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Live Coverage of Judge Neil Gorsuch's Confirmation Hearing. Aired 10-10:30a ET

Aired March 21, 2017 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

SEN. CHUCK GRASSLEY (R-IA), CHAIRMAN, JUDICIARY COMMITTEE: 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?

[10:00:02]

NEIL GORSUCH, SUPREME COURT NOMINEE: 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.

My personal views, I'd also tell you, Mr. Chairman, belong over here. I leave those at home. Mr. Katyal yesterday said that what he wants is a fair judge, and that's what I wanted as a lawyer. I just wanted a judge to come in and decide on the facts and the law of my client's case and leave what he had for breakfast at the breakfast table. And part of being a good judge is coming in and taking precedent as it stands and your personal views about the president have absolutely nothing to do with the good job of a judge.

GRASSLEY: Let me ask you about Citizens United. In this case, the Supreme Court held that the government can't restrict independent political expenditure by a non-profit corporation. Do you agree with that decision?

GORSUCH: And Senator, I'd give you the same response. I -- I know people have their views personally about lots of Supreme Court decisions and about a lot of other things. We're all human beings. I get that. I'm -- I'm not an algorithm. They haven't yet replaced judges with algorithms. Though I -- I think eBay's trying, and maybe successfully.

We're all human beings, but the judge's job is to put that stuff aside and approach the law as you find it, and that's part of the precedent of the United States Supreme Court, that I'm sworn as a sitting judge to give the full weight and respect to due precedent.

GRASSLEY: Those two cases were 5-4 decisions. So let me ask you about something that was unanimous, Hosanna-Tabor. The Supreme Court ruled nine to zero that the Obama administration couldn't tell a church who its ministers can be. The only thing controversial about that case was that the Obama administration actually tried to convince the Supreme Court that a bunch of government bureaucrats could tell a church who its ministers could be. Like I said, that case was nine- zero. Can you tell me if that case was decided correctly?

GORSUCH: Respectfully, Senator, I give you the same answer.

GRASSLEY: OK. Those are relatively recent cases. Let's talk about cases that's been around for a while. Let's look at Gideon v. Wainwright. It was decided unanimously a long time ago, 50 years or more. It says a criminal defendant has a right to an appointed attorney if he can't afford one. Everyone who watches cop TV shows know that this -- this law. Does that make a difference? Can you tell me if you agree with the principle of Gideon? Is it the same answer, the same reason?

GORSUCH: Mr. Chairman, it's certainly a seminal decision of the United States Supreme Court, there's no doubt about it. It's a very old decision of the Supreme Court now. It's been reaffirmed many times. There's a lot of reliance interest built around it.

So I could talk to you about the factors that a good judge considers in analyzing precedent and the weight due a precedent, but I'm not in a position to tell you whether I personally like or dislike any precedent that's not relevant to my job. Gideon is a seminal precedent of the United States Supreme Court and it deserves respect on that basis. Precedent is kind of like our shared family history as judges. It deserves our respect because it represents our collective wisdom, and to come in and think that just because I'm new or the latest thing and know better than everybody who comes before me would be an act of hubris, inappropriate to the judicial role.

GRASSLEY: Well, what if I asked you about Bush v. Gore?

(LAUGHTER)

GORSUCH: I -- I -- I know some people in this room who have some opinions on that, I'm sure, Senator. But as a judge, it's a precedent of the United States Supreme Court and it deserves the same respect as other precedents of the United States Supreme Court when you're coming to it as a judge, and it has to be analyzed under the law of precedent.

GRASSLEY: Well, let's go to a -- a kind of a more controversial issue, but along the same lines I've been asking you. I think the case that most people are thinking about right now and the case that every nominee gets asked about, Roe v. Wade.

[10:05:05]

Can you tell me whether Roe was decided correctly?

GORSUCH: Senator, again, I would tell you that Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed. The reliance interest considerations are important there and all the other factors that go into analyzing precedent have to be considered. It is a precedent of the United States Court, was reaffirmed in Casey in 1992 and in several other cases.

So, a good judge will consider it as precedent of the United States Supreme Court, worthy as treatment of precedent like any other.

GRASSLEY: What about Griswold, which was decided a few years before Roe, the case where the court found constitutional right to privacy? Can you tell me your views on Griswold?

GORSUCH: Senator, it's a precedent that's now 50 years old. Griswold involved the right of married couples to use contraceptive devices in the privacy of their own home and it's 50 years old. The reliance interests are obvious. It's been repeatedly reaffirmed. All very important factors, again, in analyzing precedent.

