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Health Care Fight; Lawmakers Grill Trump's Supreme Court Pick. Aired 3-3:30p ET

Aired March 21, 2017 - 15:00   ET


[15:00:00] KOLBUCHAR: You cited an opinion by Justice Thomas in your concurrence, joined by Justice Scalia, suggesting that all contribution limits should be subject to strict scrutiny.

So, could you clarify for us, do you think there's any basis for applying strict scrutiny to contribution limits that apply evenly across the board, why else would you have cited that opinion?

GORSUCH: I'm happy to try and explain again. So, the facts of the case -- and that's what I was deciding -- were uneven contribution limits. It was permissible to give more to major party candidates than to minor party candidates. And the law, as you're, I know, well aware, Senator, under Buckley, says the contribution to candidates is a first amendment fundamental right. It says that. And I was quoting Buckley, I'm sure, or citing Buckley to that effect.

And then the question becomes, what level of scrutiny should we apply to that case? Buckley suggests that it's something less than strict scrutiny in the first amendment context for contributions. That's the instruction that I, as a lower court judge have in the first amendment context.

But this was an equal protection challenge, OK. Saying, it's not just contributions. It's the inequality of contributions that's the problem here. That this system favors major party candidates over minor party candidates. And normally, when we have a fundamental right in equal protection analysis, we apply strict scrutiny. And so I was faced with a situation where, do you take this little less than strict scrutiny out of the first amendment context and import it into the equal protection context, or do you apply the normal strict scrutiny at the equal protection context? And I appointed to two excellent opinions by wonderful district judges in the area. Judge Boasberg (ph) and Judge --

KLOBUCHAR: OK. All right. I really did read it. So here's -- OK. OK. I know, I understand that, but here's the deal, is that the other judges were happy to just decide it on that narrow basis, right? So then you write the concurrent opinion to bring up this other issue. And I think again about Justice White, who you've, is your mentor, was your boss, and there is a law review article from dean of Tulane, time and time again Justice White avoided broad theoretical basis for a decision when a narrow fact specific rational would suffice. And yet you write this concurrent, and so --

GORSUCH: (inaudible) Senator? Because I'm almost there. KLOBUCHAR: Oh.

GORSUCH: OK. So I write to point out this conflict in the Supreme Court's directions that I saw.


GORSUCH: All right? And then I said, in our case, our in White (ph), it doesn't matter. Because Colorado couldn't meet even a rational basis test. Forget about whether it's strict scrutiny or something close to strict scrutiny. It couldn't meet rational basis test because Colorado couldn't articulate any good reason, any -- maybe there is one out there, I don't know. But I said, they've articulated nothing.

KLOBUCHAR: OK. But let's just, let's continue on with other cases, because it's a bit of a pattern. Not a concurring opinion, but in the Hobby Lobby case, you found that corporations were legal persons and could exercise their own religious beliefs. And for me, when it comes to campaign finance, this opens up the possibility that you would strike down then this idea that corporations shouldn't be giving money directly to campaigns. Do you think they're -- these creatures of statue have the same constitutional right as living, breathing, human beings?

GORSUCH: Goodness no, Senator. Hobby Lobby had nothing to do with the first amendment of the Constitution.

KLOBUCHAR: But it was about corporations.

GORSUCH: It was. Under RFRA.

KLOBUCHAR: So you don't think then -- maybe we can end this line here. So you don't think that they would have these rights, a corporation would these rights under the first amendment?

GORSUCH: I don't think Hobby Lobby speaks to the question of the first amendment at all. What it speaks to is a question of the Religious Freedom Restoration Act, and what a person is is defined under that statute by reference to the Dictionary Act, which is Congress' direction to us when we're dealing with statutes. What words we're supposed to use, and what definitions are. And Senator, in RFRA, again, if this body wishes to say only natural persons enjoy RFRA rights, that's fine. And I will abide that direction. I'm not here to make policy. I'm here to follow it.

