Live blog of confirmation hearings, Day 2: Gorsuch condemns attacks on the judiciary
Judge Neil Gorsuch begins second day of hearings. U.S. Capitol photo.
U.S. Supreme Court nominee Neil Gorsuch told senators during the second day of confirmation hearings on Tuesday that the independence of the judiciary “is in my bones.”
And while he couldn’t comment specifically on President Donald Trump’s criticism of judges, Gorsuch said, he does have a problem when someone attacks the integrity, the honesty, the independence or the motives of a judge.
“Senator, I know the men and women of the federal judiciary. I know a lot of them. I know how hard their job is,” Gorsuch said. “And I know how decent they are. And when anyone criticizes the honesty or integrity or motive of a federal judge, I find that disheartening; I find that demoralizing, because I know the truth.”
Gorsuch mostly deflected questions about how he would rule in specific cases and about his personal views on issues. But he did say that the Korematsu decision upholding the internment of Japanese-Americans during World War II would not be applicable precedent today.
He also answered a series of questions from Sen. Patrick Leahy, D-Vt., about religious tests. Leahy asked whether the First Amendment permits religious litmus tests for entry into the United States.
“Senator, we have a free exercise clause,” Gorsuch said. He added, however, that he can’t say how he would apply the clause to a specific case.
Leahy then asked whether the president could ban all Jews from entering the United States. Gorsuch replied that the Constitution guarantees due process and free exercise, and the Supreme Court has applied the due process clause to undocumented immigrants.
Leahy then posed a hypothetical: Could there be a religious test to serve in the military? Gorsuch said that would be against the law.
Gorsuch emphasized that cases should be decided based on the facts and the law. “When I became a judge,” Gorsuch said, “they gave me a gavel and not a rubber stamp.”
8:53 p.m. ET. Hearings end for the day. They will resume at 9:30 a.m. Wednesday.
8:29 p.m. ET. Sen. John Kennedy, R-La., asked why Gorsuch had recused himself in almost 1,000 cases. Gorsuch said that in the 10th Circuit, a list is made of all possible cases for recusal. Having served in the Justice Department creates several reasons for recusal, as did his time serving clients in private practice, Gorsuch said.
“I didn’t want to cause an unnecessary recusal problem,” Gorsuch said. If a recusal issue raised after a case is decided, a new judge is called in, and the process begins anew. Gorsuch said he didn’t want to create that problem for litigants.
8 p.m. ET. Sen. Thom Tillis, R-N.C., started his questions by asking Gorsuch how to pronounce his name. Tillis said he had seen various pronunciations on cheat sheets being used by different senators.
Gorsuch said his name is pronounced “Gor-Such.”
7:36 p.m. ET. Hirono referred to the Supreme Court Korematsu decision upholding the internment of Japanese-Americans during World War II and the fact that it hasn’t been explicitly overruled. Would it be applicable precedent today in a case involving ancestry? Hirono asked.
“No,” Gorsuch replied. Gorsuch said acting Solicitor General Neal Katyal had confessed error in the case in an admirable decision.
7:20 p.m. ET. Sen Mazie Hirono, D-Hawaii, complained that Gorsuch has supplied the committee with less information on his views than previous nominees.
7:12 p.m. ET. Crapo asked about the Seventh Amendment right to trial. Gorsuch said he believes in juries, but there aren’t that many jury trials any more. And he’s not sure that’s a good thing. It’s expensive and it takes a long time to get to trial, he said. Defendants sometimes feel they have to settle because of the costs and delays, Gorsuch said.
6:52 p.m. ET. Sen. Mike Crapo, R-Idaho, asked if it was true that Gorsuch was endorsed by former quarterback John Elway, general manager of the Denver Broncos.
The Denver Post posted a letter in which Elway said Gorusch is a big Broncos fan, “and I can tell you that I’m a big fan of his.”
6:42 p.m. ET. Gorsuch acknowledged that he sought an en banc rehearing in Planned Parenthood Association of Utah v. Herbert, a 10th Circuit decision that overturned the Utah governor’s decision to suspend federal funds for Planned Parenthood. Gorsuch said sua sponte requests for rehearing are not that unusual in the 10th Circuit.
The parties had agreed that defunding was lawful if his suspension was in response to a video that appeared to show Planned Parenthood officials discussing the sale of fetal tissue, Gorsuch said.