GRASSLEY: Well, I think I'm going to stop questions, but I'd kind of sum up what you and I just talked about in regard to precedent so everybody understands the principles that are at stake here. There are two reasons why you can't give your opinion on these cases. One I believe is independence and the other one's fairness to future litigants. Is that the way you see it?

GORSUCH: It is, Senator. If I were to start telling you which are my favorite precedents or which are my least favorite precedents or if I view a precedent in that fashion, I would be tipping my hand and suggesting to litigants that I've already made up my mind about their cases. That's not a fair judge. I didn't want that kind of judge when I was a lawyer and I don't want to be that kind of judge now and I made a vow to myself I wouldn't be. That's the fairness problem.

And then the independence problem. If it looks like I'm giving hints or previews or intimations about how I might rule, I -- I think that's the beginning of the end of the independent judiciary if -- if judges have to make effectively campaign promises for confirmation. And respectfully, Senator, I haven't done that in this process and I'm not about to start.

GRASSLEY: Thank you. I'll yield back eight seconds.

Senator Feinstein?

(LAUGHTER)

SEN. DIANNE FEINSTEIN (D-CA), RANKING MEMBER, JUDICIARY COMMITTEE: Thank you very much, Mr. Chair.

Welcome, Judge, and good morning.

GORSUCH: Good morning, Senator.

FEINSTEIN: Good to see you again.

Since we're one Roe, I wasn't going to begin with this, but I well recall the time we spent in my office and we talked about precedent. And in my opening remarks, I indicated that if anything had super precedent, Roe did in terms of the numbers, and I've put that in the record.

Here's why it becomes of concern. The president said that he would appoint someone who would overturn Roe. You pointed out to me that you viewed precedent in a serious way in that it added stability to the law. Could you elaborate on the point that you made in my office on that?

GORSUCH: I'd be delighted to, Senator. Part of the value of precedent -- it has lots of value. It has value in and of itself because it's our history and our history has value intrinsically. But it also has an instrumental value. In this sense, it adds to the determinacy of law.

We have lots of tools that allow us to narrow the realm of admissible dispute between parties so that we can -- people can anticipate and organize their affairs. It's part of the reason why the rule of law in this country works so well. We have statutes, we have rules, we have a fact-finding process and a judicial system that's the envy of the world.

And precedent is a key part of that because, as the Chairman pointed out when he quoted an old piece of mine, once the case is settled, that adds to the determinacy of the law. What -- what was once a hotly contested issue is no longer a hotly contested issue. We move forward.

And -- and, Senator, the value of that is -- the United States Supreme Court takes something like 70 or 80 cases a year.

[10:10:00]

That is a tiny fraction of all the disputes in our federal legal system, right?

FEINSTEIN: Right.

GORSUCH: My -- my law clerks told me it's something like 0.001 percent, and they're unanimous in those cases which have divided circuit judges. That's why the Supreme Court largely takes the case, because it's divided us. It's one of the rare cases where we disagree. They're unanimous 40 percent of the time.

FEINSTEIN: One other question.

GORSUCH: Sure.

FEINSTEIN: Do you view Roe as having super-precedent?

GORSUCH: Well, Senator, I -- "super precedent" is a...

FEINSTEIN: In numbers...

(CROSSTALK)

GORSUCH: It has been reaffirmed many times. I can say that.

FEINSTEIN: Yes.

GORSUCH: Yes.

FEINSTEIN: Dozens. All right. I -- I would like now to go to -- to take you back to 2005, when you were in the Justice Department. And I want to explain to you why I'm going here. This has to do with torture. The Intelligence Committee was informed in 2006, and Attorney General Gonzales played a role in this, of the nature of the enhanced interrogation techniques. And we were given a very soft view.

Senator Rockefeller became chairman of the committee in 2007 and began a study of three detainees and the enhanced interrogation techniques. When I became chairman in 2009, I added that and we took all of the major detainees and looked at them in a six-year study. The staff spent long hours analyzing every cable, every e-mail, looking at more than 100 interviews.

And essentially, putting in a 7,000-page report, 32,000 footnotes, documenting where the information -- there are no conclusions, there are just facts. That 7,000-page report has remained classified. I have read it. We have put out a 450-page summary which is public. And in that summary, we indicate that those cases that the administration spelled out, where torture produced operable intelligence, was simply not so.

We elaborate on that in the big report. And my hope is that one day not too distant, that report will be declassified so the American people can actually see. But I wanted to ask you some questions along these lines.

