[Senate Hearing 115-208]
[From the U.S. Government Publishing Office]




                                                         S. Hrg. 115-208
 
                      CONFIRMATION HEARING ON THE
                   NOMINATION OF HON. NEIL M. GORSUCH
                   TO BE AN ASSOCIATE JUSTICE OF THE
                   SUPREME COURT OF THE UNITED STATES

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                     MARCH 20, 21, 22, and 23, 2017

                               __________

                           Serial No. J-115-6

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
         
         
         
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]         





                   U.S. GOVERNMENT PUBLISHING OFFICE
                   
 28-638 PDF                 WASHINGTON : 2018       

         
         

                       COMMITTEE ON THE JUDICIARY

                  CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah                 DIANNE FEINSTEIN, California,     
LINDSEY O. GRAHAM, South Carolina        Ranking Member
JOHN CORNYN, Texas                   PATRICK J. LEAHY, Vermont
MICHAEL S. LEE, Utah                 RICHARD J. DURBIN, Illinois
TED CRUZ, Texas                      SHELDON WHITEHOUSE, Rhode Island
BEN SASSE, Nebraska                  AMY KLOBUCHAR, Minnesota
JEFF FLAKE, Arizona                  AL FRANKEN, Minnesota
MIKE CRAPO, Idaho                    CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut
JOHN KENNEDY, Louisiana              MAZIE K. HIRONO, Hawaii
            Kolan L. Davis, Chief Counsel and Staff Director
       Jennifer Duck, Democratic Chief Counsel and Staff Director
       
       
       
                            C O N T E N T S

                              ----------                              

         MARCH 20, 2017, 11:07 A.M., MARCH 21, 2017, 9:35 A.M.,
        MARCH 22, 2017, 9:37 A.M., and MARCH 23, 2017, 9:33 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page
Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................    46
    prepared statement...........................................   632
Coons, Hon. Christopher A., a U.S. Senator from the State of 
  Delaware.......................................................    40
    prepared statement...........................................   628
Cornyn, Hon. John, a U.S. Senator from the State of Texas........    14
Crapo, Hon. Mike, a U.S. Senator from the State of Idaho.........    48
    prepared statement...........................................   612
Cruz, Hon. Ted, a U.S. Senator from the State of Texas...........    31
    prepared statement...........................................   603
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    16
    prepared statement...........................................   599
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     5
    prepared statement...........................................   585
Flake, Hon. Jeff, a U.S. Senator from the State of Arizona.......    44
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....    34
    prepared statement...........................................   621
Graham, Hon. Lindsey O., a U.S. Senator from the State of South 
  Carolina.......................................................    25
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa:
    March 20, 2017, opening statement............................     1
    March 20, 2017, prepared statement...........................   581
    March 21, 2017, opening statement............................    69
    March 22, 2017, opening statement............................   247
    March 23, 2017, opening statement............................   397
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     9
    prepared statement...........................................   590
Hirono, Hon. Mazie K., a U.S. Senator from the State of Hawaii...    52
    prepared statement...........................................   642
Kennedy, Hon. John, a U.S. Senator from the State of Louisiana...    54
    prepared statement...........................................   619
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota..    28
    prepared statement...........................................   614
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.    11
    prepared statement...........................................   593
Lee, Hon. Michael S., a U.S. Senator from the State of Utah......    19
    prepared statement...........................................   596
Tillis, Hon. Thom, a U.S. Senator from the State of North 
  Carolina.......................................................    50
    prepared statement...........................................   634
Sasse, Hon. Ben, a U.S. Senator from the State of Nebraska.......    37
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................    22
    prepared statement...........................................   608

                               PRESENTERS

Bennet, Hon. Michael, a U.S. Senator from the State of Colorado 
  presenting Hon. Neil M. Gorsuch, Nominee to be an Associate 
  Justice of the Supreme Court of the United States..............    59
    prepared statement...........................................   646
Gardner, Hon. Cory, a U.S. Senator from the State of Colorado 
  presenting Hon. Neil M. Gorsuch, Nominee to be an Associate 
  Justice of the Supreme Court of the United States..............    57
    prepared statement...........................................   648
Katyal, Neal, Former Acting Solicitor General, Washington, DC, 
  introducing Hon. Neil M. Gorsuch, Nominee to be an Associate 
  Justice of the Supreme Court of the United States..............    61
    prepared statement...........................................   651

                        STATEMENT OF THE NOMINEE

Witness List.....................................................   499
Gorsuch, Hon. Neil M., Nominee to be an Associate Justice of the 
  Supreme Court of the United States.............................    63
    prepared statement...........................................   575
    questionnaire and biographical information...................   503
    attachment...................................................   571

                      STATEMENTS OF THE WITNESSES

Bressack, Leah, Former Law Clerk, Washington, DC.................   417
    prepared statement...........................................   689
Calemine, Guerino J., III, General Counsel, Communications 
  Workers of America, Washington, DC.............................   418
    prepared statement...........................................   717
Clarke, Kristen, President and Chief Executive Officer, Lawyers' 
  Committee for Civil Rights Under Law, Washington, DC...........   468
    prepared statement...........................................   847
Degan, Nancy Scott, American Bar Association, Standing Committee 
  on the Federal Judiciary, New Orleans, Louisiana, accompanied 
  by Shannon Edwards, American Bar Association, Standing 
  Committee on the Federal Judiciary, Edmond, Oklahoma...........   398
    prepared statement...........................................   654
Fisher, Alice, Partner, Latham & Watkins, Washington, DC.........   473
    prepared statement...........................................   827
Gallagher, Patrick, Director, Environmental Law Program, Sierra 
  Club, Oakland, California......................................   453
    prepared statement...........................................   803
Graves, Fatima Goss, Senior Vice President for Program and 
  President-Elect, National Women's Law Center, Washington, DC...   449
    prepared statement...........................................   793
Harned, Karen, Executive Director, National Federation of 
  Independent Business Small Business Legal Center, Washington, 
  DC.............................................................   454
    prepared statement...........................................   773
Henry, Hon. Robert Harlan, U.S. Court of Appeals Judge, Retired, 
  President, Oklahoma City University, Oklahoma City, Oklahoma...   410
    prepared statement...........................................   683
Hill, Eve, Partner, Brown Goldstein Levy, Baltimore, Maryland....   456
    prepared statement...........................................   809
Jaffer, Jameel, Executive Director, Knight First Amendment 
  Institute,
  Columbia University, New York, New York........................   412
    prepared statement...........................................   701
Jaffer, Jamil, Former Law Clerk, Arlington, Virginia.............   483
    prepared statement...........................................   842
Kane, Hon. John L., U.S. District Court Judge, Senior, District 
  of Colorado, Denver, Colorado..................................   414
    prepared statement...........................................   687
Kirsanow, Peter, Commissioner, U.S. Commission on Civil Rights, 
  and Partner, Benesch, Friedlander, Coplan & Aronoff, Cleveland, 
  Ohio...........................................................   470
    prepared statement...........................................   818
Lamken, Jeff, Partner, MoloLamken, Washington, DC................   444
    prepared statement...........................................   727
Marshall, William, William Rand Kenan, Jr., Distinguished 
  Professor of Law, University of North Carolina, Chapel Hill, 
  North Carolina.................................................   477
    prepared statement...........................................   865
Massimino, Elisa, President and Chief Executive Officer, Human 
  Rights First, Washington, DC...................................   409
    prepared statement...........................................   691
McGhee, Heather, President, Demos, New York, New York............   446
    prepared statement...........................................   783
Meyer, Tim, Former Law Clerk, Nashville, Tennessee...............   479
    prepared statement...........................................   838
Miller, Amy Hagstrom, President and Chief Executive Officer, 
  Founder, Whole Woman's Health, Charlottesville, Virginia.......   474
    prepared statement...........................................   862
Perkins, Jeff, Berthoud, Colorado................................   415
    prepared statement...........................................   710
Phillips, Sandy, Boerne, Texas...................................   481
    prepared statement...........................................   870
Smith, Hannah, Senior Counsel, Becket, Washington, DC............   476
    prepared statement...........................................   828
Solum, Lawrence, Carmack Waterhouse Professor of Law, Georgetown 
  University Law Center, Washington, DC..........................   447
    prepared statement...........................................   730
Tacha, Hon. Deanell Reece, U.S. Court of Appeals Judge, Retired, 
  Duane and Kelly Roberts Dean and Professor of Law, Pepperdine 
  Law School, Malibu, California.................................   407
    prepared statement...........................................   680
Turley, Jonathan, J.B. and Maurice C. Shapiro Professor of Public 
  Interest Law, The George Washington University Law School, 
  Washington, DC.................................................   451
    prepared statement...........................................   742
Warbelow, Sarah, Legal Director, Human Rights Campaign, 
  Washington, DC.................................................   471
    prepared statement...........................................   852

                               QUESTIONS

Questions submitted to Guerino J. Calemine, III, by Senator 
  Whitehouse.....................................................   903
Questions submitted to Hon. Neil M. Gorsuch by:
    Senator Blumenthal...........................................   917
    Senator Coons................................................   911
    Senator Durbin...............................................   899
    Senator Feinstein............................................   880
    Senator Franken..............................................   904
    Senator Hirono...............................................   922
    Senator Leahy................................................   892
    Senator Whitehouse...........................................   900