The appeals court overturned the factual finding of the district court, Gorsuch said, in what he viewed as an unusual opinion. Gorsuch said he was concerned about the standard of review for clear error involving factual findings.
6:32 p.m. ET. Blumenthal asked about Trump’s assertions that he would nominate a Supreme Court justice who would overturn Roe v. Wade. Trump has said he was pro life and it would be a litmus test, Blumenthal said.
Gorsuch said there was a brief reference to abortion in his interview with the president, but there was no request that he commit to overturning it.
Trump had said abortion was a topic that had split people, Gorsuch recalled. Trump also expressed concern that the country’s nuclear armaments are old, Gorsuch said.
Gorsuch said he recalled no other conversations about abortion with the president’s advisers.
6:28 p.m. ET. Sen. Richard Blumenthal, D-Conn., referenced President Trump’s attacks on the judiciary. Trump referred to a “so-called judge” who ruled against him on the travel ban and said judges would be blamed if there were a terrorist incident, Blumenthal said.
Blumenthal asked Gorsuch how he would feel if Trump called Gorsuch a “so-called judge.” Gorsuch said he couldn’t talk about specific cases or controversies, and he can’t get involved in politics.
But Gorsuch said judges get called lots of names and they have to be tough. They have to accept criticism with some humility. “I take it from my teenage daughters, I take it from litigants,” he said.
Gorsuch said he does have a problem, however, when someone attacks the integrity, the honesty, the independence or the motives of a judge. “Senator, I know the men and women of the federal judiciary. I know a lot of them. I know how hard their job is, Gorsuch said. “And I know how decent they are. And when anyone criticizes the honesty or integrity or motive of a federal judge, I find that disheartening; I find that demoralizing, because I know the truth.”
Blumenthal asked whether his comment included the president, and Gorsuch said it included anyone.
Did Trump attack the judiciary and its integrity? Blumenthal asked. Gorsuch said he couldn’t comment on specific cases and couldn’t get involved in politics. He did quote another judge who said the rule of law means the government can lose in its own courts and accept the judgment.
The independence of the judiciary, Gorsuch said, “is in my bones.”
5:57 p.m. ET. Asked if he served on a jury, Gorsuch said that, to his surprise, he “made it through” when he was with the Justice Department.
Gorsuch said that, after serving, he came out more optimistic and a true believer in the jury system.
5:53 p.m. ET. Sen. Jeff Flake, R-Ariz., asked Gorsuch about his hobbies. Gorsuch said he likes to ski, to row, to run and to read novels. He also likes fishing.
“You can’t focus on the worries of the world when you are only worried about a trout,” Gorsuch said.
5:36 p.m. ET. Coons asked about Gorsuch’s views, stated in a book he wrote called The Future of Assisted Suicide and Euthanasia, that the intentional taking of human life by private people is always wrong. Gorsuch said he was speaking as a commentator before he became a judge.
His concern about legalization of assisted suicide has to do with equal protection principles, Gorsuch said. He worries about what legalization would mean to the least among us, such as the elderly and the disabled.
The U.S. Supreme Court has ruled that the issue is for the states to decide, Gorsuch said.
5:22 p.m. ET. Sen Chris Coons, D-Del., asked about the 10th Circuit’s Hobby Lobby ruling, which sided with the owners of the business in their bid to withhold contraceptive coverage for employees because of their religious beliefs. Gorsuch was in the majority in the case.
The case was about the protection of the Religious Freedom Restoration Act, which protects sincerely held religious beliefs, Gorsuch said.
The court interpreted RFRA’s protections to encompass corporations. Gorsuch said the statute referred to “person” and the dictionary says persons include corporations.
Congress could change the law, Gorsuch added. “Congress controls this decision, Senator,” Gorsuch said.
The U.S. Supreme Court also found for Hobby Lobby.
4:59 p.m. ET. Sasse asked about judicial writing, and the purposes of concurrences and dissents at the appellate level and on the Supreme Court.
Gorsuch said his opinions go through a lot of drafts; in some cases there have been as many as 30 drafts. He tests ideas as he writes, Gorsuch said, and he tries to persuade himself.
“A lot of gobbledygook, that doesn’t persuade me,” Gorsuch said.
4:43 p.m. ET. Sen. Ben Sasse, R-Neb., said senators asking Gorsuch for assurances on how he would rule was like asking a referee to decide on a game before it begins.