KLOBUCHAR: OK. On to another policy that's pretty important. It's the Chevron case. And in your Gutierrez concurrence, and this is where you wrote the actual opinion and then wrote your own concurring opinion, which I noted is better than writing a dissent to your own opinion, but you wrote a concurrence to your opinion, and to me, this move, as you imply in your concurrence, or you don't even imply, you say, it could have titanic real world implications when it comes to rules (ph) -- 13,500 cases on the books since 1984. In your book, you say you don't overturn precedent unless it is universally accepted, affirmed by courts repeatedly, and people have extensive reliance on the decision.

So my question is, why in your concurring -- and Senator Feinstein asked you about the facts of the case. I do not want to talk about that because she already did and I got your answer, that was good. But in the concurring opinion, you say, there is an elephant in room with us today. Sorry guys, he wasn't referring to the Republican Party. There is an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is, Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design. Quote, maybe the time has come to face the behemoth, end quote.

That sounds to me like again, you are going a step further and talking about overturning a major precedent. I want to know if that's what you mean, if you think it should be overturned, and if you've considered the ramifications of that when Justice Scalia himself was the original champion of the Chevron doctrine.

GORSUCH: Senator, all I can do is explain to you why I was concerned about Chevron in that case. And I was concerned because again, we had an undocumented immigrant who was following judicial precedent --

KLOBUCHAR: I really do understand the facts. But I want to know why you did a concurring opinion to your own opinion in order to make this broader sweep, and talk about you said, the time has come to face the behemoth. You were clearly talking about overturning Chevron.

GORSUCH: Senator, I'm trying to answer your question as best I can. And I was concerned about the due process implications that arise in cases like Mr. Gutierrez, where an individual, who isn't aided by an army of lawyers or lobbyists -- can they anticipate changes in law by agencies back and forth willy-nilly, even to the point of overruling judicial precedent. And that's a due process concern I raised.

I raised an equal protection concern about the ease with which individuals like Mr. Gutierrez can be singled out by political branch in a way that judges are supposed to protect. I raised a separation of powers concern about whether judges should be the ones saying what the law is.

KLOBUCHAR: But as a Supreme Court justice, if you were to make this decision to overturn Chevron, would you consider the implications on an all of the cases in the U.S. and in the rules and the uncertainty it would create?

GORSUCH: Oh, goodness Senator -- yes.

KLOBUCHAR: Would you overturn it? Is that what you're -- is that what this means when you talk about, maybe it's time to face the behemoth?

GORSUCH: Senator, my job as a circuit judge is when I see a problem, I tell my bosses about it. Like any good employee. And my job is there, as I conceived it, was to say hey, listen, look at some of the implications, the real world implications of what we're doing here.

KLOBUCHAR: OK, but you would be the boss if you were the Supreme Court justice. And what rule do you think should replace it? Should we have de novo review? Is that better? What do you think should replace Chevron, deference?

GORSUCH: Senator, I don't prejudge it. I can tell what did preexist it was Skidmore deference, which was written -- an opinion written by Justice Jackson, actually. That's what preexisted. So there was deference before. And we had the administrative state for 50 years. And agencies would issue rules and decisions. I don't know what all the consequence would be, and I would pledge to you, I wasn't thinking about being a Supreme Court justice then. I was identifying an issue for my bosses.

If I be so fortunate as to become a justice, I would try and come at it with as open a mind as man can muster. And I would tell you, remind you, what I bear in mind, David Sentelle -- when I was with him as law clerk, issued a panel opinion at the beginning of my year with him going one way, and then by the end of the year, wrote for the enbant (ph) court, the full court, reversing himself. Now some people think that's -- that doesn't show a lack of sufficient steel. I think that shows an open mind and a lack of ego that a judge should bring to bear when he or she puts on the robe. And that's what I would commit to you.

KLOBUCHAR: OK. Let's go to the other piece of this philosophy, and that's originalism. And, in other words, whether words and phrases in the Constitution should be interpreted according to their original public meeting (ph), or how the founders and their contemporaries would have understood them. Regardless of whether you characterize yourself as an originalist, you've applied originalism in several decisions, including last year in Cordova v. City of Albuquerque, where in a separate concurring opinion, you describe the Constitution as a, quote, "carefully crafted text judges are charged with applying according to its original public meaning," which are the buzz words for originalism. Criticisms of the principles underlying originalism are not new. In fact, I believe some lines from Chief Justice John Marshall's opinion in McCulloch v. Maryland in 1819 almost two centuries ago, are still relevant to our discussion of the point today.

