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Continuing Coverage of Judge Neil Gorsuch's Confirmation Hearing. Aired 11:30a-12p ET

Aired March 21, 2017 - 11:30   ET


NEIL GORSUCH, SUPREME COURT NOMINEE: 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.


SEN. PATRICK LEAHY (D), VERMONT: Well, our -- the president's national security determinations, are those reviewable by the court?

GORSUCH: Senator, no man is above the law.

LEAHY: OK. Because (inaudible) asserted that there are national security determinations are unreviewable by the courts. I've heard president's -- other president's say it in the past. I disagree when they say that. Do you disagree?

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.


GORSUCH: And Justice Jackson wrote a brilliant opinion in Youngstown. Now, it's really important to know who he was. He was the fiercest...

LEAHY: I wrote a paper about him, so I know it.

GORSUCH: I know you did. I know you did. Well, I know you're -- we talked about it. And 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.

And 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's when the president is acting at his greatest strength, because they're 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 1. When the Congress and the president are in disagreement, that's the other end of the spectrum. The president there is acting at the lowest ebb of his authority. When Congress is silent, that's the gray area in between. That's how a court, as opposed to a lawyer or advocate, approaches the problem.

LEAHY: Well, then, let's go to that then. President Trump has declared that torture works. And he says, and I quote him, "bring a hell of a lot worse than waterboarding", closed quote. A 2002 memo, out there by the -- from the Office of...

(UNKNOWN): Legislative.

LEAHY: ... Legal Counsel claimed that any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vestate (ph) of the commander in chief in the president.

Now, considering the fact that Congress has passed a law on this, what controls (ph)?

GORSUCH: We have a convention against torture and implementing legislation which banned torture. We have the Detainee Treatment Act, which we talked about earlier, which bans cruel, inhuman and degrading treatment. We also have an 8th Amendment.

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, or the other ones you cited?

GORSUCH: Senator, no man is above the law.

LEAHY: Well, then, let me ask you another question. President Bush's warrantless surveillance program, and you were working there, resulted in the illegal collection of thousands of Americans communications. Now, many of us felt that it is a direct violation of our surveillance laws.

The Justice Department Attorney John Yoo justified the program. He said that statutes passed by Congress cannot infringe 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, quote, "inherent power to override our surveillance laws to conduct national security searches"?

GORSUCH: Senator, as a judge, before I even try to decide a question like that, I'd want briefs, an argument, and I'd want to go through the whole judicial process. I wouldn't begin and try to attempt to offer an off-the-cuff opinion...

LEAHY: Let me ask it -- ask it a different way.

If Congress passed a specific law on surveillance, and if a president said "I'm going to violate that law because I'm president," does he have that power?


GORSUCH: No man is above the law, Senator.


Senator Lee, who was here a minute ago, I don't -- Senator Lee and I led the efforts to pass the USA Freedom Act to end the NSA (inaudible) collection of America's 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 a power to supersede that law?

GORSUCH: Senator, I can't issue advisory opinions at this table in cases or controversies and how they would come out. And I just -- I can't do it, it wouldn't be responsible.

LEAHY: Is that law...

GORSUCH: 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.

LEAHY: Well, when you were there -- I don't 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 of the commander-in-chief in the president." And you appear to have advocated for a similar view when you attempted to give President Bush the flexibility not to be bound by Senator McCain's legislation.

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's my recollection and my role was a lawyer and predominantly 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.

LEAHY: Were you involved in Hamdan v. Rumsfeld?

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 in providing advice as a lawyer about the Detainee Treatment Act, I'm sure, yes. LEAHY: OK. You've read the Shelby County decision. If you were on the court, which side would you have voted with?

GORSUCH: Senator, I admire the various ways...


You -- you would be a formidable companion in the courtroom.

LEAHY: Senator Feinstein said don't let it go to your head, Pat.

(LAUGHTER) GORSUCH: Oh, he should.

LEAHY: I'm not, I'm not. I'm just -- I'm a lawyer from a small town.

GORSUCH: Yeah, all right. I've heard that story. Whenever a lawyer says, "I'm just a lawyer from a small town," watch out. He's about -- last time -- you got to watch your wallet because it's gone quickly in my experience and I might have played that line once or twice myself.

LEAHY: I ask these questions because there were -- both Justice Alito when he was before us and Justice Roberts and -- and Judge Roberts answered some precedent questions. And are you saying there are no precedent questions you could answer?

GORSUCH: Well, no, Senator, I'm happy to say Shelby is a precedent of the United States Supreme Court. It's a recent one, it's 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.

LEAHY: You've been critical of class actions. And Justice Scalia in Ledbetter case, and the Wal-Mart-Dukes case, made it more difficult, I believe, for Americans to have their day in court. Would you have joined Justice Scalia's decision in Wal-Mart?

GORSUCH: Well...


LEAHY: ... just (inaudible) answer you want.

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've ruled against class actions and I've 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 lived near Rocky Flats, a uranium processing plant, 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. The jury found for them, and they win. Finish the lawsuit. And I believe it has been finished. And I believe they've been finally paid, though of course it's been so long, many of them, it's their children who are getting the money.

SEN. CHUCK GRASSLEY (R-IA),CHAIRMAN, JUDICIARY COMMITTEE: Before Senator Graham, I thought I'd give some directions. We have this vote at noon. It's just one roll-call vote. And Senator Graham should finish about 11 -- 12:11 or 12:12. And then we'll adjourn, depending on when your last word is in answer to his question, 30 minutes later. So somewhere around 12:40, 12:45, I'll gavel the committee back into session.

