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Supreme Court Nominee Hearings. Aired 9:30-10:00a
Aired March 21, 2017 - 09:30 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[09:30:00] DAN BLAIR, AUTHOR, "A SURVIVOR'S GUIDE TO PRESIDENTIAL NOMINEES": Pre-nomination process, the post-nomination process and the confirmation process. And it can be - it can be very intimidating for someone who's not - who's not -
WOLF BLITZER, CNN ANCHOR: He's arriving there now. He's meeting with the senators, Judge Gorsuch, but go ahead.
BLAIR: It can be very intimidating for someone who's not familiar with Washington and its ways and it's intended - so you familiarize them with the way the process works.
BLITZER: And one thing that's very important that he's done, he's met with almost all of the U.S. senators privately, and even a lot of the Democrats have come out impressed.
BLAIR: Well, that's important to do. And a key to a successful nomination is preparation. It's preparation in getting your paperwork in. It's preparation in meeting with the senators and hearing their concern. And it's also preparation for the hearing as well.
BLITZER: But, Gloria, there's no doubt that hovering over this is, you know, the failure of the Republicans to even allow Merrick Garland an opportunity to appear before the Senate Judiciary Committee.
GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: It's not just hovering over it. It's infecting the whole thing. And I think that you heard Dianne Feinstein right out of the box yesterday say, look, I wish - I wish we had had Merrick Garland. And the Democrats feel that this was a seat that was robbed from them, period. It was taken away. It shouldn't have been. It was unfair. And they're going to say it at every opportunity.
Now, having said that, Judge Gorsuch is completely qualified and everybody knows it. He's totally, completely qualified. He's exactly the kind of a nominee you would expect from a Republican, period. There is - you know, this is what elections are about. And the Democrats are going to disagree with him on some of his rulings and the way he presented himself on some of these rulings of course. We expect that. But there is this infection which is that, look, we haven't gotten over the fact that Mitch McConnell wouldn't even let our nominee get this kind of a hearing, period. And it's clearly going to affect votes. There's no doubt about that.
BLITZER: Judge Gorsuch in now in the seat. The photographers doing the photo-op, getting the pictures that they all want. The chairman of this committee, Chuck Grassley, Republican of Iowa, he will bring today's session to a gavel. The ranking Democrat, Senator Dianne Feinstein of California, all of the senators, there are 11 Republicans, nine Democrats. They'll each have a half an hour. They might not necessarily use that entire half hour, but they'll each have a half hour.
John, and the issues before - a lot of the questions that they ask, and we've gone through a lot of these confirmation hearings, he's not going to answer.
JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: No, he's not going to answer. I'm told by people who were involved in helping him, in helping the people helping him with his murder boards, his preparations, that he was very impressive. That when they tried to break him, he's a very good, very composed guy. He is prepared to say very nice things about Merrick Garland and about Merrick Garland's service on the court.
BORGER: That's right. That's right.
KING: And he's about - you know, that he's not going to step into the politics of that, but he's going to compliment him.
No, when you ask him about Roe v. Wade, you're going to get a careful answer and also -
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: And keep in mind that he knows so much more constitutional law than any of these senators. So the idea that you're going to stump him or tell him, you know, something that he's not familiar with or not prepared for, that ain't going to happen.
BORGER: Well, the other thing is -
KING: And he's also prepared to say he disagreed with the president. He doesn't - he's going to be careful. He won't beat up on the president who nominated him, but he thinks that, you know, anyone should be very careful in criticizing the judiciary.
BLITZER: He's getting a nice -
KING: Respect the separation of powers.
BLITZER: Just got a nice little final word from his wife, who's sitting right behind.
Go ahead, Joan.
UNIDENTIFIED FEMALE: You know, his mother once sat in that seat. She was grilled as the EPA administrator under Ronald Reagan. He knows what it's going to be like and this man is super prepared both for - to make it seem like he is answering questions and not to alienate Democrats (INAUDIBLE).
