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Judge Gorsuch Confirmation Continues. Aired 1-1:30p ET

Aired March 21, 2017 - 13:00   ET




In Wang vs. Kansas State, the case involved a cancer-stricken professor. You wrote an opinion that noted that EEOC guidance commands deference, quote, "only to the extent its reasoning actually proves persuasive.

EEOC's enforcement guidance on pregnancy discrimination provides as follows. Because Title Seven prohibits discrimination based on pregnancy, employers should not make inquiries into whether an applicant or employee intends to become pregnant.

The EEOC will generally regard such an inquiry as evidence of pregnancy discrimination where the employer subsequently makes an unfavorable job decision affecting a pregnant worker. Do you find this instruction to be persuasive?

GORSUCH: Senator, I -- there's a lot of words there. And if you're asking me to parse them out and give you a legal opinion, then I -- I fear that you may be -- I -- I'd respectfully say I'd have to study it in the course of a judicial case.

DURBIN: Well, let me bring it right down to the operative words. Whether employee should or should not make inquiries into whether an applicant or employee intends to become pregnant.

GORSUCH: Senator, I need to -- it sounds like you're asking me about a case for a controversy. And I -- with all respect, when we come to cases in controversies, a good judge will listen.

Socrates said the first virtue of a good judge is to listen courteously and decide impartially.

DURBIN: I think you know why I'm asking these questions.

GORSUCH: No, this one I -- I don't.

DURBIN: The reason I'm asking is because about your views on pregnancy women in the work place is because two of your former students from legal ethics and professionalism class last spring wrote to this committee to say how troubled they were by your comments in an April 19th class.

It was a gender-targeted discussion regarding the hardship to employers of having female employees who may use maternity benefits. One of these students signed her name publicly to her letter, which is a pretty brave thing to do.

That student didn't just make this issue up after you were nominated. Last night, the University of Colorado Law School confirmed that she had voiced her concerns with administrators shortly after your April 19th class and also confirmed that the administrators told her they would raise this matter with you, though they never actually did so.

When we receive information like this which raises questions about your views and conduct on important issues, I want to get to the bottom of it. I mentioned that to you yesterday in my opening statement that I would be bringing this up.

So, I just want to ask you to confirm, did you ask your students in class that day to raise their hands if they knew of a woman who had taken maternity benefits from a company and then left the company after having a baby?

GORSUCH: No, Senator. And I'd be delighted to actually clear this up.

DURBIN: Please.

GORSUCH: Because the first I heard of this was the night before my confirmation hearing. I've been teaching legal ethics at the University of Colorado for seven or eight years. It's been a great honor and a pleasure.

I teach from a standard text book that every professor -- well, I don't know if every professor -- a number of professors at CU and elsewhere use. It's an excellent textbook --Professors Lerman and Shrag.

In one of the chapters in the book confronts lawyers with some harsh realities that they're about to face when they enter the practice of law. As you know and I know, we have an unhappy and unhealthy profession in a lot of ways.

Lawyers commit suicide at rates far higher than the population. Alcoholism, divorce, depression are also at extremely high rates. Young lawyers also face the problem of having enormous debts when they leave law school.

As a -- and that's a huge inhibition for them to be able to do public service like you and I are so privileged to be able to do. We talk about those things.

There is one problem in the book -- and I'd be happy to share with you the book and the teacher's manual so that you can see for yourself, Senator -- which asks a question. And it's directed to young women because sadly, this is a reality they sometimes face.

The problem is this. Suppose an older partner woman at the firm that you're interviewing at asks you if you intend to become pregnant soon. What are your choices as a young person? You can say yes, tell the truth. Hypothetical is that it's true and not get the job and not be able to pay your debts.

You can lie, maybe get the job. You can say no.

That's a -- that's a choice, too. It's a hard choice.

Or you can push back in some way shape or form. And we talk about the pros and the cons in this acratic (ph) dialogue that they can think through for themselves how they might answer that very difficult question.

And Senator, I do ask for a show of hands, not about the question you asked, but about the following question. And I ask it of everybody. How many of you have had questions like this asked of you in the employment environment, an inappropriate question about your family planning?

And I am shocked every year, Senator, how many young women raise their hand. It's disturbing to me.