                                ANSWERS

Responses of Guerino J. Calemine, III, to questions submitted by 
  Senator Whitehouse.............................................   928
Responses of Hon. Neil M. Gorsuch to questions submitted by:
    Senator Blumenthal...........................................   986
    Senator Coons................................................   977
    Senator Durbin...............................................   961
    Senator Feinstein............................................   931
    Senator Franken..............................................   968
    Senator Hirono...............................................   996
    Senator Leahy................................................   949
    Senator Whitehouse...........................................   963

LETTERS RECEIVED WITH REGARD TO THE NOMINATION OF HON. NEIL M. GORSUCH 
  TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

Abell, Ben, Former University of Colorado Law School student, et 
  al., March 15, 2017............................................  1104
Abortion Care Network, Minneapolis, Minnesota, et al., March 14, 
  2017...........................................................  1036
Abortion Rights Fund of Western Massachusetts et al., March 14, 
  2017...........................................................  1031
African American Ministers In Action, Washington, DC, et al., 
  March 16, 2017.................................................  1019
Allen, Bertrand-Marc, Former Law Clerk to U.S. Supreme Court 
  Justice Anthony Kennedy, et al., February 25, 2017.............  1099
Alliance for Justice, Washington, DC, March 10, 2017.............  1044
Americans Against Gun Violence, Sacramento, California, February 
  6, 2017........................................................  1046
Anhang, George, Washington, DC, Former Harvard Law School 
  classmate, et al., March 1, 2017...............................  1110
Apps, Antonia M., Former Law Firm colleague, et al., Washington, 
  DC, February 2, 2017...........................................  1092
Arena, Baker, Attorney, University of Colorado Law School 
  graduate, Class of 2016, Denver, Colorado......................  1052
Barker, Scott S., Denver, Colorado, February 2, 2017.............  1054
Barkow, Rachel E., Professor, New York University School of Law, 
  New York, New York, March 16, 2017.............................  1171
Bend the Arc Jewish Action, New York, New York, March 7, 2017....  1055
Blatt, Lisa, Member, the Supreme Court Bar, et al., March 1, 2017  1135
Bressack, Leah, Former Law Clerk to Judge Gorsuch, et al., March 
  20, 2017.......................................................  1096
Bruce, Stephen R., Washington, DC, March 22, 2017................  1188
Building the California Dream Alliance, February 22, 2017........  1056
Compassion and Choices, Portland, Oregon, March 17, 2017.........  1057
Congress of the United States, 109 Members, March 13, 2017.......  1007
Consumer Action, San Francisco, California, et al., March 8, 2017  1164
Demos, New York, New York, March 9, 2017.........................  1059
Earthjustice, Trip Van Noppen, President, San Francisco, 
  California, March 17, 2017.....................................  1062
Electronic Privacy Information Center (EPIC), Washington, DC, et 
  al., statement.................................................  1066
Equality California, Los Angeles, California, March 15, 2017.....  1084
Family Research Council (FRC), Washington, DC, March 16, 2017....  1086
Feminist Majority Foundation, Beverly Hills, California, and 
  Arlington,
  Virginia, March 10, 2017.......................................  1087
Gottschalk, Hugh Q., Littleton, Colorado, February 16, 2017......  1109
Hispanic Leadership Fund, Washington, DC, March 17, 2017.........  1114
Lambda Legal, New York, New York, et al., March 16, 2017.........  1023
Lawyers' Committee for Civil Rights Under Law, New York, New 
  York, and Washington, DC, March 17, 2017.......................  1120
Leadership Conference on Civil and Human Rights, The, Washington, 
  DC, February 15,2017...........................................  1125
Lyons, James M., Denver, Colorado, February 7, 2017..............  1116
Mac Avoy, Janice, Partner, Fried, Frank, Harris, Shriver and 
  Jacobson LLP, et al., March 15, 2017...........................  1040
Major Cities Chiefs Association, J. Thomas Manger, President, and 
  Chief of Police, Montgomery County Police Department, Maryland, 
  March 17, 2017.................................................  1134
Mitchell, Sarah, Denver, Colorado, March 21, 2017................  1178
Morrisey, Patrick, West Virginia Attorney General, et al., 
  February 1, 2017...............................................  1184
Ms. Foundation for Women, The, Brooklyn, New York, March 21, 2017  1137
National Abortion Federation (NAF), Washington, DC, March 13, 
  2017...........................................................  1139
National Association of Women Lawyers (NAWL), Committee for the 
  Evaluation of Supreme Court Nominees, March 16, 2017...........  1140
National Congress of American Indians and the Native American 
  Rights Fund, Washington, DC, March 23, 2017....................  1143
National Council of Jewish Women (NCJW), New York, New York, 
  March 9, 2017..................................................  1144
National Education Association (NEA), Washington, DC, March 9, 
  2017...........................................................  1146
National Employment Lawyers Association (NELA), Oakland, 
  California, and Washington, DC, March 13, 2017.................  1148
National Employment Lawyers Association (NELA/Illinois), Chicago, 
  Illinois, March 20, 2017.......................................  1153
National Nurses United, Silver Spring, Maryland, and Oakland, 
  California, March 23, 2017.....................................  1157
National Partnership for Women and Families, Washington, DC, 
  March 17, 2017.................................................  1163
99Rise et al., March 14, 2017....................................  1015
People For the American Way (PFAW), Washington, DC, March 9, 2017  1168
Roseman Law Offices, LLC, Barry D. Roseman, Denver, Colorado, 
  March 17, 2017, introductory letter and document of anonymous 
  declaration....................................................  1174
Service Employees International Union (SEIU), Washington, DC, 
  March 8, 2017..................................................  1179
Sierra Club, Michael Brune, Executive Director, Washington, DC, 
  February 6, 2017...............................................  1182
Sisk, Jennifer R., Esq., Denver, Colorado, March 17, 2017........  1118
Tlingit and Haida Indian Tribes of Alaska, Juneau, Alaska, March 
  16, 2017.......................................................  1115
Voices for Progress, Washington, DC, March 9, 2017...............  1191

