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Judge Neil Gorsuch's Testifies Before Senate Judiciary Committee. Aired 11-11:30a ET

Aired March 21, 2017 - 11:00   ET


SEN. ORRIN HATCH (R), UTAH: Some of your critics have tried to turn this into one of those gotcha moments, claiming that your real qualm was with those -- was with those policies that were liberal, not that they were achieved through litigation.


Again, I'm going to give you a chance to respond.

NEIL GORSUCH, SUPREME COURT NOMINEE: Well, I would say that in that article, I'd say a couple of things about it. First, as I pointed out and I believe, the court's a very important place for the vindication of civil rights and for minorities. It's a place where unpopular voices get heard the same as popular voices.

In a democracy, in the legislature, majorities win. That's not the case in courts. The best argument should prevail. So they play an important role.

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's not a great place to compromise. And again, we're not great -- we're not well equipped to do your work.

At the same time, I did criticize -- I pointed out a column by a liberal columnist, a self-identified liberal columnist, a very fine man. And I agree 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.

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, quote: "Over the course of this 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 found and prevailed with -- has prevailed with class actions on behalf of consumers. We should applaud such independence of mind and spirit in Supreme Court nominees," unquote.

Now, Mr. Chairman, I ask consent that this column appropriately titled, quote, "There is no principled reason to vote against Gorsuch," unquote, be included in the record at this point.

Mr. Chairman?


HATCH: Judge, is that an accurate description of your work in private practice?

GORSUCH: It is, and I'm grateful that David is here today with me.

HATCH: I'm grateful he's here, too.

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 beat. I thought that would make me a better lawyer and I'd 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 wouldn't leave. They stole the gravel. And we had to kick him out. And then he brought a bunch of lawsuits for 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 100-year-old law -- no furtive mining, the no furtive mining statute.

And we brought suit and won a claim for conversion and malicious use of process, among other things, in county court. It may have been one of the highlights in my career when one of the jurors came up afterwards and said to me, "Son, you're a young Perry Mason."


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 don't know if it still is -- they've probably done better now -- the largest plaintiff's side antitrust verdict that had been affirmed in American history.


GORSUCH: We represented class actions of consumers, some dry holes; some successful. All sorts of clients -- individuals, companies, non- profits, 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.

HATCH: You're 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's the conclusion: Quote, "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", unquote. The author says that parties who come before you, quote "Can rely on a record of fair analysis and resistance to simply rubber stamping business interests or executive agency actions", unquote.

Now, Mr. Chairman, I ask that this essay be included in the record at this point.

GRASSLEY: Without objections, so ordered.

HATCH: Judge, is that your goal, to focus only on the facts and the law in every case?

GORSUCH: Senator, I'm heartened by that article. I hadn't read that one, hadn't seen it.

HATCH: It's a good article.

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.

HATCH: That's 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 address 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's standard. Opponents of your nomination do not like this result. They accuse you of being anti-woman. That, of course, isn't true at all, and any fair person would have to conclude it's not true. Your critics simply demand that as a judge, you must follow their political priorities, that availability of birth control is more important than religious freedoms.

Now I have two questions about your decision. Isn't that 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?

GORSUCH: Senator, our job there was to apply the statute, as best 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's all any judge can promise or guarantee. I respect all of my colleagues who addressed that case.

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, quote, "It does perhaps its most important work in protecting unpopular religious beliefs, vindicating the nation's long-standing aspiration to serve as a refuge of religious tolerance", unquote.

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?


GORSUCH: I might give you even a couple of other examples of RFRA's application that I've been involved in that might shed some light on this. It's the same statute that -- that applies not just to Hobby Lobby. It also applies to Little Sisters of the Poor and protects their religious exercise. And it's also been applied in a case where I had point of council.

So, I saw something meritorious there. And our court held. It applied to a Muslim prisoner in Oklahoma who was denied a halal meal.

HATCH: Right.

GORSUCH: So also the same law that protects the rights of a Native American prisoner who was denied access to his prison sweat lodge. It 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 -- I wrote -- I wrote the Native American prisoner case. And I participated in and I wrote a concurrence in the Muslim prisoner case.

HATCH: Well, thank you for doing so. I also want to give you a chance to answer or 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?


HATCH: Of course not. Another senator mentioned just a few of the thousands of cases in which you participated in and said quote, "I'm troubled by the results in those cases," unquote.

You never took issue with how you applied the law in those cases. He said I'll need that -- the results troubled him. And I described Monday in my opening statement, I have 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?