I knew this stuff happened when my mom was a young practicing lawyer, graduating law school in the 1960s'. At age 20, she had to wait for a year to take the bar. I knew it happened with Justice O'Connor, couldn't get a job as a lawyer when she graduated Stanford Law School and had to work as a secretary. I am shocked it still happens every year that I get women, not men, raising their hand to that question. Thank you for the opportunity to clarify that Senator.

DURBIN: And I wanted to give you that opportunity. I told you yesterday we'd get to the bottom of this and I'd give you a chance to tell your side of the story. You made a point yesterday of talking about your four heroes and one of them was Justice Jackson, and I went back to look at some of his cases. I just know of him, I don't much about him and I found his dissent in Korematsu. And this was a case which I thought was fascinating, because his dissent was not that long, but it was -- had an impact. It was profound. The question, of course, was the military orders in the United States on the treatment of Japanese Americans. Fred Korematsu was caught up in it and was basically told he had no choice. He had to go off to the interment camp and that whole medical, pardon me, military directive was challenged in this case, and it was interesting that it was upheld on an opinion by Justice Black, but among the dissenters was Robert Jackson. In his dissent, he said some things that I thought were pretty interesting and I'd like to ask your thoughts on it.

He gave a constitutional condemnation, of what he considered the military's racist exclusion orders, but what he articulated in the second half of the opinion is what I'd like to ask you about. He really raised a question about the role of the courts, even the Supreme Court, in time of war, in time of fear, when it came to military orders and whether the courts and the Constitution were up to it. That was really an amazing challenge to us as a nation, a nation of laws. So, what do you think about the role of the court challenging the military or the Commander-in-Chief in time of war? And as Senator Graham reminded us, many people believe we are at war and I believe you confirm that as well. Are we up to it, in terms of constitutional protection, in the role of the court?

GORSUCH: We better be. Senator, a wise old judge, kind of like Judge Johnson, you're going to hear from. He's going to come talk to you from Colorado, a hero of mine, known me since I was a tot. He taught me that the test of the rule of law is whether the government can lose in its own courts and accept the judgment of those courts. That doesn't happen everywhere else around the world. We take it for granted in this country. It's a remarkable blessing from our forefathers and it is a daunting prospect, as a judge, to have to carry that baton, and to do it on the Supreme Court of the United States it's humbling, that prospect, to me. I pledge to you that I will do everything I can to uphold the Constitution and the laws as a good judge should at all times.

DURBIN: Let me ask you about another case that's been referred to. Yesterday, many of us left Al Madden (ph) sitting in that truck. It was about three in the morning on I-88, west of Chicago. I've driven it many times. It was in January. The temperature in the cab was 14 degrees below zero. He had no heater in his cab. His dispatcher told him, sit tight you are to drag that trailer with the frozen brakes behind you out onto that highway or you wait. And so he waited for hours, and finally, feeling numb and life threatening, he unhitched the trailer and took his tractor to a place for some gas and to warm up and then return to it when they fixed it. Seven different judges took a look at those facts and came down on Al Madden's (ph) side except for one, you. Why?

GORSUCH: Senator, this is one of those you take home at night. The law said that the man is protected and can't be fired if he refuses to operate an unsafe vehicle. The facts of the case, at least as I understood them, was that Mr. Madden chose to operate his vehicle to drive away, and therefore, wasn't protected by the law. He would be protected if he had refused to operate, but he chose to operate. Now Senator --

DURBIN: You know the distinction though, because the dispatcher told him, don't leave unless you drag that trailer.


DURBIN: And he said, I can't do it. The brakes are frozen and they went out there at 14 below and unhitched that trailer, he thought, because he was in danger. And you wrote your dissent (ph) on this, you said it was an unpleasant option for him to wait for the repairman to arrive.

GORSUCH: I said more than that, Senator --

DURBIN: I know you did. You went on to say that you thought that the statute, which we thought protected him, you said, especially ends in the ephemeral (ph) and generic phrase, health and safety. You went on to write, after all, what under the sun, at least at some level of generality doesn't relate to health and safety.

We had a pretty clear legislative intent for a driver who feels he's endangering his life perhaps, and you dismiss it. The only one in seven judges that say no.

You're fired, buddy. And you know what? He was blackballed from trucking because of that, never got a chance to drive a truck again.