BLITZER: Very quickly, Jeffrey, if he's asked about travel ban 2.0, constitutional, not constitutional, he will respond? TOOBIN: (INAUDIBLE). That's an issue that might come before the court.
I can't - I can't address that.
BLITZER: I suspect we're going to be hearing a lot of that.
TOOBIN: I - get ready.
UNIDENTIFIED FEMALE: The drinking game.
BORGER: Got two or three versions of that (INAUDIBLE).
BLITZER: All right, here's the chairman, Senator Grassley.
SEN. CHUCK GRASSLEY (R-IA), CHAIRMAN, JUDICIARY COMMITTEE: Welcome back, Judge Gorsuch. Glad to have you back and I'm sure you're glad to be here.
Good morning, everybody. I'd like to welcome everyone, especially our nominee, as I just did. This is day two of the Supreme Court nominee's hearing. We have a long day in front of us, so we'll immediately turn to members' questions. It's my intention to get through all members' first rounds of questions today, so it's important that we all stick to our time limits so that we can stay on that schedule.
I realize that 10 hours is a long time for you to sit there and answer questions for 20 of us, so I'm going to defer to you when you might need a break. In the meantime, I would anticipate a break about 30 minutes for lunchtime, and I hope for the members of the committee, I have not made up my mind on this yet, but we do have a vote scheduled at noon and it might -- I'm sorry?
UNIDENTIFIED MALE: There are two votes.
GRASSLEY: Two -- OK. We have two votes at noon, so it might be appropriate to use that period of time for our lunch break. I'll make a decision on that later on. So with that understanding with you and to accommodate you because you're the person that has to sit there and answer questions, and so whatever your needs are, you let us know.
I started yesterday morning, Judge and audience, with Justice Scalia's comments that our government of laws and not man is the pride of our constitutional democracy. Our democracy requires judges to let the people's elected representatives do the law-making. You, Judge, said that Justice Scalia's great accomplishment was to, quote, "You remind us of the differences between judges and legislators," end of quote. Legislators, in other words, consult their own moral convictions to shape law as we best think it to be, but you said that judges can't do those things, rightly so, from my point of view.
Our Constitution is also a charter of liberty. Justice Scalia said that our Constitution guarantees our liberties primarily through its structure. That happens to be the separation of powers. You said, Judge, that -- said much the same thing. And I quote you, "What would happen to disfavored groups and individuals," end of quote, if we allowed judges to act like legislators, quote, "the judge would need only want his own vote to revise the law willy-nilly in accordance with preferences," end of quote.
The separation of powers in our system requires an independent judiciary made of judges respectful of the other two branches, but not beholden to them. Judges must be equally independent of the president who nominates them and us senators who confirm the same judiciary members.
Let's start with independence from the executive.
No one, not even the president, is above the law. One of the most remarkable things about your nomination is the broad bipartisan support that you received. You've earned great praise from individuals who aren't exactly supporters of the president, but who strongly supported your nomination.
Yesterday, we heard from one of them, Neal Katyal. President Obama's former solicitor general said that you, quote, "will not compromise principle to favor the president." In 2006, former Colorado Senator Salazar, a Democrat, said that you have, quote, "the sense of fairness and impartiality that is a keystone of being a judge," end of quote. And legal commentator Jeffrey Rosen similar praised you for your independence.
So let's start with my first question. I'd like to have you describe in any way you want to what judicial independence means and specifically tell us whether you'd have any trouble ruling against the president who appointed you.
NEIL GORSUCH, SUPREME COURT NOMINEE: (OFF-MIKE)
GRASSLEY: Turn your microphone on.
GORSUCH: I'm sorry.
That's a softball, Mr. Chairman. I have no difficulty ruling against or for any party, other than based on what the law and the facts and the particular case require. And I'm heartened by the support I have received from people who recognize that there's no such thing as a Republican judge or a Democratic judge. We just have judges in this country.