When you look back on your career, Sasse asked, how will you know if you were a good judge?
Gorsuch said he seeks that same kind of reflection from his students when he asks them to write their own obituary. It’s not about how large your bank account is, or how many cases you win, he said. It’s about how you treat people along the way.
Gorsuch said he would like to be remembered as kind and mild in private life, and dignified and firm in public life.
4:35 p.m. ET. Franken asked about an assertion by the White House chief of staff that Gorsuch would change 40 years of law. What was Reince Priebus suggesting? Franken asked.
Priebus doesn’t speak for me and I don’t speak for him, Gorsuch said.
Are you comfortable with that kind of discussion? Franken asked.
“Senator, there’s a lot about this process I’m uncomfortable with,” Gorsuch said. “But I’m not God” and don’t expect me to fix it, Gorsuch said.
4:16 p.m. ET. Franken launched into a detailed description of the “frozen trucker case” in which a trucker was fired for abandoning a nonworking trailer in 14-below weather. His employer had asked the trucker to wait for help, but the trucker said he was numb from the cold. A Gorsuch dissent said the law, as written, didn’t protect the trucker.
Franken asked Gorsuch what he would have done. Gorsuch said he didn’t know what he would have done. Franken said he would have done the same thing the trucker did.
Franken, a former comedian, also talked about the plain meaning rule and an exception for absurd results. “It is absurd to say this company is in rights to fire him because he made the choice [against] possibly dying or freezing to death or causing other people to die by possibly driving in an unsafe vehicle. That’s absurd,” Franken said. “Now I have had a career of identifying absurdity, and I know it when I see it. And it makes me question your judgment.”
Gorsuch said the absurdity doctrine applies when there is a scrivener’s error, not in instances of policy disagreement.
4:06 p.m. ET. Cruz said he understands that Gorsuch takes his law clerks to the rodeo each year. Cruz asked Gorsuch to share his experiences.
Gorsuch said he gets law clerks from all over the country. The opening of the rodeo is marked by a cattle parade, and ends with the prize steer being brought into the lobby of a hotel. There is also mutton busting, he said, and his children still have PTSD from it. Mutton busting involves children holding on to sheep and trying to avoid being knocked off.
The questioning turned to Sen. Al Franken, D-Minn. “’There are no animal abuse laws?” Franken joked.
3:57 p.m. ET. Cruz said some Democrats had raised questions about the Federalist Society in a way that suggests it is “some nefarious and secret” organization. Cruz said there is an incredible range of opinions within the Federalist Society.
Gorsuch said he gave a talk at a Federalist Society about overcriminalization, and he attends possibly one event a year.
“I think it’s fun to go into audiences and challenge them sometimes,” Gorsuch explained. People need fair notice of laws, but too many laws can be overwhelming, he said.
Not everyone agreed with his speech, and that was the whole point of his decision to deliver it, Gorsuch said. Debating societies such as the Federalist Society and the American Constitution Society are useful avenues to discuss ideas, he said.
3:45 p.m. ET. Gorsuch talked about clerking for Justice Byron White. They would walk past portraits of the justices, and White would ask how many Gorsuch recognized. The truth, Gorsuch said, was he knew about half. White told Gorsuch that everyone would be forgotten someday.
Now White’s portrait is among those justices, Gorsuch said, looking wistful.
3:38 p.m. ET. Sen. Ted Cruz, R-Texas, said he would begin his questions on a lighter note. What is the answer, he asked, to the ultimate question of life, the universe and everything.
Gorsuch answered “42.” He explained that young people come to the court to be sworn in, and he often asks the question to put them at ease. The answer is from Hitchhiker’s Guide to the Galaxy, he said. Wikipedia explains that the answer was calculated by a supercomputer named Deep Thought, but no one knows what the question is.
3:18 p.m. ET. Klobuchar asked Gorsuch how originalism squares with the Constitution’s reference to males when referring to the president.
“Senator, I’m not looking to take us back to quill pens and horses,” Gorsuch said.
3:15 p.m. ET. When Klobuchar questioned Gorsuch about his concurring opinion questioning Chevron deference, which holds that federal courts should defer to federal agency views. Gorsuch repeated his assertion that he saw a problem and wanted to “tell his bosses about it.”
But if you are on the Supreme Court, Klobuchar said, you would be the boss. As a Supreme Court justice, would you consider how overruling the Chevron doctrine would affect people, Klobuchar asked.
