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Gorsuch Nominatin Hearing Continues. Aired 4-4:30

Aired March 21, 2017 - 16:00   ET


[16:00:00] JUDGE NEIL GORSUCH, SUPREME COURT NOMINEE: But he knew that lawyers worked really hard because he had been a lawyer -- a work-a-day 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 (ph) and how hard it is to have all the answers, how easy it is to ask the questions.

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.

GORSUCH: Yes, well.

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-neck law clerks.


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?

GORSUCH: He would come up for a game of horse with the clerks, former law clerks at reunions.

CRUZ: How's his jump shot?

GORSUCH: His best shot at that age, and we're talking in his 70s, late 70s, was from the free throw line back up over his head like that. And he could hit it pretty regularly.


His eye-hand coordination was just uncanny. So I remember those - those law clerk reunions at the basketball court where he'd 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. We walked past all the portraits of all the former Supreme Court justices which are down in the ground level.

And he'd ask me, how many of these guys you honestly recognize? And I was one of those pencil neck law clerks and the truth was I thought I knew a lot about the Supreme Court, the law. The answer was about half, the honest answer. He said "me too." He said, the truth is we'll all be forgotten soon enough, me included. I remember saying "Justice, that's impossible. You're one of the greats. No way you're going to be forgotten."

His portrait now hangs down in the basement.

CRUZ: There is wisdom in that humility. Let's 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 is 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 and notion of reading the constitution for what it says?

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 don't think that's a very fair or appropriate or useful way to engage in discourse.

So I'm worried about using labels in ways that are sometimes an excuse for engagement with the ideas, sometimes pejoratively. The truth is, I don't think there's a judge alive who doesn't want to know about whatever legal text he or she is charged with interpreting, something about its original meaning as enacted. And I don't think this is an ideological thing.

I look at decisions like Jones, which we've talked about, or decisions like Kyllo, the thermal imaging of a home; is that a search under the Fourth Amendment? Supreme Court goes back and looks at original history and says it's equivalent to peeping toms which of course would be a search under the fourth amendment. The constitution's 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 can't 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's not right that an individual should be sentenced to prison in hand sentence (ph) on the basis of facts a jury hasn't 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's a very careful - you might agree or disagree with it, it's 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'm with so many other people who've come before me, Justice Story, Justice Black and yes, Justice Kagan, who sitting at this table said we're all originalists in this sense. And I believe we are.

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, the notion that gosh, how could the framers possibly imagine modern contrivances, modern contraptions. Well, thermal imaging did not exist in the 1700s. 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 doesn't 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 could possibly be applied in a world of internet and technology and changing - changing reality?

GORSUCH: Well it's just these discussions we've 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 didn't know about thermal imaging or GPS tracking devices or DNA or e-mail. 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's not what we wish, it's 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. 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're disagreements over what the law is. And that's -- that's very important to me. And the other thing it does, is it's a due process value. We're interpreting the law in a way that we can charge people with notice of because we're judging them for their past conduct.

People lose their liberty, their property on the basis of our interpretations of the law. And it seems to me that it should only be fair that their interpretations we can charge them with notice of.

CRUZ: Right.

GORSUCH: Similar thing when we come to statutory interpretation.

CRUZ: Right.

GORSUCH: What does that text mean? What could a reasonable reader understand that text to me.

Now, my favorite case in statutory interpretation when I teach this stuff and talk to my law clerks about it is the Fish case. You know, that -- there the statute read something like -- no, I'm not gonna get it -- 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 fish -- fisherman who knows that the Coast Guard's after 'em and he's got an illegal catch and he throws it overboard.

That case went to the United States Supreme Court. It's a great case.

And it divided in a way that people don't expect, right? Justice Ginsberg wrote the majority opinion in -- along with Justice Alito writing a concurrence saying fish. This statute's about email not (ph) no (ph) notes (ph).

Justice Kagan and Justice Scalia wrote a dissent saying fish, that's a tangible object. Right?

CRUZ: Right.

GORSUCH: He had notice. He shouldn't have don't it. And so, these things don't divide along kind of ordinary ideological line.

I'm confident that there are justices who in that case, or in Heller, or in any of these cases, what is a matter of policy have come out differently than they did as a matter of judging. And that, to me, is all the difference in the world.

We're not doing what we would like but what we think the law is.

CRUZ: Let's turn to another topic. Some of my colleagues on the Democratic side if -- raise 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 Federal Society?


And -- and given that context for the sake of candor, I'll 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 wouldn't ascribe to either of those labels. And I understand you -- you -- you gave a talk at a Federalist Society event at the problems of over-criminalization.

Can you tell us a bit about -- about that talk?

GORSUCH: Yeah. I think it's fun to go into audiences and challenge them sometimes a bit. I think it's important.

And as to the Federalist Society, I don't have a card either. And I -- I really don't want a -- a back statement for past due dues.


But I -- I -- I attend maybe one event a year or something like that. It's all on my forms that you all have. And at that speech, I -- 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 doesn't 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 relatively recent vintage.

And I ask my law clerks to go find out -- OK, now, how many of those -- how -- how many laws do we have that are -- have criminal penalties that in regulations, too?

CRUZ: Right.

GORSUCH: Just out of curiosity. I thought they'd be able to come back with a number. And apparently, they reported back and I trust 'em. They're -- they're pretty smart.

They came back and said that scholars have given up trying to count the number. They gave up at around 300,000.

And Madison Ward [ph], you know, he lived in a time when there were too few written laws so that the kind could pretty much do as he or she wished -- he, tyrannical king. That's 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 can't know what the law is.

And of course, there's the great example of Caligula...

CRUZ: Right.

GORSUCH: ...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's a problem, too...

CRUZ: Right.

GORSUCH: ...for due process, fair notice.

And the truth is, and like so much else in life, we're aiming for the golden me (ph). Not too much, not too little. Point where people have enough fair notice but aren't overwhelmed. That's what I spoke about.

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'm 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 doesn't run afoul at the law.

And -- and that -- that is something that should concern all of us. You know, I would note, when you gave this speech, I -- would you say it is fair to say that not everyone at the Federalist Society who heard your speech agreed with everything you said?

GORSUCH: Oh, goodness. I -- that was the whole point of this speech, Senator.

CRUZ: Well, and -- and -- and in my experience, a great many Federal Society debates -- events are structured as debates where you have sometimes sharply contrasting views for the purpose of intellectual discussion and -- and hopefully thinking and -- and addressing hard problems.

GORSUCH: And there's a counterpart to the Federalist Society, now the American Constitutional Society.

CRUZ: Right.

GORSUCH: One of my friends who was just here is on the board. It does similar good work.

CRUZ: Sure.

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's what I get out of it. I learn things.

CRUZ: I would note that the Federalist Society describes its purpose as quote, "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 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 find debating point in a committee of the United States Senate, in a courtroom, it runs four-square into decades if not century of precedence on the other side.