GORSUCH: I associate myself with the approach.

HATCH: Sure.

GORSUCH: I think all good judges attempt...

HATCH: Certainly (ph).

GORSUCH: ... to follow the law wherever it leads.

HATCH: My time is up, Mr. Chairman. I'm sorry.

GRASSLEY: Senator Leahy?



LEAHY: Good to have you back. Now, you know form our earlier discussions -- and I had told you very frankly that of course I felt that if the Republicans had followed the Constitution in practice (ph) 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. I understand you respect him as a jurist, is that correct?

GORSUCH: Very much so, Senator. Whenever I see his name attached to an opinion, it's one I read with special care. He's an outstanding judge.

LEAHY: Do you think he was treated fairly by this committee, yes or no?

GORSUCH: Senator, as I explained to you before, I can't get involved in politics. And there's judicial canons that prevent me from doing that. And I think it'd be very imprudent of judges to start commenting on political disputes between themselves or the various branches.

LEAHY: The reason I asked that question, since this committee began holding hearings -- public hearings, since (ph) Supreme Court nominations began in 1916 -- I wasn't 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't express his (ph) opinion. I think it was shameful. I think it has severely damaged the reputation of the committee.

I think it has severely damaged the reputation of the Senators who concurred with that. We were anything by the conscious of the nation in that regard. And those who proudly held their hand up for this and swore 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 for the far-right, big money, special interest groups. And you may not like that terminology. But even Republican senators have -- have praised the fact that the president had gone to this group and had a list when he's running for office of who he could select from. The list given not by -- prepared by him, but by these special interest groups.

And they want -- they have an agenda. They're confident you share their agenda.

LEAHY: 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.

GRASSLEY: Without objection, so ordered.

LEAHY: And another one in which the New York Times, "In Gorsuch, Conservative Activist Sees Test Case for Shaping the Judiciary," that those be included in the record.

GRASSLEY: Without objection, so ordered.

LEAHY: Now, the two (inaudible) right interest groups that recommended you to the president, 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 constitutional law should be grounded solely in the original meaning of the text. You have said judges should, I quote you, "strive to apply the law as it is, focusing backward, not forward." Well, if they do that, let's 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?

GORSUCH: Senator, I can tell you that the Supreme Court of the United States has a lot of precedent in this area, as you're 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's a lot of precedent in this area.

LEAHY: Well, is there precedent from the drafters that speech included corporate money being put into corporations -- being put into campaigns?

GORSUCH: Senator, that was exactly what was at issue in part in Austin (ph), 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.

LEAHY: But nothing in the Federalist Papers talked about corporate money going into campaigns. Is that correct?

GORSUCH: Well, Senator...

LEAHY: That's an easy yes or no.

GORSUCH: I think there's an awful lot in the Federalist Papers and elsewhere that were relevant to and considered by both concurrences and dissents in Citizens United.

LEAHY: But nothing about corporate money.

GORSUCH: I don't remember that term, no, Senator.

LEAHY: Trust me...


LEAHY: ... trust me, there wasn't.

GORSUCH: I trust you.


GORSUCH: Entirely.

LEAHY: No, you don't have to.


GORSUCH: Not that much?


LEAHY: The -- I'll let it go.


The -- in Citizens United, Justice Kennedy indicated restrictions on campaign donations could only be justified by concerns about quid pro quo corruption. Now, President Trump has said, and I quote, that the reason he made campaign donations was so that when he needs something from them, "they are there for me." (inaudible) his campaign contributions buy favors.

Shouldn't Congress, not the courts, make the determination about the potential for corruption, especially if we're talking about quid pro quos?

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 obtain on expenditure limits. LEAHY: (inaudible) you don't believe that putting an unlimited amount

of money by somebody who has a particular interest in the outcome of actions by the Congress, putting unlimited amount of money into specific campaigns, that's not enough to show the intent to buy favors, or enough to show corruption?


GORSUCH: I'm not sure I track the question, Senator. I'm sorry.

LEAHY: If you have corporate money that is basically unlimited under Citizens United, can be funneled through various special interest groups, does that at least raise concerns about quid pro quo corruption?

GORSUCH: I think after Citizens United made clear that quid pro quo corruption remains a vital concern and a 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.

LEAHY: If somebody were to out and out buy a vote or buy a favor, we'd all agree that's corruption, is it not?

GORSUCH: I think Justice Kennedy would agree with you, yes.

LEAHY: Would you agree with me?

GORSUCH: I follow the law and that's my understanding -- that would certainly fall within my understanding of the law.