“Goodness, Senator, yes,” Gorsuch said. He added that he would not prejudge the issue and would keep an open mind.
Asked what could replace Chevron deference, Gorsuch mentioned a prior rule called Skidmore deference. But he said that was just one option that could be considered.
2:55 p.m. ET. Sen. Amy Klobuchar, D-Minn., asked whether Gorsuch favored cameras in the courtroom.
Gorsuch said the issue of cameras in the Supreme Court is an important question and he comes to it with an open mind. But he hasn’t given a great deal of thought to the question, he said.
“I’ve experienced more cameras in the last few weeks than I have in my entire lifetime,” Gorsuch said.
Gorsuch said he would want to hear the arguments before taking a stance.
Klobuchar also asked whether Supreme Court justices should comply with the same set of ethics rules that apply to other federal judges. Gorsuch said he has had no problems with the rules, but he doesn’t know the arguments for and against adoption of them for the Supreme Court.
2:33 p.m. ET. Sen. Mike Lee, R-Utah, asked Gorsuch about his relationship with his law clerks. Gorsuch said watching his law clerks go on to do wonderful things was “a deep and inspiring thing.” He also mentioned skiing with his clerks, leading Lee to remark on the merits of snowboarding versus skiing.
Gorsuch said skiing was better, and that’s a value judgment he was prepared to make. The comment followed repeated grilling by Sen. Sheldon Whitehouse, D-R.I., in which he sought Gorsuch’s view on dark money in elections and a group that is funding an ad campaign seeking his confirmation.
2:19 p.m. ET. Whitehouse also asked whether “corporate-front amici” that file briefs with the U.S. Supreme Court should disclose more about their funding sources.
Gorsuch replied that he could talk about his record, and he doesn’t think there has been a single motion seeking his recusal in the last 10 years. “I do take seriously impartiality and the appearance of impartiality,” Gorsuch said.
Whitehouse said the rule asks for disclosure of donors who funded preparation of the brief. But that doesn’t go very far, Whitehouse said, since donors can still contribute to the front group.
Should the court require more? Whitehouse asked. Gorsuch said that’s an interesting suggestion.
2:13 p.m. ET. Whitehouse said the dark-money group that is spending $10 million to support Gorsuch had also spent $7 million against failed nominee Merrick Garland. Asked why the group was willing to spend so much money, Gorsuch said Whitehouse would have to ask the group.
“I can’t because I don’t know who they are,” Whitehouse answered.
2:01 p.m. ET. Sen. Sheldon Whitehouse, D-R.I., referred to a group planning to spend $10 million to support Gorsuch’s confirmation. Whitehouse asked repeated questions about whether there is a public interest in disclosing who is contributing.
Gorsuch didn’t give his own opinion. Instead, he said the Supreme Court has validated that disclosure ensures important functions, but it can also be used as a weapon to silence voices.
Gorsuch refused to call for disclosure, calling it a “politics question.”
Whitehouse asked Gorusch whether he thinks a Supreme Court that decided Citizens United isn’t political.
“Senator,” Gorsuch replied, “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.”
Whitehouse said hiding the source of contributions to the group would make it difficult to assess whether Gorsuch should recuse himself in cases involving contributors. Whitehouse asked whether Gorsuch was concerned by the situation.
Gorsuch said there is a lot about the confirmation process that he regrets. The confirmation hearing for Byron White took 90 minutes, Gorsuch said, and he smoked cigarettes throughout the hearing.
1:48 p.m. ET. Cornyn asked Gorsuch about the difference between originalism and textualism. If a judge isn’t bound by the text, Cornyn asked, what is a judge bound by?
“Well, senator, I hope it isn’t what he had for breakfast,” Gorsuch said.
It’s not a judge’s job, Gorsuch said, to create laws.
1:40 p.m. ET. Cornyn returned to discussion of Gorsuch’s dissent raising concerns about Chevron deference, in which courts defer to agency views of ambiguous laws. Gorsuch said the case involved a bureaucracy overruling judges on the meaning of the law, and that raised separation of powers concerns.
In this case, Cornyn said, the little guy was relying on a judgment by a court of law that was essentially overruled. Cornyn asked if that was correct, and Gorsuch said it was.
