRA and the Brady Center debating back and forth, citizens of good intentions and morals believing strongly on an issue, expressing their First Amendment rights, petitioning Congress, speaking out publicly. And the First Amendment exists to protect your right on one side or the other to speak and let the public domain resolve that issue. Let me turn to a different issue and return perhaps to a lighter topic. I understand that you like to take your law clerks, some of them very much not from the West, to the Denver rodeo every year and to have them observe and react to cattle roping and bronc riding and mutton busting. Is that true, and can you share a bit of your experiences and, even better, theirs in that regard?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, I get law clerks from all over the country, many from my region. I maybe favor my region, but I get plenty from out of the area, too. And we have a great rodeo in Denver every year, the Grand National, and it begins with a parade down 17th Street, which would be like a parade down Pennsylvania Avenue in DC, where you have cattle, it is a cattle drive down the main road in Denver. They shut it down. That is how you mark the opening of the Grand National. And the closing of the Grand National is celebrated by the prize steer getting to spend a little time in the Brown Palace Hotel. Now the Brown Palace Hotel is like the Willard or pick your favorite fancy, at the Plaza in New York. Yes, they bring the prize steer into the lobby of the Brown Palace. And in between, there is a rodeo and the stock show, and the kids show their animals. My kids never made it to the Grand National. They are more county fair types with their chickens and their rabbits and dogs and whatever. But the kids compete to the Grand National, this Grand National. This is big time. And then there is mutton busting, and I think my children still have PTSD from mutton busting. [Laughter.] Judge Gorsuch. Mutton busting, as you know, comes sort of like bronco busting for adults. You take a poor little kid. You find a sheep---- [Laughter.] Judge Gorsuch. And you attach the one to the other and see how long they can hold on. And you know, it usually works fine when the sheep has a lot of wool, and you tell them to hold on--I tell my kids hold on monkey-style, you know, really get in there, right, get around it. Because if you sit upright, you go flying right off, right? So you want to get in. But the problem when you get in is that you are so locked in that you do not want to let go, right? And so then the poor clown has to come and knock you off the sheep. And my daughters, you know, they got knocked around pretty good over the years.
Senator Ted Cruz (TX)
Senator
(R)
Senator Cruz. Well, as a Texan, I think everyone's life could be rendered richer by going to the rodeo, and I thank you for sharing that experience with your clerks.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, I am sorry. We could talk mutton busting all day.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Senator Franken.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Good to see you, Judge. Evidently, there is no animal abuse laws---- [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. You sound like my daughters on that score, Senator.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. You know, I wanted to get to some questions, but first I want to talk about TransAm Trucking because Senator Durbin brought it up. Then Senator Lee brought it up. And I want to just go through the facts real quickly because I understand the reasoning behind your dissent, but I am actually kind of puzzled by it as well. Okay. So Alphonse Maddin is a truck driver. He has made a stop off the interstate at 11 p.m.. He comes back on--or he is about to come back on, notices his brakes are frozen on his trailer. Okay. So he decides I am not going to go on--it is dangerous to go with frozen brakes onto the interstate, frozen brakes on my long trailer. He is in the cab, and he calls in for--pulls over to the side, calls in for a repair. Gets the dispatcher. The dispatcher says, well, you know, wait. Hang on there. Wait. Okay. A 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 cannot feel them. I cannot feel my feet. My torso, I am beginning not to be able to feel my torso. And they say hang on, hang on, wait for us. Okay. Now he actually falls asleep, and at 1:18 a.m., his cousin, I think, cousin calls him and wakes him up. And his cousin says that he is slurring his speech, and he does not make much sense. Now Mayo Clinic in Minnesota says that is hypothermia. And he had fallen asleep. If you fall asleep waiting in 14 below zero weather, you can freeze to death. You can die. He calls them back, and a supervisor says wait. You have to wait. So he has a couple choices here. Wait or take the trailer out with the frozen brakes onto the interstate. Now when those brakes are locked, and you are pulling that load on a trailer with its brakes locked, you can go maybe, what, 10, 15 miles an hour. Now what is that like on an interstate? Say you are going 75 miles an hour. Someone is going 75 miles an hour. They come over a hill and slam into that trailer. Also he has hypothermia. He is a little woozy. Probably figures that is not too safe. I do not think you would want to be on the road with him, would you, Judge?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. You would or not? It is a really easy yes or no.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Would I want to be on the----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Would you like to be on the road with him?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Would I want to be on the road with him?
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. With the hitched trailer or the unhitched trailer, Senator?
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Well, either, but especially with the hitched trailer with the locked brakes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No. I do not think that was a serious option. I agree with you.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. I thought that was--I would not want to be there either.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes. An unhitched trailer----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. So what he does is he unhitches it---
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Right.
Senator Al Franken (MN)
Senator
(D)
Senator Franken [continuing]. And goes off in the cab.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And then I believe he comes back 15 minutes later.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. And he comes back after he gets warm so that he can be there when it gets repaired.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Right.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. He gets fired. He gets fired. And the rest of the judges all go that is ridiculous. He should not--you cannot 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?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, Senator, I do not know what I would have done if I were in his shoes, and I do not blame him at all for a moment for doing what he did do.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. But what----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I empathize with him entirely.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. Just we have been talking about this case. You have not decided what you would have done? You have not thought about for a second what you would have done in his case?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, Senator, I thought a lot about this case because I----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. And what would you have done?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I totally empathize and understand----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. I am asking you a question. Please answer the questions.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I do not know. I was not in the man's shoes, but I understand why he did----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. You do not know what you would have done? Okay. I will tell you what I would have done. I would have done exactly what he did.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes. I understand----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. And I think everybody here would have done exactly what he did, and I think that is an easy answer, frankly. I do not know why you had difficulty answering that. Okay. So you decide to write a thing in dissent. If you read your dissent, you do not say it was like subzero. You say it was cold out. The facts that you describe in your dissent are very minimal. But here is the--here is the law that--and you go to the language of the law, and 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 has reasonable apprehension of serious injury to the employee or the public because of the vehicle's hazardous safety or security condition. That is the law. And you decided that they had the right to fire him, even though this law says you may not discharge an employee who refuses to operate a vehicle because he did operate the vehicle. Is that right? That is your--that is how you decided, right?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is the gist of it.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Well, no. Is that how you decided? That is what you decided, right?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, there are a lot more words in the opinions, both in the majority by my colleagues and in dissent, but that--I am happy to agree with you that is the gist of it.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Right. Well, that is what you have said. And I--look, I am not a lawyer, but I have been on this Committee for about 8 years, and I have paid some attention. So I know that what you are talking about here is the plain meaning rule. Here is what the rule means. When the plain meaning of a statute is clear on its face, when its meaning is obvious, courts have no business looking beyond the meaning to the statute's purpose. And that is what you used, right?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is what was argued to us by both sides, Senator.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. But that is what you--that is what you used?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, both sides argued that the plain meaning supported their----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Yes, and you used it to come to your conclusion.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. But both sides did.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. 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 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 is absurd. Now I had a career in identifying absurdity. [Laughter.] Senator Franken. And I know it when I see it, and it makes me--you know, it makes me question your judgment. You stopped by my office a few weeks ago. I asked you about Merrick Garland. I had read somewhere that after you accepted the nomination, it has been talked about, one of the first calls you placed was to Chief Judge Garland. And you said to me, ``I think the world of Merrick Garland.'' And 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, and I decided to leave well enough alone, and I moved on to another topic. But your relationship with politics came up against yesterday. My good colleague Senator Lee lamented the extent to which the confirmation process has become political and suggested that you and other nominees are not equipped to navigate that process because confirmation politics are, in his words, ``still a little foreign to you, are still quite unfamiliar to you.'' But it turns out that is not really entirely accurate. After you were nominated, this Committee made a formal request for documents relating to your previous nomination and to your time at the Department of Justice. This is standard procedure. Those documents include 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 is a message you sent to Matt Schlapp, President Bush's political director. This was in November 2004, just after President Bush won re-election. ``I spent some time in Ohio working on the 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 does not sound like someone who steers clear of politics to me. You went on to write, ``While I have spent considerable time trying to help the cause on a volunteer basis in various roles, I have concluded 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 had worked on Republican political campaigns since 1976. You worked for Reagan, Bush 1, Bush 2. You were cited for distinguished service to the United States Senate for work in support of President Bush's judicial nominees by the Senate Republican Conference, which suggests that even the political 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, and rather than answer the question, you replied, ``I try to avoid politics.'' But here you are in 2004, pledging your allegiance to the cause and shopping around a resume, touting your work on political campaigns dating back to 1976. These messages establish that for a good deal of your prior career, you did not avoid politics. Quite the contrary, you were very politically active. So 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?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, a couple of things in response to that, if I might? Going back, the absurdity doctrine argument was never presented to the Court, and it usually applies in cases where there is a scrivener's error, not when we just disagree with the policy of the statute. So I appreciate the opportunity to respond there.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. When there is a scrivener there?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Scrivener's error.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Error?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Error, yes.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay, I am sorry.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Not when we just disagree with the policy. With respect to campaigns----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Well, if I read my statutory interpretation from, let us 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.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, yes.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. And I think you can apply it without it--I mean, do you not think it is absurd that this man was put-- given that choice and then fired for it? Do you not think that was absurd?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, my heart goes out to him.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay, never mind.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. My heart goes out to him, but it is just not my job to write----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. How do you think Merrick Garland was treated by the Republicans?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And Senator, since I became a judge 10 years ago, I have a canon of ethics that precludes me from getting involved in any way, shape, or form in politics. They are the reason why judges do not clap at the State of the Union and why I cannot even attend a political caucus in my home State to register a vote in the equivalent of a primary.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. But I do not think that this is--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 are allowed to talk about what happened to the last guy who was nominated in your position. You are allowed to say something without being--without getting involved in politics. You can express an opinion on this.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I appreciate the invitation, but I know the other side has their views of this, and you, your side has your views of it. That, by definition, is politics.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay, okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And Senator, judges have to stay outside of politics. I think the world of Merrick Garland. I think he is an outstanding judge.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay, I understand.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I have told you what I think about him.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. I understand. Thank you. Thank you. I do not 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 your political views might inform the views of the law, and I know--I do not hold it against you that you did political work. Lots of people did.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. 1976, I was walking the district with my mom.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. When she was running for State house.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Looking again at the emails 5 or so months after your message to Mr. Schlapp you emailed Ken Mehlman. Mr. Mehlman was your law school roommate, and at the time you emailed him, he was the Chairman of the Republican National Committee. You had just interviewed for a job at the Department of Justice, and 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 school roommate, did the 72-hour effort in Ohio for us, and was part of Lawyers for Bush.'' Mr. Mehlman wrote, ``He is a true loyalist.'' Now again, being politically active or a loyal Republican are not disqualifying characteristics for a Supreme Court nominee, not in my book anyway. Let us think back to the 2004 election. Let us look at Ohio, where you volunteered. Ohio is one of 11 States in 2004 where Republicans working to support the re-election campaign also worked to put anti-gay marriage amendments on the ballot. These State constitutional amendments passed, all 11 of them. The text varied State by State, but generally, the amendments defined marriage as being between a man and a woman. The amendments sent a clear message to lesbian and gay couples that their unions were not equal in the eyes of the law. Now you were a campaign worker in Ohio. You were a member of the group Lawyers for Bush-Cheney. As a lawyer and as a student of the Constitution, how did you feel about the right to marry being put to a popular vote?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I do not recall any involvement in that issue during that campaign. I remember going to Ohio----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Were you aware of that issue at all?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, certainly, I was aware of it.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. And how did you feel about it?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, my personal views? Any revelation of my personal views about this matter would indicate to people how I might rule as a judge, mistakenly, but it might. And I have to be concerned about that.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. These discriminatory amendments were part of a deliberate effort to drive up the turnout, and we know that because--we know that because your friend Ken Mehlman said so. Mr. Mehlman was interviewed by The Atlantic in 2010 and said that the Bush campaign had ``been working with the Republican to make sure that anti-gay initiatives and referenda would appear on November ballots in 2004 and 2006 to help Republicans.'' Now to be clear, there is nothing to suggest that you were involved in crafting that strategy. But at the time, this tactic received a lot of attention, including in Ohio, where you worked on the campaign. It has a profound impact on people's lives. But a lot has changed. Since 2004, Mr. Mehlman announced publicly that he is gay, for one. He also voiced regret about what happened. He apologized. He said, ``At a personal level, I wish I had spoken out against the effort. As I 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 in which I was involved. I apologize to them and tell them I am sorry.'' That is a brave thing to say. It is hard to admit regret. Mr. Mehlman had a personal connection to the issue, to be sure. But our country has come a long way in a relatively short amount of time. A lot of folks have changed their view about marriage equality, Republicans and Democrats alike. In the meantime, the Supreme Court has settled this issue. Marriage equality is now the law of the land. So you should not have any problem answering this question. How have your views of marriage equality changed, if at all, since the 2004 election?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, my personal views, if I were to begin speaking about my personal views on this subject, which every American has views on, would send a misleading signal to the American people that my----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. It is settled law.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is absolutely settled law. There is ongoing litigation about its impact and its application right now, and I cannot begin to share my personal views without suggesting mistakenly to people----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. Can I move on to something else then? Thank you.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, if I might finish?
Senator Al Franken (MN)
Senator
(D)
Senator Franken. I understand. You have given a version of this answer before. So I understand. I understand. I would like to return to something I raised in my opening statement, and 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 the President's agenda. Two topics were featured prominently, deregulation and your nomination. Now I do not think that is a coincidence. Reince Priebus started by explaining why nominating you was so important for the President to do right out of the gate. He said, referring to your nomination, ``Number one, we are not talking about a change over a 4-year period. We are talking about a change of potentially 40 years of law, number one.'' That is change of potentially 40 years of law. Change the law. You and your colleagues here have said the job of a judge is to follow the law, even if he dislikes the results. You have said that. Not change the law or change 40 years of the law. But that is what Reince Priebus said this is about. When the White House chief of staff was talking to his friends at CPAC, he says that Justice job, that your job is to change 40 years of law. Yet my colleagues and you say it is to follow the laws as written. Well, it cannot be both. So which is it?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, it is to be a judge, to be fair, to follow the law. To apply it to the facts and circumstances of each case and to live out my judicial oath on whichever court I serve on, whether it is the Tenth Circuit, where I have served for the last 10 years----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And where my opinions have been unanimous 97 percent of the time, Senator.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. I know.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I have been in the majority----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. I understand, and again, you have given many times 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. ``Neil Gorsuch represents the type of judge that has the vision of Donald Trump, and it,'' referring to your nomination, ``fulfills the promise that he made to all of you,'' speaking to the conservative activists gathered at CPAC. What do you think that Mr. Priebus was talking about? Was he suggesting that, if confirmed, you would be positioned to shape the Court's decisions for the next 40 years, or was he 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. Was Mr. Priebus suggesting that you go back and change 40 years of settled law or have an effect on the law moving forward?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Respectfully, Senator, Mr. Priebus does not speak for me, and I do not speak for him. I do not appreciate when people characterize me, as I am sure you do not appreciate it when people characterize you. I like to speak for myself. I am a judge. I am my own man.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. I just want to just, you know, we have had some talk about this. I do not think we are crazy to think that the administration and Reince Priebus, I do not think he was lying. And does it not--are you comfortable with your nomination being described in such transactional terms?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, there is a lot about this process I am uncomfortable with, a lot. But I am not God. No one asked me to fix it. I am 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 and my record.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. I have it. Well, I find it unsettling that the administration is talking about--the chief of staff is talking about the Supreme Court that way. But I want to get back to the panel at CPAC. After Mr. Priebus discussed your nomination, Steve Bannon talked about the President's agenda. He described three priorities, and one of them was ``the deconstruction of the administrative state.'' Now here is what Mr. Bannon meant by that. He said that regulation was a problem from his perspective. ``Every business leader we have had in is saying not just taxes, but it is also regulation.'' He said that if you look at the President's appointees, ``They were selected for a reason, and that is deconstruction. The way the progressive left runs is if they cannot get it passed, they are just going to put in some sort of regulation in an agency. That is all going to be deconstructed.'' Taking Steve Bannon at his word, do you think only Cabinet appointees were selected to bring about this deconstruction, or do you think the White House also sees a role here for its judicial nominees?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, respectfully, I believe that is a question best directed to Mr. Bannon.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. He is not here. I am just quoting him. That is all. I think the White House does see judges as a part of this deconstruction, and I think that they are seeing your nomination as an important step toward achieving this goal. You have shown a willingness to disregard agencies' interpretations of statutes. You did that in TransAm Trucking with a Department of Labor regulation, for example. You have done it in other cases as well, and in August, you wrote that concurrence to your own unanimous opinion in which you describe Chevron, the Supreme Court's landmark administrative law case, as ``permitting Executive bureaucracies to swallow huge amounts of core judicial and legislative power.'' You wrote, ``Maybe the time has come to face the behemoth.'' Now generally speaking, as we have discussed, Chevron provides the courts should defer to an agency's interpretation of the Federal laws that it is tasked with administering. When Congress passes laws that require agencies to implement them, say, by issuing safety standards for children's toys or rules to ensure that pharmaceuticals or medicines are safe, those agencies turn to experts to develop those policies, experts like scientists at the FDA, for example. And I think that is a good thing. We want experts doing the work. What we Senators do not want to be doing is deciding how much lead can be in your water or what the distance in the slats are in a baby's crib. I do not trust Senator Coons to do that. [Laughter.] Senator Franken. Chevron provides that when agencies do that, courts should be wary of stepping in to overrule them without a good reason. This is--Scalia agreed with Chevron. But I am concerned that this administration sees common sense health and safety rules as a burden on big business, and I am 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?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am a Circuit Judge. I do not 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 interest, but because of what happened to Mr. Gutierrez, an undocumented immigrant to this country. 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 the 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 is a due process problem I saw, and no one, Senator, is suggesting that scientists should not get deference, or chemists or biologists. Section 706 of the APA is quite clear that on facts----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Well, you want to address this behemoth, and that suggests that the comments 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. During the entire Fourteenth Congress, Chevron deference was mentioned only twice on the Senate floor. But between the announcement of your nomination on January 31st and last week, that decision was mentioned 30 times by 4 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 are choosing your words very carefully, and I know you are 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 Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Senator Sasse.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. Thank you, Mr. Chairman. Judge, I--you mentioned that there are a number of things about this that have been disappointing to you in the process. I am disappointed in Senator Cruz partly because he stole a lot of my originalism plan of questioning, but also because he went to mutton busting. [Laughter.] Senator Sasse. I was convinced that I was the only guy that had mutton busting in today's pool. So, my wife also sent me a text a little bit ago and said, and I am sure she did not expect me to read it, but how in the world is Gorsuch able to go so many hours at a time without peeing. [Laughter.] Senator Sasse. I will not make you answer, but the SCOTUS bladder is something the whole country stands in awe of. You are over halfway through your 11 hours today, so congratulations. Judge, let us do biography for just a second. You are a father. Remind me of the ages of your children.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Boy, I do not even know what to say now. [Laughter.] Judge Gorsuch. You really caught me off guard there,
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. Senator Sasse. You are welcome.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. My daughters are 17 and 15.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. Okay. So, besides fishing, have they ever played sports?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, my goodness, yes.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. Have you ever gotten to a Little League game early, pulled the umpire aside in the parking lot, and asked him or her to commit in advance that they will decide the games for the underdog?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, but I think some of my buddies have. [Laughter.]
