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Live Coverage of Judge Neil Gorsuch's Confirmation Hearing; Emotional Gorsuch Talks about Right-to-Die Laws. Aired 10-10:30a ET

Aired March 22, 2017 - 10:00   ET


SEN. CHUCK GRASSLEY (R-IA), CHAIRMAN, JUDICIARY COMMITTEE: So I don't know whether this is something I want you to comment on, but I want you to be very clear that sometimes cases dealing with the False Claims Act and qui tam come before the Supreme Court.

[10:00:02] And sometimes the Supreme Court gets this wrong, from my point of view there's lots of times -- and Senator Leahy's been very good in helping me do this.

We've had to rewrite the statute to get back to what I thought we made very clear in 1986, but according to the courts we didn't make very clear. I co-authored this amendment to -- going way back to an 1860 law that -- that -- that the Congress obliterated because of World War II. Because they didn't think defense contractors should be sued in those instances under qui tam.

So we brought it back and -- and -- and even went beyond what it was in -- in the 1860s to empower qui tam relaters, or whistle blowers, to help the government identify and prosecute fraud on the tax payers. The False Claims Act is the most effective anti-trust tool that we have. And since the 1986 amendments that Congressman Berman, then a member of the House and I was a member of the Senate, got passed; the taxpayers have recovered more than $53 billion in public funds lost to fraud. And we had people in the -- in the Justice Department when we first passed this didn't like it.

Because it's -- if -- if -- if a relater came to them or a whistle blower came to them and they said -- like -- that was like saying they weren't doing their job. We had a district judge in the late 80's; I think told some prosecutor for the Justice Department that was trying to argue that a relator shouldn't have a certain amount of money. He said do you realize you wouldn't even have a case if this whistleblower hadn't brought it to your attention, and I think we're over that now.

But, you know, the -- the Defense Department and the pharmaceuticals over the last 30 years have tried to gut this legislation. Even four years ago, the Chamber of Commerce wanted to do something to what that would've really -- would've a done injustice to the good that it's not. So that's something you know, that -- that I think that -- that it is working, we ought to keep there.

As you know, in most cases, the plaintiff must have suffered an injury to have Article III standing to come before the court. There is however, an important Supreme Court case called Vermont Agency of Natural Resources, which established that qui tam relators have a constitutional standing under the False Claims Act to pursue claims for fraud against the United States.

I don't -- I don't whether you're familiar with it, if you are I guess I'm calling it your attention so you can understand that that's pretty important from my point of view. You are familiar with it?


GRASSLEY: You nodded your head.

GORSUCH: Mr. Chairman, I'm -- I'm well familiar with your views on qui tam cases. I've had a couple in my circuit and the I know they've served...

GRASSLEY: Did you rule in my favor?


GRASSLEY: No, no you -- you ruled in favor somebody that was before you.

GORSUCH: That one -- that one -- one I have in mind, the little guy won that one. Yes, Mr. Chairman.

GRASSLEY: OK, so I hope you know how important this rule has been for the protection of the treasury against fraud, and I'm certainly very passionate about this issue. So I think of the false claims comes up, I hope sometime you'll remember whether I'm alive or dead, that Senator Grassley is interested in this.


Senator Feinstein?


Mr. Chairman, I'd like to put three letters of opposition in the record, if I may hear, with your concurrence?


FEINSTEIN: Thank you very much.

GRASSLEY: Sure, and is that all of them, or you've got a couple others?

FEINSTEIN: Yes, they're all here.

GRASSLEY: OK, without objection. Whatever Senator Feinstein has that she wants in the record, without objection it will be done.

FEINSTEIN: Thank -- thanks very much. I'm not a lawyer, but as I read the case, this man was a felon in possession of a gun with a serial number struck off, in concert with another man who had a weapon with that I believe was used in the situation.

So he was a felon with a gun, and his probation instructed him that he was to not to carry that weapon. So I have very strong feelings about that, and I just wanted to say that.


I don't think you have to respond, but what I'd really like to talk to you about...

GORSUCH: Senator, may I?

FEINSTEIN: Sure, absolutely.

