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Continuing Live Coverage of Judge Neil Gorusch's Confirmation Hearing. Aired 10:30-11a ET

Aired March 21, 2017 - 10:30   ET

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

SEN. DIANNE FEINSTEIN (D-CA), RANKING MEMBER, JUDICIARY COMMITTEE: I wish you could, too.

NEIL GORSUCH, SUPREME COURT NOMINEE: 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. And Judge Wilkinson had his view, and the Supreme Court has spoken, and Heller is the law of the land. And Justice -- Judge Wilkinson may disagree with it, and I understand that, and he may -- but he will follow the law no less than any other judge in America. I am confident of that. He's a very fine judge who takes his oath seriously.

FEINSTEIN: OK. I asked you that question on super precedent and let me end with one on workers rights, if I might.

As you know, there have been a number of Supreme Court cases where the court has made it harder for workers to hold their employers accountable when they have experienced discrimination or be injured on the job. And we've discussed that one case, TransAm, I think three or four of us.

Let me give you a short list; Ledbetter v. Goodyear Tire, which limited the ability of women to seek equal pay; Gross v. FBL Financial Services, 2009, which made it more difficult to prove age discrimination; and the University of Southwest Texas Medical Center v. Nassar in 2013, which made it more difficult for employees to prove they've been retaliated against for reporting discrimination, including based on race, gender, national origin, religion and other factors; Vance v. Ball, which made it more difficult for workers to prove just plain discrimination claims.

As Senator Whitehouse pointed out, each of these cases was 5-4 and Justice Scalia voted with the majority against the employee in every case. President Trump and others have said you are the next Scalia. So, I think it's only fair to ask you, do you disagree with any of the majority opinions that Judge Scalia joined in these cases? If so, which ones do you especially disagree with and why? These have already been decided. GORSUCH: I understand, Senator. But again, if I indicate my agreement or disagreement with a past precedent of the United States Supreme Court, I'm doing two things that worry me sitting here.

The first thing I'm doing is I'm signaling to future litigants that I can't be a fair judge in their case because those issues keep coming up. All of these issues, as you point out, keep coming up. Issues around all of these precedents will be continued to be litigated and are hotly litigated. I've had post-Ledbetter (inaudible) cases in my court, for example. FEINSTEIN: Then how do we have confidence in you that you won't just be for the big corporations, that you will be for the little men? This is the question that Senator Hirono I think so well asked yesterday. You know, those of us I think on both sides care very much about workers rights, but the record is such that one questions whether the court is capable in its present composition to give a worker a fair shot.

So, I'm just looking for something that would indicate that you would give a worker a fair shot. Maybe it's in your background somewhere that I don't know about, but I'd like to have you respond to it any way you can.

GORSUCH: Senator, I really appreciate that and I think there is a way you can take a look at this question without me potentially pre- judging a case and I appreciate your respect for that. And just to finish that thought, I'm concerned that I have to look the litigant in the eye in the next case, and if I've prejudged that case, they can look at me and say you're not a fair judge and I've got no answer for that, got no answer for that.

So, what I think can give you comfort in this area is, Senator, I know a case or two has been mentioned yesterday. Respectfully, I'd suggest that does not represent the body of my work. I've written -- I've participated in 2,700 opinions over 10 and-a-half years. And if you want cases where I've ruled for the little guy, as well as the big guy, there are plenty of them, Senator. The Ute Indian tribe...

FEINSTEIN: Would you be willing to submit some of them?

GORSUCH: Oh, goodness (ph).

FEINSTEIN: It's hard to read 2,700 cases.

GORSUCH: I'll name a bunch of them right now...

(CROSSTALK)

FEINSTEIN: ... TransAm.

GORSUCH: I'm -- I'm sorry, Senator, of course.

[10:35:03]

Ute 5-6, Fletcher, the Rocky Flats case which vindicated the rights of people who had been subject to pollution by large companies in Colorado -- uranium pollution. I -- I point you to the magnesium case. Similar pollution case in the Salt Lake -- in the Salt Lake City area. Colorado's effort with renewable energy, upheld that.