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. Have you--have you ever asked a referee underneath the zebra stripes of their jersey to wear your kid's Little League jersey as the undershirt, the referees?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, it would not have helped any. My kids were pretty rotten at basketball.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. We are obviously not going to pursue this very far, but I do want to make sure that everybody at home knows a little bit of what has been happening in the room over the course of the last six or 7 hours, because some of my colleagues are asking a bunch of tough questions that are really important for you to have to answer. At the same time, there are a whole bunch of questions that have been asked today that are really asking you to take your legal career and your legal ethics, and set them aside, and play politician on TV today. And that really is not your job. And some of this questioning really has not been a fruitful use of our time. It is well meaning to talk about the outcome objectives of a whole bunch of these cases, but I would submit that it is dead wrong. I want to give you just a couple of the questions we have heard earlier today at different times. ``How can we have confidence that you will not be for the big guy?'' At another point, ``how can we know--how can we know that you feel for the little guy?'' This sounds noble, but it is fundamentally a corruption of what the judge's job is. To seek assurances from you like this is like seeking assurances from a referee before the game that they will pledge to a certain outcome before the tip off. If the law is wrong, and I am somebody who believes that lots of our laws are wrong and overreaching around here, the question should be directed back at us on this panel and on this dais why we do not fix the laws that are wrong. We would not 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. That is not the oath that you will take, that is not the Constitution that we have all taken an oath to and pledged to, and it is not what the American people want. So, frankly, I applaud you for your perseverance and patience with us as we have continually gone down a path of asking you to answer questions, many of which are fundamentally political questions, and that you should not be answering, and that we should not be asking. So, thank you for your endurance. I would like to go back to something that is 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 robe. We both spoke about it yesterday, I would note, with no coordination. It turns out we both just read your stuff from the past. And the judge's black robe reminds us of the meaning of your job. It reminds the plaintiffs that stand before the court, it reminds the judges as he or she dresses in the morning, and it reminds our kids or it gives us an opportunity to teach our kids. And you have spoken eloquently about it in the past, but I think it is fitting for you to unpack it a little bit more in light of some of today's questioning. Earlier today you were implored to tell us a little bit more about what is in your heart. And I think that is fundamentally a confusing question for us to be asking of a judge except insofar as we would ask you, are you a man of your word, who, when you take an oath, in your heart are pledging to keep your word and to keep your oath. And I think we all know that the answer to that question is yes, and it is why you are going to be confirmed, because people believe you to be a good and fair-minded judge. But every American in a more fundamental way needs to know what is in the heart of legislators because we are supposed to speak for the hearts, and minds, and hopes, and dreams of 320 million American people. We are supposed to cast a vision for the country, those things we want to conserve and preserve, and those things that we should argue about and change. 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 supposed to be following the law impartially. Your heart is supposed to be inclined neither toward the rich, nor toward the poor, nor toward Black nor White, nor people with big bank balances or small bank balances. But your heart is supposed to be your commitment to the law as you find it. So, let us engage in a little thought experiment. Thirty or 40 years from now when you retire and hang up your robe, and you are out fishing or sitting on the front porch of your surely lovely home, and you look back over your career, how will you know if you were a good judge?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, that is a question I ask my kids every semester when I teach ethics, finish the semester with asking them to spend 5 minutes writing their obituary. They hate it. They think it is corny, and it might be a little corny. And then I ask them if they will volunteer to read some of them, and people want to be remembered for the kindnesses they showed other people by and large. And what I point out to them--what I try to point out is it is not how big your bank account balance is. Nobody ever puts that in their draft obituary, or that they billed the most hours, or that they won the most cases. It is how they treated other people along the way. And for me, it is the words I read yesterday from Increase Sumner's tombstone. And that means as a person I would like to be remembered as a good dad, a good husband, kind and mild in private life, dignified and firm in public life. And I have no illusions that I will be remembered for very long, none, if Byron White is nearly forgotten, as he is now as he said he would be. I have no illusions I will not last 5 minutes. That is as it should be. ``The great joy in life,'' Shaw said, ``is devoting yourself to a cause you deem mighty before you are thrown on the scrapheap.'' An independent judiciary in this country, I can carry that baton for as long as I can carry it, and I have no illusions I am going to last as long as you suggest. And that will be good enough for me.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. Well said. And would it be that more who taught legal ethics, and business ethics, and medical ethics, and theological ethics, would assign their students the obituary challenge. We might live less in the soundbite culture and more in a way that thinks about service, and duty, and calling. It is a great assignment. Neither Cory Gardner nor Michael Bennet have to fear that you are going to challenge them for a Senate seat from Colorado in the future?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I admire them both, and I think it is a wonderful fact they were both here to introduce me, and that they follow a tradition, the West, where Senator Salazar and Senator Allard, Republican, Democrat, introduced me last time around. And, frankly, 10 Circuit nominations, thanks to-- he is not here at the moment--but Senator Hatch cares about the Tenth Circuit, Republican and Democrat, generally going very smoothly. And it shows. It shows that you all have picked--I do not know how it works. I do not know how this crazy process works, but the colleagues you have selected for me over the years are wonderful colleagues, wonderful people. And I have been richly blessed to spend 10 years with every one of them.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. So, when you distinguish between the rearview mirror of a Justice later or a judge later in life looking back, and the rearview mirror of a Senator, we have different callings. And so, I think, without putting words in your mouth, you are 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 her or his career is different than a judge's retrospective look.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I suspect, but I do not know because I have not sat where you sit. I would not 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 this piece 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. It is an experience every young person should have. It will give them a lifelong love of this body. It the greatest deliberative body in the world. I believe that even sitting here. A judge looking back, the most you can hope for is you have done fairness to each person who has come before you, decide their case on the facts and the law, and that you have just carried on the tradition of a neutral, impartial judiciary that each person can come to with some sense that they are going to receive a fair hearing for their disputes. That is what we do. We just resolve cases and controversies. And lawyers are supposed to be fierce advocates, and I was once a fierce advocate for my clients. But a judge is supposed to rule impartially, to listen courteously, and rule impartially. So, frankly, my legacy should look and will look a lot smaller than yours, and that is the way the design of the Constitution works.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. In an earlier line of question, you were asked about 2004, and the presidential election, and your participation in it. I just want to clarify, you were not a judge in 2004.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Goodness no, Senator.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. Correct.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I was a private attorney.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. And when you went on to the bench, what changed in your life?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Justice Jackson says, ``A robe changes a man or it should.'' Now, I am sure you would add ``woman'' today, too. A psychological change comes over that person. He was the fiercest possible Advocate Attorney General for FDR, and he wrote a dissent, as we have talked about earlier, in Korematsu. He wrote the Steel Seizure concurrence. He was a brave man. That is a judge's judge, calling it like he sees it in each case as it comes, and writing clearly so that people can understand exactly what he is up to, and he is not hiding behind jargon, legalese, or four million footnotes. That is the best I can do on that.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. Senator Cruz earlier asked you a series of 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 will not pin you down hard on the term ``originalism.'' But many have critiqued originalism, including in some statements yesterday and today here, as backward focused, or ``too rigid'' in adapting to our changing culture. Do you believe that originalism is just one judicial philosophy among many, or is it a description of what judges do?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am with Justice Kagan on this. I think it is what we all want to know. I do not know a judge who would not want to know what the original understanding is of a particular term in the Constitution or a statute. That is information that would 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 does not necessarily decide the case, but it provides us a language to talk to one another in which we are trying to seek something outside of ourselves, outside of our own personal beliefs, about what the Constitution or the statute at hand means. We are trying to do it in a way that is neutral and that we can say provides fair notice to those whose lives we are affecting, so that we are interpreting the law in a way that we can say they should have known. They were on notice. We are not putting a person in prison willy nilly based on our preferences. We are taking away their liberty, but we are preserving it in accordance with the Constitution as it was written.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. I would like to talk a little bit about cultural catechesis, or civics. As you and I have discussed in previous meetings, I am of the view that we have a crisis. We are not passing on the meaning of America to the next generation. Something like 40 percent of Americans under age 35 tell pollsters that 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, right, that there are all sorts of things people might differ about and they might want to argue about. Our Founders came here, and they did not have the same views of heaven and hell and how you achieve salvation. And they came together, and they forged out of the many one polity where we have a shared framework for ordered liberty, where 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, in Boulder, or in Fremont, or in Omaha, Nebraska. And you do it in the town square, and do it at the church or the synagogue, you do it in the bar. And you fight about questions, but fight free from violence, and so, we protect each other's rights to argue and to dissent. And we are 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 is 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 a Republican President, before he was a Republican Governor, when he was a Democratic labor union organizer, Ronald Reagan used to say, ``In any republic, you are always only one generation away from the extinction of freedom.'' If we do not pass along the meaning of America to the next generation, it means the next generation of our rulers are not going to understand why we have this beautiful inheritance that we have in a constitutional system of limits. As a judge on the Tenth 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?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, as a judge on the Tenth Circuit, I have tried hard to do that, literally teaching class, speaking where I am invited when I am invited, going to law schools, talking to students, and visit the courthouse, and it has been a great privilege and a joy. I think here of Justice O'Connor--Sandra Day O'Connor--and when she retired she did an awful lot of this. She has done an amazing amount of work. And I do think that there is a need to remind people how to talk to one another, how we talk to one another, and more fundamentally about how brilliant the design of this Constitution is. Not perfect, but e pluribus unum. From many, one. And we are all not Republican judges, Democratic judges. We are judges, and I think we do have an opportunity, and that is one of the things I look forward to as a Justice. My little talks might be a little better attended on civics, and I hope to do that. Maybe that is a Western thing, I do not know, or a MidWestern thing, Senator. But I really believe in this country, and I am optimistic about its future. I see the young people. I teach them. I get law clerks that really care about this country, and they give me hope every day. Senator Coons and I share the distinction of being Truman Scholars, and we go through the selection process of picking the next crop every year. Harry Truman did not want a monument as a memorial here in Washington. Think about that, the humility of that. Instead, he wanted a living monument, a scholarship to young people who go on to do public service. Well, you got two of them here. And every year when I go do that selection process, I do not know about Senator Coons, but it is one of the best days of the year for me because I see young people full of enthusiasm for this country and anxious to make it better. I look forward to working, if I am so fortunate to be confirmed, on just this topic, Senator, with you, with Senator Coons, and anyone else.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. Talk a little bit about the role of writing in the life of a Justice. Justice Scalia was obviously a writer with a flourish. You have discussed having been tapped in the past to participate in speech writing. Talk about the purposes of both concurring dissents and traditional dissents, and what you think the objectives are at the appellate level in your opinions, and is there a distinction when you are on SCOTUS.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. When I sit down to write an opinion, people sometimes ask me who I am writing for. I am writing for myself. I am trying to convince myself that I have it right. And I go through a lot of drafts, and I sometimes, as my law clerks know, change tack as I am--I am drafting. I do not know how many drafts I have gone through on some opinions, 30? More.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. He actually said 130, but whatever. [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Because I am trying to get it right, and I find I test ideas as I write. It is one thing to say to somebody else, oh, go write this up. It is another thing to have to sit down and write it yourself. And it exposes holes and gaps in your own thinking, causes you to question yourself, wonder whether you have it right. So for me, it is an exercise of getting it right, and persuading myself at the end of the day, and writing in a language that persuades me. A lot of gobbledygook, and us lawyers are guilty of a lot of gobbledygook, that does not persuade me. I want to know through a clear line. I want to be able to see my argument or my topic sentences. And maybe it is Sister Rose Margaret, I do not know, but I want to see the argument flow. I want to see how it fits together, and then I want it torn apart by my law clerks who tell me I am wrong. So, it is an iterative process because at the end of the day, that is what it is all about. And then it is about the test of my colleagues, and I take their comments very seriously. I believe in collegiality. I believe that two heads, three heads, nine heads are better than one. And so, I think a good judge cannot have too much pride of authorship. He has to accept criticism, constructive criticism, and try and incorporate or deal with that criticism. Maybe that is why my opinions have attracted relatively few dissents, I do not know, but I take collegiality very seriously. As to writing separate opinions, I do not do it very often, and when I do it, it is usually because I am just stuck. I might be wrong, but I am just stuck. Something does not seem right to me, and I have tried to discuss it with my colleagues, I have tried to work it out. I have bent as far as I can bend, but at the end of the day I have--I take the oath to follow the law where it leads me. And I try hard to reach a collegial consensus, but when I cannot, I write up what I can as respectfully as I can, and usually in as few words as I can, a dissent or a separate concurrence. Sometimes because it is back bound, but it is just where I am stuck. Sometimes it is because I see an issue that my bosses need to be aware of, like any good employee. Hey, boss, you might want to think about this one, it seems kind of tough to me. And I think that is part of the process of a good judge.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. I am a historian by background, and when I was writing my dissertation to your audience question, one of my advisors just kept pounding me saying, I do not know who you are writing for here, it seems scattered all over the place. And he finally persuaded me to put a picture of my aunt on the farm next to my computer, and she is smarter than I am, but she knows nothing about my topic. And he said, if you recognize that your audience should be smarter than you, but ignorant of the subject matter, you are finally going to find your voice.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. Is there something analogous in the writings of the Supreme Court where you are not just writing for other Justices, but you have an obligation to write for the American people?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I think if you are sitting and writing your dissertation for yourself with a picture of your aunt, you are right on target, because I think if I am writing for myself and trying to persuade myself, then I figure everybody will be able to at least track what I did. Maybe not agree with every opinion, every single one of the 2,700 decisions I have issued, but they will understand why I have where I have. I was candid about it. I did not hide. I stood up. I was clear. I was honest. I was forthright, plain-spoken. And you can judge my opinions for better or worse on their merits. And I think that is what a good judge does is candor, the duty of candor.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. We finished voting a day early last week, and so a lot of us were back in our States traveling and doing town halls, and Rotary clubs, and schools. I ran into three different teachers who planned to use these hearings on C-SPAN to teach civics. I wonder if you could help those teachers explain, as one of them asked me, about why we have a Bill of Rights. To remind the American people, the Constitution is a negative document. It is not the Government giving us freedoms. It is us giving the Government a limited set of enumerated powers, and originally there was no Bill of Rights, and as a part of a compromise, we added one. Today most people when they think about our Constitution think of the Bill of Rights first. Why do we have a Bill of Rights, and what fundamental difference would it make if we did not have one?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is a big question. For us adults----
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. The Chairman said I could have an extra hour, so take your time. [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, I have 4 minutes and 19 seconds on that. That is a big question for us adults who are where we are. It is a big question for my middle school- and high school-age kids. The Constitution as a negative document, the theory behind it, in short order, was to divide liberty--to divide power the better to protect liberty. That is the theory, that if you put all power in one set of hands, are going to get tyranny. And our Founders had too much evidence of that in their own time. It is kind of a hard-won inheritance, part Enlightenment theory, right, part on the battlefield. They saw what it was like to have power amalgamated in one set of hands, dangerous, so they divided it. They divided it three ways on our--in our Federal system. You, Article I, write the laws, and it is tough. It is supposed to be tough to protect liberty. We do not just have one house. We have two houses. And then, it has to be signed by the President, too. Really hard. Bicameralism and presentment is designed to make legislation difficult the better to protect liberty. The President's powers are to execute the laws, not make them, not adjudicate disputes. Our role is to decide cases and controversies between the people under law as it is, not as we would wish it to be. We are not legislators. We are judges. The legislative power is invested in this body. That is not all. Then we divide power in a way that was quite unique--well, unusual: Federalism. So, you can think of separation of powers as having a horizontal axis and a vertical axis so that the Federal Government has certain enumerated powers and authorities. And what the Federal Government does not enjoy, the States do as sovereigns. This country as well, we have Tribes which also bear sovereignty in our part of the world, and bear recognition as such. And I am glad to have the opportunity to recognize that fact here as a Westerner. So, we have the separation of powers between horizontally, vertically. And that was not thought enough to protect liberty. The drafters of the Constitution, many of them thought that would be more than sufficient, that, in fact, was the main way to preserve liberty. But our Founders were very suspicious and very jealous of their liberties, so they added the Bill of Rights, and they enumerated 10 of them, as you know, starting with freedom of speech, the freedom of religion, no establishment of religion, right to bear arms. The Third Amendment, which I am glad we do not litigate much. I wonder how many of the high school kids now watching know what the Third Amendment is about. Go look it up. [Laughter.]
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. And get 20 bucks out of your pocket at the same time.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. So, that is what the Bill of Rights is about--it is ensuring not just these negative protections, but some positive, affirmative guarantees against governmental encroachment.
Senator Ben Sasse (NE)
Senator
(R)
Senator Sasse. Thank you. I want to ask a few more questions about the Bill of Rights, but I will save it for my next round since we are at 40 seconds remaining. Thank you, sir.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Thank you. Senator Coons.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Thank you. Chairman Grassley, I would like to ask unanimous consent to enter into the record a letter from 19 different faith-based and secular organizations expressing concerns about Judge Gorsuch's rulings on the church and state and free exercise.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Without objection, it is entered. [The information appears as a submission for the record.]