GORSUCH: Senator, all I can tell you is my job is to apply the law you write. The law, as written, said that he would be protected if he refused to operate. And I think by any plain understanding, he operated the vehicle. And if Congress wishes to revise the law, I wrote this -- I said it was an unkind decision. I said it may have been a wrong decision, a bad decision.

My job isn't to write the law, Senator, it's to apply the law. And if Congress passes a law saying a trucker in those circumstances gets to choose how to operate his vehicle, I will be the first one in line to enforce it. I've been stuck on the highway in Wyoming in a snow storm. I know what's involved. I don't make light of it, I take it seriously.

But Senator, this gets back to what my job is and what it isn't. And if we're going to pick and choose cases, out of 2,700, I could point you to so many in which I have found for the plaintiff in an employment action or affirmed a finding of an agency of some sort, for a worker or otherwise.

I'd point you, for example, W.D. Sports or Casey, Energy West, Crane or Simpson v. CU -- that's just a few that come to mind and I've scratched down here on a piece of paper.

DURBIN: Judge, we up here are held accountable for our vote. And I've been in Congress for a while and I've cast a lot of them. Some of them I'm not very proud of, I wish I could do it all over again. I've made mistakes. But your accountability is for your decisions, as our accountability is for our votes.

And if we're picking and choosing, it's try to get at the heart of who you are and what you will be, if you're given a chance to serve on the Supreme Court.

I'd like to go, if I can, for just a moment to this famous case, which you and I discussed at length, Hobby Lobby. I still struggle all the way through this and it was a lengthy decision with trying to make a corporation into a person. Boy, did the courts spend a lot of time twisting and turning and trying to find some way to take RFRA and say that Congress really meant corporations, like Hobby Lobby, when they said person. It was dictionary law on so many different aspects of this.

What I was troubled by and I asked you then, I'll ask you again. When we are setting out, as that court did, to protect the religious liberties and freedom of the Green family, the corporate owners, and their religious belief about what's right and wrong when it comes to family planning, and the courts says that we'll decide what the Green family decides when it comes to health insurance.

You made a decision that thousands of their employees would not have protection of their religious beliefs and their religious choices when it came to family planning. It closed the door to those options in their health insurance. And, by taking your position to the next step, to all those who work for closed-end corporations in America. 60 million people have their health insurance and their family planning and their religious belief denigrated, downsized, to the corporate religious belief, whatever that is.

Did you stop and think when you were doing -- making this decision about the impact it would have on the thousands and thousands, if not millions of employees, if you left it up to the owner of a company to say as you told me.

There's some kind of in family planning I like and some I don't like.

GORSUCH: Senator, I take every case that comes before me very seriously. I take the responsibility entrusted in me in my current position very grave. I think if you ask the lawyers and judges of the 10th circuit, am I serious and careful judge?

I think you'll hear that I am. And I'm delighted to have an opportunity to talk to you about that decision. As you now in RFRA, the Religious Freedom Restoration Act, Congress was dissatisfied with the level of protection affording by the Supreme Court under the First Amendment to religious exercise.

The court in a case called Smith v. Maryland, written by Justice Scalia said any neutral law of general applicability is fine. That's -- doesn't offend the First Amendment. So laws banning the use of peyote, Native Americans, tough luck.

Even though it's essential to their religious exercise, for example.

This Congress decided that that was insufficient protection for religion. And in a bill sponsored by Senator Hatch, Senator Kennedy, Senator Schumer when he was in the House wrote a very, very strict law and it says that any sincerely held religious belief cannot be abridge by the government without a compelling reason.

And even then, it has to meet -- it has to be narrowly tailored, strict scrutiny, the highest legal standard known in American law.

I've applied that same law, RFRA and RLUIPA, they're companion statutes to Muslim prisoners in Oklahoma who seek (inaudible). To Native American who wish to use an existing sweat lodge in Wyoming and the Little Sisters of the Poor.

Hobby Lobby came to court and said we deserve protections too, we're a small family held company, small number of people who own it, I mean. They exhibit their religious affiliations openly in their business.

They pipe in Christian music, they refuse to sell alcohol or things that hold alcohol. They close on Sundays though it costs them a lot. And they came to court and said we're entitled to protection too under that law.