GORSUCH: I -- I don't -- I -- I don't mean to eat up your time, really, but this is -- this is exactly the sort of thing, I think I been trying to convey to members of the committee. Which is it's my job to decide these cases without respect to persons; there is the little guy right there.

He's a criminal defendant, it's unsympathetic a completely -- I understand everything you're saying about it, it's all true. The question is still, does the government have to prove what the law requires of the government or anybody, the big guy, there's no bigger guy than the federal government...

FEINSTEIN: I understand.

GORSUCH: ... and so I'm just trying to follow the plain words of the law, knowingly be a felon in possession and the convicting judge told him that he wasn't a felon. And I followed precedent in that case Senator I -- I -- the man's in prison because of -- because of precedent but I do wonder...


FEINSTEIN: I accept that -- that is your view...


FEINSTEIN: ... and I'd like to move on...

GORSUCH: Of course.

FEINSTEIN: ... it's not my view..

GORSUCH: I understand.

FEINSTEIN: He was a felon.

GORSUCH: I -- yes he was.

FEINSTEIN: So let me go on. I sent some documents down -- not down to you but over to you yesterday.

GORSUCH: Yes. Yes. FEINSTEIN: And I'd like to ask you about one of them. And this is the one that has to do about torture -- it's labeled at the bottom DOJ NMG 0143890. And I can send it down to you again, if you want I...

GORSUCH: No, I've got it right here.


FEINSTEIN: ...we do have notes in the (inaudible)...

GORSUCH: I've got it right here, yes.

FEINSTEIN: OK. There's no date on the document but the document talks about the McCain and Graham amendments to the Detainee Treatment Act which was before congress in November and December of '05. And it asks specific questions about the indictment of Jose Padilla who was indicted on November 22nd 2005.

So the notes must have been on or after November 22nd '05. Take a look at your hand written notes on page two. The document says, has the aggressive interrogation techniques employed by the administration yielded any valuable intelligence? Have they ever stopped a terrorist incident? Examples -- your hand written note says, yes.

My question is what information did you have that the Bush Administration's aggressive interrogation techniques were effective?

GORSUCH: Senator, I'm working on 12 years of -- passage of time here so my memory is what it is and it's not great on this but my recollection...

FEINSTEIN: But you're very young.


GORSUCH: Well...

(UNKNOWN): Accept it.


GORSUCH: I'll take it, thank you. I'm not sure my wife entirely agrees with you anymore Senator, but thank you, that's kind.

My recollection of 12 years ago is that that was the position that the clients were telling us. I was a lawyer, my job was as an advocate and we were dealing with the detainee litigation. That was my involvement.

FEINSTEIN: You actually answered the question...


GORSUCH: Yeah -- and -- and I think...

FEINSTEIN: ... so you had no personal information...


FEINSTEIN: ... that you took the position of your client?


FEINSTEIN: And that -- because I know a lot about what happened.

GORSUCH: I know -- I know you do.

FEINSTEIN: That circles around in my brain a little bit because it seems to me that people who advise have an obligation to find the truth in these situations and when we learned about what happened on the intelligence committee, the gang of eight learned earlier, we learned much later, I think it was 2006.

We saw -- and when we looked into it, we really saw the horrendous nature of what went on. The absence of supervision, the absence of direction, the contracting out to people who, in my view, were not qualified to do what they did and I think terrible things happened. It's a closed chapter but it should never again happen. This is America and it's not what we stand for.

So let me move on to something that does trouble me about originalism is -- if I may. And let me read something. I have a constituent who happens to be the dean of a law school who sent me a question.


FEINSTEIN: And I want to present to you. And here it is: you are a self-professed originalist in your approach to constitutional interpretation.


For example you wrote, and I quote, "Judges should instead strive, if humanly and so imperfectly, to imply (ph) the law as it is. Focusing backward, not forward, and looking to text, structure and history to decide what a reasonable reader at the time of the events in question would have understood the law to be."

Now, do you agree with Justice Scalia's statements that a originalism means there is no protection for women or gays and lesbians under the Equal Protection Law because this was not the intent or understanding of those who drafted the 14th Amendment in 1868?

GORSUCH: Senator, first of all, a good judge starts with precedent and doesn't reinvent the wheel. So to the extent there are decisions on those topics, and there are, a good judge respects precedent. That's the first point.