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Thank you. Good afternoon, Judge.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Hi, Senator. Good to see you.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. It has been a very long, and hopefully very informative and instructive day. And I will suggest----
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. I was supposed to announce something. We will not take this away from your time, but I want everybody to be aware that after you get done, Senator Coons, we are going to take a 10-minute break.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Thank you, Mr. Chairman. The Third Amendment, some would suggest, was rooted in the Delaware Constitution, so although obscure, it is still beloved by some in the first State. Let us have a conversation, if we could, about religious free exercise and about liberty interests. There is an enduring tension or contest in our history between individual liberty and religious free exercise, and the ability of government to enact and enforce neutral laws. And I want to better understand how you view the proper balance between these competing core values. And to that end, I found Hobby Lobby and your contribution to it concerning and interesting. The case centrally involves access to healthcare coverage, including contraception, for about 13,000 employees across 500 stores of Hobby Lobby, and the religious views of the owners of that corporation. And you, Judge, joined the Tenth Circuit majority opinion holding that this for-profit business could, because of the business' religious beliefs, refuse to provide its employees with access to family planning. But you went even further than the majority, writing an additional concurring opinion emphasizing that the owners of Hobby Lobby, the Green family, were entitled to personally raise their religious objections, notwithstanding that they operated the business through trusts and corporations. In coming to that conclusion, you opened your opinion by writing, ``All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.'' Complicity is not a concept I have seen widely discussed in free exercise jurisprudence. Why did you choose to lead your opinion with this concept of complicity, and what does it mean as we are trying to assess free exercise reins?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. So, under the Religious Freedom--Senator, thank you. Interesting, good question. I mean, this is--this is--this is what it is all about. The Religious Freedom Restoration Act protects this exercise of sincerely held religious beliefs, and affords them the highest protection known in American law, strict scrutiny. That is a law that this Congress passed because it was not satisfied with the degree of protection that the Supreme Court was affording the exercise of religious liberty under the First Amendment under Smith. This Congress found Smith, written by Justice Scalia, to be insufficiently protective of the right to free exercise.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. If you could, Judge, help me with your choice of the term----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons [continuing]. ``Complicity,'' which does not appear in that statute, and had not previously appeared in free exercise jurisprudence.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you for prodding me along. The point is, what is a sincerely held religious belief? The individuals there were devout Christians, and as they interpreted their religion, it was a violation, a sin, for them to participate in any way in signing papers even to allow the provision of certain contraceptive devices, those that they believed had the effect of destroying a fertilized egg.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. They were okay----
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. That is exactly--excuse me, Judge, but that is exactly why the question of your use of this term ``complicity'' is so interesting to me----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons [continuing]. Is that it opens up a very broad, very attenuated, very remote connection between sincerely held religious beliefs by this devout family, through a trust, through a corporation, a for-profit profit corporation, to impact the choices and life decisions of 13,000 people. It is a truly unprecedented decision. If I could just quote for a moment----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sure.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons [continuing]. What I suspect is familiar to you, the dissent of the Chief Judge in your Circuit, Briscoe. She said, ``This opinion was nothing short of a radical revision of First Amendment law as well as the law of corporations, wholly unsupported by the language of the free exercise clause or the Supreme Court's previous free exercise jurisprudence.'' She claimed--Judge Briscoe--that there was literally no support for the proposition that for-profit corporations enjoy free exercise rights in the Supreme Court's previous jurisprudence. And I am struck by the extent to which the use of the term ``complicity'' and your description of a substantial burden on a sincerely held religious belief opens possibly floodgates for litigation on behalf of those who have sincerely held religious beliefs. As you mentioned, the issue here was access to family planning. There were more than 20 forms of contraception that could potentially be covered. There were only a handful--I think four--that the Greens objected to.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Right.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. How far does this new concept, this newly injected concept of complicity go?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, it is not a new concept at all, with respect, because in enacting RFRA, Congress revived some older free exercise case law----
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. That is right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Much of it written by Justice Brennan. Thomas would be a leading example involving, I believe it was a Jehovah's Witness.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Okay, who was okay in producing certain goods that could be used as armaments, but not others.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Complicity in war making was a matter of faith that----
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. The key distinction--the key distinction, if I could, Your Honor, between Thomas and this was that in that case, here is an individual whose deeply held religious belief made him say I cannot make turrets for tanks.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Right.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. So, the question is uniformly applicable law, unemployment insurance, can he benefit? Fine. But it does not in any way implicate others' liberty interests. The core concern with the choice to recognize a very large multi-billion dollar, nationwide for-profit company, and to privilege the religious interests of its owners through the legal fiction of a for-profit corporation, as it impacts 13,000 individuals. That was not the case in Thomas.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, respectfully I think we are mixing apples and oranges because the first consideration is whether we have a substantial burden on a sincerely held religious belief. The second is whether the Government has a compelling interest, narrowly tailored, to override it. And I think we are mixing apples and oranges because on the first one, complicity is very much in play, and it is the same in Thomas as it is with the Greens. How far does my religious faith, your religious faith permit us to engage in things that our religion teaches are wrong, sinful? That is a matter of religious faith. And, in fact, I do not recall anyone doubting or the Government disputing that the Greens' religious faith was sincerely held on that score.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. That is right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. So, I think it is a given. So, this complicity discussion I think, frankly, Senator, is a red herring, to mix my metaphors, because everyone accepted it.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. We have apples, oranges, and red herrings. We have a full meal---- [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I know I am mixing--I know it is terrible. I would not want to write it down in an opinion. It is terrible.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Well, let me--let me take, if I could--let me take you to a number of things because several other Senators have referenced Hobby Lobby. One of the things that Judge Briscoe was saying that was sort of category-shattering or precedent-setting was the extension to a for-profit corporation, the recognition of a for-profit corporation that sells crafts and hobby materials as being a religious corporation. Previously only incorporated churches, or synagogues, or associations explicitly for--excuse me-- nonprofit religiously affiliated organizations have been recognized. In the interpretation of RFRA, you choose to define ``person'' to include for-profit corporations. Help me with why you made that move.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I would be delighted to, Senator, and thank you for the opportunity. I think I would point to a couple of things. First, RFRA is a statute, and it uses the term ``person,'' and it does not define the term ``person.'' And when Congress does not offer us a specific definition, we go to the Dictionary Act, which Congress has passed for just these circumstances. And there it says persons include corporations. That is the law as Congress wrote it and if Congress wishes to change the law and say only natural persons enjoy the rights of RFRA, I am a judge. I follow the law. But the law as drafted does not distinguish between natural persons and corporations. It includes them both. And the Government, Senator, if I might just finish, conceded, as I recall--and my recollection may or may not be great on this, but as I recall conceded that nonprofit corporations can exercise religion.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. That is right, and that is exactly why this was seen as such a departure. There was a long-settled expectation that religious free exercise rights adhere to individuals, living, breathing people, and to nonprofit corporations. It was a big leap for it to for the first time apply to for-profit corporations. And I appreciate that the opinion of the majority and your concurrence referenced the Dictionary Act, but the Dictionary Act actually says on its own terms that it applies unless the context indicates otherwise.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Right.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. And the reality is, as I think one of the dissents points out, all Congress was intending to do, as expressed by a number of Members of Congress, was to simply restore strict scrutiny, not to open up a whole new line of free exercise rights for for-profit corporations. So, I think the context clearly indicated otherwise. And to simply say all I did was pull a dictionary off the shelf, look it up, ``person'' can include corporations, we are done with the analysis, is in some ways tendentious, because the idea that a for-profit corporation could have religious free exercise rights was nowhere in the earlier case law that Congress explicitly intended to be the narrow purpose of RFRA. So, does Congress' intent when it passes a statute, its clearly stated intent, have any relevance to your interpretation, especially where something like the Dictionary Act actually urges you to look at the context?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I offer you two thoughts on that. First, as I recall sitting here, and I have to go study my books, but the Supreme Court in an earlier First Amendment case did recognize a challenge by an Orthodox Jewish shopkeeper to Sunday closing laws.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. That is right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That was a corporation, for-profit. So, respectfully, I am not sure it is accurate to say there is no precedent for it. Second, I would say to you the position you are advocating is a fine position, respectable position. It is a good position. It was adopted by precisely two Justices of the Supreme Court, and only two.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. So, the question I want to ask you now is, at what point, given this newly adopted, fairly broad interpretive standard, when do we stop deferring to an employer's religious beliefs when they conflict with generally applicable laws of neutral meaning? When do we allow the right of one to implicate the others? I think it was Justice Holmes who was attributed to have said that ``your right to swing your arm stops at the end of my nose.'' And part of what I think made Hobby Lobby striking to so many was that the choices of 13,000 individuals about their method of family planning were overridden by the sincerely held religious beliefs of a very successful family. So, I am looking for how you find a limiting principle in this new field? What is the limiting principle now?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, respectfully, I do not believe that is accurate either because all the Court held was that the Government had to come up with another alternative to provide the contraceptive care it wished to provide. The Court acknowledged--the Supreme Court acknowledged that there was a compelling interest in providing the contraceptive care, and simply said that an accommodation could be reached that did not involve the Greens or require them to give up their sincerely held religious beliefs, much as had been done for churches----
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. That is right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And hospitals, and lots of other entities. And the Government could not explain why it could not accommodate other entities, like Hobby Lobby, as well or Little Sisters of the Poor.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. But if I might just briefly, Judge, strikingly to me in the Tenth Circuit opinion in which you participated, you did not recognize as a compelling interest gender equity in providing health insurance to millions. The Supreme Court did. They balanced these equities differently. Why did you not think that was a compelling interest to provide access to healthcare for millions?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I think it was just a matter of what had been--what the record was in that particular case before us.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. That is also a striking point for me. This was a preliminary injunction.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Correct.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. It is a significant groundbreaking opinion where one of your colleagues, one of the other Tenth Circuit Judges, said we really should not be deciding something of this import on a PI. We ought to be remanding to develop the facts below. The facts were not really well explored. And the larger point I am trying to make is that I think this could lead to some very troubling applications. So, let us just take a minute and look at a few of the contours of what this, I think, precedent-setting decision might mean. So, let us imagine the Greens were from a different religious perspective, if they were Scientologists, for example, who reject the use of antidepressants, or Jehovah's Witnesses, who reject the use of blood transfusions, or Christian Scientists, who reject really modern medicine largely altogether. Could their sincerely held religious beliefs as Scientologists, or Jehovah's Witnesses, or Christian Scientists lead to the conclusion that 13,000 employees could reasonably be denied access to antidepressants, or to blood transfusions, or to healthcare whatsoever?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, Senator, not necessarily. It does not mean that at all. All it means is the Government under the law, as passed by this Congress with overwhelming bipartisan support at the time----
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Well, the ACA was not passed with overwhelming bipartisan support.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am sorry; speaking of RFRA.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Right, the accommodation is in the ACA.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, and the ACA, you can override RFRA any time you want. Congress could say RFRA does not apply to the ACA. That is another alternative. You can abandon RFRA. You can say it does not apply to this particular statute. You can say it applies only to natural persons. You can say it does not apply to contraceptive care. Congress controls this decision, Senator.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. That is right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is your decision. It is not mine, with all respect. We are just trying to implement what you have asked us to do.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. So----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And, Senator, on your hypotheticals, okay?
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Justice Brennan wrote these First Amendment cases that you are seeking to revive, I would remind you that, all right?
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Justice Brennan, all right? And the fact of the matter is sometimes the Government can prove a compelling interest, and then it has the most narrowly tailored way to get there, and sometimes it cannot. And each case has to be taken on its facts in the particular context in which it arises.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Well then, help me--help me walk through, if you would, given we already know how you draw the compelling interest line in this particular instance of access to family planning or contraception. How else might you weigh these equities or draw these lines? If the Greens, for example, in Hobby Lobby knew that several of their employees would spend their paychecks on other things they might say were immoral, like gambling or prostitution. Could they refuse to endorse their paychecks?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, it would--it would go back--we would do the analysis.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. The same analysis. Do they have a sincerely held religious belief? Sometimes people do not. I have had claims, for example, of individuals----
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. But in this instance, would you not agree that their sense of the complicity that you referenced in your opinion would likely apply?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It depends.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Even though it is very attenuated----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator----
Senator Chris Coons (DE)
Senator
(D)
Senator Coons [continuing]. The choice of their employee to spend their money in a way they disapprove, is not that different from the choice of the employee to choose among two dozen forms of contraception, one of which they strongly disapprove?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I think it depends on the facts of the case. So, for example, I have had a case where a number of people came before us and said we have a sincerely held religious belief that marijuana is God.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It turned out it was a drug distribution ring, all right?
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And what they really worshipped was the almighty dollar.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Many of us have teenagers at home watching.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well. [Laughter.] Judge Gorsuch. And they were really just trying to make a buck, okay? And the District Court found that was not a sincerely held religious belief. So, you can get off the train there. That is one place where you may get off the train in your hypothetical. You have another place to get off the train. It is substantial burden.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Another place is compelling interest by the Government. Another place is narrowly tailoring. So, there are four steps in the process, and you have to go through all four of them as a good judge with the facts of each case as it comes. And, Senator, again, it is all statutory. You could abolish it tomorrow.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Well, let us take an example that I think was central to a lot of this analysis, United States v. Lee. It is an older case, 1982. It was a unanimous case. It is one where an Amish businessman declines to pay for Social Security taxes----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Right.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons [continuing]. Not just for himself, but for a few of his employees. And the Court rejected his claim because the restriction on religious freedom, in their view unanimously, was essential to accomplish an overriding governmental interest. Is Lee still good law?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I think Lee would be the sort of law you look at when you are applying RFRA, absolutely.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Because RFRA simply restored----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons [continuing]. The strict scrutiny standard that Lee was decided under.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. The Religious Freedom Restoration Act, exactly. So, that is a very good example, Senator, of where the Government was able to prove compelling interest in their own tailoring, yes.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Because the ability to have a Social Security scheme nationally that is sustainable is a compelling interest.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. But a nationwide plan to provide access to healthcare is not.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, Senator. Again, I think we are mixing our apples and oranges because the Government in the ACA was spotted the compelling interest. The problem was the narrow tailoring. You could get there without forcing the Greens to do something their religion prohibited. So, it was not like the system of Social Security, which depends upon everyone's participation. That was the distinction the Supreme Court drew.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Let me just quote, if I could, Justice Scalia, who addressed this same issue in Employment Division v. Smith. And he said, ``it is precisely because we are a cosmopolitan Nation made up of people of every conceivable religious preference, and precisely because we value religious divergence, that we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.'' Now obviously, the law has changed in terms of the review standard, but do we because of Hobby Lobby now have to deem every law to be presumptively invalid if it offends any conceivable religious preference?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Under the Religious Freedom Restoration Act, it is a four-part test effectively.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. All right? And for every challenge, you ask those questions. Is there a sincerely held religious belief? Is there a substantial burden on it? If check, check, then you go to the Government side of the ledger. Do they have a compelling interest, and is it narrowly tailored? And that is the law you have set forth, Senator, because this body did not like, frankly, Justice Scalia's decision in Smith. And if this court--sorry--if this--the old trial lawyer in me. Sorry, getting tired. If this Congress wishes to say Justice Scalia was right in Smith and we have changed our minds, that is entirely up to this Congress.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Well, I am going to move on to another line of questioning, but I just want to say that one of the challenges I face in a couple of different gates through the analysis as laid out was how you decided to interpret the underlying RFRA statute, how it was extended to for-profit corporations, how the balance was struck between what I think are the mediating decisions of thousands of individuals versus the free exercise of the Greens. You have talked about being a Westerner. You have, I think, entertained us with mutton busting, something I have not seen yet, and clearly I should. [Laughter.] Senator Coons. And I am--I am interested----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I recommend it.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. I am interested in your view of privacy and the autonomy of adults to make their decisions. It was, in fact, I think Justice Scalia who said there is not a genuine Westerner on the Court, and that California does not count. As I shared with you, some of my extended family was from the West, and I think of Westerners as steadfastly independent folks. Justice Douglas, a famously Western Justice, once said, ``The right to be let alone is the beginning of all freedom.'' So, in 2006, you authored a book, ``The Future of Assisted Suicide and Euthanasia,'' a topic of intense personal interest to many. And when reviewing your book, I was expecting you to conclude that people have the right to be let alone, because I think of that as an inherently Western trait, to make important and difficult personal decisions without the interference of government, but you did not. Instead, you expressed a belief in the inviolability of human life. What did you mean by that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, respectfully, I am not sure I would agree with your characterization.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Of the book or of being a Westerner?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Of the book. I agree with your characterization of being a Westerner. The book does conclude that Cruzan is absolutely correct, that there is a right to be left alone at the end of life. These are hard decisions. I do not pretend to have any perfect answers here. I was writing this book as my dissertation, trying to contribute to what I thought was a very hard question, and I still think a very hard question, one we all have had personal struggles with, Senator, as I know you have and I have. And this is a human problem. We are mortal. Cruzan held that people have a right to be left alone presumptively under the common law, presumptively constitutionally, to stop care, go home, die in your own bed, as a lot of my family Members have done. The question is whether you should also have an additional right to have someone kill you, involve doctors in killing. And there are good arguments on both sides of that ledger, as I explore in the book. And----
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Well, if I--if I can, Judge, I would like to help walk through that exploration of what you--what you looked at in the book.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sure.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. And I think the Cruzan decision is a very important one, because essentially the tension here is between whether there is a right for a conscious terminally ill adult to end their own life by refusing lifesaving hydration and nutrition, as the Supreme Court assumed in Cruzan, or with the help of a doctor. And a lot of this rests in whether there is a right to privacy. Do you believe the Constitution contains a right to privacy?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, Senator, I do. Privacy is in a variety of places in the Constitution. The first and most obvious place, back to the Bill of Rights, is the Fourth Amendment, the right to be free from unreasonable searches and seizures in your homes, papers, and effects. That is privacy, right? The Third Amendment, which I alluded to, but did not want to reveal.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Quartering of troops in homes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No quartering of troops. Stay out of my house with your troops. Now, happily we do not litigate that much, all right? The First Amendment, the right to free expression, which we have been talking about, the freedom of religious belief and expression, that requires a place of privacy. And the Fourteenth Amendment, Senator, over now about 80 or 90 years, the Supreme Court of the United States has held that the liberty prong of the due process clause protects privacy in a variety of ways having to do with child-rearing and family decisions, going back to Meyer, which involved parents who wished to have the freedom to teach their children German at a time it was unpopular in this country, and Pierce, the right of parents to send their children to a parochial school if they wish. So, Senator, yes, the Constitution definitely contains privacy rights.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. One of the things that you say in your book unequivocally is that, and I think I quote, ``All human beings are intrinsically valuable, and the intentional taking of human life by private persons is always wrong.'' And I think that is a dividing line you draw between the facts in Cruzan and what has been proposed in or adopted in states like Oregon. Can you point to any principle of constitutional law that says that, or has that principle, as you enunciated it, ever been offered by the Supreme Court or recognized by the Supreme Court?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I was speaking as a commentator before I became a judge, not expressing views as a judge, all right? My views as a commentator I am happy to talk about, though. I found this a very difficult question. The Supreme Court has held that this is an issue for the States to decide under Glucksberg and Quill, for the people to decide on the State level. I agree with those decisions. I say so in the book. My concern about legalization that I express in the book as a commentator has to do with the equal protection principles we have been talking about today, the equal justice under law principles. And I am concerned--in the book I expressed concerns as a commentator about what legalization might mean for the least amongst us, the most vulnerable, the disabled, the elderly who might be pressured into accepting an early death because it is a cheaper option than more expensive hospice care, things like that, that might cost more. And so, that was a concern I expressed. Senator, I do not pretend, though, to have the last word on that or to know the right answer. I was contributing as a commentator to what I thought was a very hard discussion.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. It is a very, very hard discussion, as you said, something that has an enormous impact on the terminally ill and their families.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. There was a case that I think was active at the time you were at the Department of Justice where the U.S. Attorney General was suing Oregon to block their Death with Dignity law that permits in that State physician-assisted suicide. And in the documents you produced to this Committee, you sent a message expressing hope that the Federal Government would win that particular case. Why did you want the Federal Government to win that case?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, I was an Advocate for the Government at the time, Senator. That is my job, all right? When you represent the Government, you want the Government to win. When you represent somebody against the Government, you want the Government to lose. And as a judge, Senator, it is a very different mindset.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. And when you are up for consideration for the Supreme Court, it is important to know what you view as settled precedent. So, let me in my last 2 minutes ask a question or two about that.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Sure.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. In the Glucksberg case, which is about physician-assisted suicide, Justice Stevens said in his concurrence that ``Avoiding intolerable pain and indignity of living one's final days incapacitated and in agony is certainly at the heart of the liberty to find one's own concept of existence,'' citing the Casey decision. What is your view of the application of Casey's mystery of human life language here?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, the Supreme Court in Glucksberg, the majority held that this issue is for the States to decide and the people to decide. The people of Oregon have made their decision to legalize it, for example. It was just legalized in November in my home State of Colorado. That is their right.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. And how did you feel about that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, my personal views have nothing to do with my job as a judge.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Let me ask one last question, if I might. There was a line in your book that reminded me a great deal of Justice Scalia. You said that ``a Libertarian principle legalizing physician-assisted suicide would require the Government inevitably to allow sadomasochist killings, mass suicide pacts, duels, the sale of one's own life, not to mention illicit drugs, prostitution, the sale of one's organs.'' Help me understand, in closing, why finding a constitutional right to physician-assisted suicide would directly yield to this long list of other, perhaps more shocking, constitutional rights to prostitution, or drug use, or the sale of organs. Help me understand that leap.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, in each chapter I analyzed different potential arguments, one of which was this Libertarian argument. And applied faithfully to its end, it leads to where it leads, as some of the authors of the argument acknowledge. I am not making it up. There are other arguments, though, that one might deploy that I analyze as well. That is not the only available argument for legalization by any means.