Orr v. City of Albuquerque involving a pregnancy discrimination in the police department of Albuquerque. WD Sports, a discrimination claim. Casey, Energy West, Crane, Simpson v. CU involving young women who have been harassed by the football team, AM v. -- AM, Browder, Sutton. I -- I can give you a long...

FEINSTEIN: That's helpful.

GORSUCH: ... long list, Senator.

FEINSTEIN: That's helpful, and we'll find them and we'll read them.

GORSUCH: And -- and -- and Senator, the bottom line I think is that I'd like to convey to you from the bottom of my heart is that I'm a fair judge. And I think if you ask people in the Tenth Circuit is he a fair judge, you're gonna get the answer that you got yesterday from both Senator Bennet and Senator Gardner and from General Katyal and the same answer you got from Senator Allard and Senator Salazar ten years ago.

And Senator, I can't guarantee you more than that, but I can promise you absolutely nothing less.

FEINSTEIN: OK. I have a minute and 21 seconds.

Let's talk Chevron. That's been used, you know, thousands of times and it really perplexes me. Olympia Snowe and I did something that took me 12, 13 years to get to, and that is changing the corporate fuel economy standards. And thanks to Senator Inouye and Senator Stevens, they put it finally in a commerce bill and it passed. So, now we are on our way to 54 miles a gallon. Here's the point. We could do the rules for the first 10 years, but who knew we needed the experts to do them from that point on. So, what we said in the legislation was that science would prevail, and that's still the law. It's working. The goal is -- I've read articles. They say they'll be 54 miles by 2025 if this continues.

What is wrong is that? How else could we have done it?

GORSUCH: I -- I'm not aware of anything wrong with that, Senator. I -- I've never suggested otherwise.

FEINSTEIN: But -- but you -- what you've said is the Congress could not legislate by leaving some of the rules up to the scientists or other professionals in departments, as I understood it in Chevron.

GORSUCH: I -- I appreciate the opportunity to correct this misunderstanding, Senator.

FEINSTEIN: Sure, appreciate it.

GORSUCH: The case I think you're referring to is Gutierrez.

FEINSTEIN: That's correct. GORSUCH: It involved an undocumented immigrant to this country. OK. And the question was there were two conflicting statues. One said he could apply for immediate discretionary relief in this country from the attorney general. Second said he had to wait outside the country to 10 years. We had a judicial precedent that said the first statute controls. That was the ruling of our court.

After that, three or four years -- I can't remember exactly -- the Board of Immigration Appeals in its infinite wisdom says our interpretation is wrong. Chevron, you have to undue your precedent, the judicial precedent that this man had relied upon and that he now had to wait outside the country not just 10 years, but 13 or 14 because it took them so long to make up their mind.

Well, Senator, that reminded me of, you know, when Charlie Brown's going in to kick the ball and Lucy picks it up at the last second. And that struck me as raising serious due process concerns, fair notice and separation of powers concerns when an executive bureaucracy can overturn a judicial precedent without an act of Congress.

That's what the case was about. And it suggested, respectfully Senator, that under the APA, the Administrative Procedures Act, this body passed judges to decide to legal questions and left to administered -- administrative agencies great deference when it comes to fact finding. OK?

[10:40:00]

That's how I read Section 706 is fact-finding by scientists, biologists, chemists, the experts get great deference from the courts.

GORSUCH: The only question is, who decides what the law is? And can a man like Mr. Gutierrez, the least amongst us, be able to rely on judicial precedent on the books or can he have the ball picked up as he's going in for the kick?

FEINSTEIN: I think I've exceeded my time.

GORSUCH: I -- I'm sorry.

(CROSSTALK)

FEINSTEIN: Thank you very much. Thank you.

SEN. CHUCK GRASSLEY (R-IA), CHAIRMAN, JUDICIARY COMMITTEE: I want to make clear to everybody, you didn't exceed your time because I said if you ask your question before the last second's up, and you did, that we'd give whatever time it took for that to be done. And if everybody follows that rule, I think we'll be treating everybody fairly.