Second point I'd make is, it would be a mistake to suggest that a originalism turns on the secret intentions of the drafters, of the language of the law. The point of originalism, textualism, whatever label you want to put on it; what good judge always strives to do, and I think we all do, is try to understand what the words on the page mean. Not import words that come from us. But apply what you, the people's representatives, the lawmakers have done.

And so when it comes to equal protection of the laws, for example, it matters not a whit that some of the drafters of the 14th Amendment racists. Because they were. Or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That's what they wrote. And those -- the original meaning of those words, John Marshall Harlan captured his dissent (ph) in Plessy.

And equal protection laws does not mean separate and advancing one particular race or gender. It means equal. As I said yesterday, I think that guarantee -- equal protection of the laws guarantee, the 14th Amendment that it took a Civil War for this country to win, is maybe the most radical guarantee in all of the Constitution and maybe in all of human history.

It's -- it's -- it -- it's a fantastic thing. And that's why it's chiseled Vermont marble above the entrance to the Supreme Court of United States.

FEINSTEIN: I -- I understand that. But here's what is hard, and let me be very personal about it because this is important. I have sentenced women to state prison for committing abortion. I was a member when California had an indeterminate sentence law, actually the youngest in the country. And I know what life was like. You have two daughters.


FEINSTEIN: I am one of three daughters. And I know what life was like. I have heard of young women killing themselves. I've heard of passing the plate in colleges so that a young woman could go to Tijuana to have an abortion. I read a letter from a woman is going to be in the audience tomorrow of how trying to get pregnant, finding that the fetus was catastrophic and having just a terrible time.

So the law has finally progressed that we now have the right to vote -- that took a long time. We are still fighting for equal pay, for equal work, and it goes on and on, and as women take their place in the workplace in society, we could've had a woman as president, perhaps.

Life changes, and the originalism that the days when the constitution was written project to me, don't bring somebody forward, they bring them backward. In terms of rights that women did not have, they were not look as is equal.

As a matter of fact, we couldn't even get ratified a constitutional amendment, very simple equality under the law should not be abridged on account of sex.


That was the equal rights amendment. And the time was extended from three years to give it more time, and they could not get the number states to approve it.

So if one looks at a originalism, in my context, which is real life, i want your two daughters to have every opportunity they possibly could have, be treated equal, be able to control their own bodies in concert with their religion, their doctor, whatever it may be, and not be conscribed by -- to a lesser fate because the law is interpreted in a backward sense.

Does that make sense to you?

GORSUCH: Senator, I understand your concern, and I share it. I come from a family of strong women. My two teenage daughters -- you're right, I want every opportunity for them that young man has. I have a strong wife, anyone who knows or knows that. My mother...

FEINSTEIN: But you are pivotal in this.

GORSUCH: And senator, I am daunted sitting here under the lights at the prospect of what's to come, if I'm so fortunate to be confirmed, and I'm daunted by the job I currently hold, and I take that trust very seriously, and no one is looking to return us to horse and buggy days.

We're trying to interpret the law faithfully, taking principles that are enduring in a constitution was meant the last ages, and apply it in interpreted to today's problems -- to today's problems. And I think if you look at a number of cases where the court has applied what might be labeled by some as originalism, you'll see, for example, in Kyllo, the search of a home with the heat seeking device.

The court looked back to find out what -- would that be considered an unreasonable search, that technology didn't exist of course, but would something like that have been considered an unreasonable search at the time of the fourth amendment's adoption? We found it's such the equipment to a peeping tom, that of course that would be considered an unreasonable search by the government, and so the heat seeking device, thermal imaging is also a search of the home.

That's -- that that's how we use neutral principles, the law to apply to current realities, not to drag us back to a past, but to move forward together as judges applying the law neutrally.

FEINSTEIN: Here's the problem, I've been through this before, this my -- well I've been through six hearings. I listened to Senator Specter when he was chairman of this committee tell the Chief Justice, well you have described super precedent. We talked about precedent and what's happened is every Republican appointed judge has gone back and is -- is a no vote.