LEAHY: When I was a prosecutor, we'd call that corruption.

GORSUCH: All right. I'll trust you there too, Senator.

LEAHY: And I did. Now -- but it influences different ways. For example, when you became a judge, you were here in Washington; you were working in Washington. I'm -- I understand there were three extremely well-qualified (inaudible) women attorneys who were on the short list being considered by the Bush White House. The "Denver Post" then did a profile of these women and at that point -- and your name was not on -- on that list.

At that point, a billionaire 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?

GORSUCH: Senator, with respect to my nomination, I -- as I recall...

LEAHY: ...I'm talking about the circuit. GORSUCH: Yeah, yeah. As I recall, all of my clients were -- an awful lot of them came out of the woodwork to say nice, supportive things about me and Phil Anschutz was one and I -- I think there's probably letters in there from the fellow with the gravel pit too.

LEAHY: Which -- which one do you think the White House listened to the most, Mr. Anschutz or a gravel pit owner? I mean let's be realistic.

GORSUCH: Senator, I think what they probably listened to was the fact that they'd seen me in action at the Department of Justice. That's my guess, if you ask me to guess but that's a guess because I didn't make the decision.

LEAHY: I raise this because some of these same people helped to fund the groups that put you on the list for President Trump. Now, President Trump, you know, has attacked judges who dare to oppose the constitution. He's gone after them. He's said things that I don't think any one of us would do. So you have to prove you can be an independent judge. You've heard that from both sides here.

Let me ask you a question in this regard; you are a person who believes in religious freedom, you've said that before. In December 2015, the Senate Judiciary Committee adopted my sense of the Senate that the, quote, "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, 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?

GORSUCH: Senator, that's an issue that's currently being litigated actively, as you know, and I...

LEAHY: I'm not asking about the litigation, the Ninth Circuit or anything else. I'm asking about the fact, is a blanket religious test, is that consistent with the First Amendment?


GORSUCH: Senator, we have a free exercise clause that protects the free exercise of religious liberties by all persons in this country. If you're asking me how I apply it to a specific case, I can't talk about that, for understandable reasons.

LEAHY: Well, could the -- could the...

GORSUCH: The understandable reasons, just -- just so, you know, we're -- we're -- I'm frank and candid with you as I can be. Senator, when you ask me to apply to a set of facts that look an awful lot like a pending case in many circuits now...


LEAHY: Would the president have the authority to ban all Jews from the United States or all people that come from Israel?

GORSUCH: Senator...

LEAHY: Would that be an easy question? GORSUCH: We -- 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 Zadyddas (ph) has held that due-process rights extend even to undocumented persons in this country, OK. I will apply the law. I will apply the law faithfully, and fearlessly and without regard to persons. I don't care...

LEAHY: Regards of religion?

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 didn't want them discriminated against because they were a large company or a small individual with an unpopular belief. And that's the kind of judge I've tried to be Senator, and I think that's my record.

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?

GORSUCH: I -- I -- I need to -- to know more specific...

LEAHY: Well let me give you an example, should there be a religious test to serve in the military?

GORSUCH: Oh Senator, that would -- that would be inappropriate, yes. That's -- that's against the law. It's against the law.

LEAHY: Go right back to the question (inaudible) based solely on their religion, solely on their religion...

GORSUCH: Senator we have...

LEAHY: Not -- not on whether they form a threat or something, but to ban somebody solely on their religion.

GORSUCH: Senator, we have not just the First Amendment free exercise clause in this country, very important protection. We have not just equal protection guarantee of the 14th 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 the body with support of Senator Kennedy and Senator Schumer when he was in the House. And that imposes an even higher standard on government than the First Amendment when it comes to religious discrimination. It says that there, if there's any sincerely held religious belief, earnestly held religious belief, the government must meet strict scrutiny before it may regulate on that basis, with the strict scrutiny being the highest standard known in American law.

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'm 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's 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.

GORSUCH: Senator, a lot of people say a lot of silly things. My grandfather...

LEAHY: That's more than silly. That's a -- he wants -- this congressman wants you on the court so that it can uphold a Muslim ban.

GORSUCH: Senator, he has no idea how I'd rule in that case.

And Senator, I'm not going to say anything here that would give anybody any idea how I'd rule in any case like that 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'd they rule in a case that's currently pending, and likely to make its way to the Supreme Court.


LEAHY: Well, our -- the president's national security determinations, are those reviewable by the court?

GORSUCH: Senator, no man is above the law.