Gorsuch said that when he wrote the decision, “I never dreamt I’d be sitting here.” Gorsuch said he wanted to “tee up questions for my bosses” (apparently the Supreme Court) by writing the decision. He added that he doesn’t know how he would rule on the question as a Supreme Court justice.
1:33 p.m. ET. Cornyn asked Gorsuch about an article he wrote for Judicature about access to affordable justice. Cornyn asked Gorsuch whether this article expressed a concern about access for the little guy and the little gal.
Gorsuch said he appreciated the opportunity to talk about his concerns. Gorsuch said his point was that too few people get to court today with legitimate grievances.
Gorsuch said one point of the article was that ethical rules may benefit lawyers more than clients. One of the rules is on unauthorized practice. Why is it that some companies that supply online legal services are sued so often? he asked. Why can he go to Walmart to get hair, teeth and eyes taken care of, but he can’t get a landlord contract? Gorsuch asked.
A second concern, Gorsuch said, was that judicial rules of procedure prevent fast resolution of cases.
A third concern, Gorsuch said, was the legal education system requiring three years of instruction. Gorsuch said three years of legal education puts students in deep debt and restricts their career choices.
1:23 p.m. ET. Sen. John Cornyn, R-Texas, asked whether a good judge decides who should win and then works backwards to justify the outcome. Gorusch replied that it was the easiest question of the day, and the answer is no.
1:09 p.m. ET. Durbin asked Gorsuch about allegations he had asked students in his legal ethics class to raise their hands if they knew of someone who had taken maternity benefits before leaving a company. A former law student had written the Senate Judiciary Committee about her concerns.
Gorsuch said he had taught legal ethics at the University of Colorado, and he teaches from a standard textbook. The book asks this question, directed to young women: Suppose an older partner asks you whether you intend to become pregnant soon. You can answer yes, if that’s the case, and not get the job. You can lie and say no, and maybe get the job. Or you can push back in some way.
Students are asked to talk about the pros and cons in a Socratic dialogue. He said he asks his students how many women have been asked such questions, “and I am shocked by how many young women raise their hand.”
1:01 p.m. ET. Sen. Dick Durbin, D-Ill., asked Gorsuch about statements by a former professor, John Finnis, who had supervised Gorsuch’s dissertation. According to Durbin, the professor complained that the English population had given up bearing children and they would be replaced with other people’s children.
Gorsuch said he was not aware of the comments.
Durbin also asked Gorsuch about comments by Finnis comparing homosexuality with bestiality. Gorsuch said he didn’t recall the specifics, but he should be judged based on his own record.
12:14 p.m. ET. Graham said he was worried about whom Trump would choose as a Supreme Court nominee—“maybe someone on TV,” was his fear. But Graham said he is happy that Trump selected Gorsuch.
After that statement, Grassley adjourned the hearing for a half-hour.
12:10 p.m. ET. Graham asked Gorsuch to summarize Roe v. Wade in 30 seconds. Gorsuch replied that the case established that a woman has a right to an abortion. Roe developed a trimester scheme that established when the women’s interests tend to prevail, Gorsuch said.
Graham asked whether medical viability in 1992 is different than viability today. Gorsuch replied that he is not a scientist.
Graham said he believed the viability standard is different today, and he has pending legislation that would allow the state to protect an unborn child from excruciating pain.
“You don’t have to say a word,” Graham told Gorsuch, but the senator said he wanted to let everyone know that, if the legislation passes, it could come before the Supreme Court.
Gorsuch said he is mentioning the case because anyone who wants to challenge anything in court deserves a judge like Gorsuch.
11:55 a.m. ET.. Answering questions posed by Sen. Lindsey Graham, R-S.C., Gorsuch said he had not met Trump personally until his interview for the nomination, and he was not asked whether he would overruled Roe v. Wade. If he had been asked, “I would have walked out the door,” Gorsuch said.
11:42 a.m. ET. Leahy asked Gorsuch how he would have ruled in the Shelby County case striking down a provision of the Voting Rights Act. Gorsuch laughed. “Senator, I admire the various ways—you would be a formidable companion in the courtroom,” he said.
11:36 a.m. ET. Leahy said President Trump is convinced that torture works. Gorsuch replied that the nation has implemented a convention against torture, adopted federal law banning torture and has the Eighth Amendment.
Leahy asked whether the president has inherent power to override surveillance laws on national security searches. Gorsuch said he would need to go through the judicial process to answer the question.