Before I call on Senator Hatch, I'd like to enter into the record an article in The Wall Street Journal, editorial titled this, "Neil Gorsuch, How Would You Vote? Democrats Demand the Nominee Declare Himself on Cases," end of the title. I'll just quote the first paragraph. "Democrats have come up empty trying to find something scandalous that Neil Gorsuch has said, so now they're blaming him for what he won't say to wit. They want him to declare how he would rule in specific areas of law, questions that every Supreme Court nominee declines to answer," end of quote.

I -- without objection, I enter that in the record.

Senator Hatch.

SEN. ORRIN HATCH (R), UTAH: Well, thank you, Mr. Chairman.

Judge, as I said yesterday, my goal in this confirmation process is to get an understanding or a handle on your understanding of the proper role of judges in our system of government. Now, you gave an interesting lecture last year at Case Western Reserve School of Law about Justice Scalia's legacy. Justice Scalia, you explained, emphasized the difference between judges and legislators. You reminded us, as you put it, "that legislators may appeal to their own moral convictions and the claims about social utility to shape the laws they think it should be in the future, but the judges should do none of these things in a democratic society," end quote.

I think that accurately describes Justice Scalia's view. Is that also your own view?

GORSUCH: Senator, it is. Though, I've got to confess, that lecture was attended by about 20 people and it's got a lot more attention since.

(LAUGHTER)

HATCH: Well, we're making sure it gets some more.

In your opinions on the appeals court, you take great care to identify what issues the court may or may not address. In one opinion last year, for example, you used phrases such as. quote, "It's not our job," unquote, and quote, "It simply isn't our business," unquote. What is an appellate court's job in your view?

GORSUCH: It is a limited, but vital role in our separated powers. A judge is there to make sure that every person, poor or rich, mighty or meek, gets equal protection of the law. It is chiseled above the Supreme Court entrance in Vermont marble, though I believe the Lincoln Memorial is made out of Colorado marble. And that is -- that is a profound and radical promise, that every person is protected by our laws equally, and in all of human history, that may be the most radical promise in all of law.

And what it means to me is that when I sit on the bench and someone comes to argue before me, I treat each one of them equally. They don't come as rich or poor, big guy or little guy. They come as a person and I put my ego aside when I put on that robe and I open my mind and I open my heart and I listen. And I tell my clerks that their very first and most important job is to tell me I am wrong and to persuade me I am wrong as I read the briefs and listen to the arguments.

And then if they manage to do that, I tell them their next job is to try and persuade me I'm wrong again because I want to make sure I leave no stone unturned. I want to get to the bottom of it. I have one client. It's the law. And it's a great joy and it's a great privilege and it's a daunting responsibility to come in every day and to try and get it right. Then I go listen to the arguments of the lawyers, I don't treat them as cat's paws. They're not there to be toyed with. I treat them, I hope, always, as respected colleagues who lived with the arguments, studied the cases, know the facts far better than I do.

[10:45:08]

I might actually learn something from them. I go in with the questions I actually have that I want answered, and then I sit and I listen to my colleagues after that. And, Senator Hatch, I can't tell you how many times on the Tenth Circuit I've gone through that whole process, I go to conference, I think I know my mind and then one of my colleagues -- Harris Hartz was here yesterday, he's often the one, there are plenty of others -- who say something absolutely brilliant, changes my mind.

And that's the judicial process and that's the role I see for the appellate judge.

HATCH: Well thank you, that's a very good explanation. We held a confirmation hearing for Justice Sonia Sotomayor in 2009. Senator Charles -- Senator Charles Schumer now the minority leader was a leader of this committee and phrased the nominee in this way, quote, "Judge Sotomayor puts the rule of law above everything else. Judge Sotomayor has hewed carefully to the text of statutes even when doing so results in rulings that go against so-called sympathetic litigants," unquote.

Do you agree with Senator Schumer that your duty as a judge is to follow the law even when it requires running against sympathetic litigants?

GORSUCH: Yes, Senator. I can't tell you that when I go home and take off the robe I'm not a human being, that I don't think about some of those cases but my job is to apply the law as fairly as I can in each and every case without respect to persons. That's my oath. There's not every law in the book I love, you love. I'm sure of that. But my job isn't to write the laws, it's to apply the laws and I try to do that.

And that enough is enough for a day's work and it's enough for a life's work.