Senator Chris Coons (DE)
Senator
(D)
Senator Coons. Thank you, Judge. Thank you, Mr. Chairman.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. We will recess for 10 minutes, so that would be approximately 5:40, and then it will be Senator Flake. [Recess.] Chairman Grassley. Before I call on Senator Flake, this is how I would like to go forth for the rest of the evening. We have a vote scheduled at 6:10. That will be about the time that Senator Flake will be finishing. I would like to have--Senator Blumenthal would be the next one up. I would hope, Senator Blumenthal, you could go vote at 6:10 and be back here and take over, and I will operate within that. And then I would like to suggest that I have Senator Tillis to take over about 8 o'clock, so I can be in bed by 9 o'clock because I get up at 4 in the morning, and I want to be able to get a good night's sleep so I can run in the morning. And so you understand, Judge, that I am not--I hope you will understand why Tillis is taking over.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am a little envious, Mr. Chairman. [Laughter.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Okay. Senator Flake.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Thank you, Mr. Chairman. Thank you. This is a long day. I know what it feels like. It reminds me of being at the end of the table--I have 10 brothers and sisters--and getting there and there are no more questions to ask, no more food left on the table either. But I appreciate your endurance here. And speaking of my--I have 10 siblings, and I have five children as well. I do not know about my colleagues, but that is how I get elected in Arizona. It helps, not so much for a judge, but for Senators, it does. And just like Ben's family, my family has been texting me throughout this process, asking me to ask questions that they would ask. I asked a few of them for suggestions, and my son, Dallin, a teenager, said, ask him if he would rather fight a hundred duck-sized horses or one horse-sized duck. [Laughter.] Senator Flake. I have never heard of it either. Apparently, it was a question on Reddit a while ago, but anyway, that is where it is going from here, I think.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. You can tell him I am very rarely at a loss for words.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Okay. All right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. But you got me.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. I will tell him. A teenager stumped you there. My brother Scott asked if you have ever worn gym shorts and a tank top under your robe. [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, on that one, we have what is called the Fifth Amendment, which is part of the Bill of Rights as well, and which, of course, protects the right not to self- incriminate. So I might have to exercise my rights under the Fifth Amendment to that one.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. That is a good answer. My mother asked a little more serious question, and this goes to how you spend your time, to let people know more about you. How do you like to get your hands dirty? You like to ski, but that is kind of a pedestrian sport.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Wow, spoken like an Arizonan there, the Valley of the Sun. No, our family loves to ski together. That is one of our favorite activities. My daughters are ferocious double black diamond skiers. One of them is----
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. That is not pedestrian at all.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. One of them is right now doing some backcountry skiing out near Telluride, as we speak. So that is something we love to do as a family.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Where does your family vacation?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Near Winter Park, Colorado. It is a resort owned by the City of Denver. And it is where I learned to ski as a kid. My parents would put me on a bus or the train. It was their idea of getting rid of me for the day on the weekend. And I would come back exhausted, which was good, too. They liked to run me ragged that way.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. What is the largest trout you ever caught?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, now we are talking. I love to fish. And that is where I find a lot of solace. You cannot focus on the worries of the world when you are only worried about a trout. Everything else goes away, just disappears. You are in the most beautiful--trout--trout live in beautiful places.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. They do.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. They are very picky, and they pick well. So during the summertime, fishing, hiking. I like to row. I like to run. Those are my activities. And I like to read. I like to read novels, good fiction. And if you want to learn how to write, you have to learn how to read.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. That is great. Tell me about your civic involvement, outside of the courtroom. You mentioned the school board a while ago.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, boy, that I found taxing and loved every minute of it. But I have spent a lot of my free time teaching or working on the rules Committee. I have been in the rules process for the last 6 or 7 years now. The Chief Justice kindly appointed me to the standing Committee and then to the appellate rules Committee more recently, and trying to make the rules more sensible so that we can get litigation done more sensibly, cheaper, faster, for all people. It is a wonderful example of government working. People from a variety of walks of life, judges, lawyers, academics coming together and operating more or less by consensus. Imagine that.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. I found that, and I think that typifies the West and small towns. I grew up in a town called Snowflake. I am a fifth-generation Arizonan. You are a fourth-generation Coloradan, I understand. That is how it works. People get along. They have to. And on a school board, there is no passing the buck there. You have to make decisions. Local government is like that. Jury duty, have you ever been called up?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. You know, I have. It was when I was at the Department of Justice, and I thought for sure---- [Laughter.]
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Sorry.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Have you served on a jury?
Senator Al Franken (MN)
Senator
(D)
Senator Franken. No, I just thought it was very odd questions for this, but it is great. It is great.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. You know----
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. I thought it was pertinent. I wanted to know. Can a judge be called for jury duty?
Senator Al Franken (MN)
Senator
(D)
Senator Franken. I am sorry I laughed. It just caught me-- go ahead.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you. I actually think it is a very excellent question, because I think anyone who has served on a jury appreciates the important civic function that is involved. It is a way citizens actually interact with their government, right? In a very real way.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Were you disqualified or did----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, I thought for sure I would get kicked off. And I guess neither side thought I was the worst one, so I made it through. And I went to the bathroom when we were sent back. And I came out and I had been elected foreman, which I refused to serve as. I just did not think that was appropriate, and I did not want to have undue influence. But the Seventh Amendment and the right to a trial by jury, the only disagreement our Founders had over it was whether it was a bulwark of liberty or the very palladium of liberty. And as a trial lawyer, I had great faith in jurors, in the collective wisdom of 12 citizens to adjudicate a case fairly on the facts. In my time serving on a jury, I wondered, is it going to prove out my beliefs or am I going to come out more of a cynic? I came out more optimistic and a true believer in the jury system than ever. I really believe in the wisdom of juries.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Thanks.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. That was a great question.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Thanks, Al. I appreciate it. It is the end of the day. You mentioned earlier your colleagues on the Tenth Circuit. Can you tell me about them? What do you admire about some of them? What have you learned from some of them?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, there are so many I admire. I admire them all. They all bring something to the table, men, women, from every kind of background.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Tell me how it works. Are you bunched up where these are Republican-appointed judges, these are Democrat-appointed judges? Do you notice that? Do you forget that? How is it?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. You know, the nicest gift I have gotten in the last few weeks, there have been so many prayers, so many well-wishers, so many kindnesses, but the best gift I have gotten was this enormous basket from my four most recent colleagues--I think it was four, whatever. It just happens to be my Obama-appointed colleagues sent me a gift basket, because they knew I was not eating very well, as I was marching around the Senate halls. They said I was looking a little gaunt. That is how we work in the Tenth Circuit. And I am sorry for outing them, but you touched my heart. Thank you. And that is how my colleagues are, all of them. I have served with judges appointed by President Johnson, President Nixon, President Carter, President Reagan, President Bush the first, Clinton, President Bush the second, and Obama, and we get along. And I think you are going to hear in a couple days from two former Chief Judges of the Tenth Circuit who have retired now. You are going to hear about how we operate in the Tenth Circuit. It is often reputed to be the most collegial Circuit in the country. Collegial not in some ordinary, pedestrian sense of we are just nice to one another, collegial in a real meaningful sense. We listen to one another, and we value and we respect different points of view, not just tolerate them.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Just for the record, the Tenth Circuit is seven active judges appointed by Democrats, five by Republicans, yet of the 2,700 cases for which you have sat, you filed dissents on just 36. Is that right, 1.3 percent? And of the 25 dissents that Judge Gorsuch has authored, more than half, 52 percent, were from majority opinions written by Republican appointees. And it has been said or implied that you act in a partisan way somehow, or that former work in the political arena before you became a judge--if that has somehow bled over into your judgeship, it certainly is not reflected in what the record shows. I think even more telling, as the Congressional Research Service shows, 97 percent of the majority opinions that you authored were for a unanimous court. As you mentioned, you work together. In over 98 percent of all cases in which you sat, you agreed with the majority result 99 percent of the time. That does not sound like an ideologue. That does not sound like someone far out of the mainstream. So when I hear that on television or whatnot, people say that this is a judge way out of the mainstream, it simply does not ring true with your record. Let me submit for the record a statement from a former law clerk. I think she was mentioned earlier. She said that soon after you took the bench on the Tenth Circuit, she said, quoting, ``He took all of his clerks and office staff, myself included, to visit several Federal prisons. He wanted to see for himself and he wanted all of us to understand the importance of applying justice in every case, for the lives of others depended on us doing the best job that we possibly could.'' Can you tell me about that experience?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, Federal criminal law imposes very long sentences, and to be a judge complicit in adjudicating criminal cases, I thought I could not close my eyes to what the reality is, and I wanted to see it for myself firsthand my first year on the bench, so I did.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Can you tell me about the Tenth Circuit capital habeas project?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I think it started one day after an argument when a few of us were concerned that the quality of representation of death row inmates in our Circuit was not what we would like it to be. And I do not want to take more credit than I am due here. Real people deserve credit, my colleagues, Judge Tymkovich, Judge Lucero, and a whole lot of our staff, Betsy Shumaker, David Tye, many, many others who put together, together with the wonderful judges in Oklahoma, some training sessions, recruited additional lawyers, provided training for those who are already in the system, sought and obtained more funds for Federal public defenders to assist. And a lot of people deserve more credit than I do.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Thank you. Let us talk about Western issues for a bit. We have talked about the importance of geographic diversity on the Court, and people say, well, what does that mean? Is there really a difference? Is there really a Western perspective that somebody can bring? Let me go through a few of the issues that you have encountered, and we will flesh that out. Let me introduce, for the record, a letter from one of Judge Gorsuch's former clerks. Also, let us do one from a Federal judge in Montana. But let me talk about for a second some of the policies that have come out. In one case, you rejected the idea that the dormant commerce clause prevents Colorado from requiring that 20 percent of electricity would come from renewable sources. Now whether or not you agree with that policy, and there is a lot of disagreement around here about that--but we do not live in Colorado. You do. So its wisdom is not really our business. Would you agree that the principles of Federalism allow States to experiment with policies like environmental protection, in this sense?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, that was the holding of my court in that case. Colorado had passed by voter referendum a law that, as I recall, sitting here, indicated that 20 percent of energy in Colorado had to be from renewable sources by a certain date. That law was challenged by fossil fuel producers out of State, alleging that it violated what is called the dormant commerce clause under the Federal Constitution and case law interpreting it. And I did write for a unanimous panel that there was no constitutional violation, and the State was permitted to proceed with its experiment.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Is that indicative of the concept of laboratories of democracies that States have been described as?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Consistent with that principle.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. All right. Thank you. One complicated issue that we have in the West that you really do not get as much elsewhere is the split estate property rights. It is possible that I might own a parcel of land but somebody else might own the mineral rights, and still somebody else might own the water rights. Have you encountered that in your jurisprudence?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is very different than out here, and, yes, I have. Split estates, as you know, are a common feature in the West. And in part, at least, a byproduct of homesteading acts by this Congress, where, initially, as I recall, Congress gave homesteaders rights down to the center of the Earth, as is common out here. Then they found out, my gosh, there is some valuable stuff under there, and they started splitting the estates, so that homesteaders could do what they wanted to do on the surface estate, but that the Congress and the people could control some of the valuable mineral rights underneath. Very complicated stuff. And, yes, I have encountered those cases too.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Is that a perspective that you think would be useful on the Supreme Court?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I think that is for this body to decide.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Thank you. Also, another aspect of living in the American West is that we share a lot of land with the Indian Tribes, and the prevalence of Tribes out West can complicate things in the legal sense, say deciding between municipalities or local or State government. What have you ruled on or have you dealt with in terms of the relationship between State and local government and the Tribes?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I have had a number of Tribal cases, and Tribes are, as you know, sovereign nations. And our constitutional order affords this body considerable power in dealing with those sovereign nations by treaty and otherwise. And out West, there are all sorts of variations on that arrangement. There are classic reservations, as many people in the East conceive of them. There are also ancient pueblos that predate this country by many hundreds of years. Then there are allotments to individuals and groups. It depends where you are. That sounds like Oklahoma. Pueblo sounds like New Mexico. And then when I think reservations, I think of Utah and some places in Colorado and Wyoming. And there are variations all throughout the American West. Our history with Native Americans is not the prettiest history. And as a judge, you try very hard to administer the law fairly, without respect to persons, and equally. I would point you maybe to my cases involving the Ute Indian Tribe, where they have had a long time trying to control their Tribal lands, or Fletcher, involving the Osage Nation in Oklahoma and the right to an accounting of the property due them under agreements with the United States. I try to treat all persons who come before me fairly.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. That is also a perspective that a Western Member can bring to the Supreme Court. That is my supposition. I know you will not say that, but I think that is useful. While the Chairman is here, let me ask for unanimous consent to enter into the record a letter from Alaska Senators on behalf of Indian Tribes.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Yes.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Also, one from a law school clerk, and also one from a judge in Montana.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Those documents, without objection, will be entered. [The information appears as a submission for the record.]
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Thank you. Let us turn for a minute to separation of powers. You have written eloquently about Chevron deference and your concerns. I share those concerns. Chevron did not come out of nowhere. There were serious concerns in the 1980s with rogue judges making policy from the bench. Now the idea of agency deference was designed to restrain judicial overreach. I think that the pendulum has swung far too far in the other direction, and that the judiciary is insufficiently vigilant of Executive overreach. What are your thoughts on that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, those are policy considerations. As a judge, my job is to look at the law. I would say I do not conceive of Chevron deference as a conservative or liberal issue. I do recall when Chevron was announced, many people thought it was a very conservative decision, because it does advantage whoever has their hands on the reins of the administrative state at the particular time. And in 1984, that was one party. Today, you know, it may be another party. The next day, it may be another party. So a good judge does not care who it advantages. A good judge looks at the law. Senator Flake. So setting the boundaries for where deference ought to be is the job of the legislature and not the judicial branch. Judge Gorsuch. Well, in the first instance, the Administrative Procedures Act is the statute that you would look at. Senator Flake. Right. Thank you. With regard to the Second Amendment, you have been asked about stare decisis and the role of precedent, and it is usually by those who talk about Roe v. Wade or decisions like that, but they rarely bring up that might also apply to Heller or other decisions like that. How do you see it, with regard to precedent? Judge Gorsuch. All precedent of the U.S. Supreme Court deserves the respect of precedent, which is quite a lot. It is the anchor of law. It is the starting place for a judge. And the Chairman kindly held up my overlong book, right? And that is the law of precedent, a very mainstream consensus view by a bunch of judges from across the country who got together and we wrote it down, and it is all in there. And Justice Breyer was kind enough to write a forward to it. And it articulates how a good judge goes about assessing the law of precedent in any case. Senator Flake. Thank you. Let me just close with religious liberty, religious freedom. I would not ask you your religion or how you practice your faith. If you can just talk, in general, about what the role of faith is--people of faith coming into the judiciary or on the courts, what role should it play? What role should it not play, in your view? Judge Gorsuch. Senator, one of the wonders of our constitutional order is the First Amendment and the right of free exercise. Not many countries in the world are as pluralistic when it comes to religion as this country. It is quite an experiment, really. Most nation-states are one culture, one people, one religion. We are founded on a very different idea that all voices are heard, that people of all faiths and no faiths are welcome, that we are tolerant. It was quite an experiment to launch 200 years ago. It is still an experiment today we are working on and learning to live with one another and mediate it. So the role of religion in our society is profound and always has been, and it is a pluralistic commitment we have in this country that, well, is very special in the world. Senator Flake. Well, thank you. Mr. Chairman, I will do something very unSenatorial. I have a couple minutes left, but I will yield back so people can go vote.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Okay.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Or is--he is not back.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. I will stay. I think Senator Blumenthal will be here. I will stay here just a few minutes, so we will just stand in recess. I hope everybody will kind of stay close by.
Senator Jeff Flake (AZ)
Senator
(R)
Senator Flake. Thank you, Mr. Chairman. [Recess.]
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Senator Blumenthal. I will call on him, and, Senator Blumenthal, while I am gone, if you have anything that you want to put in the record, just ask your permission to do it, and you can do it.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. I thank you very much, Mr. Chairman. I have two sets of documents, and with your permission, I will enter them into the record.
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. Yes, okay.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Thank you. [The information appears as submissions for the record].
Senator Chuck Grassley (IA)
Chairman
(R)
Chairman Grassley. I am going to go vote now.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is just us.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal [presiding]. Good evening, Your Honor, and thank you for your patience and your perseverance with us. You will recall the conversation or visit we had in my office not that long ago, and you will, I am sure, recall that I quoted the first line in your concurrence in the case of Gutierrez-Brizuela. You remember that first line.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am sorry. I do not remember the first line, but----
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. The line was, ``There is an elephant in the room with us today.''