Leahy asked about a situation in which Congress passes a specific law on surveillance, and the president says he would violate it. “No man is above the law, Senator,” Gorsuch replied.
11:31 a.m. ET. Leahy asked about an assertion that President Trump needed Gorsuch on the court to uphold a Muslim ban in immigration. Gorsuch said no one has any idea how he would rule.
Leahy asked whether the president’s national security determinations can be reviewed by the court.
“Senator, no man is above the law,” Gorsuch said.
11:29 a.m. ET. Leahy asked Gorsuch whether his 10th Circuit nomination was secured because of lobbying by a billionaire client. Gorsuch said he believed all of his clients supported his nomination, including the gravel pit owner he represented in his first case that went to trial.
Leahy said President Trump has attacked judges who dared uphold the Constitution. Leahy noted that Gorsuch supports religious freedom, and he asked whether the First Amendment permits religious litmus tests for entry into the United States.
“Senator, we have a free exercise clause,” Gorsuch said, but he can’t say how he would apply it to a specific case.
Leahy asked if the president could ban all Jews from the United States. Gorsuch replied that the Constitution guarantees due process and free exercise, and the Supreme Court has applied the due process clause to undocumented immigrants.
Anyone “is going to get a fair and square deal with me,” Gorsuch said.
Leahy asked if there should be a religious test, and gave an example: a religious test to serve in the military. Gorsuch said that would be against the law.
11:20 a.m. ET. Leahy asked Gorsuch about whether he believed the First Amendment protected corporate funding of campaigns. Gorsuch said the issue was the subject of the Citizens United Supreme Court decision. Pressed about whether the Federalist Papers talked about “corporate money” in campaigns, Gorsuch said he didn’t specifically remember those words being used.
Trust me, Leahy said, the words weren’t used.
11:17 a.m. ET. U.S. Sen. Patrick Leahy, D-Vt., said he respected Gorsuch for calling failed Supreme Court nominee Merrick Garland when Gorsuch was nominated to the Supreme Court. Gorsuch said he believed Garland was an excellent judge.
Leahy asked Gorsuch if he believed it was fair to deny Garland a hearing, and Gorsuch said he couldn’t get involved in politics. Leahy said he believed the refusal to hold a hearing was “shameful,” and it had damaged the reputation of the Senate Judiciary Committee.
Leahy said the list of potential judges from which Gorsuch was selected had been prepared by special interest groups with an agenda. They were the Federalist Society and the Heritage Foundation.
11:08 a.m. ET. Hatch asked Gorsuch about his view that cases should be decided on facts and the law. Gorsuch replied: “When I became a judge, they gave me a gavel and not a rubber stamp.” Hatch remarked that the comment was good.
11:06 a.m. ET. Gorsuch said he represented a wide variety of clients in private practice, and not just large corporations.
Gorsuch remembered his first trial representing a gravel pit owner whose gravel continued to be mined by the previous owner. Gorsuch was able to make use of a 100-year-old law establishing damages for “furtive mining.” He won, and a juror told him he was a young Perry Mason.
10:58 a.m. ET. Hatch said he was a skeptic of Chevron deference, and has led the fight to enact legislation to overturn it. Don’t judges have a duty to say what the law is? Hatch said.
Gorsuch says he knows of no one who wants to overturn Marbury v. Madison.
Hatch also asked about allegations that Gorsuch does not side with the little guy.
“A good judge doesn’t give a whit about politics,” Gorsuch said. The judge “fearlessly” decides where the law takes him or her, he said.
If you look at his dissents, Gorsuch said, they divide about equally between cases in which the majority was appointed by Republican and by Democratic presidents.
10:52 a.m. ET. Hatch asked Gorsuch about the Fourth Amendment and how a judge should apply constitutional provisions when the technology at issue wasn’t even imagined by the founders.
Gorsuch cited the Supreme Court case of United States v. Jones, involving a GPS tracking device attached by police to a car. The court said that attaching something to property was a trespass under common law, and evaluated the case that way, Gorsuch said.
That approach works in other cases, Gorsuch said. “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,” Gorsuch said.
10:47 a.m. ET. Sen. Orrin Hatch, R-Utah, questions Gorsuch.
Gorsuch said he remembers what it was like to be a lawyer and to have clients.