It's a tough case. We looked at the law and it says any person with a sincerely held religious belief is basically protected except for strict scrutiny. What does person mean in that statue? Congress didn't define the term.

So what does a judge do? A judge goes to the Dictionary Act, as you alluded to senator, the Dictionary Act is an act prescribed by Congress that defines terms when they aren't otherwise defined. That's what a good judge does, he doesn't make it up, he goes to the Dictionary Act.

In the Dictionary Act, Congress has defined person to include corporation. So you can't rule out the possibility that some companies can exercise religion. And of course we know churches are often incorporated.

And we know nonprofits, like Little Sisters or hospitals can practice religion. And in fact, the government in that case conceded that nonprofit corporations can exercise religion, conceded that. So that's the case.

Then we come to the strict scrutiny side.

DURBIN: I don't want to cut you off.

GORSUCH: Oh, I'm sorry.

DURBIN: I'm going to get in big trouble with...

GORSUCH: Oh, I don't want to get you in trouble.

DURBIN: ... Chairman Iowa here.

GRASSLEY: I think I would want you to continue your answering his question.

GORSUCH: I'm sorry Mr. Chairman. I apologize.

GRASSLEY: No please. No I want you to continue.

GORSUCH: OK. All right. So then you've got the religion, the first half of the test met. So then you go to the second half. Does the government have a compelling interest in the ACA and providing contraceptive care?

The Supreme Court of the United States said, we assume yes. We take that as given. And then the question becomes, is it narrowly tailored to require the Green family to provide it? And the answer there, the Supreme Court reached and precedent binding on us now and we reached in anticipation is no.

That it wasn't as strictly tailored as it could be because the government had provided different accommodations to churches and other religious entities. The Green's didn't want to have to write down and sign something saying that they were permitting the use of devices they thought violated their religious beliefs.

And the government had accommodated that with respect to other religious entities, and couldn't provide an explanation why it couldn't do the same thing here. That's the definition of strict scrutiny.

Now, Congress can change the law. It can go back to Smith vs. Maryland if it wants to -- eliminate RIFRA altogether. It could say that only natural persons have rights under RIFRA. It could lower the test on strict scrutiny to a lower degree of review if it wished. It has all of those options available, Senator.

And if we got it wrong, I'm sorry, but we did our best -- level best and we were affirmed by the United States Supreme Court. And it's a dialogue, like any statutory dialogue, between Congress and the courts.

DURBIN: Thank you, Judge.

Thank you, Mr. Chairman.

GRASSLEY: The senator from Texas.

CORNYN: Thank you, Mr. Chairman.

Before I start, yesterday in my statement I mentioned an op-ed by -- in the New York Times written by Neal Katyal. My apologies to him if I butchered his name. With a name like Cornyn, I'm used to it, but I apologize.

GORSUCH: I get a lot worse. I got a lot worse the other day.

CORNYN: The title of the op-ed is "Why Liberals Should Back Neil Gorsuch." I'd like to ask consent that this be included in the record, along with other supportive letters.

GRASSLEY: Without objection, all documents will be included.

CORNYN: So Judge, I have a pretty basic question for you. Does a good judge decide who should win and then work backward to try to justify the outcome?

GORSUCH: That's the easiest question of the day, Senator. Thank you. No. And I have to correct myself.

Senator Durbin, it's not Smith vs. Maryland. That's third-party doctrine. It's Employment Division vs. Smith we're talking about. I apologize to you for that.

CORNYN: Well, I'm glad to hear you answer my question the way you did. I expected that you would. And -- but that seems to be implied in some of the questioning that you're getting. You look at who the litigants are and who you would like to win -- the little guys -- we've heard, and I'll get to that again in a minute. And then go back and try to justify the outcome. But I agree with you. That's not what good judges do.

I want to return briefly to -- I know it's something you've talked to Senator Feinstein and Senator Durbin about. Again, just to give you every opportunity to make sure this is crystal clear. I remember back when George W. Bush was president of the United States there was a practice of signing statements that went along with his signing legislation into law.

That was criticized by some of our friends on the other side of the aisle as somehow undermining Congress's intent or the president's own signature enacting a bill into law. And so Senator Feinstein raised the question of back when you worked with Senator McCain, Senator Graham on the Detainee Treatment Act, the signing statement that the president ultimately issued that went along with his signing that legislation into law.