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, yes. Yes, yes.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And cited before----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, yes.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And do you recall what I said or who I said was the elephant in the room?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am sorry, Senator. I do not. I apologize sincerely. I do not remember.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. I will refresh your recollection. The initials are D.J.T.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Okay.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Donald Trump.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. He was the elephant in the room with us then. I think he is the elephant in the room with us now. And the reason is, as I said then, because of his attack on the judiciary. And make no mistake, I am not in any way attributing to you that attack, but you are familiar with the fact that he referred to the Article III judge who ruled against him in the travel ban case as a ``so-called judge'' in one of his tweets? Do you recall that tweet?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And do you recall his second tweet when he referred to the Court and said that they were to be ``given blame'' if an act of terrorism occurred because of striking down the travel ban? Do you recall that tweet?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, Senator.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And during the campaign, a completely different Federal judge, born in this country, he said could not rule fairly on his case because the judge was ``a Mexican.'' Do you recall that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. What do you think the President meant when he used the words ``so-called judge''?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I do not know what was in his mind. You would have to ask him.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. How would you feel if he called you a ``so-called judge''?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I care deeply about the independence of the judiciary. I cannot talk about specific cases or controversies that might come before me, and I cannot get involved in politics. But I can say a couple of things about that, as you know. The first is judges have to be tough. We get called lots of names all over the place. We have to accept criticism with some humility. It makes us stronger and better. I take it from my teenage daughters. I take it from litigants. This process, there has been plenty of criticism. That is fine. Thomas Jefferson did not much like Marbury v. Madison, and he did not mind saying so. Presidents have tried to pack the Court. That is part of our constitutional history. We have a First Amendment. People can speak their mind. But, Senator, I am sorry, I do not mean to interrupt, but I did want to add one other point, if I may.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Please do.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. But, Senator, when you attack the integrity or honesty or independence of a judge, their motives, as we sometimes hear, Senator, I know the men and women of the Federal judiciary, a lot of them. I know how hard their job is, how much they often give up to do it, the difficult circumstances in which they do it. It is a lonely job, too. I am not asking for any crocodile tears or anything like that. I am just saying I know these people, and I know how decent they are. And when anyone criticizes the honesty or integrity, the motives of a Federal judge, well, I find that disheartening, I find that demoralizing, because I know the truth.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Anyone, including the President of the United States?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Anyone is anyone.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Because no person is above the law, including the President of the United States.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is right, Senator.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And is not that reference by the President to a ``so-called judge,'' is not his attack on the same judges who struck down that order as playing politics, is not that an attack on the judiciary, on its integrity?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I cannot comment on specific cases, and I cannot get involved in politics. I have said what I think I ethically may in this area.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Well, maybe you can share with the President what that wise old judge told you. Maybe you can quote it to us again.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I think you are going to hear from him yourself on Thursday, and I am sure he will not mind, hesitate, or in any way have any question or fear about saying it to you himself. But I am happy to share it with you, too. The ultimate test of the rule of law is whether the Government can lose in its own courts and accept the judgments of those courts.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And, in your view, was the President of the United States showing proper respect when he attacked the courts in that way? Was he accepting the rule of law?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I have gone as far as I can go ethically, with the canons that restrict me, about speaking on cases. I cannot talk about specific cases, and I cannot get involved in politics. Respectfully, I believe I have gone as far as I am able to go.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Well, I just want to make clear that I am looking for the same kind of expression of outrage that I felt as an officer of the court--and I am still an officer of the court--because of that attack, because as you well know-- and I cited it yesterday--Alexander Hamilton said the courts are the least dangerous branch because they have neither the power of the purse nor the sword. What they have is respect. When the President of the United States attacks the court, attacking you--because when he attacks your brethren, he attacks you, the bedrock of our democracy, you as a member of the Tenth Circuit Court of Appeals, as a so-called judge, he undermines the bedrock of our democracy, which is respect for the courts. Courts do not have armies. They do not have police forces. All they have is the respect and credibility. And you made reference earlier to judges having to take the barbs and insults. My guess is that if a litigant before your court--and the President of the United States was a litigant in that case--used that language, you might well entertain a motion for contempt of court.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I appreciate the opportunity to talk about my record because I can talk about that, Senator. My record is when there is a judge who is accused of perhaps using language that might bear on a man's ethnicity, arguably, in the course of sentencing, a panel of my court on which I sat replaced him. My record is that when an undocumented alien--immigrant, sorry, is not properly represented and there is a history of the lawyer failing his clients in that area, sent him, referred him for dismissal from our bar.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Because you believe that respect for the courts is important.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, the independence and integrity of the judiciary is in my bones.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Well, I am going to return to this topic, maybe not in this round but later, because as you well know also, although judges may be attacked, they really have no way to defend themselves. And we know that as officers of the court, as advocates, and that is why I feel so deeply that not only we but the Department of Justice should have been more vigorous in coming to the defense of those judges, even though the Department of Justice was the loser in that case, because more is at stake here than the President's immigrant policies or the travel ban. It is the respect and integrity for the courts. There is another reason that Donald Trump is the elephant in the room, and that is because he established a litmus test, or actually a set of litmus tests, one of them being that his nominee--and I do not know whether you saw the debate, the third presidential debate, where he promised, and I am quoting, about overturning Roe v. Wade, ``That will happen automatically, in my opinion, because I am putting pro-life Justices on the Court.'' Are you familiar with that statement?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am, Senator.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Are you familiar with other occasions when he promised that he would appoint someone who would overturn Roe v. Wade? For example, November 13, 2017, in an interview with Lesley Stahl on ``60 Minutes,'' ``I am pro-life. The judges will be pro-life.'' On June 28, 2015, an interview on CNN with Jake Tapper, ``I am pro-life.'' He was then asked would that be a litmus test. ``It is. It is.'' There are others, but what I am asking you is, are you aware of that litmus test?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I cannot say I am aware of each of those statements, but I am definitely aware that there was discussion of litmus tests by lots of people during the election process, yes.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Well, these discussions are by the President of the United States----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal [continuing]. Who has nominated you for this position.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Very aware of it, Senator.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And he interviewed you.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. He did.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And you have testified here that there was no mention of Roe v. Wade.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, what I have testified to is that there was no request for me to commit on any case or controversy or anything that might come before me----
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Was there any mention of Roe v. Wade?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. There was, briefly.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And what did he say and what did you say?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, the President recounted to me, among other things, how the campaign went in Colorado. He knew I was from Colorado, and he was disappointed he had lost Colorado. And he said something like if he had had a little more time, he thinks he might have won it. And then he said that one of the topics that came up during the course of the campaign was abortion and that it was very divisive and split people evenly, he found. And then he moved on to other topics.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Did he mention Roe v. Wade by name?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do not think so, not to my recollection, just that abortion was very divisive. And then he moved on to other topics of interest to him.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Like what?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, the next topic I remember--and this is just my recollection--is he expressed concern that our country's nuclear armaments are old.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Has anyone in interviews with you--and you mentioned one conversation with Steve Bannon. I understand you also met with other advisers. Has anyone else ever mentioned Roe v. Wade?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, Senator. That is it.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Never a mention of that case or of abortion in any of your conversations with any of the President's advisers?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Not to my recollection, no.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And what about with officials of the Heritage Foundation who may have discussed the Supreme Court with you?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. To my knowledge, Senator, from the time of the election to the time of my nomination, I have not spoken to anyone that I know of from Heritage. Maybe I shook someone's hand, but I have not had any substantive conversations that I am aware of that anyone has alerted me to that they are from the Heritage Foundation.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Well, let me go to a case that I think bears on perhaps the President's and his advisers' perception of your views on Roe v. Wade and on this issue of abortion. I do not know whether you recall the case of Planned Parenthood Association of Utah v. Herbert.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. In that case, as you know, the Governor of Utah directed all of his State agencies to end funding for the local Planned Parenthood affiliate after a deceptive and false set of videos was released. And Planned Parenthood of Utah went to Federal court. They sought a temporary injunction. They won. They lost at the District Court, which denied their request, and then on your court, a three-judge panel reversed the District Court and granted the injunction, stopping the State government from terminating the funding. That restored the funding for Planned Parenthood.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Temporarily, as a preliminary matter. That is my recollection, yes.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. As a preliminary matter, the panel of the Tenth Circuit restored the funding.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Issued a preliminary injunction or a TRO; probably a preliminary injunction.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Correct. Preliminary injunction is correct. Were you on that panel?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No. No, Senator, I was not.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Okay. And any of the parties subsequently have the right to ask for a rehearing, do they not?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. They do.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Is there a time limit?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. For the parties there is a time limit prescribed by rule. It is also possible for the court, what we call ``sua sponte,'' or on its own, to seek rehearing, and there is no time limit prescribed by rule for that.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. So the time limit for the parties is 2 weeks, correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That sounds right, Senator. I would not swear to it, but I trust you.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Well, I would never presume to know the rules----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I always check the rules on that sort of thing because I always think I know, and it is 10 days or 14 days, so I always look.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. I am sure you do. Well, 2 weeks passed, and none of the parties requested a rehearing, correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is right. That is right.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. But one of the judges did.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is right.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. That judge was you.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, that is internal deliberative process that would not normally be revealed, but I have no problem acknowledging that.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. That you asked for the rehearing?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I did.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. The parties actually were fine with the result. They settled the case. They were off about their business. And you asked for the rehearing, correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, Senator. That is not correct.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Well, correct me.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. A preliminary injunction, the Court of Appeals, the panel has indicated, should issue, subject to-- this court has to enter it, I believe. I do not think our court entered it directly. As I recall, the parties either reached some sort of agreement with respect to preliminary relief or the court entered it. I do not recall which. But the case proceeded and may still be proceeding for all I know.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. But one way or the other, none of the parties asked for any further proceedings. Only you did.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is right.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And did the court decide to grant an en banc hearing?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Very narrowly voted against it, Senator. It was a close vote.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And you dissented.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I did.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Now, you know Rule 35 says, and I am quoting, ``an en banc hearing is not favored and ordinarily will not be ordered.''
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, of course. It is an extraordinary thing. We probably hear between zero and three en bancs a year over the course of my time. Do not hold me to that, but it is somewhere in that range, usually.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Out of your 10-plus years, 11 years on the court, how many times have you asked, you yourself, sua sponte, asked for a rehearing in a case where you were not even on the panel?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, I have done it, Senator.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. How often?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I cannot tell you how many times, sitting here. I just cannot. But I can tell you I have done it. And I can tell you, Senator, that about one out of every five en bancs, about 20 percent of en bancs in our court are sua sponte. It is not unusual.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. By this time the funding was going to Planned Parenthood, correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do not know. I do not know.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Well, it is a matter of, I believe, public record that it was, in fact, restored. And the parties never asked for that en banc hearing. Let me ask you, what was the exceptional importance of this case that prompted you to seek a rehearing en banc?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I appreciate the opportunity to answer that question, Senator. En banc rehearings happen sua sponte with regularity in our court, as I say, maybe 20 percent, estimate, of the cases that we have heard during my time have been sua sponte. It is acknowledged in the Committee reports to the rules. ``Wright and Miller,'' the Bible on civil procedure that every young lawyer lives with, acknowledges the regularity and the propriety of the sua sponte en banc. So just to put that aside. I just do not see any----
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. I am asking you about your reasons. And, by the way, I know you do not have a number, but maybe you can supply it, because I am willing to bet that number is a tiny, minute fraction of the 2,700 cases.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Of course.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And even of all of the cases where you have dissented.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Of course. I would be very reluctant to reveal internal deliberative processes any further, Senator, of a court, and I do not think you want us to. But I have gone pretty darn far here, and I would be happy to consider any reasonable request that we can talk about that.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. By the way, the judge who dissented from the panel opinion was Judge Bacharach, correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. He voted against the rehearing en banc, did he not?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. He wrote a special concurrence saying that he thought the panel decision was gravely wrong.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. But there was no exceptional reason for rehearing en banc.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. He decided not to vote for en banc. That is correct. But he thought the panel opinion was gravely wrong.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. I am going to----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And, Senator, if you want me to explain why I sought en banc and the reasons, I would be delighted to do so.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Well, I am going to give you the opportunity to do it.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I appreciate it.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And I apologize for interrupting, and you will understand our time is limited, and that is why I am sort of pressing to move on.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I understand, but an implication of impropriety, anything like that, Senator, I would appreciate the chance.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Absolutely.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Okay.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. I am not even asking for extra time, Mr. Chairman. Please proceed.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, it is all about standards of review for me. In that case, the parties agreed on the law. There was no dispute of law. In that case everyone agreed that if the Governor has discontinued funding because he opposed lawful abortions, that would be unconstitutional and wrong and would have to be stricken by the Court. That was uncontested. It was also uncontested that if the Governor discontinued funding because of his reaction to videos that you are well aware of involving alleged unlawful action--alleged--then his conduct was lawful and constitutional. The law was agreed by everyone. The only question was: What was the Governor's intention? That is it. And the District Court made a factual finding that the Governor's intentions were what he said they were, that he acted in response to the videos. That was his testimony. That was the District Court's finding. And in a very unusual, I thought, step, our court overturned the factual finding of a District Court and did so on the basis of a putative admission from the Governor's brief as if the lawyers for the Governor would concede away their case. I read the brief. It did not concede away the case. And it seems to me very important, Senator, that we abide our standards of review and we do not pick and choose the areas of law to start abandoning our standards of review. And a standard of review for clear error, for factual findings is what I wrote about. And I do not care if the case is about abortion or widgets or anything else. When a jury or a District Judge makes a factual finding, that deserves our respect under a clear error standard of review. And as you point out, Judge Bacharach, while he did not think that it rose to the level of en banc review, he thought the panel was clearly wrong. And he happens to be, as you know, just happens to be a Democratically appointed judge, because we are judges first. And, Senator, there were four judges who wanted en banc in that case. That is a large number in our Circuit. There is nothing unusual or untoward about that case at all. It is what we do as judges.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Do you recall the date of your dissent?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do not, Senator.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Would it surprise you to know that it was--well, the case was pending in July 2016, your dissent was sometime in that time period at the height of the presidential campaign.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I would have said it was in the summer, Senator, yes. I would say I have also, Senator, revived partially a lawsuit brought by Planned Parenthood in another case. I take the parties as I find them, and I take the facts and laws that come to me. And I do not choose when they come to me or how they come to me.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. I understand.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And any other implication would be erroneous.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Let me ask you, we talked about precedent, and precedent is important as law, correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And people rely on it. That is one of the key criteria that you have established for sustaining precedent, and I am not even sure that the term has been used here, but stare decisis, which is an important principle of following well-established and accepted law. Let me ask you, did you agree--or, I am sorry, do you agree with the result in Brown v. Board of Education?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, Brown v. Board of Education corrected an erroneous decision, a badly erroneous decision, and vindicated a dissent by the first Justice Harlan in Plessy v. Ferguson, where he correctly identified that separate to advantage one race can never be equal.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. And do you agree with the result?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. In Plessy, no. Absolutely not.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. No. Do you agree with the result in Brown v. Board?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Brown v. Board of Education, Senator, was a correct application of the law of precedent, and----
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. So you agree with it?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, it is a correct application of the law of precedent.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. By the way, when Chief Justice Roberts testified before this Committee and he was asked by Senator Kennedy, ``Do you agree with the Court's conclusion?''--meaning in Brown--``that the segregation of children in public schools solely on the basis of race is unconstitutional,'' Judge Roberts answered, unequivocally, ``I do.'' Would you agree with Judge Roberts?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, there is no daylight here.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Justice Marshall--sorry, Justice Harlan got the original meaning of the Equal Protection Clause right the first time, and the Court recognized that belatedly. It is one of the great stains on the Supreme Court's history that it took it so long to get to that decision.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Do you agree with the Court's outcome, the result, in Griswold v. Connecticut and Eisenstadt v. Baird? And you know that they struck down the ban on contraception. I believe it has been discussed earlier. Do you agree with the result in those cases?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. So Griswold, Senator, as you know, held that the Fourteenth Amendment Due Process Liberty Clause provided a right to married couples to the use of contraceptive devices in the privacy of their own home. And then Eisenstadt extended that to single persons.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, those are precedents of the U.S. Supreme Court. They have been settled for 50 years, nearly, in the case of Griswold. There are reliance interests that are obvious. They have been reaffirmed many times. I do not see a realistic possibility that a State would pass a law attempting to undo that or that a court of the United States would take such a challenge seriously.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. I have a very simple question for you. Do you agree with the result?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I will give you the same answer.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Again, I just want to tell you what Justice Alito said in response to that question. He said very simply, talking about Eisenstadt, ``I do agree with the result in Eisenstadt.''
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It was an application of equal protection principles, and----
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. Well, I know what it was. I am asking you for a direct, clear, unequivocal answer.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And, Senator, I am trying to give it to you. And as I recall, Justice Alito said the same thing, which is that there is an equal protection argument. Once you have Griswold in place, then it follows as a matter of equal protection that the same--what was true for married couples is true for single persons, and that was an application of settled equal protection principles.
Senator Richard Blumenthal (D-CT)
Senator
(D)
Senator Blumenthal. I want to tell you what Chief Justice Roberts said when he was asked the same question about Griswold. He said, ``I agree with the Griswold Court's conclusion that marital privacy extends to contraception and availability of that.'' My time is about to expire. I just want to say I hope that when we resume questioning, perhaps you can give me somewhat more direct and unequivocal answers in the same way that Justices Roberts and Alito and Kennedy did to the same questions. Thank you, Mr. Chairman.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis [presiding]. The Senator from Idaho.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Thank you, Mr. Chairman. And, Judge Gorsuch, first of all, I want to thank you for preparing yourself for this opportunity and for this service to the United States. You have acquitted yourself very well today. In fact, I am very impressed with your knowledge of the cases and your ability to understand and articulate your positions on the issues. I have a couple of tough questions for you first. Is it true that you have been endorsed by John Elway? [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. You know, Senator, a couple of things have made my day recently, and hearing that was definitely one of them. You know, in Colorado, I mean, where I come from, that is big stuff.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Well, it is. And, you know, some of us Westerners who do not have a pro team in our State kind of agree with that as well.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I will tell you, what meant as much to me, though, was an article I saw not too long ago someone put in front of me from the Albuquerque Journal, and it quoted two lawyers who appear in front of me all the time. One is a civil rights attorney, the other represents indigent criminal defendants routinely in my court. They win some; they lose some. And they both went out of their way to say, ``He is a fair judge.'' And you know what? The compliment of the people who work with me day in and day out, who win some and who lose some, that means the world to me.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. That is very impressive, and at the end of my opportunity to ask questions here, I am going to submit a statement for the record that has been submitted by another one of your associates and friends who endorses the way you have conducted yourself on the bench. It is good to have good friends who will stand up for you. Another tough question. I appreciated the discussion that Senator Flake and you had about fishing. This is going to test your true abilities as a fisherman. Would you tell me where your favorite fishing stream is? [Laughter.] Senator Crapo. And do not say, ``No Tell'em Creek.''
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Do I have to answer this question, Mr. Chairman? [Laughter.]