It's my understanding that a set of talking points were prepared for a press conference for the attorney general on November 22, 2005. The talking points ask whether, and I quote, "aggressive interrogation techniques employed by the administration yielded any valuable information," end quote. And in the margin next to this question, you hand-wrote one word: "yes." What information did you have that the Bush administration's aggressive interrogation techniques were effective?

GORSUCH: Senator, I'd have to see the document. I don't recall -- I mean, sitting here, it's been -- it's been a long time.

FEINSTEIN: All right. That's fair enough. Why don't we do this? I'd be happy to share the documents with you. I took these pages out of my binder. I think they...

GORSUCH: Fair enough.

FEINSTEIN: ... they were there so I wouldn't have to pause. And I -- but let me just hold up that answer.

GORSUCH: Sure.

FEINSTEIN: And we'll get you the documents on that.

GORSUCH: Thank you.

FEINSTEIN: Because -- let me do the next question.

In December 2005, after the passage of the Detainee Treatment Act, you advocated that President Bush should issue a signing statement to accompany the law. In an e-mail you sent to Steven Bradbury and others, you said the signing statement would, and I quote -- this is your quote -- "help inoculate against the potential of having the administration criticized some time in the future for not making sufficient changes in interrogation policy in light of the McCain portion of the amendment. This statement clearly and in a formal way would be hard to dispute later; puts down a marker to the effect that McCain is best read as essentially codifying existing interrogation policies," end quote.

FEINSTEIN: To be clear, the context was that earlier in 2005, the Justice Department's Office of Legal Counsel had concluded that CIA interrogation tactics, like waterboarding and sleep derivation (sic), did not amount to cruel, inhuman or degrading treatment.

[10:15:11]

I read your e-mail as advocating a continuation of these interrogation techniques, and worse, saying that Senator McCain's amendment actually codified them, which it did not. Is that true? And doesn't it mean that when you wrote this in an e-mail, you were condoning waterboarding as lawful?

GORSUCH: Senator, I'd want to see the e-mail again. I don't feel comfortable commenting on documents that aren't in front of me.

But I can say this: that I do remember...

FEINSTEIN: My staff has the documents...

GORSUCH: Great.

FEINSTEIN: ... here. They can bring them down to you...

GORSUCH: That'd be great.

FEINSTEIN: ... right now.

GORSUCH: Thank you, that'd be wonderful.

FEINSTEIN: OK. And then, I'll put aside this part...

GORSUCH: OK.

FEINSTEIN: You'll have the documents because there are more -- and I'll go on to the next subject.

GORSUCH: No, that's fine. I'm happy to...

(CROSSTALK)

FEINSTEIN: I know. I want you to look at the documents.

GORSUCH: I'd like to just know what I'm talking about. My recollection generally, I can -- from 12 years ago...

FEINSTEIN: Eric (ph), bring him the documents, please. GORSUCH: Thank you.

(LAUGHTER)

Thank you, Eric (ph).

(LAUGHTER)

My recollection generally, working on the Detainee Treatment Act, Senator, was that at that time, after Rasul was issued by the Supreme Court, there were a lot of habeas petitions coming in from detainees at Guantanamo Bay. Some brought by my friend, Neal Katyal.

And there was an effort by some in the administration, along with many on Capitol Hill, to try and provide a regime for the processing of those claims in a way that would conform with the Youngstown ideal of Congress and the president acting together in unison and that -- Senator McCain and Senator Graham put together legislation that emphasized that not only was torture unacceptable, which it always had been under U.S. law, but the cruel, inhuman and degrading treatment was also unacceptable under U.S. law.

FEINSTEIN: But let me help you here. I know from the document that you worked on the Graham effort.

GORSUCH: Yes.

FEINSTEIN: For example, a self-assessment that you wrote said that you quote, "helped coordinate the legislative effort on the Graham Amendment within DOJ and in consultation with DOD and others."

GORSUCH: That's absolutely right, Senator. I sure did and I'm proud of it because we managed to come up with a bipartisan bill that I think passed this body with over 80 or maybe 90 votes, I don't remember, which did two things. One, affirmed this country's commitment to prevent cruel, inhuman and degrading treatment. And second, which provided a regime that was agreed by the Congress and the president on how Guantanamo detainees should have their claims processed.

FEINSTEIN: Except, after you read the documents, just so you know, the conclusion that we come away with is that when the bill on the McCain Amendment was about to be voted on, you forwarded press articles explaining what having these two provisions together meant. That was the McCain Amendment prohibiting torture and confining it to the Army Field Manual...