He wrote that the founders must have intended our Constitution to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. He continued, "To have prescribed the means by which government should in all future time execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly and which can be best provided for as they occur."

He added, "If we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it." Do you agree with the point that Justice Marshall made in McCulloch? GORSUCH: Well, Senator, I would certainly agree that the Constitution must endure and that it's a lot bigger than any of us and it will live in that sense, hopefully, a very great deal longer than any of us. Our children's children. I do think it's important to try and understand law according to its original understanding, public meaning. Words have meaning.

KLOBUCHAR: So you don't agree with McCulloch about adapting to the crises of human affairs?

GORSUCH: No, Senator.

KLOBUCHAR: So you do agree. I just want...

GORSUCH: I'm trying to answer the...

KLOBUCHAR: I just want a yes or no, that's all.

GORSUCH: Well, I think it takes -- these are -- these are complicated things that take more than a yes or no, respectfully. And what I would say is the Constitution doesn't change, the world around us changes and we have to understand the Constitution and apply it in light of our current circumstances. That's what we're trying to do as judges.

So for example, one of my favorite cases in this area is Jones, right? Supreme Court of the United States is faced with a GPS tracking device attached by the police onto a car. Is that a search? And the court goes back and looks at the time of the founding, what qualified as a search and found that that would have qualified as a trespass to (inaudible) in a search by the government. And says (ph) if that would have been offensive 200 years ago, that sort of thing, it has to be offensive now.

The Constitution is no less protective of people's liberties now than it was 200 years ago.

KLOBUCHAR: So when the Constitution refers like 30-some times to his or he when describing the president of the United States, you would see that as well, back then they actually thought a woman could be president even though women couldn't vote?

GORSUCH: Senator, I'm not looking to take us back to quill pens and horses and buggy.


KLOBUCHAR: But if just -- if you could answer that question, it's very important to me.

GORSUCH: I'm trying to.


GORSUCH: Of course women can be president of the United States.


GORSUCH: I'm the father of two daughters.


GORSUCH: And I hope one of them turns out to be president (inaudible).

KLOBUCHAR: OK, that's wonderful. How about like the Air Force -- I agree with you, that's good. So in that case, you say well, we can't take it at its literal words. So then, the Constitution also says Congress has authority to oversee the land and naval forces, but there's no mention of the Air Force and I assume you believe that would also include the Air Force, because if they knew an air force existed, they would have included the Air Force back then?

GORSUCH: Senator, I think the generals of the Air Force can rest easy.



KLOBUCHAR: How about Virginia -- let's keep going here because I'm almost out of time here. In United States v. Virginia, the court held that the Virginia Military Institute violated the equal protection clause of 14th Amendment by excluding all women from VMI's military training. In his defense, Justice Scalia stuck to signature originalism and criticized the majority, saying the decision is not the interpretation of a Constitution, but the creation of one.

Is the interpretation of the equal protection clause in U.S. v. Virginia consistent with the original public meeting?

GORSUCH: The majority in that case argued that it was...


GORSUCH: ... and the majority said that the words "equal protection of the laws," whatever the secret harbored intentions of the writers, had an original public meaning that's quite radical and significant and that was what the majority of the Supreme Court of the United States held.

KLOBUCHAR: So would you agree, then, that when you look at other things, would you be willing to apply the same approach to equal rights for minority groups, women, LGBT, including transgender people, racial minorities, the same approach you used when we argue -- when you just made the statement about the he and his in the Constitution, about the -- not having the Air Force, about the Virginia military decision?

GORSUCH: Senator, a good judge applies the law without respect to persons. That's part of my judicial oath.

KLOBUCHAR: So do you see it as your textualism (ph), the original public meaning then, would you apply it to the these other contexts as well that I just mentioned?

GORSUCH: Senator, what I'm trying to say to you is I don't take account of the person before me. Everyone is equal in the eyes of the law.