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. No, you do not have to answer it. At least not publicly.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I would be happy to share with you privately my views on this subject.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. We will talk.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. My experience is, though, that once the word gets out, then it is not my favorite spot anymore.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Okay. You have just proven yourself as a fisherman. I also wanted to just tell you I appreciated the conversation you had with one of my other colleagues here about your law clerks. I, too, am a law clerk. I do not know that you knew, probably, the judge I worked for, Judge James M. Carter on the Ninth Circuit. He passed away in 1979. He was appointed by Harry Truman to be a District Judge in Southern California and then by Lyndon Johnson to be a Circuit Court Judge on the Ninth Circuit. And I had the experience as his law clerk that you described your experience to be and those who serve as your law clerks, and I just wanted to tell you, you connected with me on that. I truly appreciated that bit of just learning more of your human side in that context. You know, this is also a point in this hearing that pretty much everything has been said but not everybody hasten an opportunity to ask you to say it, and I apologize if some of the things are repetitive. But some issues keep coming up, and I want to get back into some of the core issues and just give you an opportunity to restate the case. And a couple of those are pretty obvious. In fact, our Chairman started out with this first issue, and that is, what is the role of a judge? I have before me here the statutory oath that we give to judges. I will just read part of it. It is ``to administer justice without respect to persons, and do equal right to the poor and to the rich.'' And it also says to ``faithfully and impartially discharge and perform all the duties incumbent upon [the judge] under the Constitution and laws of the United States.'' That is some pretty high-minded language. What is your opinion of the role of a Justice on the Supreme Court?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, it is the same thing. It does not change. It is a more public role. There may be more civic education involved, or at least an opportunity somebody might listen to you a little bit more. And Justice O'Connor again comes to mind here. But the job does not change, and the law is the law. It is what we do day in and day out. And the discussions about the judiciary I think often miss the fact that judges agree overwhelmingly on the disposition of cases. A tiny percentage of the cases go to the Supreme Court of the United States, 70, 80 cases a year, a fraction of a fraction of a percent. And even then--even then--the Justices of the U.S. Supreme Court are unanimous in their decisions 40 percent of the time. Now, think about that. You have not just three judges who have to agree, as on the Court of Appeals, generally speaking, but nine. Nine Justices who are appointed by five different Presidents right now. And people say the world has changed, but in some ways it has not because that 40 percent number has been remarkably steady since the Second World War. That is a pretty incredible thing when you think about it.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. It is.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is a testament to our rule of law. It is human, it is imperfect, but it is sure better than anything else anybody has ever devised.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Well, that commitment to interpreting and applying the law honestly, fairly, and impartially is critical. It is what we need in Supreme Court Justices, and, again, I appreciate your answer on that question. Now, again, I apologize that this is a repetitive question, and, in fact, you were just asked it in another way just now, but it is one that keeps coming up and which I expect is going to be a discussion point for the rest of this process, and that is the litmus test issue. You have already said it, but I am going to ask you to say it again. Did anyone in the nomination process, the President included, require of you a commitment for any kind of a litmus test as to how you would rule on any issue or in any case whatsoever?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, Senator. And if they had, I would have walked out of the room, period.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. So to put it another way, if you had to, you would--if the requirements of the law were that you had to rule against the President of the United States in a case, you would do so?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, if that is where the law and the facts lead me, do it without hesitation. It is--I have done it. I have done it many times without respect to who is in charge. I rule for the Government sometimes. I rule for the accused, for the prisoner, for the immigrant, or the student, for the employee, whomever it is, based on the law and the facts of the particular case at hand. And I believe respectfully my record demonstrates that.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. I think it does, too. And there has been some questioning here today about--this is my characterization of it, but I think it is pretty clear--a desire to get you to get involved in the politics of the court as though there is an appropriate role for a judge to be a politician or to be involved in politics. I remember in our meeting in my office that you were quite emphatic about the fact that you would not let your politics get into your job as a judge or a Justice. Could you comment on that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, it really comes from my experience as a lawyer, and General Katyal put it better than I could. But the fact of the matter is I represented plaintiffs, I represented defendants. I represented the big guy, I represented the little guy, however you want to call it. And in each and every case, all I wanted was a judge who did not decide the case based on his personal beliefs, her personal religion, his politics, what she had for breakfast. I just wanted someone to come in and look at the law and look at the facts, study it as hard as they could, and make as neutral and dispassionate a judgment as they could. That is what I wanted, a human judge, somebody who was a person. It helped if they were kind, but I would take a curmudgeon. There were some curmudgeons. A fair curmudgeon any day of the week I would take.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I wanted a fair judge. And I resolved to myself that I would remember, so long as I was on the bench, I would remember what it was like to be in the well, what it was like to have to make the arguments, because I tell you what, asking the questions is a lot easier than having the answers. I sleep a lot better the night before argument as a judge than I did the night before argument as a lawyer. And so I resolved I wanted to be the kind of judge that I wanted when I was a lawyer.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Well, thank you. Now, let us move on to the question of precedent. Could you generally--again, I realize this is repetitive. Again, tell us your view of precedent, particularly as a Supreme Court Justice, if you are to be confirmed, what you believe the proper role of precedent is.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, precedent is the starting point for any good judge. Precedent is our history, our shared history, our patrimony; the wisdom of the ages, if you want to think of it that way. And it would be foolish of any judge to come in and think that he or she knows better than everybody who has come before them. It would be an act of hubris. So the starting point and the great anchor of the law, as Francis Bacon called it, is precedent. As Hamilton said, judges, because we are life tenured, need to be bound down by strict rules and precedents. And I take that obligation seriously.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. So that people can know what to expect out of the law.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Reliance is a huge part of it.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Now, it does turn out, particularly at the level of the Supreme Court, that there are times when precedent is revisited. Could you tell us when it is appropriate, how does a person, particularly a Supreme Court Justice, how should a Supreme Court Justice approach that question?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. The same way a Circuit Judge approaches a question with Circuit precedent. We do the same thing. Nothing changes. It is the same set of principles.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. So what process do you go through to make the decision that you should revisit precedent?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Start with a presumption in favor of history, and that people who came before you were just as smart or maybe even smarter than you are. When you put on the robe, you lose the ego. You look at the reliance interests that have formed around the precedent. You look at how long it has been around. You look to see whether it has been reaffirmed. You look at the quality of the initial decision. You look at the doctrine and whether it has been built up around it or whether it has eroded away. You look at workability. Those are some of the factors a good judge looks at when deciding any challenge to a precedent.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. And I assume it is not a decision reached lightly.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, no decision should be reached lightly as a judge.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Well said. I want to move on now to one that you have been asked a little bit about today but not a lot, and that is the Tenth Amendment to the Constitution, which says, ``The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively''--and I think some people stop there--``or to the people.'' This is the issue of Federalism. I have a few specific questions, but could you just discuss with me in general your feelings about that amendment and what it means in our American jurisprudence?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, it is part of the Bill of Rights, like all of the rest of the Bill of Rights, and it was thought important to add as part of the first 10 Amendments to the Constitution as a package. And the thought was to emphasize and make very clear that the Federal Government is a government of enumerated powers, not a plenary government with unenumerated, unlimited power, and that there was reserved to the people and to the States abundant rights.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. I agree with that. A lot of my constituents and, frankly, a lot of people that I talk to around the country believe that has pretty much been eroded in the sense that the place where there is authority reserved to the States is a very small place today. Because of certain Supreme Court rulings, because of certain doctrines related to the Commerce Clause and others, it is felt that the place in which the Federal Government is free to assert its authority, even to the point of superseding State authority, is so large now that the Tenth Amendment has lost much of its meaning. Could you comment on that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, Tenth Amendment cases do come before the Court and related Commerce Clause challenges that are kind of an analog here. So I have to be careful.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Understood.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. But I would point you to the New York case, Justice O'Connor again, pointing out that there are limits to how far the Congress and the Federal Government may go to commandeer State governments. And then, of course, there is the Chief Justice's opinion in the ACA case with regard to Medicaid expansion and the limits of the Commerce Clause power there. So there are a couple of decisions that are out there that you are aware of that discuss this issue.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. I think that the discussions that have been had today about the Chevron case get into this arena. Earlier, when you were asked questions about it, you indicated that in your--and, again, I realize you may not be able to go very far in this answer, but I would like to give you an opportunity to explain it as much as you can. I believe in the decision that you wrote, you said the elephant in the room was the question of deference to Executive agency actions. That is a rough paraphrasing of what you were discussing. And I believe you said that there were due process, equal protection, and separation of powers issues related to that. Could you expand on that a little bit?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, I would be happy to, of course. In that case, again, it involved an undocumented immigrant, and the question was whether an agency could overturn judicial precedent retroactively so that this man who had relied on our precedent essentially had the legal rug pulled out from underneath him. And it seemed to me that raised a variety of questions. First, it meant now that he had to wait not 10 years outside of the country but perhaps 13 or 14 because they wanted to retroactively overturn judicial precedent. And I asked in terms of fair notice, advance notice, due process, how is a person, the least amongst us, anyone, supposed to organize their affairs, rely on the law, precedent, if it can be overturned by an agency willy nilly? What are the equal protection implications if the person who declares the law is now a political branch rather than the judicial branch, where selective picking and choosing of winners and losers can be had in the application of the law? I am worried about that. I worry about the separation of power. How is it that an agency can overturn a judicial precedent effectively without the concurrence of Congress? Congress, of course, has the power to write statutes. The last time I checked, that is the legislative power, though, and to overturn judicial precedents on statutory on interpretation, that is this body's role. So those were some of the things I worried about, and I worried about just the plain old statutory text, too, of the APA in which Congress is assigned the task, of course, of fact- finding to the agencies and told us, again, to provide a highly deferential standard of review to the agencies, the chemists, the biologists, the scientists; but said when it comes to interpreting the law that the courts are supposed to do that. So those were some of the questions that I found difficult in that case.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Well, I appreciate the perspective that you have. Again, still talking about Federalism and the Tenth Amendment, you are familiar with the dormant Commerce Clause concept?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Could you describe what that means to you?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, the Commerce Clause appears in Article I. Article I affords this body and the House of Representatives the power to legislate interstate commerce, among many other things. That is the Commerce Clause, the non-sleeping, the non- dormant Commerce Clause.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. But we have this sleeping thing over here, and it is the product of judicial interpretation that suggests that sometimes even when Congress has not exercised its powers under the Commerce Clause, States infringe Congress' authority by stepping into the regulation of interstate commerce themselves in a way that, though Congress has not itself proscribed, would still offend congressional authority. That is the doctrine.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Correct.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Okay.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. So that is how I understand it as well, and I realize that you may not be able to go much further in discussing your feelings about that doctrine. But if you can, I welcome you to.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, I have tried to make clear today that my feelings, respectfully, on any of these topics are things I try to leave behind, and I try to take the facts and the law and the precedent before me very seriously. I come here with no agenda but one, no promises but one: to be as good and faithful a judge as I know how to be. That is it. And I cannot promise or agree or pledge anything more than that to this Congress. I just cannot, not as a good judge, not as someone who has to look litigants in the eye and tell them I am a fair and impartial judge of their case, not to someone who respects the separation of powers. So that is where I come from on that.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Thank you very much, and I respect that. And, frankly, America is very fortunate to have someone who strongly holds to that perspective nominated to this critically important position. I just want to clear up one other thing, and then there are a few issues I just wanted you to also discuss a little bit further with me. Back to the Hobby Lobby case, I just wanted to give you an opportunity to clear one thing up, at least for me. Maybe everybody else understood this very clearly. That case went to the Supreme Court and was resolved in a 5-4 decision. But if I understand the rulings correctly, of the four judges who dissented, only two of them felt that the issue relating to a for-profit corporation was dispositive. Did I get that right? Or objected to that part of the ruling, is that correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is right. Yes, two dissenters did not feel the need to reach that issue.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. I just wanted to be sure that was----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is right.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo [continuing]. Made clear in the record. In the time I have left, which is about 8 minutes, I would just like to ask you about several of the things that I believe you have written about. The first is the Seventh Amendment right to trial. I understand that you have written about that. Is that correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I have, Senator.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. What are your thoughts about that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I believe in juries. I liked trying cases to juries. I liked being on a jury. I think it is a part of our civic engagement that is really valuable. People feel connected to their Government. Hamilton and Madison, I think it was--I cannot remember which--in the Federalist Papers debated, you know, is it a bulwark of liberty or is it the very palladium of liberty? That is what they thought of the Seventh Amendment. And I think it is just so difficult for litigants to get to a jury now. And we spend so much time in preliminary discovery, what we call discovery, motions practice. Lawyers become poets of the nastygram. They can write interrogatories in iambic pentameter. But there just are not that many jury trials anymore. And I am not sure that is a good thing.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Does this relate to your writings also about or your concerns about access to justice?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, Senator. Yes.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Can you expand on that a little bit?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, when it becomes so expensive and takes so long to get to a jury, to get to a trial, some people do not bring good claims. A lot of people are left not bringing good claims to court. That is a problem on the one side of the ``v.'' and I saw that as a lawyer. And on the other side of the ``v.'' defendants, sometimes you feel like you have to settle, not because the case has merit but because the cost and the delay to the client are so significant in getting to a decision that you cannot afford to do it. You have to get on. And as I indicated earlier, the American College of Trial Lawyers--and both represent both plaintiffs and defendants-- have indicated both these problems are real in our system and need to be addressed.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Thank you. The last issue I will ask you about is your thoughts, which you have already referenced somewhat, on overcriminalization in the law. Could you basically just reiterate that for us?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, Senator. As I indicated earlier, I think the number is something like 5,000 Federal criminal statutes on the books today and hundreds of thousands in the Federal Register, and that 8-point font, I need to bring out my reading glasses for when I pull open the Federal Register. And, you know, I have a hard time reading it. And I have a hard time imagining the American people can read it, to be honest with you. And Madison warned about a world in which law, written law, is lacking, and he also warned about a world in which we would have too much written law, a paper blizzard, so much so that the prosecutor can choose his charges with impunity and the people do not have notice really what is expected of them. So I think both of those things on both ends of the spectrum are a concern, and Aristotle was right there, too. We are looking for a golden mean.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Well, and I think earlier today you also referenced--maybe you meant to in these comments--the regulatory explosion of criminal penalties. Is that a part of this as well?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I would say it has been part of--I do not know about an explosion, but it is just a fact of life that has been with us for a while and growing.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. I will not ask you to comment on this, but I think it is an explosion, and not just on the criminal side, in the civil side as well, just the regulatory growth that we have seen in our Government recently. This is not an issue for you, at least to discuss with me today, but I think we have a lot of difficulty simply because of the complexity that we are creating in our legal system. And many of those difficulties will need to be resolved at the policy level. I understand that. Judge Gorsuch, again, I just want to thank you for being willing to step up and do this service. It was notable to me, I think you said earlier, that Justice White only spent about 90 minutes in his hearing. Is that correct?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is what I am told.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Remarkable. Thank you again.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Enviable. [Laughter.] Judge Gorsuch. No, this has been a great pleasure, a great honor to be here with you, Senator, and with all of your colleagues.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Well, we understand what you and your family and friends are going through. We know the commitment that you have made simply to agree to be nominated and move forward through this process, and I want to thank you for doing that as well. I truly do appreciate it. Thank you very much. Before I yield my time, I would like to ask unanimous consent first to enter a letter into the record from the president of Colorado Farm Bureau endorsing Judge Gorsuch; second, a letter from Todd Seelman, managing partner at the Denver office of--I will probably mispronounced this--Lewis, Brisbois, Bisgaard, and Smith in support of Judge Gorsuch's nomination; another letter from the Lincoln's Inn Society of Harvard Law School, which is a number of people who know you from this group and who have commented on your humility, thoughtfulness, and intellect, which we have seen today; and then, finally, an article from a Colorado District Court Judge, John Kane, in which he rebuts basically the notion that there is any kind of ideological bias in your record, and I think says very positive things about Judge Gorsuch. I would ask unanimous consent to put these documents into the record.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. Without objection, the documents will be entered into the record.
Senator Mike Crapo (ID)
Senator
(R)
Senator Crapo. Thank you very much. [The information appears as submissions for the record.]
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. The Senator from Hawaii.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Thank you, Mr. Chairman. The end is nearing for today, Judge Gorsuch. We have sat here for close to 10 hours now, and you have not told us your understanding of cases already decided by the Supreme Court, except to say that they are law and precedent. You have not told us your view of cases currently before the Court, and you will not tell us your view on issues that might someday be presented to the Court. In fact, you have provided us less in the way of answers about how you would approach cases than previous nominees to the Supreme Court. So how should we divine what you would bring to the Supreme Court in terms of your judicial philosophy? By looking at your judicial record, by looking at your writings? I see a pattern that is very much on a par with the Roberts court's steady march toward protecting corporate interests over individual rights. That is not protecting the rights of the minority, as you told me in our meeting, which is the purpose of Article III. So I hope that in answering my questions, you can provide some reassurances that you will be a judge or Justice for all Americans. You had an extended discussion today with Senator Franken about your dissent in the TransAm Trucking case. I want to talk to you about another case, Longhorn Service Company v. Perez, in which you overruled an agency decision about worker safety. You were in the majority in a 2-1 decision--could have gone the other way if you had gone that way--that overturned a sanction against a company based on a strained distinction between a floor hole and a floor opening. The dissenting judge, a President George W. Bush appointee, described this distinction as nonsense and said the distinction between a floor hole and a floor opening did not matter in this case because the company was in violation of an OSHA standard either way. Why did you believe it was appropriate to rely on a strained distinction between floor hole and floor opening, at odds with the law's intent and purpose to protect worker safety?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I appreciate the opportunity to address that. As I think you have indicated, I was not the author of that opinion. I did not write it. One of my colleagues wrote that opinion. Another one of my colleagues dissented. You are quite right about that. I do not have a dog in the hunt when it comes to holes and openings in floors. But apparently, OSHA does. OSHA distinguishes between floor holes and floor openings when it comes to----
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Excuse me.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Spaces----
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Excuse me, Judge. That case held that you overruled the agency decision.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Which did not make a distinction.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. With respect, Senator, OSHA regulations do make a distinction between, as I recall, it has been a while-- --
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Not in this case, sir.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, there are different regulations for floor openings and floor holes in--I think this is an oil and gas rig or maybe a fracking rig. And what you have to do in terms of remediation, cover or a handrail. There are different consequences whether it is a hole or an opening, as I recall. And the party there, nobody was injured, but they got a fine for not doing maybe covering it up, I do not recall, whatever the agency wanted them to do. And the question was whether they had been provided notice they were being charged with whether it was a hole versus an opening. And Senator, all I was trying to do there, I agreed with my colleague who wrote the majority opinion that OSHA charged what it charged it had to prove and that it cannot change the charge in the middle of the proceedings, as I recall.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Well, the dissent indicated that this distinction was nonsense, and therefore, they----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, that might be true.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I mean, I do not know. As they say, I do not have a dog in that hunt. I am just trying to apply the OSHA regulation.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. If I can go on? So that law, though, was for the purpose of worker safety. And I think you responded to one of the questions from my colleagues that you do look to the purpose of the law and that is what judges should effect. So the purpose of that law was worker safety. So I am really not understanding why you went with the majority in making that kind of distinction. Let me move on. Earlier, you had an extensive discussion, as I mentioned, with Senator Franken about TransAm Trucking and whether you understood the impossible choice your decision would have given to the driver in that case, Alphonse Maddin. And if your decision had been the majority, which it was not, it would have made a driver like Mr. Maddin choose between endangering his own life and health or keeping his job. I am hoping that you will share more about your approach to cases like TransAm Trucking. Your dissent dismissed the argument that the law should be interpreted in light of its purpose of protecting public health and safety, saying that those goals were too ephemeral and generic. Did the purposes of this law to protect an employee from being fired for acting in response to safety concerns play any role in your decision?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I appreciate the opportunity to talk about this again. The statute there protected individuals who refused to operate a motor vehicle, and at least as I saw it--and this is just one judge, how I saw one case in 10 years--and I saw that the individual drove away. He operated the motor vehicle. So I did not see how he could claim protection of a statute that hinges on a refusal to operate. I am relieved to know that he was able--that he was fine and was able to meet up with his employer 15 minutes or so later, as I remember the record. But my heart goes out to him, and I said that in the opinion that he was put in a rotten position. And I go home at night with cases where sometimes the law requires results that I personally would not prefer.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. I think that you could possibly have interpreted the definition or the requirement that he actually refused to drive the vehicle. He refused to drive the vehicle with the attached trailer. But you could have held, I would think, that he refused to drive the vehicle in an unsafe way. So, I mean, the way I look at this decision, and you were not in the majority, is that if judges are going to work this hard to strain the text of a law to undermine the purpose, which was for the safety and that a driver who made a decision based on that would not be fired, I think that makes it pretty tough for any laws that Congress passes or will pass to really be effective in protecting American workers. I would like to turn to Citizens United. In this case, the Court adopted a narrow view that only quid pro quo corruption counts regarding campaign contributions and that appearance of corruption, basically, which had also been a concern, is out the window. This has unquestionably changed the landscape of our elections, unleashing a flood of corporate money and campaigns. If corporations are able to spend unfettered money on American elections, what is there to stop a foreign company from funneling money into our elections through its American subsidiary? For example, what limits would prevent a Russian oligarch from financing a billion-dollar independent expenditure operation through an American middleman?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, I appreciate the opportunity to answer that. If I might, though, I would just point to my record on employment cases. There are plenty of cases where I have ruled for the employee and not the employer. We can pick one and talk about one, but there are many, many where I have ruled for the employee, even overturning the District Court when the District Court ruled for the employer. Lots of them, and I would be happy to talk about any of them.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Well, I am not.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. But if we want to----
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. I am not asking about the others. So let us----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I understand. I understand that.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Can you respond to my question about Citizens United and unfettered foreign money that can come into our campaigns?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I would say that there is lots of room for congressional regulation here and that, in fact, the Supreme Court has made clear that foreign money in particular is an area where Congress has substantial authority available to it. I would say this----
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Are you saying--I would just like a clarification. Then you are saying that Citizens United leaves open for Congress to prohibit foreign money in our elections? Is that not already happening?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I would say there is ample room in the area of campaign finance for further legislation, all sorts of room where the Court's made clear, remains. It struck down one law. That does not mean that every law will be stricken. It does not mean that Congress has no role. It means the Congress passed one law that, based on one record, the Supreme Court found to violate the First Amendment.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. So since, since there is so much concern about foreign money and foreign governments attempting to interfere or really, no, interfere with our elections and if Congress were to pass a law that prohibited foreign contributions through middlemen or any other way, you would sustain that law?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am not making any promises to anyone about how I would rule. I understand people would like me to make promises, but I just--that is not what a good judge does. It is not fair to the parties. I do not prejudge cases. That would be a violation of separation of powers, in my view. It would be the end of the independent judiciary. Senator, what I would promise you to do is to look carefully at the record with deference to the fact-finder, to look at the briefs, to go through the whole judicial process and carefully consider all the arguments made by both sides, as a good judge does.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Thank you. You have articulated that many times. The sheer volume of speech bought by corporate money drowns out the voices of everyday Americans on important issues. I am concerned with influence-peddling in politics, such as from billion-dollar donors like the Mercers or Philip Anschutz. Judge Gorsuch, given that you volunteered on numerous Republican political campaigns dating back to the 1970s, were you ever concerned with the flood of unfettered money in our elections and campaigns?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, the first campaign I worked on I was about 9 years old. It was my mom's. She was running for the State house, and I think it was, again, her idea of daycare that I would walk with her. [Laughter.]