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Amar, Vikram, ``Supreme Court nominees should weigh in on these 
  rulings: You're up, JudgeGorsuch,'' The Washington Post, March 
  19, 2017, op-ed article........................................  1195
Barnes, Robert, and Ed O'Keefe, ``Senate Democrats focus on 
  Gorsuch's defense of Bush-era terrorism policies,'' The 
  Washington Post, March 15, 2017, article.......................  1197
Black, Charles L., Jr., Yale Law School, ``A Note on Senatorial 
  Consideration of Supreme Court Nominees,'' Yale Law School 
  Legal Scholarship Repository, January 1, 1970, article.........  1199
Blake, Aaron, ``Stephen Bannon's nationalist call to arms, 
  annotated,'' The Washington Post, February 23, 2017, op-ed 
  article........................................................  1208
Fagg, Russell, Judge, ``Supreme Court nominee Neil Gorsuch is a 
  home run,'' Independent Record, March 6, 2017, 2017, op-ed 
  article........................................................  1240
Feldman, Noah, ``Democrats' Misguided Argument Against Gorsuch: 
  Judges should stand up for the law, not for the `little guy','' 
  Bloomberg, March 15, 2017, op-ed article.......................  1224
Frederick, David C., ``There is no principled reason to vote 
  against Gorsuch,'' The Washington Post, March 8, 2017, op-ed 
  article........................................................  1229
Greenstone, Jessica, ``I'm a moderate for Gorsuch: Former law 
  clerk,'' USA Today, February 13, 2017, op-ed article...........  1231
Harkin, Hon. Tom, a former U.S. Senator from the State of Iowa, 
  and Eve Hill, Former Deputy Assistant Attorney General, Civil 
  Rights Division, U.S. Department of Justice, ``Gorsuch would 
  endanger most vulnerable: persons with disabilities,'' The Des 
  Moines Register, March 21, 2017, op-ed article.................  1233
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  ``Worried about the separation of powers? Then confirm Judge 
  Gorsuch,'' SCOTUSBlog, February 13, 2017, op-ed article........  1314
Hutchinson, Dennis J., ``Crying wolf over Neil Gorsuch,'' Chicago 
  Tribune, February 9, 2017, op-ed article.......................  1235
Hwang, Frank, David and Katherine Hwang, and Jean Hwang Carrant, 
  ``Judge Gorsuch failed our family,'' San Francisco Chronicle, 
  March 14, 2017.................................................  1227
Katyal, Neal K., ``Why Liberals Should Back Neil Gorsuch,'' The 
  New York Times, January 31, 2017, op-ed article................  1244
Kenneally, Michael E., Matt Owen, and Eric Tung, U.S. News, 
  February 13, 2017, article.....................................  1247
Kim, Seung Min, ``Gorsuch recommended to Justice Dept. that 
  federal judges visit Gitmo,'' Politico, March 18, 2017, article  1249
Leadership Conference on Civil and Human Rights, The, Washington, 
  DC, statement..................................................  1260
Lioz, Adam, ``Money in Politics, Racial Equity, and the U.S. 
  Supreme Court,'' Demos, New York, New York, report.............  1251
Lipton, Eric, and Jeremy Peters, ``In Gorsuch, Conservative 
  Activist Sees Test Case for Reshaping the Judiciary,'' The New 
  York Times, March 18, 2017, article............................  1254
McCain, Hon. John, a U.S. Senator from the State of Arizona, 
  ``Floor Statement of Senator John McCain on CIA Interrogations 
  and Army Field Manual,'' February 13, 2008, statement before 
  the U.S. Senate................................................  1311
McConnell, Michael W., ``A Personal Reflection on Judge Neil M. 
  Gorsuch From a Former Colleague,'' Stanford Law Review Online, 
  March 2017, essay..............................................  1267
Murray, Jason, ``Liberals should welcome Gorsuch: Like Kagan, he 
  puts law before politics,'' The Washington Post, February 8, 
  2017, op-ed article............................................  1269
National Abortion Federation (NAF), Washington, DC, statement....  1271
National Education Association (NEA), Washington, DC, statement..  1273
Northup, Nancy, and Rachel B. Tiven, ``If abortion rights fall, 
  LGBT rights are next,'' The Washington Post, February 22, 2017, 
  op-ed article..................................................  1282
Peeples, Camille E., ``Rights, Facts, and Relevant Inquiries: 
  Surveying Judge Neil M. Gorsuch's Employment Law 
  Jurisprudence,'' Stanford Law Review Online, March 2017, essay.  1316
Peterson, Kyle, ``Trump's Supreme Court Whisperer: The man who 
  advised the president on picking Judge Gorsuch explains what 
  his elevation means for the law and America,'' The Wall Street 
  Journal, February 3, 2017, article.............................  1284
Planned Parenthood Federation of America, New York, New York, and 
  Washington, DC, statement......................................  1288
Rehnquist, Hon. William H., Chief Justice, Supreme Court of the 
  United States, Laird v. Tatum, recusal letter..................  1218
Rehnquist, William H., ``Senate Should Consider Nominees' 
  Judicial Views,'' The Stanford Daily, November 23, 1971, 
  article........................................................  1291
Saporta, Vicki, President and Chief Executive Officer, National 
  Abortion Federation, statement.................................  1297
Savage, Charlie, ``Neil Gorsuch Helped Defend Disputed Bush-Era 
  Terror Policies,'' The New York Times, February 15, 2017, 
  article........................................................  1302
Savage, Charlie, ``Newly Public Emails Hint at Gorsuch's View of 
  Presidential Power,'' The New York Times, March 18, 2017, 
  article........................................................  1305
Savage, Charlie, and Julie Turkewitz, ``Neil Gorsuch Has Web of 
  Ties to Secretive Billionaire,'' The New York Times, March 14, 
  2017, article..................................................  1307
Scalia, Hon. Antonin, Associate Justice, Supreme Court of the 
  United States, California Lawyer, January 2011, interview......  1242
Sisk, Jennifer, University of Colorado student, email exchange 
  with University of Colorado Law Dean of Students, April 28-29, 
  2016...........................................................  1237
Sisk, Jennifer, University of Colorado student, April 20, 2016, 
  online posting.................................................  1238
Stolberg, Sheryl Gay, ``Gorsuch Not Easy to Pigeonhole on Gay 
  Rights, Friends Say,'' The New York Times, February 11, 2017, 
  op-ed article..................................................  1321
Supreme Court of the United States Cases Reaffirming Roe v. Wade, 
  May 15, 2017, List.............................................  1259
Tacha, Deanell Reece, and Robert Henry, ``Neil Gorsuch is the 
  kind of judge our framers envisioned,'' The Washington Post, 
  March 17, 2017, op-ed article..................................  1324
USA Today, The Editorial Board, ``9 questions for Neil Gorsuch: 
  Our view,'' March 19, 2017, editorial..........................  1326
Utz, Robin, ``I had an abortion to save my baby from pain. In my 
  state, that didn't matter,'' The Washington Post, March 10, 
  2017, op-ed article............................................  1328
Wall Street Journal, The , ``Neil Gorsuch Is a Supreme Court 
  Pick: An originalist judge in the Antonin Scalia mold,'' 
  February 1, 2017, editorial....................................  1340
Wardon, Theresa R., and Katherine C. Yarger, ``Three Things We 
  Learned While Clerking for Neil Gorsuch,'' The Federalist, 
  February 15, 2017, article.....................................  1330
Whelan, Ed, ``Fellow Students Refute Student's Claim of Sexist 
  Gorsuch Comments,'' National Review, March 21, 2017, article...  1333
Witt, Matt, ``My opposition to Neil Gorsuch is personal: His 
  opposition to `death with dignity' should disqualify him from 
  the Supreme Court,'' The Washington Post, March 7, 2017, op-ed 
  article........................................................  1338
Young, Evan, ``Judge Gorsuch Is Just Right For The Scalia Seat,'' 
  Forbes, February 13, 2017, op-ed article.......................  1342

                 ADDITIONAL SUBMISSIONS FOR THE RECORD

Submissions for the record not printed due to voluminous nature, 
  previously printed by an agency of the Federal Government, or 
  other criteria
  determined by the Committee, list..............................  1347

Constitutional Accountability Center, Elizabeth B. Wydra, 
  President, Washington, DC, statement:
    https://www.judiciary.senate.gov/imo/media/doc/Constitutional
      %20Accountability%20Center%20-%20Statement.pdf.............  1347

Demos, ``Breaking the Vicious Cycle: Rescuing Our Democracy and 
  Our Economy by Transforming the Supreme Court's Flawed Approach 
  to Money in Politics,'' Adam Lioz, New York, New York, report:
    https://www.judiciary.senate.gov/imo/media/doc/Demos%20-%20
      Breaking%20the%20Cycle.pdf.................................  1347

Demos, ``Court Cash: 2016 Election Money Resulting Directly From 
  Supreme Court Rulings,'' Adam Lioz, Counsel and Senior Advisor, 
  Policy and Outreach, Juhem Navarro-Rivera, Senior Policy 
  Analyst, and Sean McElwee, Policy Analyst, New York, New York, 
  report:
    https://www.judiciary.senate.gov/imo/media/doc/Demos%20-%20
      Court%20Cash.pdf...........................................  1347

Endrew F. v. Douglas County School District RE-1 (2017), legal 
  case:
    https://www.judiciary.senate.gov/imo/media/doc/
      Endrew%20F.%20v.
      %20Douglas%20County%20School%20District%20Re-1%20(2017).pdf  1347

Herndon-Reston Indivisible, Herndon, Virginia, letter to Hon. 
  Charles E. Schumer, a U.S. Senator from the State of New York, 
  January 26, 2017:
    https://www.judiciary.senate.gov/imo/media/doc/
      Herndon%20Reston
      %20Indivisible%20-%20Letter_Redacted.pdf...................  1347

Laird v. Tatum, 92 S. Ct. 2318, legal case:
    https://supreme.justia.com/cases/federal/us/408/1/case.html..  1347

Lawyers' Committee for Civil Rights Under Law, ``Report on the 
  Nomination of Judge Neil M. Gorsuch as an Associate Justice of 
  the United States Supreme Court,'' Washington, DC, March 2017, 
  report:
    https://www.judiciary.senate.gov/imo/media/doc/Lawyers'%20
      Committee%20for%20Civil%20Rights%20Under%20law%20-%20
      Report%20on%20Neil%20M%20Gorsuch.pdf.......................  1347

National Association for the Advancement of Colored People Legal 
  Defense and Educational Fund, Inc. (LDF), ``The Civil Rights 
  Record of Judge Neil M. Gorsuch,'' New York, New York, and 
  Washington, DC, March 16, 2017, report:
    https://www.judiciary.senate.gov/imo/media/doc/NAACP%20Legal
      %20Defense%20Fund%20Report%20on%20Neil%20Gorsuch.pdf.......  1347

Post, Robert C., and Reva B. Siegel, Yale Law School, 
  ``Questioning Justice: Law and Politics in Judicial 
  Confirmation Hearings,'' Yale Law School Legal Scholarship 
  Repository, January 1, 2006, article:
    http://digitalcommons.law.yale.edu/cgi/
      viewcontent.cgi?article=
      1173&context=fss--papers...................................  1347


                      CONFIRMATION HEARING ON THE



                   NOMINATION OF HON. NEIL M. GORSUCH



                   TO BE AN ASSOCIATE JUSTICE OF THE



                   SUPREME COURT OF THE UNITED STATES

                              ----------                              


                         MONDAY, MARCH 20, 2017

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 11:07 a.m., in 
Room SH-216, Hart Senate Office Building, Hon. Charles E. 
Grassley, Chairman of the Committee, presiding.
    Present: Senators Grassley, Hatch, Graham, Cornyn, Lee, 
Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy, 
Durbin, Whitehouse, Klobuchar, Franken, Coons, Blumenthal, and 
Hirono.

         OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Chairman Grassley. Good morning, everybody. I want to 
welcome everybody to this confirmation hearing on the 
nomination of Judge Neil Gorsuch, and he is nominated to be 
Associate Justice of the Supreme Court of the United States.
    Judge, welcome to the Senate Judiciary Committee.
    Judge Gorsuch. Pleasure to be here. Thank you.
    Chairman Grassley. This is a big day for you and your 
family. You have been before this Committee once before for the 
confirmation hearing to the Tenth Circuit, where you now sit. I 
imagine that this hearing may be a little better attended than 
the last time you were here.
    Judge Gorsuch. Just a little, Senator.
    Chairman Grassley. Yes. Before we begin, I would like to 
give you the opportunity to introduce your family and anybody 
else you want to introduce.
    Judge Gorsuch. Senator, this is quite a lot different than 
it was the last time I was here, and I appreciate all the 
attention.
    I would like to introduce my family who are here. My wife, 
Louise, who, as you remember, stole the show in the East Room 
the day I was nominated.
    Chairman Grassley. Yes.
    Judge Gorsuch. I have got here somewhere, I am told, in the 
audience, my brother-in-law, my brother-in-law's folks, Phil 
and Priscilla Albright, and my nephew Jack. How are you doing, 
Jack?
    [Laughter.]
    Judge Gorsuch. I have got my cousin Meg Hopkins and her 
daughter with her, Lori. I have got a bunch more family coming. 
My daughter is watching back home in the West.
    I have got my longtime assistant, Holly Cody. Where is 
Holly? There she is. Ten years we have worked together. I 
consider her family.
    And I have got a whole bunch of my law clerks here in the 
audience, and if they would not mind just standing up for a 
second, I would like to recognize them because I consider them 
family, too.
    So, Senator, I am very blessed to have so many family here 
with me today.
    Thank you.
    Chairman Grassley. Thank you. We thank you, Judge. We are 
delighted to have your family here as well for this very 
important moment in your life.
    Before I give my opening statement, I want to set out a 
couple of ground rules. I want everyone to be able to watch the 
hearing without obstruction. If people stand up and block the 
view of those behind them or speak out of turn, it is not fair 
or it is not very considerate to others. So officers will 
immediately, under our rules, remove those individuals.
    Now I would like to take a minute to explain about how we 
are going to proceed. We will have 10-minute rounds of opening 
statements. The Ranking Member and I may go a minute or two 
over the 10 minutes, but I am going to ask everyone else to 
limit your remarks to 10 minutes. And I hope everybody on both 
sides of the aisle will respect that.
    We will then turn to our introducers, who will be formally 
presenting the judge. Then we will administer the oath to the 
judge, and we will close today's portion of the hearing with 
the judge's testimony.
    Tomorrow morning, we will begin at 9:30 a.m. for the 
opening round of questions. Each Senator will have 30 minutes 
for the opening round. After the first round, the Senators will 
have 20 minutes for a second round.
    And finally, as I have discussed with the Ranking Member, 
later today we will notice a mark-up to consider the judge's 
nomination for next Monday the 27th. In anticipation of his 
nomination will be held over for 1 week, as any Senator has 
that right under our rules to do so, we will then vote on his 
nomination the following Monday, April 3.
    With that, I would turn to my opening statement and then to 
Senator Feinstein for her opening statement.
    One of Justice Scalia's best opinions begins with this 
declaration. It is ``the proudest boast of our democracy that 
we have a government of laws and not of men.''
    The phrase comes from the Massachusetts Constitution of 
1780. This infant State constitution linked the Government of 
laws, and not of men, directly to the separation of powers.
    Justice Scalia said the Founders ``viewed the principle of 
separation of powers as the absolutely central guarantee of a 
just government because without a secure structure of separated 
powers, our Bill of Rights would be worthless.''
    In plain words, it was the desire to preserve and protect 
liberty and self-government that guided the Framers as they 
designed our Constitution. And the founding charter they 
designed is a remarkable document, as we know.
    The Bill of Rights, of course, preserves liberty by 
restricting what the Government may do. But the single most 
important feature of our Constitution is not any particular 
enumerated right or even the entire Bill of Rights taken 
together. The most important feature of our Constitution is the 
design of the document itself.
    That design divides the limited power of government 
vertically between State and Federal Governments, and it 
distributes power horizontally between co-equal branches.
    It is this very delicate balance of power, entrusted to 
competing factions, that ensures that liberty for the people 
will endure. It is the Constitution's design that protects 
against the mischief that results from the concentration of 
political power.
    The Founders understood this fundamental principle, and 
Justice Scalia understood it better than anyone. He was fond of 
telling law students, ``Every tin horn dictator in the world 
today, every president for life, has a bill of rights. But the 
real key to the distinctiveness of America is the structure of 
our Government.''
    Our constitutional republic is also designed around the 
notion that the people, acting through their representatives, 
retain ultimate authority to govern. It was the people, through 
their representatives, who ratified the Constitution that 
establishes our system of government.
    Under that system, except where the Constitution has 
already answered the question, decisions are made by elected 
representatives. Elected, yes, but also accountable to the 
voters.
    But to endure, our system of self-government requires 
judges to apply the text of our laws as the people's 
representatives enacted them. So our judges, by design, play a 
crucial, but limited role. They decide cases or controversies, 
but in resolving those cases, they may look only to the laws 
the people wrote.
    Judges are not free to rewrite statutes to get results they 
believe are more just. Judges are not free to reorder 
regulations to make them more fair. For sure, judges are not 
free to update the Constitution. That is not their job. That 
power is retained by the people, acting through their elected 
representatives.
    And when our judges do not respect this limited power, when 
they substitute their own policy preferences for those in the 
legislative branch, they take from the American people the 
right to govern themselves. As that happens, inch by inch and 
step by step, representative government is undermined, the 
carefully constructed balance of power is upset, and individual 
liberty is lost.
    These are not stale concepts. If anything, the enormous 
size, the enormous power, and the enormous complexity of the 
modern state renders them more relevant than ever before.
    In recent months, I have heard that now more than ever we 
need a Justice who is independent and who respects the 
separation of powers. Some of my colleagues seem to have 
rediscovered an appreciation for the need to confine each 
branch of government to its constitutional sphere.
    I do not question the sincerity of those concerns. Some of 
us have been alarmed by Executive overreach and the threat it 
poses to the separation of powers. Whether it was the executive 
branch unilaterally rewriting Federal law, as the Obama 
administration did dozens of times, or the Executive's repeated 
failure to enforce and defend the laws passed by Congress, over 
the last 8 years we have witnessed repeated abuses by one 
branch at the expense of the other two.
    Just ask the Supreme Court, which unanimously rejected 
arguments the Obama administration made in more than 40 cases. 
The policies that drove those abuses were, of course, 
problematic. But policies can be changed and must be changed.
    To this Senator, what is far more distressing about each 
Executive overreach and each failure to defend the law is the 
damage that it does to the constitutional order. The damage 
those abuses inflict is far more difficult to undo than the 
policies that animated them. For as John Adams observed, 
``Liberty, once lost, is lost forever.''
    So the separation of powers is just as critical today as it 
was during the administration, the last administration. And the 
preservation of our constitutional order, including the 
separation of powers, is just as crucial to our liberty today 
as it was when our founding charter was first adopted.
    No matter your politics, for all of these reasons you 
should be concerned about the preservation of our 
constitutional order and, most importantly, the separation of 
powers. And if you are concerned about these things, as you 
should be, I want you to meet Judge Neil Gorsuch.
    Fortunately for every American, we have before us today a 
nominee whose body of professional work is defined by an 
unfailing commitment to these principles. His grasp on the 
separation of powers, including judicial independence, enlivens 
his body of work.
    As he explains, ``To the Founders, the legislative and 
judicial powers were distinct by nature and their separation 
was among the most important liberty-protecting devices of the 
constitutional design.''
    About the Executive, he writes that through ``the hard-won 
experiences under a tyrannical king, the Founders found proof 
of the wisdom of a government of separated powers.''
    The judge's job, our nominee says, is to deliver on the 
promise that ``all litigants, rich or poor, mighty or weak, 
will receive equal protection under the law and due process for 
their grievances.''
    The nominee before us understands that any judge worth his 
salt will ``regularly issue judgments with which they disagree 
as a matter of policy, all because they think that is what the 
law fairly demands.''
    Fundamentally, that is the difference between a legislator 
and a judge. All of us should keep this in mind during the 
course of this hearing.
    Judge, I am afraid over the next couple of days, you will 
get some questions that will cause you just to scratch your 
head. Truth be told, it should puzzle anyone who ever takes a 
civics class. We will hear that when you rule for one party and 
against another in a case, it means you must be for the winner 
and against the loser.
    Senators will cite some opinions of yours, and then we will 
hear that you are for the ``big guy'' and against the ``little 
guy.'' You will scratch your head when you hear this because it 
is as if you judges write the laws instead of us Senators.
    But if Congress passes a bad law, as a judge, you are not 
allowed to just pretend that we passed a good law. The oath you 
take demands that you follow the law, even if you dislike the 
result.
    So if you hear that you are for some business or against 
some plaintiff, do not worry. We have heard all of that stuff 
before. It is an old claim, from an even older playbook.
    You and I and the American people know whose responsibility 
it is to correct a law that produces a result that you dislike. 
It is the men and women sitting here with me. Good judges 
understand this. They know it is not their job to fix the law. 
In a democracy, that right belongs to the people.
    It is for this reason that Justice Scalia said this. ``If 
you are going to be a good and faithful judge, you have to 
resign yourself to the fact that you are not always going to 
like the conclusion you reach. If you like them all the time, 
you are probably doing something wrong.''
    Judge, I look forward to hearing more about your 
exceptional record, and I look forward to the conversation we 
will all have about the meaning of our Constitution and the job 
of a Supreme Court Justice in our constitutional scheme.
    [The prepared statement of Chairman Grassley appears as a 
submission for the record.]
    Senator Feinstein.

          OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
          A U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman.
    Judge Gorsuch, I want to welcome you and your family.
    We are here today under very unusual circumstances. It was 
almost a year ago today that President Obama nominated Chief 
Judge Merrick Garland for this seat. Unfortunately, due to 
unprecedented treatment, Judge Garland was denied a hearing, 
and this vacancy has been in place for well over a year.
    I just want to say I am deeply disappointed that it is 
under these circumstances that we begin our hearings. Merrick 
Garland was widely regarded as a mainstream moderate nominee. 
However, President Trump repeatedly promised to appoint someone 
in the mold of Justice Scalia and said that the nomination of 
Judge Gorsuch illustrates he is a man of his word.
    For those of us on this side, our job is not to 
theoretically evaluate this or that legal doctrine or to review 
Judge Gorsuch's record in a vacuum. Our job is to determine 
whether Judge Gorsuch is a reasonable mainstream conservative, 
or is he not. Our job is to assess how this nominee's decisions 
will impact the American people and whether he will protect the 
legal and constitutional rights of all Americans, not just the 
wealthy and the powerful.
    We hold these hearings not because court precedent and 
stare decisis are something average Americans worry about. We 
hold these hearings because the U.S. Supreme Court has the 
final word on hundreds of issues that impact our daily lives.
    The Supreme Court has the final say on whether a woman will 
continue to have control over her own body or whether decisions 
about her healthcare will be determined by politicians and the 
Government. It decides whether billionaires and large 
corporations will be able to spend unlimited sums of money to 
buy elections and whether States and localities will be able to 
pass laws and make it harder for poor people, people of color, 
seniors, and younger people to vote.
    It is the Supreme Court that will have final word on 
whether corporations will be able to pollute our air and water 
with impunity. Or whether the NRA and other extreme 
organizations will be able to block common sense gun 
regulations, including those that keep military-style assault 
weapons off our streets.
    And it is the Supreme Court that will have the ultimate say 
on whether employers will be held accountable for 
discriminating against workers or failing to protect workers 
when they are harmed or killed on the job.
    For example, last year Judge Gorsuch sat on a case that 
involved a truck driver who was stranded in the freezing cold 
for several hours after his trailer's brakes froze. He had no 
heat. In fact, it was so cold that the driver was having 
trouble breathing. His torso was numb, and he could not feel 
his feet.
    Despite this, his employer directed him to wait for a 
repairman or else drive both the truck and the trailer. When no 
one came, the driver unhitched the trailer to search for 
assistance because driving with frozen brakes with a fully 
loaded trailer would have been too dangerous. A week later, he 
was fired.
    After hearing the case, the administrative law judge ruled 
that firing the driver was a violation of the health and safety 
law intended to protect workers. The United States Department 
of Labor's Administrative Review Board and the Tenth Circuit 
agreed. Judge Gorsuch dissented and sided with the company.
    In another case, Judge Gorsuch wrote a separate opinion, 
this time to challenge a longstanding legal doctrine that 
allows agencies to write regulations necessary to effectively 
implement the laws that Congress passes and the President 
signs. It is called the Chevron doctrine.
    This legal doctrine has been fundamental to how our 
Government addresses real world challenges in our country and 
has been in place for decades. If overturned, as Judge Gorsuch 
has advocated, legislating rules are very difficult.
    In fact, Congress relies on agency experts to write the 
specific rules, regulations, guidelines, and procedures 
necessary to carry out laws we enact. These are what ensure the 
Clean Air Act and the Clean Water Act to protect our 
environment from pollution.
    They are the specific protections put in place by the FDA 
and the Agricultural Department that safeguard the health and 
safety of our food supply, our water, our medicines, and they 
are the details needed to support the infrastructure of our 
communities, our roads, highways, bridges, dams, and airports.
    We in Congress rely on the scientists, biologists, 
economists, engineers, and other experts to help ensure our 
laws are effectively implemented. For example, even though 
Dodd-Frank was passed nearly 7 years ago to combat the rampant 
abuse that led to our country's worst financial crisis since 
the Great Depression, it still requires over 100 regulations to 
be implemented by the Securities and Exchange Commission, the 
Commodities Futures Trading Commission, and other regulators in 
order to reach its full effectiveness as intended by Congress 
when it was passed.
    Judge Gorsuch's position, were it to be adopted, would take 
away agencies' authorities to address these necessary details. 
Such a change in law would dramatically affect how laws passed 
by Congress can be properly carried out.
    Two weeks ago, The Washington Post ran an op-ed written by 
a woman who desperately wanted to have a baby. She described 
how she and her husband went to great lengths for 4 years 
trying to get pregnant and were thrilled when they finally 
succeeded.
    Tragically, after her 21-week check-up, they discovered her 
daughter had multicystic dysplastic kidney disease. They were 
told by three separate doctors that her condition was 100 
percent fatal and that the risk to the mother was sevenfold if 
she carried her pregnancy to term.
    The mother described their excruciating decision and the 
unforgiving process the couple endured to get the medical care 
they needed. The debate over Roe v. Wade and the right to 
privacy, ladies and gentlemen, is not theoretical.
    In 1973, the Court recognized a woman's fundamental and 
constitutional right to privacy. That right guarantees her 
access to reproductive healthcare. In fact, the Supreme Court 
has repeatedly upheld Roe's core finding, making it settled law 
for the last 44 years.
    I ask unanimous consent, Mr. Chairman, to enter into the 
record the 14 key cases where the Supreme Court upheld Roe's 
core holding and the total 39 decisions where it has been 
reaffirmed by the Court.
    Chairman Grassley. Without objection, it is included.
    [The information appears as a submission for the record.]
    Senator Feinstein. Thank you.
    If these judgments, when combined, do not constitute super 
precedent, I do not know what does. Importantly, the dozens of 
cases affirming Roe are not only about precedent. They are also 
about a woman's fundamental and constitutional rights. Roe 
ensured that women and their doctors will decide what is best 
for their care, not politicians.
    President Trump repeatedly promised that his judicial 
nominees would be pro-life and ``automatically'' overturn Roe 
v. Wade. Judge Gorsuch has not had occasion to rule directly on 
a case involving Roe. However, his writings do raise questions.
    Specifically, he wrote that he believes there are no 
exceptions to the principle that ``the intentional taking of a 
human life by private persons is always wrong.'' This language 
has been interpreted by both pro-life and pro-choice 
organizations to mean he would overturn Roe.
    The Supreme Court is also expected to decide what kind of 
reasonable regulation States and localities can implement to 
protect our neighborhoods and schools from gun violence. In 
fact, just last month, the Fourth Circuit became the fifth 
appellate court to uphold a State's ban on assault weapons and 
large-capacity magazines under Heller.
    These new cases, taken together, enable the enactment of 
prudent and legal legislation to restrict military-style 
weapons from flooding our streets. Now while Judge Gorsuch has 
not written decisions on the Second Amendment, he did write an 
opinion to advocate making it harder to convict a felon who 
illegally possessed a gun.
    In this opinion, Judge Gorsuch argued against the Court's 
own precedent. Specifically, in this case, the defendant had 
been charged with attempted robbery in July of 2009. After 
pleading guilty, he was given probation.
    However, ``he was repeatedly both orally and in writing 
told that possession of a firearm'' violated his probation, 
which would mean he could not ``escape the consequences of his 
felony conviction.'' Less than a year later, he was apprehended 
by the police holding ``a fully loaded Hi-Point .380-caliber 
pistol with an obliterated serial number'' in clear violation 
of his probation.
    Later, he argued he did not know he was a felon. Six 
Circuit Courts, including the Tenth, have determined that the 
Government does not need to prove a defendant knew he was a 
felon to convict for this crime. Despite this, Judge Gorsuch 
wrote two separate opinions that argued in favor of making it 
harder to convict felons who possess guns.
    In one, he wrote that sometimes following precedent 
``requires us to make mistakes.'' I find this concerning. 
Following precedent in this case was not a mistake. It led to 
the conviction of a felon who should not have had a firearm.
    Judge Gorsuch has also stated that he believes judges 
should look to the original public meaning of the Constitution 
when they decide what a provision of the Constitution means. 
This is personal, but I find this originalist judicial 
philosophy to be really troubling.
    In essence, it means the judges and courts should evaluate 
our constitutional rights and privileges as they were 
understood in 1789. However, to do so would not only ignore the 
intent of the Framers that the Constitution would be a 
framework on which to build, but it severely limits the genius 
of what our Constitution upholds.
    I firmly believe the American Constitution is a living 
document, intended to evolve as our country evolves. In 1789, 
the population of the United States was under 4 million. Today, 
we are 325 million and growing. At the time of our founding, 
African Americans were enslaved. It was not so long after, 
women had been burned at the stake for witchcraft, and the idea 
of an automobile, let alone the internet, was unfathomable.
    In fact, if we were to dogmatically adhere to originalist 
interpretations, then we would still have segregated schools 
and bans on interracial marriage. Women would not be entitled 
to equal protection under the law, and government 
discrimination against LGBT Americans would be permitted.
    So I am concerned when I hear that Judge Gorsuch is an 
originalist and a strict constructionist. Suffice it to say, 
and I conclude, the issues we are examining today are 
consequential. There is no appointment that is more pivotal to 
the Court than this one.
    This has a real world impact on all of us. Who sits on the 
Supreme Court should not simply evaluate legalistic theories 
and Latin phrases in isolation. They must understand the 
Court's decisions have real world consequences for men, women, 
and children across our Nation.
    Thank you, Mr. Chairman.
    [The prepared statement of Ranking Member Feinstein appears 
as a submission for the record.]
    Chairman Grassley. Senator Hatch for 10 minutes.