When I think of what judicial independence means, I think of Byron White. That's who I think of. I think of his fierce, rugged independence. He did his -- he said, "I have a job." People asked him what his judicial philosophy was, I'll give the same answer. I decide cases. It's a pretty good philosophy for a judge. I listen to the arguments made. I read the briefs that are put to me. I listen to my colleagues carefully and I listen to the lawyers in the well, and this experience has reminded me what it's like to be a lawyer in the well. It's a lot easier to ask the questions, I find, as a judge, than it is to have all the answers as a lawyer in the well.
So I -- I take the process -- the judicial process very seriously, and I go through it step by step and keeping an open mind through the entire process as best as I humanly can. And I leave all the other stuff at home and I make a decision based on the facts and the law. Those are some of the things judicial independence means to me. It means to me, the judicial oath that I took to administer justice without respect to persons, to do equal right to the poor and the rich and to discharge impartially the duties of my office. It's a beautiful oath. It's a statutory oath written by this body. That's what judicial independence means to me. Happy to talk about the separation of powers too, if you'd like, Mr. Chairman, which you referenced in there. I'm happy to answer another question, entirely up to you.
GRASSLEY: Well, your record made clear that you aren't afraid to fulfill your role independently and you just emphasized that. You've vacated orders of administrative agencies acting outside their authority and you ruled on cases where Congress has overstepped its bounds. So I think you could maybe speak about the separation of powers, but at the same time, maybe you could give me a couple of your cases that demonstrate your commitment to that independence of the executive branch of government.
GORSUCH: Sure. On -- on -- on the first point, you know, I have decided, as I noted yesterday, over 2,700 cases, and my law clerks tell me that 97 percent of them have been unanimous, 99 percent I've been in the majority. They tell me as well that according to the Congressional Research Service, my opinions have attracted the fewest number of dissents from my colleagues of anyone I've served with that they studied over the last 10 years.
Now, the Congressional Research Service speculates whether that's because I'm persuasive or I believe in collegiality. I don't see why it has to be choice.
My law clerks also tell me that in the few cases where I have dissented, that I'm as likely almost to dissent from a Democrat appointed colleague as a Republican appointed colleague, and that's again because we don't have Democrat or Republican judges.
According to The Wall Street Journal, I'm told that of the eight cases that they have identified that I've sat on that have been reviewed by the United State Supreme Court, our court was affirmed in seven of them.
Now, I think Louise might argue for the eighth because in that case the Supreme Court didn't like a procedural precedent of our court that as a panel we were bound to follow. So, they remanded it back. We decided on the merits as the court instructed, cert denied (ph) eight out of eight.
On the separation of powers, it is -- it is, Mr. Chairman, the genius of the Constitution. Madison thought that the separation of powers were -- was perhaps the most important liberty-guaranteeing device in the whole Constitution. And this is a point of civics that I -- I do think maybe is lost today, how valuable the separation of powers is.
You have in Article I the people's representatives make the law. That's your job, and I don't think it's an accident that the framers put Article I first. Your job comes first, to make the law. Article II, the president's job is to faithfully execute your laws. And our job, Article III down at the bottom, is to make sure that the cases and controversies of the people are fairly decided.
And if those roles were confused and power amalgamated, founders worried that that would be the very definition of tyranny, and you can see why. Judges would make pretty rotten legislatures. We're life tenured. You can't get rid of us. It only takes a couple of us to make a decision, or nine, or 12 depending on the court. That'd be a pretty poor way to run a democracy.
And at the same time, with respect, legislators might not make great judges because they're answerable to the people. And when you come to court with a case or a controversy about a past -- past facts, we want a neutral -- rigidly neutral, fair -- scrupulously fair decision maker. We want somebody who's going to put politics aside.
So, the separation of powers I don't think has lost any of its genius over 200 years. In fact, it's proven it.