HATCH: In my opening remarks yesterday, I mentioned a letter we received from dozens of your peers at Harvard Law School. And, Mr. Chairman, I ask consent that this letter be included in the record at this point.

GRASSLEY: Without objection, it'll be included.

HATCH: The signers were of all parties and ideologies and represented many different faiths, lifestyles, and views. They all support -- strongly support your nomination. The letter said that you personified disinterested philosophy that respects judicial modesty combined with compassionate appreciation of the lives impacted by your decisions. Now how can you do both? GORSUCH: Senator, I'm just a person. And I remember how hard it is to be a lawyer, I remember what it was like to represent clients who had problems. Told my kids when they ask me what my job was when I was young, it was to help people with their problems. And as a judge, I have to resolve their problems. One of the hard things about being a judge is that somebody has to win and somebody has to lose.

You make half the people unhappy 100 percent of the time. That's the job description. But you have to believe in something larger than yourself and that you're part of something larger than yourself. And I believe in the rule of law in this country and I believe an independent judiciary is one of the keys to it. And I feel it has been a calling to be part of it and an honor.

HATCH: The Fourth Amendment protects the right to be free from, quote, "unreasonable searches and seizures," unquote. It was written in the late 18th century when the tools used by law enforcement to investigate crime and monitor suspects were radically different than they are today. In your view, how should a judge approach interpreting and applying constitutional provisions like the fourth amendment in cases where the technologies or -- and/or methods at issue were obviously not even imagined by the founders?

GORSUCH: May I offer an example, Senator, I think might be helpful?

HATCH: Sure.

GORSUCH: I take United States v. Jones, recent case for the United States Supreme Court involving whether police officers might attach a GPS tracking device to a car. Modern technology -- how do you apply the original Constitution written 200 years ago to that? And the court went back and looked at the law 200 years ago.

[10:50:04]

And one of the things it found was that attaching something to someone else's property is a trespass to chattels, a common law, and would be considered a search. And the court held that if that's a trespass to chattels and a search 200 years ago, it has to be today, though the technology is obviously different.

So the technology changes, but the principles don't. And, it can't be the case that the United States Constitution is any less protective of the people's liberties today than it was the day it was drafted.

HATCH: Well, you authored the opinion in Meshworks v. Toyota Motor Sales. Now this 2008 case applied principles to early cases involving photography, relative (ph) the old technology to determine the intellectual property protections for digital modeling, a new medium.

How should judges approach questions of intellectual property in cases that involve new technology or new applications of old technology? Should they confine themselves to analogous technologies, or may judges create new doctrines or case law that they believe better addresses the changing technological landscape? GORSUCH: Well, Senator, I think it's actually a very similar sort of question, right. We look back. We find what the law was at the time, the original understanding, if you will, and we make analogies to our current circumstance. We judges love analogies.

We work with analogies. And that's how lawmaking through the judicial process happens. That's proper judicial decision making. It is a very different thing if you want to create a revolution in the area and change the law dramatically.

That's for this body to do. It's for judges to interpret the law as best they can from the original understanding to current circumstances -- and apply to current circumstances. So in Meshworks, that's exactly what we did.

And looked at old case law having to do with copyright and applied it to digital media. Same principles from the beginning of the Copyright Act just applied to a new medium.

HATCH: Well, several of your writings have called into question the so-called Chevron doctrine, that's been raised here already. Most Americans probably wonder why a Supreme Court nominee would talk about a gas station, but the concept of Chevron is very straightforward.

It commands federal judges to defer to an agency's interpretation of the law. In effect, this deference allows unelected, unaccountable bureaucrats to rewrite the law. Any middle-schooler, however, should be able to see how Chevron is inconsistent with the basic duty of judges under the Constitution.

As you probably know, I'm a Chevron skeptic, and have led the fight to overturn this decision legislatively with my Separation of Powers Act. I introduced this bill last Congress with the support of several colleagues on this committee and will soon reintroduce it.

Now, I chose its title for a reason. Re-examining Chevron is not about being anti or pro regulation; rather, it's about restoring the constitutional allocation of powers between the three branches. It's about maintaining fidelity to the laws passes by Congress and the exact bounds of authority granted to regulatory agencies.