GORSUCH: Yes.

FEINSTEIN: ... and the Graham Amendment, which would bar habeas. In other words, a detainee could not use the habeas corpus right to file in a court of law and challenge their conditions of detention. So, that was looked at as off-setting McCain, but basically preventing habeas corpus from being used, and of course, it was overturned by the court.

GORSUCH: Senator, you're absolutely right that it was eventually litigated as all these things are. It was a bipartisan effort and it was between the Department of Defense -- Department of Defense wanted congressional approval for something so that they knew what the rules would be. They were desperate to have some congressional involvement and investment in this process.

GORSUCH: And as a lawyer, that's all I was, I was a lawyer for a client, right? I was advising them on how to go about doing that legally in conjunction with Senator Graham's office and others. And it was a bipartisan effort and we put together our best effort.

[10:20:00]

The D.C. Circuit upheld it. The Supreme Court of the United States eventually many, many years later found that the process was -- was insufficient, and that's the Boumediene case, as you know, Senator.

But to say that there was no process would be inaccurate too because the Detainee Treatment Act had a long list of prescribed processes and the question just simply was whether they were adequate enough under the suspension clause and that was a close case that divided the court very closely. And I respect that decision as a precedent of the United States Supreme Court no less than any other, Senator.

FEINSTEIN: One last question on this.

GORSUCH: Sure.

FEINSTEIN: When President Bush signed the Detainee Treatment Act, he issued a statement that basically said he would only construe the law consistent with his powers as commander-in-chief. According to press reports, administration officials confirmed, and I quote, "The president intended to reserve the right to use harsher methods in special situations involving national security," end quote. In other words, the signing statement reflected the president's belief that he had the power to not comply with the law he had just signed.

According to e-mails, and this you'll verify, you were involved in preparing that signing statement and you advocated for the issuance of the signing statement. They even showed you saying to the top State Department lawyer that Harriet Miers, the White House counsel, quote, "needs to hear from us, otherwise this may wind up going the wrong way."

GORSUCH: Well, Senator, I can tell you what I recall. I haven't read...

FEINSTEIN: OK.

GORSUCH: I need to read the e-mail.

FEINSTEIN: That's fair enough.

GORSUCH: But my loose recollection of something that happened, I think 11, 12 years ago is that there -- there were individuals in -- in maybe the vice president's office who wanted a more aggressive signing statement along the lines that you've described and that there were others, including at the State Department, who wanted a gentler signing statement. And my recollection sitting here, as best I can give it to you without studying the e-mail, is that I was in the latter camp. John Bellinger among others, I would have associated myself with there.

And I don't know what was in the president's head when he wrote the signing statement, I can't tell you that. I don't know. I can only tell you what I remember and I certainly would never have counseled anyone that they could disobey the law.

FEINSTEIN: OK. I've no reason not to believe you. But if you will read those...

GORSUCH: Sure.

FEINSTEIN: ... and then in my second round, we'll go back to it.

GORSUCH: Sure.

FEINSTEIN: And I'd be very happy to because I think you'll see that we didn't make this up.

GORSUCH: Senator, I'm not suggesting you are. But -- and I'm -- there was a -- there was a tug of war among parties in the White House.

FEINSTEIN: Oh, I figure that (ph).

GORSUCH: Right.

FEINSTEIN: I wanted to know which side you were on.

GORSUCH: Well, count me in with John Bellinger most of the time on these things, OK?

FEINSTEIN: OK.

GORSUCH: All right? And that's my recollection and Matt Waxman would be another one. So that's my recollection, Senator, sitting here and I'll study these.

FEINSTEIN: OK.

Let me ask you a question on wiretapping. In December of 2005, news broke that President Bush had ordered the NSA to intercept the content of certain communications of Americans without a court order, outside of the requirements of the Foreign Intelligence Surveillance Act known as FISA. You helped prepare the public defense of the program. For example, in draft testimony that you prepared for Attorney General Gonzalez defending the program, you wrote this. Quote, "These authorities are vested in the president and they are inherent in the office. They cannot be diminished or legislated away by other co-equal branches of government."

Paul Clement, President Bush's solicitor general, quote, "found this proposition unconvincing and it was removed from the testimony." Do you still believe that the president has inherent authority, this is important, to intercept the communications of Americans in the United States that cannot be legislated in a way by Congress?