           OPENING STATEMENT OF HON. ORRIN G. HATCH,
             A U.S. SENATOR FROM THE STATE OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman.
    Judge Gorsuch, welcome back to the Judiciary Committee. 
This will be more of an ordeal than your last. But your fitness 
for the appointment, it will be just as apparent.
    I served on this Committee for 40 years, and some things in 
the confirmation process never change. The conflict over 
judicial appointments in general, and over this nomination in 
particular, is a conflict over the proper role of judges in our 
system of government.
    I have long believed that the Senate owes the President 
some deference with respect to his qualified nominees. 
Qualifications for judicial service include legal experience, 
which summarizes the past, and judicial philosophy, which 
describes the present and anticipates the future.
    Judge Gorsuch's legal experience is well known. My 
Democratic colleagues have referred to the American Bar 
Association's rating as the gold standard for evaluating 
judicial nominees. The ABA's unanimous ``well qualified'' 
rating for Judge Gorsuch confirms that he has the highest level 
of professional qualifications, including integrity, 
competence, and temperament.
    Judicial philosophy is both the more important 
qualification and the more challenging to assess. It refers to 
a nominee's understanding of the power and proper role of 
judges in our system of government. Over the last several 
weeks, I have addressed this issue on the Senate floor and in 
opinion pages around the country by contrasting what I have 
called impartial judges and political judges.
    An impartial judge focuses on the process of interpreting 
and applying the law according to objective rules. In this way, 
the law, rather than the judge, determines the outcome.
    A political judge, in contrast, focuses on a desired result 
and fashions a means of achieving it. In this way, the judge, 
rather than the law, often determines the outcome.
    In my experience, a Supreme Court confirmation process 
reveals the kind of judge that Senators want to see appointed. 
A Senator, for example, who wants to know which side a nominee 
will be on in future cases or who demands that judges be 
advocates for certain political interests, clearly has a 
politicized judiciary in mind.
    The New York Times reported last week that the most 
prominent lines of attack against this nomination will be that 
Judge Gorsuch is ``no friend of the little guy.'' Something is 
seriously wrong when the confirmation process for a Supreme 
Court Justice resembles an election campaign for political 
office.
    This dangerous approach contradicts the oath of judicial 
office prescribed by Federal law. When taking the seat on the 
U.S. Court of Appeals in 2006, Judge Gorsuch swore to 
administer justice without respect to persons and to 
impartially discharge his judicial duties.
    His opponents today demand in effect that he violate that 
oath. Advocates of such a politicized judiciary seem to think 
that the confirmation process requires only a political agenda 
and a calculator.
    When a nominee is a sitting judge, they tally the winners 
and losers in his past cases and do the math. If they like the 
result, it is thumbs up on confirmation. If they do not, well, 
it is thumbs down.
    What if, for example, Judge Gorsuch's record on the appeals 
court was as follows? He voted against the plaintiff in 83 
percent of immigration cases, against the defendant in 92 
percent of criminal cases, denied race claims more than 80 
percent of the time, and agreed with other Republican-appointed 
judges 95 percent of the time.
    I can just hear the cries of protest, accusations that he 
favors certain parties and is hostile to others and threats of 
filibuster. That is, in fact, the record of a U.S. Circuit 
Court Judge nominated to the Supreme Court, but not the one 
before us today. It is the record of Judge Sonia Sotomayor, as 
described by Senator Charles Schumer at her July 2009 
confirmation hearing.
    Not only did he champion her nomination, but he offered 
that statistical summary of her record as proof that, as he put 
it,
``She is in the mainstream.'' Oh, what a difference an election 
makes.
    Alexander Hamilton wrote about the importance of judicial 
independence, what Chief Justice William Rehnquist later called 
the ``crown jewel of our judicial system.'' Today, in a bizarre 
twist on that principle, Judge Gorsuch's opponents say that the 
only way for him to prove his independence is by promising to 
decide future cases according to certain litmus tests.
    In other words, judicial independence requires that he be 
beholden to them and their political agenda. If simply 
describing that unprincipled position is not enough to refute 
it, the confirmation process is in more trouble than I thought.
    Judge, I know that the integrity of the judiciary, fairness 
to the litigants who come before you, and your own oath of 
office are your highest priorities. You will be in good company 
by resisting efforts to make you compromise your impartiality.
    When President Lyndon Johnson nominated Judge Thurgood 
Marshall to the Supreme Court, Senator Ted Kennedy, my friend 
who would later chair this Committee, said, ``We have to 
respect that any nominee to the Supreme Court would have to 
defer any comments on any matters which are before the Court or 
very likely to appear before the Court.''
    Now that was 50 years ago. When Justice Ruth Bader Ginsburg 
appeared before this Committee in 1993, she said, ``A judge 
sworn to decide impartially can offer no forecast, no hints, 
for that would show not only disregard for the specifics of the 
particular case, it would display disdain for the entire 
judicial process.''
    Now in a speech earlier this year, Justice Sotomayor said 
this. ``What you want is for us to tell you how, as a judicial 
nominee, we are going to rule on the important issues you find 
vexing. Any self-respecting judge who comes in with an agenda 
that would permit that judge to tell you how they will vote is 
the kind of person you do not want--you do not want as a 
judge.''
    Now I will close by reading from the letter we received 
from dozens of Judge Gorsuch's Harvard Law School peers. After 
describing how they were of all political, ideological, 
religious, geographical, and social stripes, the signers wrote, 
``What unites us is that we attended law school with Judge Neil 
Gorsuch, a man we have known for more than a quarter century, 
and we unanimously believe that Neil possesses the exemplary 
character, outstanding intellect, steady temperament, humility, 
and open mindedness to be an excellent addition to the U.S. 
Supreme Court.''
    I agree with that appraisal by people from all walks of 
life, from different political views, people who agree with you 
and do not agree with you, but acknowledge that you are a great 
judge.
    And I look forward to this hearing, Mr. Chairman. Thank 
you.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    Chairman Grassley. Yes, thank you, Senator.
    The Senator from Vermont.