GRASSLEY: Thank you. I've heard my colleagues and people not in the Senate say that now more than ever, we need a justice who will be independent of the president who nominated him or her. So, I'd like to ask about your nomination and your independence.
A lot has been made about the list of judges then-candidate Trump proposed as possible nominees. To me, it was the most transparent that we've had in history and we didn't have Secretary Clinton give out such a list. Of course, you weren't on the first group that came out and otherwise added later. So, I'm curious, when did you first learn that you were on candidate Trump's extended list?
GORSUCH: Well, Mr. Chairman, you're -- you're right, there -- there were two lists as I recall over the summer. And I wasn't on the first list. And I remember having breakfast one day with a friend who may be here. Brian (ph)? There you are. You remember this.
UNIDENTIFIED MALE: (OFF-MIKE)
GORSUCH: We were having breakfast one day and he said, "Neil, you're not on the list." And I said, "I'm -- you're right, I'm not on the list." He said, "You should be on the list." And I said, "I love my life in Colorado. I wouldn't change a thing. I'm a happy man. I have a loving wife, a beautiful home and children, a great job with wonderful colleagues. I'm a happy person."
Walking away from breakfast and I get an e-mail from Brian (ph) saying there's a new list...
... and you're on it. That was the first I heard of it.
GRASSLEY: And I assumed you thanked him (ph).
GORSUCH: I don't know about that.
I -- I -- I don't know if -- I don't think he had -- you didn't know. I -- I don't -- I don't think we -- we were all surprised.
GRASSLEY: I'm kidding.
GORSUCH: And at any rate, we are -- we are where we are.
GRASSLEY: OK. Tell me about the process that led to your nomination. Did anyone ask you to make any promises or assurances at all about your view on certain legal issues or the way that you'd rule in certain cases?
GORSUCH: Senator, I think you'd be reassured by the process that unfolded. I -- I try to live under a shell during the campaign season, watch baseball and football, go about my business. But I did hear lots of talk of litmus tests from all around, it was in the air, and I don't believe in litmus tests for judges. I've written about that years ago.
I wasn't about to become party to such a thing and I'm here to report that you should be reassured, because no one in the process, from the time I was contacted with an expression of interest for a potential interview to the time I was nominated. No one in that process, Mr. Chairman, asked me for any commitments, any kind of promises about how I'd rule in any kind of case.
GRASSLEY: And that's the way it should be.
So, we've just discussed your independence from the president, but there's also independence from the legislative branch. It's odd that some of the same folks who will claim that you're not independent from the president will turn around and to try to extract from you promises and commitments before they pass judgment on your nomination. The irony, of course, is that extracting commitments during the confirmation process is exactly what would undermine your independence as a judge.
One way that they'll do this is asking you about precedent. So, let's talk about that. For starters, I've got a book here that you co-wrote, an 800-page book on precedent. Your 12 coauthors included judges from across the ideological spectrum, such as Bill Pryor who was also on President's Trump -- President Trump's Supreme Court list, and Diane Wood, who was reportedly on President Obama's list.
You've also touched on the value of precedent in speeches that you've given or in your opinions. For instance, in the speech you gave honoring Justice Scalia last year, you said this, quote, "Even when a hard case does arrive, once it's decided, it takes on the force of precedent, becomes an easy case in the future and contributes further to the determinacy of our law," end of quote, especially if more recent opinions have called into question the rationale of the original case. But you've also suggested that there may be circumstances where it's appropriate to revisit precedence. Specifically, you wrote that it may be appropriate to reconsider a decision where it has become a quote, "precedential island surrounded by a sea of contrary law," end of quote.
So, there may be times where it is appropriate to reconsider certain decisions, especially if more recent opinions have called into question the rationale of the original decision. I think all of us would agree, for instance, that Brown v. Board of Education which finally overruled a repugnant separate but equal standard in Plessy, is the textbook example of this.
So, with these things in mind, I'd like to explore the approach that you take to Supreme Court precedence. Could you tell us what you believe is the value of precedent in our legal system?