KLOBUCHAR: OK. I'm just trying to figure out this because I think for some things, a lot of people who subscribe to this theory, they say well, we can have originalism for some cases but not for others and I call it selective originalism, and it just seems to me when you look at some of the opinions that use originalism that you have and some don't. But I...

GORSUCH: Well, Senator...

KLOBUCHAR: I have one...

GORSUCH: Senator, if I might respond to that. I'd ask you to take a look at Jones again (inaudible) search of home using a heat-seeking device. I'd ask you to maybe take a look at Crawford, the right to confront witnesses. Maybe as well, the Apprendi and Booker line (ph) written by Justice Stevens, a very originalist opinion about the right of an accused to be able to have all of the elements of an offense that increases a sentences tried by a jury of his peers. Those are what one might characterize as originalist opinions protecting individual liberties.

KLOBUCHAR: You know what, we could do it on the second round. That'll be good.

GORSUCH: All right.

KLOBUCHAR: Just some minor things here at the end. When the Supreme Court temporarily blocks a lower court ruling, they need five votes. A practice known as the courtesy fifth has developed in which a fifth justice will provide the vote needed to stay the lower court ruling, even if that justice might not have otherwise been inclined to do so. Do you think the practice of the courtesy fifth is a good thing?

GORSUCH: Senator, I haven't studied that. It'd be presumptuous of me to offer an opinion in (ph) a court that I haven't sat upon.

KLOBUCHAR: OK. Well, it may be very relevant when this refugee case comes up, so you might want to study up on it.

I'm gonna end here with -- I'm gonna do a lot of work on anti-trust in the next round. I know you're an expert. Senator Lee and I have been heading up that subcommittee for a long time, but I'm gonna end with freedom of press in honor of my dad. He was a newspaper reporter his whole life and I'm especially concerned in today's world where we're seeing these attacks on the media about maintaining the press's role as a watch dog.

Our founders enshrined freedom of the press in the First Amendment. As Thomas Jefferson said, "Our first objective should be to leave open all avenues to truth, and the most effective way to do that is through the freedom of the press." In New York Times v. Sullivan, the court issued a landmark ruling in support of First Amendment protections for the press by affirming that when newspapers report on public officials, they can say what they want. Maybe we don't always like that, but they can. Unless they say something untrue with actual malice.

Do you believe under New York Times v. Sullivan that the First Amendment would permit public officials to sue the media under any standard less demanding than actual malice? And can you explain to the people here today and those watching on TV what that standard means to you?

GORSUCH: New York Times v. Sullivan was, as you say, a landmark decision and it changed pretty dramatically the law of defamation and libel in this country. Rather than the common law of defamation and libel, applicable normally for a long time, the Supreme Court said the First Amendment has special meaning and protection when we're talking about the media, the press in covering public officials, public actions and indicated that a higher standard of proof was required in any defamation or libel claim. Proof of actual malice is required to state a claim.

That's been the law of the land for, gosh, 50, 60 years. I could point you to a case which I've applied it and I think might give you what you're looking for, Senator, in terms of comfort about how I apply it; Bustos v. A&E Network. It involved a prisoner who was concerned that he had been misrepresented as a member of the Aryan Brotherhood. Claimed he wasn't a member, just a fellow traveler and sought damages for that. Our court declined to grant that relief, saying that substantial truths protected, even if it's not strictly true. And much more is required by the First Amendment in order to state a claim.

KLOBUCHAR: OK. And Branzburg v. Hayes, a Supreme Court case, they didn't recognize a reporter's privilege and this is in the context of criminal grand jury testimony. Could you just end here by talking about the scope of the Branzburg decision and whether there are instances where a court should recognize a reporters' privilege?

GORSUCH: Senator, I know those cases come up from time to time, so I have to be very careful.


GORSUCH: But your description of the case is entirely accurate.

KLOBUCHAR: Thank you very much.

GORSUCH: Thank you.

GRASSLEY: Before -- before we recess, I'd like to enter into the record a commentary in the Chicago Tribune called "Crying Wolf Over Neil Gorsuch", written by Dennis Hutchinson, a lifelong registered Democrat. He specifically -- he talks about concerns over Chevron deference (ph), he writes quote, "There are two sides to deference (ph) however. My guess is that pro-Chevron advocates will soon be begging Federal Courts not to defer to interpretive findings of agencies", end-quote.