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. So just--I am sorry. You know, I have only 18 minutes left. And had you ever been concerned? Because certainly you worked on political campaigns when you were beyond 9 years old.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I did.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Was there ever a time when you were concerned about unfettered money in our political campaigns?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I have lots of concerns as a person and as a citizen. But I am now a judge, and my personal views have nothing to do with how I rule on cases.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Thank you.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It is a discipline that a judge learns and exercises and, hopefully, improves upon over time. And I am steadfast about that, Senator. It means--it means the world to me as a lawyer and as a judge who cares about an independent judiciary. It comes from a place deep in my bones.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Thank you. I would like to move on.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Of course.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. I listened to your conversation with Senator Coons about the Hobby Lobby case, and it is a decision that you joined in the Tenth Circuit and was supported by the Roberts Court. And in that case, you decided that a corporation with 23,000 employees has rights to the exercise of religious-- of religion protected by the Religious Freedom Restoration Act and that it could use those rights to deny the thousands of women that it employed access to certain kinds of health coverage. There was a notable dissent in the Supreme Court's Hobby Lobby decision by Justice Ginsburg, joined by the two other women on the Supreme Court. And Justice Ginsburg wrote, ``The exception sought by Hobby Lobby and Conestoga would deny legions of women who do not hold their employees' beliefs access to contraceptive coverage.'' How much did you consider the significant need of the 23,000 Hobby Lobby employees, of which a significant number of them were women working paycheck to paycheck, for access to healthcare that they would now be denied?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I appreciate that question. The answer is I considered it very closely, very carefully. So did the Supreme Court of the United States, which affirmed our court. And as you know, the Religious Freedom Restoration Act goes above and beyond the First Amendment in protecting religious liberties. It is a judgment made by this Congress that it is free to amend at any time if it wishes. It can eliminate corporations from coverage. It can eliminate the strict scrutiny that is required. And it can eliminate the act at any time. But Senator, I gave every aspect of that case very close consideration. That was an en banc decision by our court.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. You did write a concurring opinion on that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I did.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. And I think your concurrent opinion could even be deemed an expansion of the plaintiff's rights in that case. So in your view, the corporation did make claims about contraception based on religious beliefs, which are directly contravened by scientific research. And by accepting as facts these religious beliefs and probing no further in agreeing that the corporation could deny coverage, the Hobby Lobby decision leaves us in a tough spot. So are there any limits, and if so, what are those limits, on what a corporation may claim as a belief in justifying its denial of healthcare for its employees?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, the sincerity of the belief, I believe, was undisputed by the Government, at least in our court. So I just do not think that was at issue. Are there limits to how far the statute goes? Yes, there are. The Government may force someone to forego and accept a substantial burden on their sincerely held religious belief if it can prove a compelling interest, which the Supreme Court accepted in this case, and can also show that it is the most narrowly tailored way to achieve that compelling interest. It is strict scrutiny. It is the highest standard known to law. And the problem in that case again, as the Supreme Court and my court saw it, was that the Government had managed to find a way to achieve its compelling interest in providing coverage to women in many other cases without requiring any compromise----
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. So I realize that the compelling State interest was conceded to the Government, but my question really relates to the first part of the test, which is the sincerely held belief.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. And while that may not have been at issue in this case, even though if you were to look at their sincerely held beliefs, then there was evidence that some of their beliefs were scientifically not valid. So my question is really how--would you go behind the sincerely held belief to determine whether there is really a basis for this belief?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. You are asking me whether I would, as a judge, decide that someone's sincerely held religious belief is wrong?
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Well, based on scientific evidence or some other factual evidence.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. So that I, as a judge--I just want to make sure I understand the question that I would say that the belief is scientifically invalid and, therefore, not protected by the statute? Is that the question?
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Well, therefore, could not be a sincerely held belief.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, sometimes a court will hold that a belief is not sincerely held. That is true. That does happen. I have had a case involving just that scenario, and it involved a group of drug distributors who claimed they worshipped marijuana.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Yes. I was here when you responded to that.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Okay. All right. Okay.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. And you know, I hate to be rude, but I am down to less than 12 minutes. So if you do not mind, sir, I would like to go on to another area. In 1942, an ordinary American took an extraordinary stand. His name was Fred Korematsu, who boldly opposed the forced internment of Japanese Americans during World War II. After being convicted for failing to report for relocation, Mr. Korematsu took his case all the way to the Supreme Court, and the high court ruled against him. It took 39 years before a California judge overturned Mr. Korematsu's conviction in another proceeding, but the Supreme Court never overruled Korematsu. So Korematsu has joined the short list of the most regrettable decisions in the Court's history. And even though most American citizens of Japanese ancestry were loyal, the Court in Korematsu found that the Government's curfew and internment program was constitutionally acceptable because some unknown faction or fraction of that group posed a special statistical risk of disloyalty and danger. Today, if the Court were to assess special restrictions on U.S. citizens of Iranian, Yemeni, Somalian, Syrian, Libyan, and Sudanese ancestry, do you believe Korematsu would be applicable precedent for the Court to consider?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No. And let me compliment Neal Katyal. When he was Acting Solicitor General of the United States, he confessed error by the Government in that case. That was an admirable move.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Thank you for that ``yes'' and ``no'' answer. I appreciate that. Going on to Hamdan, during a time as a senior official in the Bush Justice Department, you appeared to play a significant role in developing and promoting the arguments in Hamdan v. Rumsfeld, including the argument that the President himself had the power to set up military tribunals to try Guantanamo detainees without key human rights and other protections in the Geneva Convention and the Uniform Code of Military Justice. Judge Derrick Watson, a Hawaii Federal District Court Judge, recently issued a stay of significant portions of President Trump's second Executive order banning nationals from six predominantly Muslim countries. And without commenting on the current case, do you believe that there are Executive orders that are outside the scope of appropriate judicial review to determine if a President has overstepped his constitutional authority?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, to me, one of the beautiful things about our system of justice is that any person can file a lawsuit about anything against anyone at any time. Any person has access to our courts of justice on any subject, and a judge, a neutral and fair judge will hear it. I think that is a remarkable thing. It does not happen everywhere in the world.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Is your answer that there is no Executive order that would not be judicially reviewable?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, a lawsuit can be filed on it. What a court will do with it is a matter of judicial process, and we would have to go through assessing what the claim is, what the defenses are, take evidence, hear the arguments, make a decision.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. I understand. The court could say it is a political issue and not take it. Senior White House adviser Stephen Miller, who has been described as the architect of the Muslim ban, recently criticized the actions of Federal courts in staying the initial travel ban on national TV. Mr. Miller said that Donald Trump's national security decisions, ``will not be questioned.'' I take it that you do not agree with Mr. Miller that there are areas like national security where the President's decisions ``will not be questioned'' even by a court, even by the Supreme Court. I take it you do not agree with that?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I give you the same answer that the beauty of our system, and I do not want to eat up your time, but the beauty of our system is that anybody can bring a complaint to court and have an opportunity to be heard under the laws of our land. That is a remarkable thing when you think about it.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. The person who nominated you, Judge Gorsuch, does not have much respect for judges or courts. As a candidate for President and now, even as President, he has belittled and berated judges who do not rubberstamp his views. He attacked Judge Curiel, his family's heritage and his fairness, while he was presiding over the Trump University fraud case. He sought to bully Judge Robart, who decided the first case challenging the constitutionality of his anti-Muslim travel ban. He sought to intimidate the Ninth Circuit and, more recently, has belittled Judge Watson in Hawaii for ruling in the second round of travel ban cases. These attacks are unfair because the judges cannot respond. Moreover, they provoke Donald Trump's supporters. Some reacted by declaring a boycott of Hawaii. All this because the distinguished Federal judge in Hawaii gave weight to Donald Trump's own words about what he intended his travel ban to do. So I would like to give you a chance to comment and either defend President Trump's statements on judges or condemn them. And there was a moment early in your nomination when you were reported to comment to Senators that the President's anti- judicial comments were ``demoralizing and disheartening.'' But then you went silent, even as President Trump escalated his attacks. I would like to give you an opportunity to set the record straight. What is your view of President Trump's comments on judges?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I just discussed this with Senator Blumenthal a moment ago, and I am happy to repeat myself.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Please.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I cannot talk about specific cases. That would be improper. And I cannot get involved in politics. That would be another violation of my judicial obligations. So I have to be careful. I have to speak in general terms. I am not talking about any case or controversy. And I am talking about the independence of our judiciary. Judges have to be tough. We take slings and arrows under bright lights. It is part of the job. And we take them from all sides, all day long, every day. Our job is to make decisions, hard decisions sometimes. Sometimes that people do not like. In fact, our job usually makes--I am sorry, Senator. I do not mean--it looks like you wanted to say something?
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Yes. So Donald Trump's comments about the judiciary, while he may have focused on specific judges, indicate basically that he does not seem to respect the three branches of government as you do. So taken as a general proposition, if a President were to basically not give much credence or respect for the three branches of government, would you object to that President's comments?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I can talk about my record as a judge. I have tried to uphold the dignity of the judicial office in the cases and controversies brought before me. When people--when judges have acted in ways that do not bring repute on the judicial office for making comments that are arguably improper, I have been on panels where we have replaced a judge who has done that. When lawyers fail to fulfill their obligations, I have commented, when appropriate, in cases and controversies properly before me. I have, in fact, even sent a lawyer to referral to the bar. Senator, I have worked to try and provide representation to individuals when I have seen pro se handwritten complaints that seem to me to have merit. I have appointed lawyers in those cases. That is my record as a judge, and I can assure you I am nobody's rubberstamp.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. So when you were speaking about certain comments being disheartening and demoralizing, you were merely speaking broadly?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do not think I was merely speaking broadly, Senator, with all due respect.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. You were speaking broadly.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am speaking about anyone.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. You were speaking broadly.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Okay.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. So Sean Spicer just tweeted regarding your comments on Trump's attacks on judges, which you said were disheartening and demoralizing, and Sean Spicer just said you were speaking broadly. Let us move on. In your 2006 book on the future of assisted suicide, you argued that Casey should be read more as a decision based merely on respect for precedent rather than based on the recognition of constitutional protections for ``personal autonomy''--and that is in quotes, ``personal autonomy''--or for ``intimate or personal''--again in quotes-- decisions. So you wrote that in your book, but since that time, well, in fact, before that time, in Casey, the Court relied on the protection for intimate and personal choices to decide many non-abortion cases, such as the--I always have a hard time pronouncing this, the Obergefell----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Obergefell.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. You know which case I am talking about.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I do, Senator. Yes, of course.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Thank you. Which recognized the right to marriage equality. Has the Court's continued application of this right for personal and intimate choices changed your view that the Constitution does provide protections for intimate and personal decisions?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I have never expressed personal views as a judge on this subject, and that is because my personal views do not matter. Obergefell is a precedent of the U.S. Supreme Court. It entitles persons to engage in single-sex marriage. That is a right that the Supreme Court has recognized. It is a precedent of the U.S. Supreme Court, entitled all the deference due a precedent of the U.S. Supreme Court, and that is quite a lot.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. So in your view, the Constitution does provide protections for intimate and personal decisions, and we shall see how far that constitutional protected right goes in other decisions. So, basically, what you wrote in your book is your personal opinion, and we can pretty much forget about it. Not to be rude to you.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, no, no. Not at all. I am not sure I tracked the question, though. I think it is me, not you.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Well, okay. Let us move on. During the presidential campaign, Donald Trump laid out his litmus test--and I only have 43, 42 seconds--for nominating a Justice. And he did say that he would want someone who is going to overturn Roe v. Wade and that gun rights would be protected, making it pretty tough for Congress to pass what I would call sensible gun legislation, and that, basically, the religious rights of entities such as Hobby Lobby would be protected. So I said in my opening that it is--you know, I would assume that you comported with the President's litmus test. Otherwise, you would not be here. And do you think that you have provided us with any particular information that would cause us to believe, aside from your statement that you will be fair, that you do not meet these litmus tests?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator----
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. And because I have run out of time, you can provide that information to our Committee.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. May I respond, Mr. Chairman?
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. Yes.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I have been here for 2 days. I will be here for a third. I hope I have given you some picture of my credentials, my experience, my track record as a judge. I hope I have given you some sense, too, that I have rejected litmus tests since the day I was a lawyer in print for judges. I hope I have given you some view into the way I think about the independent judiciary, about the sort of judges I admire, about the things that I think are important in our separation of powers. I hope I have given you some sense of my track record. Ninety-seven percent of the time, unanimous decisions. Ninety- nine percent of the time in the majority. Been reversed maybe once by the U.S. Supreme Court, that is arguable, in 10 years. I hope I have given you some picture of who I am and my record. No one else speaks for me, and I do not speak for anyone else, Senator. I really appreciate the chance to have this conversation with you.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Thank you. We will see you tomorrow also.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you.
Senator Mazie Hirono (HI)
Senator
(D)
Senator Hirono. Thank you, Mr. Chairman.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. Judge, we are going to give you the option of a 10-minute break. But instead of saying time certain of, well, it would be 7:57 p.m., as soon as you get back, we will get started. And we will go to rodeo rules. So we will make sure that we do not go over 8 seconds. In the West, you would at least understand that. So we will adjourn. We will start no later than 7:57 p.m.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Thank you, Senator. I appreciate it.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. Or not adjourn. Recess. [Recess.] Senator Tillis. I call the Committee back to order.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No, I am fine, thank you.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. Judge, my first very important question, please pronounce your last name. [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I have answered to a lot of things, Senator. ``Gorsuch'' is how I say it, but----
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. The reason I ask that question is we had probably four or five cheat sheets up here with different phonetics. So, that is ``Gor-such, right?''
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is how I would say it, but----
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. For the press, it is ``Gor-such.'' For everybody in the audience, it is ``Gor-such.'' And I give my staff credit for actually getting it right, but I had a crisis of confidence when I saw the other cheat sheets. [Laughter.] Senator Tillis. I want to thank you for being here. And, Judge, I want to tell you, I grew up in the Southeast and I love skiing. It just never occurred to me to do it when the water was frozen. [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, we will forgive you that.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. But I love the fact that you are an outdoorsman because it means you love our environment, you love being outdoors, and you want to leave a good healthy environment for your children and everybody's children. Senator Franken said that he had a career in identifying absurdity. I felt like I joined one when I joined the U.S. Senate. [Laughter.] Senator Tillis. And I am going to talk a little bit about that today. Yesterday I was saying I wanted to have you talk more and me less. I am not sure if I can live up to that promise because I want to go through a number of things. I am a numbers guy. I like the fact that you have repeated the numbers in your track record on the bench. Best I can tell, if I double the number of cases that people have made an issue with you. That is .003 of your cases, three-tenths of, what is that, one-thousandth of your cases are in question here. And I am going to go back to those because they are fairly limited, but before I do let me talk about another piece of absurdity. The absurdity would be talking about how President Trump set some sort of a litmus test and not recognizing that candidate Clinton told a town hall audience, ``I have a bunch of litmus tests. We have to preserve marriage equality, and we have to make sure Roe v. Wade stays in place.'' That sounds like a litmus test. I would not have used that comment by a candidate if we were going with a President Clinton nomination. I do not understand why it is relevant here. It is not you. We are here to talk about you and your qualifications. Another absurdity that I think we will see over the next couple of days is the absurdity of people saying that you are sidestepping the questions about cases that may come before you. I actually think you are following a code of conduct. You are following the Code of Conduct for United States Judges. You are following the American Bar Association Model Code of Judicial Conduct, Rule 2.10(a) and (b). I appreciate you respecting and living what you say, and that is the rule of law and code of conduct of judges. Now, I want to get into some specific cases, and I guess I will start with freedom of speech. Judge Gorsuch, I am going to read some of my notes because I want to make sure I get my points right. I want to also apologize again because I may do a little bit of talking, but I do believe the First Amendment states, ``Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'' I think the first few words mean something very significant, and I think that you do, too. Now, clearly this amendment is not meant to limit the ability of the Federal Government to curtail free speech. Do you agree that the Founders intended this amendment to be a check on the Federal Government?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, that is what it is.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. Is it fair to say the Framers, when they were crafting this First Amendment, were concerned especially about political speech as opposed to, say, activity like exotic dancing or other speeches or activities that people argue are covered by the First Amendment?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. The Supreme Court has held that political speech is the core of the First Amendment.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. So, it is fair to say the Supreme Court has routinely held that political speech, especially during a campaign for public office, is at the core of the First Amendment.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It has.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. A lot has been said today about money in politics and a landmark case called Citizens United. Citizens United is a very popular punching bag for some of my colleagues across the aisle. You spent a lot of time talking about this with Senator Whitehouse earlier today. If you listen to them on the subject, you would think this decision resulted in the ability for a corporation to pump hundreds of millions of dollars directly to political candidates. The facts of the case get wrapped around buzz words like ``dark money.'' However, I want to use some time today to walk through the facts of this case. First, at its very baseline, this case was a challenge brought to a Federal statute. The Federal Government through Congress passed a statute aimed at limiting certain speech, and it was Congress' activities in regards to speech that the Framers were concerned about. In fact, the statute prohibited entities, such as corporations, including non-profits and labor unions, from using their general treasury to fund any advertisement that used the candidate's name within 30 days of a primary or 60 days of a general election, including to promote a movie, as well as many express advocacy communications. This case had nothing to do with direct contributions and spending coordinated with specific campaigns and candidates. In other words, this case is not about corporations making direct campaign contributions at all. Citizens United was about an entity's ability to speak independently of any candidate or campaign. Judge Gorsuch, do you remember what behavior was in question or, in other words, what the Citizens United wanted to advertise?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, as you say, Senator, there was a movie involved.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. The organization wanted to broadcast the film or to advertise the film before a 2008 Democratic primary. The Federal Government went into court and said a nonprofit could not produce or advertise a movie highly critical of a candidate. Judge Gorsuch, are you familiar with the oral arguments of the case?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I remember listening to them on tape at one point, but it has been a while, Senator.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. Well, during the initial oral argument for the case, the Government was asked whether or not the same law could prevent a company from publishing a book that was the functional equivalent of expressed advocacy. Specifically, Chief Justice Roberts asked, ``If it is a 500-page book, and at the end it says so vote for X, the Government could ban that?'' The response from the Deputy Solicitor General who was defending the statute, stated, ``We could prohibit the publication of the book.'' In the oral arguments, Justice Souter stated, ``To point out how far your argument would go, what if a labor union paid an author to write a book advocating for the election of A and defeat B, and after the manuscript was prepared, they went to a commercial publisher, and they go to Random House, and Random House says, yes, we will publish that. We are talking about how far the constitutional ban would go, and we are talking about books.'' The Deputy Solicitor General said, ``The labor unions' conduct would be prohibited.'' He goes on to say, ``I think it would be constitutional to forbid the labor union to do that.'' I want everybody here to know and everybody who is listening to realize the consequences of this position. The Government at one point defended the statute by saying it could prevent the publication of a book by a corporation like Random House if the book advocated for or against a candidate. That is not the end of the story. The Supreme Court ordered re-argument. Then the Solicitor General, Kagan, slightly retreated from the Government's position. Then Solicitor General Kagan said that while the law could apply to a book, the Government had not applied it in the past. But when asked again by Chief Justice Roberts about a pamphlet, she responded, ``I think a pamphlet would be different. A pamphlet is classic electioneering.'' Again, I want everybody listening to realize what we are talking about here when we talk about Citizens United. They argue that there was constitutional authority to actually prevent the publishing of a pamphlet opposing a candidate if produced by a nonprofit organization. We as a country have a long history of people being able to criticize the Government, which includes specific offices in Government. Sometimes this was done anonymously because disclosing the speakers' identity had serious implications, whether it was the American Revolution, the Jim Crow South, or today. Therefore, we must be cautious in giving the Federal Government, including the executive branch, power to limit or penalize for political speech. Judge Gorsuch, you may not be able to see that. Do you recognize this book?