Gorsuch said he doesn’t treat lawyers during arguments as cat’s paws. “They’re not there to be toyed with, “Gorsuch said. He listens to the lawyers, and then to his colleagues. He also asks his clerks to tell him when he is wrong. His mind has been changed, he said, “and that’s the judicial process. And that’s the role I see as an appellate judge.”
10:42 a.m. ET. Feinstein asked Gorsuch about several cases, and he replied that he can’t discuss them.
Gorsuch said a focus on a case in which he ruled against a trucker ignores the body of his work, including many rulings where he did rule for the little guy.
“I’m a fair judge,” Gorsuch said, and people in the 10th Circuit would agree. “I can promise you absolutely nothing less.”
Feinstein turned to the doctrine of Chevron deference, which defers to agency interpretations of ambiguous legislation.
Gorsuch said his opinion referring to Chevron deference is based on unique facts. The case concerned a bureaucracy overturning judicial precedent without an act of Congress, Gorsuch said. Gorsuch said the case reminded him of Lucy picking up the football at the last minute so Charlie Brown couldn’t kick it.
10:27 a.m. ET. Feinstein asked Gorsuch if he believes the president has inherent authority to intercept the communications of Americans in the United States.
“Goodness no, Senator,” Gorsuch replied. Feinstein’s question was related to Gorsuch’s work in the Justice Department during the George W. Bush administration.
10:24 a.m. ET. Feinstein referred to a confidential report that found torture did not produce good intelligence in the fight against terrorism. Feinstein then asked Gorsuch about a signing statement he helped prepare for President George W. Bush when he was working in the Justice Department.
The signing statement said a law banning torture essentially codified existing policy. Feinstein asked about Gorsuch’s emails from that time and whether they backed continued use of enhanced interrogations such as waterboarding.
Gorsuch said he would have to see the documents, and Feinstein said she could supply them. Gorsuch said his recollection generally is that the legislation emphasized that torture was unacceptable, as was cruel and inhumane treatment.
Gorsuch said he worked on producing the bipartisan bill preventing cruel and inhumane treatment, and creating a regime to process claims by Guantanamo detainees.
Gorsuch said he was a lawyer for the government advising about legality. His “loose recollection,” he said, is that some people wanted a more aggressive signing statement, and some wanted a gentler signing statement. Gorsuch said he recalled being “in the latter camp.”
“I certainly would never have counseled anyone that they could disobey the law,” Gorsuch said.
“There was a tug of war among parties in the White House,” and he was often on the side of John Bellinger of the U.S. State Department, which advocated for the gentler statement.
10:10 a.m. ET. Sen. Dianne Feinstein, D-Calif., refers to Roe v. Wade as a “super-precedent” and asks Gorsuch if he views the opinion that way. Gorsuch replies that Roe has been reaffirmed many times.
10 a.m. ET. Grassley asked Gorsuch about several cases, including the Second Amendment case of Heller and the campaign finance case of Citizens United. Gorsuch said he has personal views about all Supreme Court cases, “but the judge’s job is to put that stuff aside and approach the law as you find it.”
Grassley then asked about an older decision, Gideon v. Wainwright, which established the right to counsel. Gorsuch said he could talk about the factors surrounding precedent, but he couldn’t give his personal views on the opinion. Precedent “deserves our respect because it represents our collective wisdom,” he said. The idea that he has a better perspective “would be an act of hubris,” Gorsuch said.
Grassley then asked Gorsuch about Bush v. Gore, which settled Florida questions in the presidential election. Gorsuch repeated that he has respect for precedent. On Roe v. Wade, Gorsuch said he would say that the opinion is a precedent of the U.S. Supreme Court that has been reaffirmed, and reliance is one important consideration. Asked about the Griswold case establishing a privacy right to use contraceptives, Gorsuch once again said it is precedent.
If he were to list his favorite or least favorite cases, that would be tipping his hand to litigants, Gorsuch said. “If it looks like I’m giving hints or previews or intimations about how I might rule, I think that’s the beginning of the end of an independent judiciary,” Gorsuch said.
9:58 a.m. ET. Grassley asked Gorsuch when it is proper to reconsider precedent.
Gorsuch emphasized that precedent is important because “we don’t go reinvent the wheel every day.” Relevant considerations include whether a body of law has built up around the precedent, and the precedent’s “workability,” meaning that it is easy to apply.