I'll enter that into record without objection.

We will recess for 10 minutes. So, that means we'll reconvene at 3:31.



WOLF BLITZER, CNN ANCHOR: Senator Chuck Grassley, the chairman of the Judiciary Committee, calling for a very brief recess.

The nominee, Judge Neil Gorsuch, he has been answering questions from the senators since 9:30 a.m. this morning, hours and hours. They had a half-hour lunch break.

And guess what? Halfway there. Only 10, 10 senators so far have had their 30 minutes each to ask questions, another 10 senators to go. Tomorrow, each will have 20 minutes for round two.

Jeffrey Toobin, how is he doing?


He knows more constitutional law than anyone who is asking him these questions. I think, big picture, you have to think that there are 52 Republican senators here. Is there anything that has happened that would cost him the support of any of those Republican senators?

Not even close. There have been some interesting exchanges. I just think he's -- obviously, he's got some charm, he's got a lot of intelligence, and he's just -- he's doing fine.

BLITZER: And the American Bar Association says he's qualified and he clearly is showing that qualification.


TOOBIN: They say highly qualified.

BLITZER: Highly qualified.

Joan, how do you think it's going?

JOAN BISKUPIC, CNN LEGAL ANALYST: Well, I think it's getting a little testier.

I don't think he's risking anything, but certainly under questioning from Senators Durbin, Whitehouse and Klobuchar, he was mixing it up. He seemed defensive about a couple things. He did just fine, but you could feel that it was no only -- he was sweating a little bit on some of the points they were raising, because they were able to come back with further questions.

For example, Senator Whitehouse made the point that you keep saying that you are completely divorced from politics. He made the point about various interest groups that are supporting million-dollar campaigns, for better or worse.

This is all standard stuff in many nomination battles. But it's the kind of thing that he didn't really want to answer. He didn't want to be pressed on certain precedent. And I think that these Democrats, for this second round, gave him a little bit more of a run for his money.

BLITZER: Gloria, one of the sensitive issues, Roe v. Wade, 1973 granting women the right to have an abortion, it has come up. He was asked during the course of the questioning if, when he was interviewed by President Trump for this nomination, if President Trump made that a litmus test and said, how do you feel about Roe v. Wade?

He said, if he would have asked him that question, "I would have walked out of the room," his reply.


BLITZER: And, all of a sudden, we just saw at the White House press briefing, Sean Spicer was asked about, whether the president still wants a litmus test for Roe v. Wade.


Look, I think the judge may have surprised people when he said he would have walked out of the room. That was kind of a strong answer. But when you think about it, it is the only answer he could give to be consistent with his other answers, which is that he said Roe v. Wade was precedent and he believes in upholding the law.

And that is what he does as a judge. He judges on the law. And that was a consistent answer that he gave throughout the day. I think he got a little testy with Senator Durbin on the gender bias issue, because there was a question of whether, in teaching a class, he had raised the issue of maternity leave in the wrong way.


And he got really testy when Durbin seemed to be impugning him on that particular issue. And you got to see another side of the sort of Jimmy Stewart-like judge. And I don't think that hurt him at all, by the way.

BLITZER: I think he came out of that exchange fine.

BORGER: I think he came out of that exchange just fine.


BORGER: But it was a very kind of human moment there, because it was clear that Durbin wanted to get under his skin to a degree. And he did.

BLITZER: And, by the way, Sean Spicer, in that briefing, he sort of punted.

BORGER: Punted.

BLITZER: He said, they will let the president's words speak for himself. He didn't want to get into that.


Whether it's Judge Gorsuch or any nomination to the federal bench by this administration, the president and the vice president them under -- they're going to face these questions. They would anyway.

But the vice president went to the March for Life and bragged about the Supreme Court pick. And so, politically, yes, they were going to get asked those questions anyway. And Democrats have a little bit more ammunition to say they have publicly bragged that they were going to do this. Fine.