          OPENING STATEMENT OF HON. PATRICK J. LEAHY,
            A U.S. SENATOR FROM THE STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman.
    I did find it interesting the Senator from Utah spoke about 
Justice Sotomayor, saying that these are the reasons her 
nomination--the speech, these are the reasons why Republicans 
should vote for her and Democrats vote against her. I would 
note that, of course, that Senator Hatch voted against her.
    Today marks the first time the Senate Judiciary Committee 
has met publicly to take action on a Supreme Court vacancy that 
resulted from Justice Scalia's death 13 months ago. It was just 
hours after we learned of Justice Scalia's sudden passing the 
Republican majority leader declared that the Senate would not 
provide any process to any nominee selected by President Obama, 
despite the President having nearly a year left in his term.
    This was an extraordinary blockade. It was totally 
unprecedented in our country's whole history. Some liken it to 
the action of the tyrannical kings who claim that they have 
sole control, as one of our Senators referred to here a few 
minutes ago, but it was a blockage backed by then-candidate 
Donald Trump.
    Committee Republicans met behind closed doors and declared 
that they would surrender the independence of this Committee to 
do the majority leader's bidding, and they ignored the 
Constitution in the process. In fact, this unprecedented 
obstruction is one of the greatest stains on the 200-year 
history of this Committee.
    Remember, the Judiciary Committee once stood against a 
Court-packing scheme of a Democratic President that would have 
eroded judicial independence, and that was a proud moment. Now 
Republicans on this Committee are guilty of their own Court-
unpacking scheme, and the blockade of Chief Judge Merrick 
Garland was never grounded in principle or precedent.
    While Senate Republicans were meeting in backrooms to block 
President Obama's nominee, extreme special interest groups were 
also meeting in private to vet potential Supreme Court nominees 
for then-candidate Donald Trump. I do not know of any other 
Supreme Court nominee who was selected by interest groups 
rather than by a President in consultation with the Senate, as 
required by the Constitution.
    Now Senate Republicans made a big show last year about 
respecting the voice of the American people in this process. 
Now they are arguing that the Senate should rubberstamp a 
nominee selected by extreme interest groups and nominated by a 
President who lost the popular vote by nearly 3 million votes.
    That President has demonstrated hostility to our 
constitutional rights and values. He has leveled personal 
attacks against Federal judges and career prosecutors who dare 
to see his promised Muslim ban for what it is, 
unconstitutional.
    He called our constitutionally protected free press ``the 
enemy of the American people.'' When the President's chief of 
staff says the nominee before us has the vision of Donald 
Trump, well, that raises questions for people who have actually 
read the Constitution or care about the rights it protects.
    More than perhaps any confirmation hearing for the last 30 
years, I expect this nominee's judicial philosophy will play a 
central role. Now Judge Gorsuch has spent more than a decade on 
the Federal bench. He graduated from Harvard Law School. He 
clerked for the Supreme Court. He served in the Department of 
Justice. He received a unanimous ``well qualified'' rating from 
the American Bar Association. All things very positive for a 
Supreme Court nominee.
    And if all those things I have read were a sufficient 
reason to confirm a nominee to the Supreme Court, of course, 
Chief Judge Merrick Garland, who had exactly the same 
qualifications but was refused by the Republicans, would be 
sitting on the Court today. That is why philosophy becomes 
important.
    In contrast to past nominees like John Roberts, whose 
judicial philosophy was not clearly articulated when he 
appeared before this Committee, Judge Gorsuch appears to have a 
comprehensive originalist philosophy. It is the approach taken 
by jurists such as Justice Scalia or Justice Thomas, former 
Judge Bork.
    While it has gained some popularity within conservative 
circles, originalism, I believe, remains outside the mainstream 
of modern constitutional jurisprudence. It has been 25 years 
since an originalist has been nominated to the Supreme Court. 
Given what we have seen from Justice Scalia and Justice Thomas 
and Judge Gorsuch's own record, I worry that it goes beyond 
being a philosophy and that it becomes an agenda.
    We know that conservative groups that have vetted Judge 
Gorsuch, and the millionaires who fund them, have a clear 
agenda--one that is anti-choice, anti-environment, pro-
corporate. And these groups are obviously confident that Judge 
Gorsuch shares their agenda.
    The first person who interviewed Judge Gorsuch in this 
process explained these groups did not ask, who is a really 
smart lawyer who has been really accomplished? Instead, they 
saw a nominee who understands these things like we do. After 
all, Judge Gorsuch has been described by a former leader of the 
Republican Party as a true loyalist and a good, strong 
conservative.
    Now the concerns I have about Judge Gorsuch's judicial 
philosophy and the process by which he was selected, the views 
of the President who nominated him, I hope and expect, Judge, 
that you will answer my questions and the questions of all of 
the Senators, both parties, as clearly as possible.
    You know, it is not enough to say in private that the 
President's attacks on the judiciary are disheartening. I need 
to know that you understand the role of the courts in 
protecting the rights of all Americans. I need to know that you 
could be an independent check and balance on the administration 
that has nominated you and on any administration that might 
follow it.
    Judge Gorsuch, these hearings, occurring the week after 
Sunshine Week, are the first opportunity for the American 
people to hear your views on the role of the courts and the 
meaning of our Constitution. Like the Founders, who did not 
know what legal questions would be presented in the decades to 
come, they set this constitutional process. It is important to 
understand or to determine whether you understand how the Court 
has a profound impact on small businesses and workers, on law 
enforcement and victims, on families and children across 
America.
    It is not contrary to the duties and obligations of a 
Supreme Court Justice to consider the effects of their rulings. 
The Court's aspiration, after all, is to provide equal justice 
under law. That is inscribed in Vermont marble over the doorway 
to the Court.
    Judge Gorsuch, these hearings will help us conclude if you 
are committed to the fundamental rights of all Americans. Will 
you allow the Government to intrude on Americans' personal 
privacy and freedom? Will you elevate the rights of 
corporations over those of real people? And will you 
rubberstamp a President whose administration has asserted that 
Executive power is not subject to judicial review?
    It is important to know whether you serve with independence 
or as a surrogate to the President who nominated you or to the 
special interest groups that provided that President with your 
name.
    Now I approach these hearings with these thoughts in mind. 
I can honestly say I have yet to decide how I am going to vote 
on this nomination. Unlike those who blocked the nomination of 
Chief Judge Merrick Garland, I believe it is my constitutional 
responsibility to fairly evaluate a President's nominee to the 
Supreme Court.
    I have voted for Supreme Court nominees, and I have voted 
against others. I recall going on the floor of the Senate right 
after our Democratic leader said he would vote against John 
Roberts for Chief Justice. I was the next speech. I said I 
would vote for him.
    But I am going to base my determination on the full record 
at the conclusion of these hearings, just as I have done for 
the 16 previous Supreme Court nominations I have been in the 
Senate.
    The Supreme Court is the guarantor of the liberties of all 
Americans. Judge Gorsuch, when you took the oath to sit on the 
Federal bench, you spoke these following words that are in a 
judicial oath. ``I will administer justice without respect to 
persons and do equal right to the poor and to the rich.''
    If confirmed, you have to be a Justice for all Americans, 
not for the special interests of a few. You know, I cannot 
think of any time in our Nation's history when that commitment 
is more important than it is now. That is what I have been 
thinking of all weekend long.
    The stakes for the American people could not be higher. We 
know that in Vermont, but America knows that.
    I thank you, Mr. Chairman.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Grassley. Yes, and thank you, Senator Leahy.
    Now to Senator Cornyn.

             OPENING STATEMENT OF HON. JOHN CORNYN,
             A U.S. SENATOR FROM THE STATE OF TEXAS

    Senator Cornyn. Thank you, Mr. Chairman.
    Judge Gorsuch, welcome to you and your family. As you can 
already tell, this is going to be a much different experience 
than you had 10 years ago when you were confirmed by voice vote 
of the entire United States Senate to the Tenth Circuit Court 
of Appeals to a life tenure position.
    The Senate Judiciary Committee undertakes no task more 
important than the one before us, considering a nominee to the 
U.S. Supreme Court. As you know, historically, these used to be 
pretty routine. But that is until judges became seen as 
policymakers rather than as impartial interpreters and appliers 
of the law.
    The Nation is watching, and I think that is a really good 
thing. At a time when fewer and fewer American citizens know 
our founding story and the principles upon which it is based, I 
think this is a wonderful opportunity for a teachable moment, 
and I would encourage you to take every opportunity to engage 
in that.
    We are considering a nominee, of course, left by the death 
of Justice Antonin Scalia. And as we have heard before, Justice 
Scalia was unique. His wit and style brought the Constitution 
to life for lawyers in their first year of law school and for 
the American public at large.
    He led the most important legal revolution in our 
lifetimes, tethering judicial interpretation to the written 
text. What a concept.
    This was part of the broader project which the nominee 
before us, Judge Neil Gorsuch, described as ``reminding us of 
the differences between judges and legislators. That judges 
should strive to apply the law as it is, not to decide cases 
based on their own moral convictions or the policy consequences 
they feel might serve society best.''
    In one dissent, Justice Scalia wrote along similar lines 
that, ``If our pronouncements of constitutional law rely 
primarily on value judgments, then a free and intelligent 
people's attitude toward us can be expected to be quite 
different. The people know that their value judgments are quite 
as good as those taught in any law school and perhaps better.''
    The Framers, I believe, shared Justice Scalia's and your 
modest view of the role of judging. Alexander Hamilton wrote, 
for example, ``The judiciary may truly be said to have neither 
force nor will, but merely judgment.''
    After Justice Scalia's death, Senate Republicans decided to 
let the American people in this last Presidential election 
choose his successor. In Judge Gorsuch, President Trump chose 
one of the most accomplished lawyers and jurists of his 
generation. As we have heard, he is a husband and a father of 
two daughters, lives in his native Colorado and, if confirmed, 
would be our only Western Justice.
    Judge Gorsuch attended Columbia and Harvard Law School and, 
of course, got his doctorate at Oxford. After clerking for two 
Supreme Court Justices, Byron White and Anthony Kennedy, he 
went to work for a startup law firm that grew to be one of the 
Nation's most prestigious, where he spent a decade, as he put 
it, working in the trenches of the law.
    As a recovering lawyer and judge myself, I think it is 
critically important, Judge, it means that you understand 
better than most the impact of your decisions, actually having 
represented real, live clients. The law is not just an academic 
or intellectual exercise. It has real consequences for real 
people, and I would encourage you to talk about those real 
people that you came in contact with during your legal and 
judicial career.
    After serving his country at the Justice Department, Judge 
Gorsuch, as I mentioned earlier, was nominated and confirmed to 
the Tenth Circuit. Not one of our Democratic colleagues then in 
the Senate opposed Neil Gorsuch for the Tenth Circuit Court of 
Appeals because there was simply no reason to do so.
    In the decade since, Judge Gorsuch has written hundreds of 
opinions on the Constitution and innumerable laws. He has 
demonstrated that he actually reads the text carefully to get 
the right result. I am reminded that there is a difference 
between what we sometimes loosely call a strict constructionist 
and a textualist, and I would invite you to make that point 
during some of your testimony.
    As you can see here today, his jurisprudence reflects 
brilliance and humility, the humility of a man committed to the 
Constitution and the law. That body of work is the best guide 
for the kind of judge Judge Gorsuch will be.
    Answers to questions posed during these hearings we have 
already heard about specific issues cannot and should not be a 
guide. You are not a politician running for election, Judge, as 
you know.
    In the dissent I mentioned earlier, Justice Scalia warned 
that ``confirmation hearings for new Justices should 
deteriorate into question and answer sessions in which Senators 
go through a list of their constituents' most favored and most 
disfavored alleged constitutional rights.'' It should not be 
the forum in which you seek the nominee's commitment to support 
or oppose them.
    So we are not here to ask you, even though some might, how 
you will vote in specific cases. And it would be wrong for you 
to prejudge those cases, as you know.
    And that is the same reason why, for example, Ruth Bader 
Ginsburg, during her nomination hearing, said, ``A judge sworn 
to decide impartially can offer no forecast, no hints, for that 
would not only show disregard for the specifics of a particular 
case, it would display disdain for the entire judicial 
process.''
    Can you imagine what a litigant might think if the judge 
before whom he or she was to present their case said before 
they heard a word how they were going to decide the case? That 
is why it is improper for you, as you know, to prejudge cases 
in your testimony before the Committee, and our colleagues know 
that as well. But I expect them to ask a few questions 
nonetheless.
    Well, lately, we have heard from some that they should 
criticize you for failing to rule for a sympathetic 
constituency in one case or another. But of course, as you 
know, Judge, if you follow the law and the facts wherever it 
may lead, sometimes it is for the police. Sometimes for a 
criminal defendant. Sometimes it is for a corporation. 
Sometimes it is for an employee. Sometimes it is for the 
Government. Sometimes it is against the Government.
    That is how the rule of law works, and that is good for all 
Americans. One law professor at Harvard wrote, following the 
law regardless of the parties is, in the long run, it protects 
the little guy a lot better than a system rigged to favor one 
side.
    Because of your qualifications and a demonstrated record of 
following the law, other than a few special interest groups, I 
believe you have got a broad spectrum, really surprisingly 
broad spectrum of people supporting your nomination. One of 
your colleagues on the left wrote in The Washington Post, ``The 
Senate should confirm Judge Gorsuch because there is no 
principled reason to vote no.''
    Another liberal constitutional scholar joined a letter that 
stated, ``Judge Gorsuch has the unusual combination of 
character, dedication, and intellect that will make him an 
asset on our Nation's highest court.''
    President Obama's Solicitor General, from whom this 
Committee will hear, wrote in The New York Times that 
``liberals should back Judge Gorsuch because he would live up 
to the promises to administer justice with respect to persons 
and to do equal right to the poor and to the rich.''
    So, Mr. Chairman, the list goes on and on. So I am very 
pleased the American people are about to learn why President 
Trump chose you as his nominee for the Supreme Court. I look 
forward to hearing from Judge Gorsuch, and I would encourage my 
colleagues to carefully consider the nominee on the merits and 
nothing else.
    Thank you.
    Chairman Grassley. Thank you, Senator Cornyn.
    Now, Senator Durbin.