And you need to be reminded that you shouldn't be offended as members go to vote, and you'll have your 30 minutes. And I hope that's enough, because I want to keep this moving. You can be back here around 12:45 or thereabouts.

I'll wait until you get the orders.


Does that detract from anything?



Senator Graham?

And Senator Graham, if I go ahead of time, you will adjourn the committee, recess the committee until that time.


Well, Judge, I want to read a statement here that I associate myself with. I certainly don't 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 become before the Supreme Court.

Does that sound like a reasonable standard?

GORSUCH: Yes, Senator.

GRAHAM: That's what Senator Leahy said on July 21st, 1993. I think it was good then. I think it's good now.

You're not a political person. I am. So I want to take a bit of a moment here to talk about the fairness of what's going on in terms of you and Judge Garland.

Judge Garland was a fine man. I'm 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. On 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.

GRAHAM: "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 the Bush -- 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. The possibility of a vacancy coming about by somebody stepping down, not dying once the campaign season was afoot.

Justice Alito 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 nominee a vote."

This is Senator Schumer in last, July of 2007. "We should reverse the presumption of confirmation. We should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances." And that was the last year of President Bush's last term.

To my Democratic colleagues, on November the 21st, 2013, you decided when you were in charge of this body by 52 to 48 vote to change the rules of the United States Senate for the nomination of executive branch appointments and all judges below that of the Supreme Court. I'm not gonna ask you whether you think that was fair or not because that's 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 the 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'm one of two or three left that believe that it was wrong to filibuster Supreme Court judges and judges in general because you don't 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 the Democrat president because that's 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 (ph) in the judicial philosophy world, that's why I voted for them. But now things are different.

I believe that that vote, November the 21st, 2013, forever changed the way the Senate works when it comes to executive appointments, judicial nominations, and will do long-term damage to the judiciary as a whole because the most ideological will be rewarded. We don't have that requirement yet for the Supreme Court and I hope we never will. Time will tell. I'm 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 Justice Garland, 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's just not me saying that. This is what the Federalist Papers Number 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 cannot even be certain that a future nomination would present a candidate in any degree more acceptable to them. To what purpose then require the cooperation of the Senate? It would be an excellent check upon a spirit of favoritism in the president. It 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 of the Supreme Court were confirmed without a hearing, some without even a recorded vote. I'm not here to say that my party is without fault in the area of judges, we're not. I'm here to say that on 2013 -- in November 2013, the game changed in a way that I think Mr. Hamilton would be very disappointed in.

And it's not that I don't 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 -- 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 don't think there's any reason to suggest that you're his favorite.

Had you ever met President Trump personally?

GORSUCH: Not until my interview.

GRAHAM: In that interview, did he ever ask you to overrule Roe v. Wade?

GORSUCH: No, Senator.

GRAHAM: What would you have done if he had asked?

GORSUCH: Senator, I would have walked out the door. It's not what judges do. They don't do it at that end of Pennsylvania Avenue and they shouldn't do it at this end either, respectfully.

GRAHAM: This is what the speaker -- excuse me, 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 Justice 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 didn't 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.

GRAHAM: 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's 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 don't want to take the time, it says more about you than him.

All I can say is that 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 them. 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's talk about our interaction a long time ago.

GORSUCH: Thank you, Senator, for those very kind words.

GRAHAM: Well, it's something you've earned, not something that you need to thank me for.

The bottom line is, are we at war, in your view, as a nation?

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.

GRAHAM: It would be news to them we're not at war.

GORSUCH: I'm sure that's right.

GRAHAM: It would be news to the families who've lost a loved one in this fight. So I think we're at war. Would you agree with me it's not a traditional war?

GORSUCH: Certainly not, Senator.

GRAHAM: There is no capital to conquer, no air force to shoot down and no navy to sink. There's no taking of Berlin and Japan. Do you agree with me it would be hard to determine when the war is actually over?

GORSUCH: Senator, that was the question that the court struggled with in the Hamdy (ph) case, as you know.

GRAHAM: And we had a lot of conversations about how to proceed forward when you were in the Bush administration, is that correct?

GORSUCH: We did.

GRAHAM: And you were in the camp of the Youngstown Steel camp that if Congress is involved, the president is stronger, not weaker, is that right?

GORSUCH: That's right, Senator.

GRAHAM: But there are some authorities that the president as commander-in-chief have that cannot be taken away by the Congress. They're inherent to the job. Is that true also?

GORSUCH: There are certainly people who believe that, Senator.

GRAHAM: Well, I am one of them. But having said that, because you can't have 535 commander-in-chiefs, 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?

GORSUCH: Yes, Senator. I believe it is.

GRAHAM: There were people in the Bush administration that 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 what practices we can employ in terms of interrogation standards. Is that correct?


GRAHAM: And it also tried to come up with a system of judicial review. I was in the camp that we're at war, and in past wars, you don't give enemy prisoners lawyers. I don't 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?

GORSUCH: There's certainly legal authority suggesting that, Senator.

GRAHAM: And this court's job to determine if the procedures in question pass muster?

GORSUCH: That's correct, Senator. Of course this body plays a role, too.

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's 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 and Congress pass constitutional muster. Is that the general layout of this situation?

GORSUCH: That's the separation of powers at work.

GRAHAM: And there was a cross-current here. You were -- there was an e-mail that you weren't part of. You were not included on the e-mail. 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 the lead, which may be what led to DOJ L.A.'s (ph) confusion.


But the key point for us is that we have green light to engage on Graham."

And what I was trying to do was preserve the combat status review tribunal concept of the ARB, Administrative Review Board, concept and allow the courts to judge the work product at the D.C. Circuit Court of Appeals.