So how does -- how does one look at you and -- we've talked about precedent, for the life of me I really don't know when you're there, what you're going to do with it. And it's so -- and as you say, this isn't text, this is real life and young women take everything for granted today and all of that could be struck out with one decision.

GORSUCH: Senator I -- all I can do is -- I can't promise you how I'd rule in a particular case. That would be deeply wrong, to sit here at a confirmation table. And I think we agree on that. That it would be a violation of the independent judiciary, for a nominee to a court to make a promise on any case in order to win confirmation.

FEINSTEIN: No, I don't expect you to.

GORSUCH: I know you don't and I -- and I'm really grateful for that, I know you appreciate my position.

All I can promise you is that I will exercise the care and consideration, due precedent, that a good judge is supposed to and I've written a book on it, this is not something that is just words in a room, this is years of toil in putting together a mainstream consensus view on what precedent is and the law of it with 12 other -- well 12 judges appointed by presidents from both sides, with a forward by Justice Breyer. And I didn't expect anyone to ever read it.


I think a few people have read it now not -- not -- still not that many. But that's my life's work, that sort of thing.


I care about the law. I care deeply about the law and an independent judiciary and following the rules of the law. And that's what commitment I can make to you. I can't promise you more and I can't guarantee you any less.

FEINSTEIN: Well, what worries me is you have been very much able to avoid any specificity like no one I have ever seen before. And maybe that's a virtue, I don't know, but for us on this side knowing where you stand on major questions of the day is really important to a vote aye.

And -- so that's why we press and press and press. It's very hard because you mention that you -- the number of cases you've sat on and the percent that was unanimous I think was 97 percent, you said. And so I -- we realize that these are few cases on which the distinction is made and it's hard to make that distinction.

So -- you know, when one sees a lot in this country -- and I just want to say this, for me, I sat on 5,000 cases, these were women convicted of felonies in the State of California, I did it for six years. And so I saw the inside of this whole issue. And that's one of the reasons why I feel so strongly -- particularly -- let me ask you another area; assisted suicide.


FEINSTEIN: You make the statement that there is no justification for having anything to do with the end of someone's life -- encouraging the end-of-life. Well, California just past an end-of- life options act, it takes a number -- I think three doctors.

I, in my life, have seen people die horrible deaths, family, of cancer when there was no hope. And my father begging me, "Stop this Dianne, I'm dying." You know? My father was a professor surgery. Now trying to save him -- so there are times you can't. And the suffering becomes so pronounced, I just went through this with a close friend, that -- the -- this is real. And it's very hard. So tell us what your position is in the situation with California's end-of-life option act, as well as what you have said on assisted suicide.

GORSUCH: Senator, this is something I can speak about because I've written about it. And I'm delighted to talk about my record. I wrote a book in my capacity as a commentator, it was my doctoral dissertation essentially before I became a judge. I'd have to tell you as a judge, put that aside, and we talked about that.

But I'll talk to you about what I wrote the book. Because I think that's fair. What wrote the in the book was I agree with the Supreme Court in the Cruzan decision. That refusing treatment, your father; we've all been through it with family. I -- my heart goes out to you.

FEINSTEIN: Yeah, well...

GORSUCH: It does. And I -- I've been there was my dad, OK, and others. And at some point you want to be left alone. Enough with the poking and prodding. I want to go home and die on my own bed, in the arms my family.

And the Supreme Court recognized in Cruzan that's a right in common law. To be free from assault and battery effectively and assumed that there was a constitutional dimension to that. I agree.

FEINSTEIN: Supposing you cannot handle the pain and you know that it's irreconcilable.

GORSUCH: Then, Senator, the position I took on the book on that was anything necessary to alleviate pain would be appropriate and acceptable. Even if it caused death, not intentionally but knowingly, okay? I drew a line between intent and knowingly, okay? And I've been there. I have been there.

FEINSTEIN: Thank you.

GRASSLEY: All right...

FEINSTEIN: Thank you, Mr. Chairman. Sorry.

GRASSLEY: Senator, no -- no apology.

WOLF BLITZER, CNN ANCHOR: All right, we're going to break away from the hearing and get some analysis. Jeffrey Toobin, that was a very, very powerful, dramatic moment in that last exchange that Neil Gorsuch, the judge had, with Senator Feinstein.