Judge Gorsuch handled it just fine. To the prickly part, he keeps saying, I have been part of 2,700 decisions on the bench. I have written six million words.

He clearly thinks the Democrats are trying to find that one or two things, and he thinks they're taking them out of context, they're not putting them in the scope of his full record. As Joan said, welcome to a Supreme Court confirmation hearing. This has happened in the past from both sides.

This is how the game is played. But he has handled himself with poise, with humor, and, yes, getting a little bit testy in defending yourself, nothing wrong with that.


BLITZER: And 10 more senators to go.

Everybody, stand by.

There's another big story we're following today, two days before the administration's answer to Obamacare is due to face a floor vote in the House of Representatives. President Trump paid a visit to Capitol Hill to meet with House Republicans, who still aren't fully on board.

On his way out, he predicted victory on Thursday.


QUESTION: Mr. President, did you make a persuasive case, and what did you say to the members?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We had a great meeting. And I think we're going to get a winner vote. We're going to have a real winner.

It was a great meeting. They're terrific people. They want a tremendous health care plan. That's what we have. And there are going to be adjustments and all that, but I think we will get the vote on Thursday.


BLITZER: "I think we will get the votes." You heard him say it's going to be a winner.

CNN's Phil Mattingly and Manu Raju, they are both up on Capitol Hill.

So, what was the president's basic pitch, Phil? You got some inside word.

PHIL MATTINGLY, CNN CORRESPONDENT: Well, it was a hard sell, Wolf. There's no question about it.

There's a recognition inside the White House, just as there is up on Capitol Hill, that the votes aren't there, at least weren't there this morning when they came in, and there was work to do.

And the president made no bones about it. There would be political repercussions if Republicans chose to vote against this bill. In fact, the president, according to one source in the room, went so far as to tell the members many of them would lose their seats and they would lose the House and potentially the Senate majority if this bill were to fail.

He made it very clear this wasn't just about a health care bill that these individuals had campaigned on for cycle after cycle. It was about the president's agenda on the whole, on tax reform, on infrastructure, on trade deals.

If this goes down, the agenda and many of their seats are threatened with it. This was a point, I know for a fact, Republican leaders have been wanting him to make. He made that sell today. The big question now is, what is the impact of that as we move closer to that Thursday vote, Wolf?

BLITZER: Manu, did the president change anyone's mind?

MANU RAJU, CNN SENIOR POLITICAL CORRESPONDENT: Well, some of the conservatives -- no, frankly, they're still opposed. They came out of that meeting saying, look, the president made his sell. It was mostly a political argument, but they didn't hear a lot of details.

They didn't hear a lot of changes, other than the changes that were already announced in the bill, which does not go far enough for a lot of members, including two conservatives who said this right after the meeting.


RAJU: How did the conference respond when he said members could lose their seats if you don't vote for this?

REP. WALTER JONES (R), NORTH CAROLINA: I'm not sure that -- the way he said it was just that this is an important vote, and if you don't pass this bill, it could create some political problem. RAJU: Change your mind at all?

REP. JIM JORDAN (R), OHIO: No, I said the president did a great job, and I appreciate the president. But the bill is still bad.

RAJU: So, you are going to vote no on Thursday?

JORDAN: That's what I plan to do, yes.


RAJU: So, of course, what they need to do is limit those defections to 21 votes.

Right now, CNN's current vote tally says that roughly 19 members are either leaning against it or voting no at this point, which is one reason why that furious effort is going on right now to stem those defections, so they can barely pass this out of the House and see what happens in the Senate -- Wolf.

BLITZER: What would happen? What's the mood of the Senate right now, where the Republican majority is a lot slimmer?

[15:30:00] RAJU: It's going to be tough in the Senate.

Already, Tom Cotton, the Arkansas Republican, said today he cannot vote for the bill as is. Rand Paul, another conservative, raising significant concerns, and some moderates, like Susan Collins, says no to this bill already. Those are three members. You can't lose more than two.

Now, one person who is warning his members to fall in line is the Senate majority leader, Mitch McConnell, who said, look, this is something we have campaigned on year after year, and this is something voters are expecting.