And it's about enduring the bureaucracy abides by the law no matter what its policy goals, liberal or conservative.

Judge, do you agree that there's nothing extreme or inherently ideological when the Supreme Court said in Marbury v. Madison that, quote, "It is emphatically the province and duty of the judicial department to say what the law is," unquote?

GORSUCH: Senator, Marbury v. Madison is the cornerstone of the law in this country. I don't know anybody who wants to go back and reconsider that. I hope not.

HATCH: I feel the same way. Last week the New York Times reported that the primary line of attack against you is that you are, quote, "no friend of the little guy," unquote. We've had that come up time and again in these proceedings in the last couple of days.

Harvard Law School professor Noah Feldman, who does call himself a liberal, wrote an opinion piece on the subject that appeared last week on bloomberg.com. He opens this way, quote, "I don't know who decided that the Democratic critique of the U.S. Supreme Court nominee Judge Neil Gorsuch would be that he doesn't side with the little guy.

[10:55:10]

It's a truly terrible idea."

Now, Mr. Chairman, I ask that this column by Professor Feldman be placed on the record at this point.

GRASSLEY: Without objection, so ordered.

HATCH: Now, Judge, some of your critics question whether you have a solid track record of judicial independence and objectivity. In particular, they question whether you would stand up to the current president, if he were to exceed his authority under the Constitution and laws Congress has enacted? So Mr. Chairman I ask consent to place on the record an essay I wrote on the subject that appeared at scotusblog.com.

GRASSLEY: Without objection, so ordered.

HATCH: Now, Judge, how would you respond to that kind of criticism?

GORSUCH: Senator, a good judge doesn't give a wit about politics, or the political implications of his or her decision, besides where the law takes him or her fearlessly.

I walk past every day a bust of Byron White in my courthouse. My courthouse is named for Byron White. And when I do that I think about his absolute determination just to get it right no matter where it took him. He said, "It's a job. You do your very best and you go home." And that's -- that's how I approach things.

And if you look at my record, Senator, respectfully I think it demonstrates that. According to my law clerks, again when I do dissent, which is very rarely, I do so in about equal numbers between judges who happen to be appointed by Democratic presidents and who happen to be appointed by Republican presidents. And I hate to even use those words because they are all just to me judges; I don't think of them that way.

But my decisions have always been independent regardless of who I'm agreeing or disagreeing with, and if I ruled against the government, my goodness, ask the U.S Attorney's Office in Colorado -- I give them a pretty hard time. I make them square their corners, Senator Hatch, all right.

And if you wanted some examples I'd point you to Carlas (ph), Krueger, Ackerman, three recent Fourth Amendment cases, ruling for the accused, the least amongst us, against the government. HATCH: In 2005, before being appointed to the Appeals Court you wrote am op-ed piece for National Review in which you criticized the reliance on the courts by litigants seeking to achieve policy results that they could not achieve through the regular political process.

Not that long ago there was a consensus that courts are not the appropriate place to make policy. Now you're criticized for that same common-sense idea. And I want to give you a chance to respond, but how does relying on courts to make policy undermine both Democracy and the legitimacy of the federal judiciary?

GORSUCH: Well, again, it goes to our separation on powers. Judges would make very poor legislators. We're not equipped for it. We're not responsive to the people, can't elect us, can't get rid of us. You're stuck with us, and we don't have the opportunities to talk to people, to have hearings like this one, in places like this. I'm permitted four law clerks for one year at a time, right out of law school. It's kind of an evanescent cloud, replenishes itself every year.

Now, if you were to make laws, I don't think you design a system where you let three older people with four young law clerks straight out of law school legislate for a country of 320 million. That's just not how anyone would design a railroad. And so those are some of the problems I see, Senator.

HATCH: Thank you and that...

GORSUCH: With all respect to my law clerks. I love them very much. They're like family. But they're not the same as your staffs and the investigative powers you have.

HATCH: There lucky to be with you is all I can say.

In that same -- in that National Review piece you pointed out some liberal policies that lawyers (ph) have sought to achieve through litigation. 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.

[11:00:08]

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

GORSUCH: Well, I would say that in that article, I'd say a couple of things about it.