There is a heavy presumption in favor of precedent, Gorsuch said. “And yes, in a very few cases, you may overrule precedent.”
9:52 a.m. ET. Emphasizing that there are no Democratic or Republican judges, Gorsuch said that, in the few cases in which he has dissented, the majority was as likely to be Democratic as Republican.
Gorsuch called separation of powers “the genius of the Constitution.”
Grassley asked Gorsuch if he was asked to make any promises about how he would rule in certain cases.
Gorsuch said he tries to live under a shell during the campaign system, but he did recall hearing about litmus tests. He didn’t intend to be a party to such a thing, Gorsuch said. And no one in the nomination process asked him for any commitments or promises about how he would rule in any cases, Gorsuch said.
9:39 a.m. ET. The hearing begins with a question by Grassley. He asks for Gorsuch’s view of judicial indpendence and whether he would have any difficulty ruling against the president.
Gorsuch says he would have no difficulty ruling against any party, if that’s what the law requires. There is no such thing as a Democratic or Republican judge; there are just judges, he said.
Gorsuch said he takes the judicial process very seriously, and he keeps an open mind throughout the entire process. “And I leave all the other stuff at home and I make a decision based on the facts and the law,” he said. That is what judicial independence means, Gorsuch said.
Gorsuch confirmation hearings: ABA previews rating: The second day of confirmation hearings for U.S. Supreme Court nominee Neil Gorsuch begins at 9:30 a.m. ET on Tuesday, as the ABA Standing Committee on the Federal Judiciary issues prepared testimony on its rating.
The standing committee gave Gorsuch its highest rating of well-qualified, in a unanimous vote. Committee chair Nancy Scott Degan and committee member Shannon Edwards are slated to appear before the committee on Thursday to explain the rating.
The committee hearing is expected to last 10 hours Tuesday as Gorsuch answers senators’ questions, the New York Times reports in a preview. In a shorter hearing Monday, Gorsuch told the Senate Judiciary Committee that judges are not politicians in robes. Instead, the robes signify that judges are neutral and independent decision-makers who apply the laws to the facts, he said.
Judicial independence was also a theme during the hearing on Monday. One Democrat, Sen. Richard Blumenthal of Connecticut, referenced a “looming constitutional crisis” that could be precipitated by the FBI investigation of potential ties between affiliates of the Trump campaign and the Russian government. Blumenthal said it was important to have a judiciary that will protect the nation “from overreaching and tyranny.”
In a statement (PDF) prepared for the Senate Judiciary Committee, Degan spoke to Gorsuch’s views on the subject. “Based on the writings, interviews, and analyses we scrutinized to reach our rating,” Degan said of the ABA committee, “we discerned that Judge Gorsuch believes strongly in the independence of the judicial branch of government, and we predict that he will be a strong but respectful voice in protecting it.”
The ABA committee does not evaluate judicial nominees based on judicial independence, Degan said, but it is essential in qualities it does evaluate—integrity, professional competence and judicial temperament. The committee reached out to nearly 5,000 judges, lawyers, professors and community representatives for information about those qualities, and received more than 1,000 responses.
The committee concluded that Gorsuch has “an excellent reputation for integrity and is a person of outstanding character,” Degan said in the statement.
“It was clear from our interview of Judge Gorsuch that he began learning the significance of a lawyer’s integrity during his early childhood,” the statement said. “His mother, father and his father’s father were attorneys, and he recalled with fondness their love of the profession and their genuine commitment to helping others through the practice of law.”
Those who were interviewed said Gorsuch approaches every case fairly and independently, and he does not let his personal preferences interfere with his evaluation of the law. Committee members who read Gorsuch’s opinions praised them as “models of care, thoroughness and analytical rigor.”
Gorsuch had told the ABA committee that he sees no reason to use a lot of legal jargon in his opinions, and he tries not to use too many footnotes. He likes to write the way that people talk and likes to use contractions. He tries to “demystify opinions” and wants litigants and nonlawyers to be able to understand them.
Almost all of the lawyers, academics and judges who were interviewed about Gorsuch had the highest praise for his intellect and his ability to communicate effectively, Degan said in the prepared statement. Observers also praised his temperament, calling him an even-keeled good listener who is sincere, reasonable and respectful.
“He is a real-life Jimmy Stewart,” one person told the ABA committee.
Story corrected at 8:45 a.m. CT to state that the ABA testimony will be on Thursday.