[10:25:00] JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: One of the unusual things about Judge Gorsuch as a nominee is that he has actually written a lengthy and substantive book about assisted suicide, about this end of life issues. As he said, it was his doctoral dissertation at Oxford which he turned into a book.

It's interesting. He -- I've read much of the book. I haven't read the whole book. He seemed to be erring a little bit on the side of saying I support families whatever they decide to do. In fact, the book is against assisted suicide. I mean, the book is very clear on that point.

But, you know, I think what he was doing was responding to something that all of us in modern life have dealt with, which is how to deal with end of life issues. And it's very hard.

BLITZER: And Joan Biskupic, you've studied this as well.

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Yes. In that book, he does take the clearest positions he's taking on anything. - Quite a conservative view, that I think that judges might not agree with in some of these cases that are coming up the pike. Because what he's saying is that you could never intentionally take a life, and that would be any kind of aid in dying by a physician.

Now, he was very careful to say that he would set aside that view as a judge. But I think we're going to see more questioning on that issue because that's where he has the deepest record and has spoken so clearly, at least where he was -

TOOBIN: And the other point -- I'm sorry to interrupt. The other point about that book is that the issues relating to abortion are very similar. That - and there are passages in that book about, you know, how you can never take a human life, you can never do that, which certainly at least read to me, like a proxy for a pro-life position.

BISKUPIC: And he acknowledges that, in the book he says, his principle of, you know, the sanctity of life would actually mean that you could not intentionally take the life of a fetus. But he says, Roe versus Wade in 1973, said the fetus wasn't a person so it wouldn't apply. But he even acknowledges that his view would start at the very beginning to the very end.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, the exchange today was so interesting, because clearly it was so emotional for Senator Feinstein, whose good friend just died. And maybe you legal folks can clear this up for me, but he made it clear that you can do anything to alleviate pain, and everybody knows that if you take a lot of morphine it not only alleviates pain but it brings upon death.

And he seemed to be kind of trying to slice the salami a little bit there. And we know that goes on in hospitals all the time and all around the country. And so -

BISKUPIC: Right, no, no, no. What he's saying, or at least what he said in the book, what he said in the book is that any dose of medicine intended to speed about death, hasten death intentionally, would be wrong.

BORGER: Right.

BISKUPIC: And he takes a very moral view of it. He says it's a secular view, it feels a little bit inspired by religion but he says it's secular.

BORGER: The pain killers --

TOOBIN: That's exactly what I read in the book. And it was somewhat different from what I thought I heard him say to Dianne Feinstein. Did you agree? --


I thought it sounded somewhat different. Now, you know, what that means about what kind of Supreme Court Justice he's going to be, I don't know. But I think he was -

BLITZER: The book he wrote, what, 20 years ago?

BISKUPIC: No, no, no. Even though it was part of his dissertation, it was published in 2006. 311 pages, for those of us who have read it, you know it's quite deep, quite consistent. He exhaustively goes through the arguments on both sides but then very clearly comes down on the side very much against any kind of -

BLITZER: But it was based on his dissertation was what, 20 years ago, you know -- earlier.


BORGER: -- Because I thought like Jeffrey, that he seemed to be trying to walk this line about taking anything to alleviate pain. Anybody can say that this drug was to alleviate pain when in fact it brought upon a faster death. -- I mean, it's ambiguous to me. --

BLITZER: Dana, you spent some time with Senator Feinstein recently out in California, like all the Democrats, she's under enormous pressure to vote against this confirmation.

DANA BASH, CHIEF POLITICAL CORRESPONDENT: That's right. OK. So, obviously the context is it was San Francisco, which is obviously -- a bastion of liberalism. But she at the time, like it was during a Congressional Recess, like members of the Senate and House were out doing town halls. She had an event and it was flooded with liberals and their number one goal was to say, you cannot vote for Judge Gorsuch, you cannot support him.

And, you know, we were talking before the hearing started about the why Democrats are going to be opposed, part of it is just the times that we live in, because the times of - brought by bipartisan votes for Supreme Court nominees are a time gone by. But there is something more, in this day and age.