Did I characterize that correctly?

GORSUCH: I think so, Senator, to the best of my recollection.

CORNYN: OK. So the question is this, Judge. There were some in the administration who wanted a single statement; basically that the president was signing the law, but, you know, if you could find an argument that the president did have to pay attention to the law, then -- or perhaps had authorities that weren't otherwise laid out in the statute, that the president could disregard what Congress had passed and what the president had signed into law.

On the other hand, there were those like you, in an e-mail, who laid out the case for a more expansive signing statement. You made the point that on the foreign public relations front, allowing us to speak about this development positively rather than grudgingly would be helpful.

You said that while we all appreciate the appropriate limitations of the usefulness of legislative history, it would be helpful as this provision is litigated, which it inevitably would be, to have a statement of policy from the executive branch on why this law was enacted.

And third, that you said it would help inoculate against the potential of having the administration criticized in the future for not making sufficient changes, when in fact all the bill did was to codify existing law with regard to interrogation practices. Senator McCain made that comment.

So, you at least, I guess, I hate to put it in these terms, you lost that argument in a sense because the vice president's lawyer prevailed in that argument and they had a single statement in the signing statement basically making reference to, well it's -- here, I'll just read it: "So the executive branch shall construe Title X of the act in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and the Commander in Chief and the consistent with the constructional limitations on judicial power.

So that's the statement in the signing statement in the signing statement that you sought to make more expansive and accommodate the three concerns that you raised. Isn't that correct?

GORSUCH: Senator, your understanding of events is a lot fresher than mine. But, I - sitting here I can disagree with anything you've said.

CORNYN: Well, and I understand this was what 12 years ago.

GORSUCH: Something like that.

CORNYN: And, you were asked initially questions by Senator Feinstein without the benefit of actually being able to refresh your memory form reading the e-mails. But, I think we have covered that enough, I hope and laid that to rest.

I want to talk a little bit about the little guy. In these confirmation hearings, sometimes very complicated and complex issues are dealt with in a rather simplistic and misleading sort of way. But, first of all, I want to talk to you a little bit about an article that you wrote in the Judicature magazine called Access to Affordable Justice.

And, I know as somebody who actually practiced law, in the trenches, and you said you have, and you did, you were concerned and you write in this article about your concerns for the access to justice for the little guy and little gals, I guess.

And, you point out that litigation had become so expensive and so time consuming that essentially it was out of reach. Justice in our courts of law to resolve legitimate disputes was out of reach for people of modest means.

Could you expand on those concerns that you raise in that article?

GORSUCH: I really appreciate this opportunity and venue to be talking about these things. Because, I - these I care about and can talk about as a judge. I wrote that article in conjunction with some input from some wonderful people, so I can't take total credit for it. And, I thanked them. And, you can see who I thank.

My point there was three fold. Starting with the fact that too few people can get to court with legitimate grievances today. That's a fact. Too few people can get lawyers to help them with their problem.

I teach young folks law, who leave law school unable to afford their own services. Think about that. Think about that. And, hundreds of thousands of dollars in debt. How do they go be main street lawyers? How do they help people who need legal sevices?

And, I pointed to three potential sources of problems where we lawyers maybe should look internally rather than blame others for the problem. There is plenty of blame to go around. I'm not a big blame guy.

I am a look inside guy. What do I see in my profession? Three things I pointed to. First, our own ethical rules. It is a very unusual profession where we're allowed to regulate ourselves. It is quite an extraordinary privilege; usually it's the legislature, right.

But, lawyers basically regulate themselves and do all of our ethical rules necessarily help clients or do some of them help us more than they help our clients?

And, I pointed to some that for instance in regarding the unauthorized practice of law. Why is it you have to be a lawyer to help parents with disabled children and administrative proceedings to seek relief under idea?

Was an example I pointed to. Why is it that every time certain companies that provide legal services for basic things get sued every time they move into a new state? Why is it I can go to Walmart and get my hair, teeth, eyes taken care of, but I can't get a landlord contract drawn up.

Those are all the results of our ethical rules. I'm not sure whether they're worth the price that we pay for them. It's estimated, I heard I can't verify it, that our ethical rules result in $10 billion a year in surplus to lawyers and clients every year.

That was one.


Number two was our own rules of procedure --