GORSUCH: Absolutely, Senator.
And if I might, Mr. Chairman, go back just a moment to promises. I have offered no promises on how I'd rule in any case to anyone and I don't think it's appropriate for a judge to do so, no matter who's doing the asking. And I don't because everyone wants a fair judge to come to their case with an open mind and decide it on the facts and the law.
One of the facts and one of the features of law that you have to decide it on is the basis of precedent, as you point out. And for a judge, precedent is a very important thing. We don't go reinvent the wheel every day, and that's the equivalent point of the law of precedent.
We have an entire law about precedent, the law of judicial precedent, precedent about precedent, if you will.
GORSUCH: And that's what that 800-page book's about. It expresses a mainstream consensus view of 12 judges from around the country appointed by, as you point out, presidents of both parties, great minds. Justice Breyer was kind enough to write a forward to it. It makes an excellent door stop.
And in it we talk about the factors that go into analyzing precedent; any consideration of precedent.
There are a bunch of them. You've alluded to some of them. The age of the precedent, very important factor. The reliance interests that have built up around the precedent. Has it been reaffirmed over the years? What about the doctrine around it? Has it built up, shored up, or has it become an island, as you point out? Those are all relevant considerations.
It's workability is a consideration too. Is it (inaudible); can people figure out how to abide it? Or is it just too confusing for the lower courts and their administration?
Those are all factors that a good judge will take into consideration when examining any precedent.
You start with a heavy, heavy presumption in favor of precedent in our system. Alexander Hamilton said that's one important feature -- I think it was Hamilton -- said one important feature of judges, if we're going to give them life tenure, and allow them that extraordinary privilege, they should be bound down by strict rules and precedents. Francis Bacon called precedent the anchor of the law.
So you start with that heavy presumption in favor of precedent, you consider those factors in that light, and, yes, in a very few cases, you may overrule precedent. It's not an inexorable command, the Supreme Court said.
That's the law of precedent, as I understand it, and as I believe expressed in that book with my very highly respected colleagues.
GRASSLEY: As a lower court judge, you're bound by not only Supreme Court precedent but, as you demonstrated, the precedent of your own court. But as a Supreme Court justice, part of your job will be to decide when existing Supreme Court precedent need not be reconsidered. How will you decide when you revisit existing precedent? GORSUCH: Mr. Chairman, I don't think the considerations change. It's the same analysis that I would have as a Supreme Court justice, if I'm fortunate enough to be confirmed, that I have when I'm considering circuit precedent as a circuit judge. It's the exact same process. The exact same rules apply.
This is the 14th Supreme Court hearing that I've participated in, so I have a pretty good idea of some of the questions that you're going to be -- get today.
You're going to be asked to make promises and commitments about how you'll rule on particular issues. Now, they won't necessarily ask you that directly; for instance, how you will rule on this issue or that issue?
Instead they'll probably ask you about old cases, whether they were correctly decided. Of course, that's another way of asking the very same question. They know that you can't answer, but they're going to ask you anyway.
I've heard justices nominated by presidents of both parties decline to answer questions like these. That's because, as the nominee put it, quote, "a judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of this particular case, it would display disdain for the entire judicial process," end of quote.
Now, you probably know that's what Justice Ginsburg said at her hearing, and it's what we call the Ginsburg standard. The underlying reason for this is, of course, is that making promises or even giving hints undermines the very independence that we just talked about. I'd like to ask you if you agree with what I just said.
GORSUCH: I do, Mr. Chairman.
GRASSLEY: So let me ask you about a couple of Supreme Court cases.
In Heller, the Supreme Court held that the Second Amendment protects an individual right to bear arms. If I ask you to tell me whether Heller was rightly decided, could you answer that question for me?
GORSUCH: Senator, I'd respectfully respond that it is a precedent of the United States Supreme Court. And as a good judge, you don't approach that question anew as if it had never been decided. That would be a wrong way to approach it.