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I cannot see it. I am sorry.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. We got this from the Library of Congress. It is a collection of some of Thomas Paine's writings, including, ``Common Sense,'' and political writings. In this pamphlet, he urged the American colonies to declare independence and sever ties with the British monarchy. What some of my colleagues from the other side have attempted to do is tie you to a court case which you had nothing to do with. They painted a picture of this case as support for big money in politics where big corporations win and the voter loses. In reality, the facts of this case were much different. The Federal Government argued it could stop a movie because it contained political speech. Then it argued it could ban a book because it contained such speech. Then it argued it could ban a pamphlet because it contained such speech. That is the Citizens United case. I find it curious my friends are so concerned about Executive power and not concerned about the Federal Government arguing its authority to prevent production of movies, books, and pamphlets. It is foundational to our democracy. So, as I stated previously, they are attempting to link you to Citizens United, and continue a narrative that I think is absurd, that as a judge you will support big money and corporations and never side with the little guy. The facts dispute that. The number of cases you have heard dispute that. Now, I want to close out here with a little bit of discussion about your political positions or your past being instructive to the decision by some as to whether or not they should support your confirmation. Let us talk a little bit about now Justice Kagan on Citizens United as the Solicitor General. The reason that this came to my attention today was earlier when people were asking about the role that you played when you were working as an attorney on behalf of the Government. So, who was your client?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. The United States.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. So, let me go back to when Justice Kagan was Solicitor General. When she was nominated, she was a lawyer at the Department of Justice. In fact, she was the Solicitor General. As we have talked about, she argued with Citizens United. Now, she pressed the argument that the Government had the authority to prevent the publication not only of movies, but other forms of political speech, like a pamphelt. She accounted for her arguments as Solicitor General this way, her quote, ``I have tried very hard to take the cases and to make the decisions that are in the interest of my client, which is the U.S. Government.'' My guess is, that is what you were doing when you were in a different role representing the U.S. Government. I think that what she did was advocate for her client. You would do the same. Whether or not I would have voted for her, we will never know because I was not here. But I also want to bring up one thing. Another Member brought up an email sent to you in 2004 where you noted that you had volunteered on a political campaign. Well, once again you may recall that Justice Kagan also had quite a political career before she became judge. After she was nominated to the Supreme Court, after reviewing her emails from the Clinton White House, the AP published a report saying that as a White House aide, she had a flair of political tactics and often had to place political considerations before political views. And the LA Times reported, ``She worked in the research department defending [Democratic candidates] from political attacks and conducting research on the opposition.'' I do not think there is much more to say about it either except to say this. In spite of her position to argue that things like pamphlets and movies could actually be, well, banned, in spite of her political activities that seem to have reached to a far greater level than your own, when she came before this Senate, Republicans joined with Democrats, and through unanimous consent did not force cloture. They moved on to the vote. And quite honestly, Republicans were in a position to delay confirmation. On Kagan and on Sotomayor, Republicans respected the President's authority to appoint a Supreme Court Justice, and Republicans did the right thing by moving forward and allowing the confirmation. So, I think that we have a moral high ground here that my colleagues on the other side of the aisle should take note of. Now, I want to get to other stuff. Judge Gorsuch, I want you to go back briefly. I have 15 minutes, and I am going to go really quickly. This will be a lightning round. The ethics class. I am going to go back to absurdity. I appreciate that Senator Franken mentioned what he did because it is a perfect theme for my line of questions. There is going to be a lot of it spun in the press, and I want to see if maybe a few people will actually listen to the answers to these questions. It had to do with the letters that came from the class that you teach on ethics. Can you tell me again briefly about the course curriculum?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I can try, Senator. I am very heartened by the fact that scores and scores of my former students have written this Committee on my behalf.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. And I am going to seek unanimous consent to put some letters of support into the record. [The information appears as submissions for the record.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And over the last 7 or 8 years, I have used the same textbook. You can take a look at the teaching manual and you will see exactly what we discussed.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. So, it was not an arbitrary comment. It was not something that was done in this one segment. It was something that was a part of a well-thought-out curriculum, and it started a discussion that I have letters that without objection I would like to submit to the record, that suggest the same. But it was not something--it was not arbitrary. It was not off the cuff. It was something that was a part of a curriculum that had existed for how long?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Seven or 8 years, Senator.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. Okay. I would like to seek unanimous consent that I can put forth a series of documents from former students speaking specifically to the letter that you were informed of the day before yesterday, and other students that were in your class that saw the facts differently, and some other documents that I think will be good reference for the other Members to review. Without objection. [The information appears as submissions for the record.] Senator Tillis. Okay. Now, I want to move into a couple of things that I really want to get to in the TransAm Trucking case. First off, you have given me hope that I could actually understand legal opinions. Yours are well-written. One of them was your dissent on TransAm Trucking. You are not here to have a heart. You are here to interpret and apply the law, and I appreciate that about you because I suspect you have a really big heart. But I thought it interesting. I highlighted several parts in your dissent. One was when they suggested that he should drag the trailor instead of keeping it there or leaving it there. Your parenthetical comment, ``That was an illegal and maybe sarcastically offered option.'' So, you did not consider that a viable option. There are going to be people here that say that you were okay with that. That is wrong. It is absurd. And then the other one was, he could sit and wait for the truck to arrive, and you parenthetically said, ``A legal, if unpleasant, option.'' You went on to say in your dissent, ``It might be fair to ask whether the TransAm decision was a wise or kind one, but it is not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.'' And then you go on to say that, ``There is simply no law anyone has pointed giving employees the right to operate vehicles in a way the employers forbid.'' I think that if you go back and people read these dissents, it is hard for me to imagine that you arrived at this through any other conclusion but for the fact that Congress had not explicitly provided you the authority that you thought you needed or the reference point that you thought you needed to judge otherwise. And my guess is when you rode home that night, you wished that they probably had., Now, I also thought what was interesting in your dissent was you kind of gave some suggestions to maybe how things should have been done differently or how we should have done our job better, so that maybe you would have been in a position to come up with a different judgment. But that is our job. You told Senator Whitehouse, ``It is not my job to do your job.'' That was one of your best quotes of the hearing today. And you are absolutely right. It is our job is to make value judgments. It is our jobs to get votes, and our jobs to answer to the American people every time we get elected or go to a campaign every 2 years or 6 years. So, I, for one, think that you came up with a well-reasoned dissent in TransAm Trucking. Now, I want to move to one that I just want to make sure I have time to get to because it is one where, you know, quite honestly, I would have completely loved for you to go the other way, but you did the right thing. And it is purely by coincidence, and it really is, I am wearing an autism pin today because I am a big advocate for autism research and Autism Speaks. I do not have any personal family experience with it, but it is something to me that is very important. In Thompson R2-J School District v. Luke P., you all came up with a decision that was contrary to what I would like to do for parents and families who have children with autism, who are in the public school system and not getting the results that they would hope to get. And in this case, again, I think you have the IDEA absolutely right. There is no way that you could have reached that far to support what clearly had to be--in this case it was an appeal-- that would have been sympathetic to Luke P. and his parents. You made the right decision. You know what I did in North Carolina? I changed the law. I did my job. You made it very clear that the IDEA did not do it, so as Speaker of the House, we went in there and we said that if a parent, after spending a year in public school, did not think that their child was getting what they needed, then we would actually allow them to go to a private school and have money follow them so they can do it. So, by doing my job, we have a few hundred kids now who are getting the education that they need in a private school setting. Thank you for forcing me to do my job. It preceeded my time as Speaker of the House, but we knew we had run into problems there, and we solved the problem. Thank you for making us do our jobs. And then finally, the case--I want to go back to quickly to make sure I have my notes right. One thing I like about you is sometimes your decisions seem to make everybody mad, which probably means it is a pretty good decision. So, I think sometimes maybe you even exceed the 50 percent rule. [Laughter.] Senator Tillis. Like the case----
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. My daughters would agree with you.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. Like the case in Riddle v. Hickenlooper. You recognized that a minority political party was being treated unfairly as a result of actions that were taken--I do not know if there were Democrats or Republicans in control when they passed that. But that was a classic example where you obeyed the law. The other thing that was interesting about that case is you actually provided some food for thought on how maybe they could solve that problem that would be constitutionally sound, and I have found that in other examples. I love the fact that you do not believe that judges, after they have heard the argument, should go back and create new arguments to arrive at a decision. In your dissents and in your opinions, you basically say you all should have done that, not a bunch of judges in a room when they are deliberating. So, I think you were giving them food for thought. That is extraordinary that you would do that kind of work. That is why you are going to make a great Justice on the Supreme Court, and that is why I fully support you. And I will call out absurdity every time I hear it this week and next week. I will ask my colleagues to do what Republicans did before I have here: respect the President's right to seat somebody on the Supreme Court. They do not have to vote, for you, but you deserve an up or down vote. I have voted for cloture on a nominee, an Attorney General that I did not vote for. But I respect this institution and this process enough to let it go forward. So, I am going to work very hard to support you. I am not an attorney, but I did stay at a Holiday Inn Express a few weeks ago. Outside of watching ``Law and Order'' every once in a while when I get home late and unwind, I do not practice law. But I can tell based on what I have heard today you are a man of extraordinary patience. Yesterday, I mentioned that I thought your at-rest heart rate was about four. I saw it spike up 50 percent maybe to five or six today. [Laughter.] Senator Tillis. I will leave you with this. Peyton Manning, who I love, he went to University of Tennessee, and then he tarnished his career by going on to the Broncos and beating the Panthers in the Super Bowl.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh. [Laughter.] Judge Gorsuch. Oh.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. But let me tell you something--I love Peyton Manning. In fact, I have a quote on the walls in my office that I make my staff look at every day, and it says, ``Pressure is just something you feel when you don't know what you're doing.'' You clearly know what you are doing. You have not exhibited one iota of pressure. That is what is going to make you a great Justice. The respect that you have shown when disrespectful questions were lobbed your way was remarkable, and I appreciate you being here. I appreciate your patience, and I am going to yield back the rest of my time. But I will say that the break after 7 tonight also does not replace date night, so you owe your patient wife a good dinner after all this is done. But thank you, and I yield back the rest of my time. The Senator from Louisiana.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, thank you.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. Yes, and by the way, you did not get to talk much, but I promise tomorrow you will get to talk a lot. [Laughter.]
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I have heard myself speak more today than I am accustomed to.
Senator Thom Tillis (NC)
Senator
(R)
Senator Tillis. The Senator from Louisiana.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. How you doing, Judge?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am great. How about yourself?
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. You are that close to being done. That close. I think you have done pretty well today, and I just want to go on record as saying this is--this is an important nomination, and I appreciate all the questions asked today, even the ones I disagree with. I did not know what to expect. I mean, this thing could have turned into ``The Gong Show'' real easily. It did not, and I appreciate that. I want to ask you a couple of questions, some things that maybe we did not get to talk about much. First, why have you recused yourself in almost a thousand cases?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, in the Tenth Circuit, we have procedures, and one of the procedures is we make a list of all potential recusal possibilities. And for me it was significant because I had been in the Government in a position where we oversaw a number of different litigating units. That causes a fair amount of recusal right there. And, Senator, I was blessed with an active and robust practice, and partners who went on to do much better without me than they did with me, and they had a lot of clients. And it was my view as a Circuit Judge that I did not want to cause an unnecessary recusal problem later. Sometimes after a court decides a case, a recusal issue pops up. Judges miss things. We are human. It happens. The problem when that happens, of course, is then you have to get a new judge in and start everything all over again. That is a cost to the system that is not insignificant to your colleagues and taxing on them. And it also raises questions, of course, to the parties who have to start all that over, and it cost them money and time. And I did not want to create that kind of problem for the litigants and for my colleagues. And so, I set up a process consistent with the practice of my colleagues. I talked to my colleagues about how they do it, and tried to conform with the practices of the Tenth Circuit as best I could. And as you know, most of the recusals were not really--I mean, ``recusal'' is not even the right word. They are screened out----
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. By the clerk's office before they ever get to me. We are on a wheel.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And so, I just get the next one on the wheel. Everybody gets the same workload.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Right.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It does not affect our workload, but it does affect confidence in the judiciary and----
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. The recusal rules are different for the U.S. Supreme Court as I appreciate it.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, Senator.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Okay. I want to ask you about the relationship between the United States Constitution and a State constitution and the interaction. And let me get specific so you will know what I am talking about. I think this is well-settled law. A DWI, we call DWI in Louisiana. Some States call it DUI, but a DWI roadblock. I think it is well-settled in a number of cases in the U.S. Supreme Court that says a DWI roadblock, so long as you use neutral criteria, is perfectly permissible under the Fourth Amendment. If I say anything wrong, stop me. It is clearly a seizure, but as long as you have neutral criteria. Do you remember why the Supreme Court made that decision?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I am sure you are going to tell me, Senator.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Well, if you--if you do not know, I will-- my understanding is that the Constitution only protects against unreasonable searches and seizures.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Right.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. And the Court balanced the public interest versus the extent of the privacy violation. But let us suppose--so that is well-settled law. You can--under the Federal Constitution, you can have a DWI roadblock. Let us suppose the Supreme Court of Massachusetts--I wish-- I wish Attorney Franken was here, said, you know, we appreciate that, and we appreciate that is a Federal law, but we have a Fourth Amendment in the Massachusetts Constitution, and we want to go further, and we want to outlaw roadblocks. We want to give more protection. We do not want to take away protection that our citizens have under the United States Constitution, protection from Government. We want to give them more protection from Government, and no roadblocks period. Do you think that is permissible?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, generally speaking, decisions based on independent and adequate State grounds are permissible. The primary precedent in this area is Michigan v. Long, a decision by Justice O'Connor. The State has to make clear that it is deciding on independent and adequate State grounds and not resting on the U.S. Constitution. If there is some ambiguity, we may as Federal judges consider it to be a decision based on Federal law. But a State is free to add to the liberties of the people, generally speaking.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Yes. Well, what if the adequate and independent State grounds are not clear? What do you do?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, that is Michigan v. Long, and there is a precedent, and there is a test for it. And, again, if it looks like it could have been on the--on Federal--the decision could have been made on Federal grounds, then the Federal court will examine it on that basis. If the State court makes clear that it is independent and adequate State grounds, why then State law controls.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Do you think it makes sense--I mean, is not the law complicated enough? Do we really need 50 rules for DWI roadblocks?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, Senator, we have this thing called federalism.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. I have heard of it.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Yes, I figured you might. And it is part of our separation of powers, and it is part of how we preserve liberty, right? We diffuse power to protect liberty, and Federalism is a key part of it.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Okay. I have not read all your cases, but I have not seen many where you dealt with substantive due process or equal protection, so I want to talk about that for a few minutes. If you have a case where you do not have a fundamental right or a fundamental liberty, and you do not have a suspect classification, so you are not going to use strict scrutiny. You are going to be--you are going to use the rational basis test, which means you are going to uphold the statute if the legislature has a rational reason that is connected to a legitimate goal. How far do you go? How closely do you think Federal judges should examine what the legislature does? Is it a rational reason? Is it any reason? Is it--do you make up the reason for them? Have you ever heard of rational basis with bite?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. I have, Senator. And before we get to that, I think it is important to acknowledge there is also intermediate scrutiny.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. That is true.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And, for example, many gender cases.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. For gender, but I am talking about just plain old variety, no gender, no race, no kind of special heightened scrutiny, just rational basis.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. The Supreme Court has indicated what you are describing as rational basis with bite. But sometimes if there is a discriminatory animus present, even though there might be a legitimate rational basis one could conjure for the rule, that might fail strict scrutiny, Senator.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Yes. What does the rational basis test mean to you?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Well, generally speaking, usually speaking, it means that if there is any rational reason that one can conjure for the rule, it stands out of deference to the legislative process.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Does it have to be a good reason?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It has to be a rational reason, not one that I find personally persuasive, but one that someone could find persuasive.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Okay.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is out of deference to the lawmaking process of this body, Senator.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Understand. I want to ask you about the TransAm case. It has been talked about a lot. You dissented. Pretty tough facts. Your dissent probably, I guess, made you about as popular as cholera.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It seems so.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. But as I understand it, you just looked at the statute, and what--tell me what you, what the statute said again?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. It said that an employee who refuses to operate a motor vehicle has certain legal protections from firing.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. But he did not refuse. He operated.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is what I thought the facts suggested, Senator.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Yes. Well, I thought about that case when I was reading a case of yours that I commented on yesterday, A.M. v. Holmes, another case. Pretty recent, last year. And as I--as I appreciate it, the majority opinion was kind of tough to get through. It was, like, 95 or a hundred pages. But 13- year-old kid, seventh grader, he is fake burping in class.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. He is.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. And he is pretty good at it.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. He is very good at it apparently.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. He disrupts the whole class.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. He does.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. So, the teacher takes him out, sits him down in the hall, calls the assistant principal. She calls the police officer, I guess, assigned to the school. They take him to the principal's office, and the police officer arrests him, and the kid's mom sues. I think it was a 1983 action if I recall.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is right.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. His mom sues, and the majority held qualified immunity. And so, this is the way you described the case. ``If a seventh grader starts trading fake burps for laughs in gym class, what is a teacher to do, order extra laps, detention, a trip to the principal's office? Maybe. But then again, maybe that is too old school. Maybe today you call a police officer. And maybe today the officer decides that instead of just escorting the now compliant 13-year-old to the principal's office, an arrest would be a better idea. So, out come the handcuffs and off goes the child to juvenile detention. My colleagues,'' the majority, ``suggest the law permits exactly this option, and they offer 94 pages explaining why they think that is so. Respectfully, I remain unpersuaded.'' But it is your last paragraph in that opinion that made me think of TransAm. You went on to explain why you interpreted the statute to be contrary to the majority opinion. But this is how you wrapped it up: ``Often enough the law can be a ass--a idiot,'' quoting Dickens in Oliver Twist,--``and there is little we judges can do about it, for it is, or should be, emphatically our job to apply, not rewrite, the law enacted acted by the people's representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So, it is I admire my colleagues today, for no doubt they reach a result they dislike, but believe the law demands. And in that, I see the best of our profession and much do admire. It is only that in this particular case, I do not believe the law happens to be quite as much of a ass as they do, and I respectfully dissent.'' Is that what happened in TransAm?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. That is who I am, Senator.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Can you tell me something that you think is a good idea, but you think is unconstitutional?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Oh, Senator---- [Laughter.] Judge Gorsuch. It has been a long day.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. I know. [Laughter.] Senator Kennedy. And you are this close to ``CSI Miami,'' okay?
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No. No, no, no. [Laughter.] Judge Gorsuch. Senator, I have loved every minute I have spent with you and with all of your colleagues. I am sure I could conjure something.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Well, think about it tonight.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. But, Senator, I would not opine on it if I could. It is just not my job. It is just not--my job--as you just read it, that is how I see my job. And I respect my colleagues who see it differently because they did. They wrote a 94-page opinion in that case, a thoughtful one.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. Yes, I read it.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. And I respect them deeply, and the same thing in TransAm. Sometimes the law is what it is. They see it--I am sorry, Senator.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. No, you go ahead.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. No. We just do the best we can, day in and day out, in cases like these, and nobody hears about it. And it is the quiet, quiet work of judges trying to get it right.
Senator John Neely Kennedy (LA)
Senator
(R)
Senator Kennedy. And that is why I enjoy your opinions, aside from the fact they are well-written. You kind of play outside the pocket. I mean, you adhere to the written word, which is what I want to ask you about next. It is clear you do not like labels, okay? You would not call yourself an originalist.
Neil M. Gorsuch
Nominee
(R)
Judge Gorsuch. Senator, I am happy to embrace that. I do not reject it. I just am concerned about the level of our discourse in this society today