GORSUCH: Goodness no, Senator.

FEINSTEIN: Good.

GORSUCH: And I didn't believe it at the time.

What I was -- serving at the time, as I recall -- again my recollection, and I'd be happy to review whatever you have before you -- is that I was acting in the capacity as a speech writer and taking material produced by the components that were responsible for litigating these issues, including Mr. Clement, Paul Clement, dear friend of mine.

[10:25:06]

And the Office of Legal Counsel and others and assembling it to put words in -- together that -- that sounded like English. And I think people like my writing. And that was my job. I think I was the scribe.

FEINSTEIN: OK, let's move on.

I'd like to go to the Heller case. When we met in my office, we discussed the Heller decision, which you said you were open to discussing since the case had been decided. At that time, you said you thought both the majority opinion written by Justice Scalia and the descent written by Justice Stevens were brilliant examples of originalism, where both justices sought to explain their reasoning by looking at the original public meaning of the Second Amendment.

Which decision did you agree with and why?

GORSUCH: Well, Senator, I think we -- we've alluded to my difficulty here.

I -- I do think everything you just said is accurate. Both Justice Scalia and Justice Stevens wrote excellent opinions in that case. I am not here, though, to grade my boss's work. That would be kind of impertinent of me, I suspect. And certainly, I'm -- I'm sure they would think so. I also worry that saying I agree with one or the other will indicate to clients or to litigants in futures cases -- because it's now a precedent of the United States Supreme Court. It's binding. It's the law whether we like it...

FEINSTEIN: Right.

GORSUCH: ... or not, it's the law. And if I start saying I like one opinion or I like the other opinion...

FEINSTEIN: All right.

GORSUCH: ... I'm signaling...

FEINSTEIN: I'll let you off the hook.

(LAUGHTER) Let me go to another one.

GORSUCH: Thank you. Thank you, Senator.

FEINSTEIN: In D.C. v. Heller, the majority opinion written by Justice Scalia recognized that, and I'm quoting, "Of course the Second Amendment was not unlimited," end quote.

Justice Scalia wrote, for example, laws restricting access to guns by the mentally ill or laws forbidding gun possession in schools were consistent with the limited nature of the Second Amendment. Justice Scalia also wrote that quote, "weapons that are most useful in military service, M-16 rifles and the like, may be banned," end quote, without infringing on the Second Amendment.

Do you agree with that statement, that under the Second Amendment, weapons that are most useful in military service, M-16 rifles and the like, may be banned?

GORSUCH: Senator, Heller makes clear the standard that we judges are supposed to apply. The question is whether it's a gun in common use for self-defense, and that may be subject to reasonable regulation. That's the test, as I understand it. There's lots of ongoing litigation about which weapons qualify under those standards and I can't prejudge that litigation...

(CROSSTALK)

FEINSTEIN: No. I'm just asking you, do you agree with his statement? Yes or no would be fine (ph).

GORSUCH: The statements out of the Heller decision from the United States...

FEINSTEIN: Justice Scalia statement.

GORSUCH: Well, whatever's in Heller is the law and I follow the law.

FEINSTEIN: So, you agree with it?

GORSUCH: Well, it's not a matter of agreeing or disagreeing, Senator, respectfully it's a matter of it being the law. And -- and my job is to apply and enforce the law.

FEINSTEIN: All right, fair enough.

Let me give you another one. The Fourth Circuit, Judge Harvie Wilkinson authored a separate concurrence in the Fourth Circuit case Kolbe v. Hogan. Here's what he said.

"No one really knows what the right answer is with respect to regulation of firearms. I am unable to draw from the profound ambiguities of the Second Amendment. An invitation to courts to preempt this most volatile of political subject and arrogate to themselves decisions that have been historically assigned to other more democratic actors. Disenfranchising the American people on this life-and-death subject would be the grievous and most serious of steps. It is their community, not ours. It is their safety, not ours. It is their lives, not ours."

Do you agree with Judge Wilkinson that the Second Amendment is ambiguous? If so, should the ambiguity be decided by the courts or by legislatures?

GORSUCH: I -- I'd begin by saying I hold Judge Wilkinson in high regard. He's a very fine man and a very fine judge.

FEINSTEIN: Can you do a yes or no?

GORSUCH: No I -- I'm -- I wish I could.

FEINSTEIN: I wish you could, too.

GORSUCH: But, you know, the Supreme Court of the United States isn't final because it's infallible, as Justice Jackson reminds us.

[10:30:06]

It's infallible because it's final.