          OPENING STATEMENT OF HON. RICHARD J. DURBIN,
           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Senator Durbin. Thanks, Mr. Chairman. Judge Gorsuch, 
welcome to you and your family.
    I have often read stories about earlier Supreme Court 
nominees and how little politics played any role in the 
selection and vetting of the nominees. Those of us on the 
Democratic side, as you can hear, are frequently warned not to 
let politics be part of this decision. When I consider the path 
to this historic hearing, this plea rings hollow.
    The journey began with the untimely death of Justice Scalia 
in February 2016. President Obama met his constitutionally 
required obligation by nominating Judge Merrick Garland to fill 
that vacancy in March 2016. Senate Republican Leader Mitch 
McConnell announced that for the first time in the history of 
the United States Senate, he would refuse Judge Garland a 
hearing and a vote. He went further and said he would refuse to 
even meet with the judge.
    It was clear that Senator McConnell was making a political 
decision, hoping a Republican President would be elected. He 
was willing to ignore the tradition and precedent of the Senate 
so that you could sit at this witness table today.
    In May and September 2016, Republican Presidential 
candidate, Donald Trump, released a list of 21 names, including 
yours, that he would consider to fill the Scalia vacancy. 
President Trump thanked the Federalist Society and the Heritage 
Foundation, two well-known Republican advocacy groups, for 
providing the list that included your name.
    Your nomination is part of a Republican strategy to capture 
our judicial branch of government. That is why the Senate 
Republicans kept the Supreme Court seat vacant more than a 
year, and why they left 30 judicial nominees, who had received 
bipartisan approval of this Committee, to die on the Senate 
calendar as President Obama left office.
    Despite all of this, you are entitled to be judged on the 
merits. The Democrats of the Senate Judiciary Committee will 
extend to you a courtesy which Senate Republicans denied to 
Judge Garland: a respectful hearing and a vote.
    Judge Gorsuch, you have been nominated to a lifetime 
appointment on the highest court in the land, and this Court 
has the final say on matters of fundamental importance 
affecting all Americans. You have a lengthy record before the 
Tenth Circuit, and we will ask many questions. We have found in 
the past that nominees try their best to dodge most of the 
questions, but it is our job to try to still seek the truth.
    At the nomination hearing of Justice Ruth Bader Ginsburg, 
my friend and predecessor, Senator Paul Simon, set forth the 
standard for Supreme Court nominees. I have noted this with 
each Supreme Court nominee that I have questioned. He said, 
``You face a much harsher judge than this Committee, and that 
is the judgment of history, and that judgment is likely to 
revolve around the question, did you restrict freedom or did 
you expand it.''
    Let me be clear. When I talk about expanding freedom, I am 
not talking about freedom for corporations. ``We the people'' 
does not include corporations. Senator Simon could never have 
imagined that the Supreme Court would give corporations rights 
and freedoms that were previously reserved only for individuals 
under the Constitution, and yet that is where we find ourselves 
with the Roberts Court.
    It is often said the Roberts Court is a corporate Court 
because of its pro-business tilt. A study by the Constitutional 
Accountability Center found that the Court ruled for the U.S. 
Chamber of Commerce 69 percent of the time. The Court has 
certainly favored big business on issues like forced 
arbitration, corporate price fixing, workplace discrimination 
cases, just to name a few.
    But the Roberts Court has gone further than just ruling the 
way corporate America wants. In the 2010 Citizens United case, 
the Supreme Court held for the first time that corporations 
have the same rights as living, breathing people to spend money 
on elections, and that was followed in 2014 by the Hobby Lobby 
decision, which allowed for-profit corporations to discriminate 
against employees based on the corporation's assertion of 
religious belief.
    I do not recall ever seeing a corporation in the pews of 
Old St. Patrick's Church in Chicago. Our Founders never 
believed that corporations were endowed with certain 
inalienable rights, but were seeing the Supreme Court expand 
the rights of this legal fiction, a corporation, at the expense 
of the voices and choices of the American people. This strikes 
at the heart of the Supreme Court's promise to provide equal 
justice under the law.
    Judge Gorsuch, you took part in that Hobby Lobby case when 
it was before the Tenth Circuit. As I read the case, I was 
struck by the extraordinary, even painful, lengths the court 
went to protect the religious beliefs of the corporation and 
its wealthy owners, and how little attention was paid to the 
employees, to their constitutionally protected religious 
beliefs, their choices as individuals, and the burdens that the 
court's decision placed on them.
    I want to hear from you about a pattern I have seen in your 
decisions on the Tenth Circuit. In case after case, you either 
dismissed or rejected efforts by workers and families to 
recognize the rights--that recognized their rights or defend 
their freedoms. Cases like TransAm Trucking, which we have 
already spoken to.
    Alphonse Maddin. I had a chance to sit down with him just 
last week. He was the truck driver from Detroit who was driving 
around Chicago in the middle of January when a malfunction in 
his trailer froze the brakes, and he was forced to pull over on 
the side of the road. Al sat there on his cell phone with the 
dispatcher for the truck company, who told him do not leave 
this truck no matter what, and if you do, pull the trailer with 
you.
    Well, that was a big problem because the brakes were 
frozen, and it would have been a safety hazard. And so, he 
waited and waited, and the hours passed, and he started feeling 
numb and sick. You see, there was no heater in the truck, and, 
according to his recollection, it was so cold. It was 14 
degrees below.
    Not as cold as your dissent, Judge Gorsuch, which argued 
that his firing was lawful. You cited a strict textualistic 
argument to make your point, but you chose the text that you 
focused on. Thank goodness the majority in this case pointed 
out that common sense and the Oxford Dictionary supported the 
majority view.
    Compass Environmental Incorporated, another one of your 
cases. Your dissent would have vacated a penalty against an 
employer who failed to train construction employee Christopher 
Carder to avoid the electrocution hazard that killed him. 
Strickland v. UPS, your dissent would have kept Carol 
Strickland's sex discrimination case from going to a jury, even 
though your fellow judges said she provided ample evidence that 
she was regularly outperforming her male colleagues and treated 
less favorably.
    I want to hear more about your views on fundamental 
individual rights that the Supreme Court is tasked to defend: 
the right to privacy, the right for all faiths to practice 
their religion, the right to vote, equal protection, and the 
rights of women. The Committee has received two letters from 
students who you taught last year that raised some serious 
concerns. Tomorrow we will get to the bottom of it, I hope.
    We have learned you were an aggressive defender of 
Executive power during the time of the Bush administration. In 
June 2004, after the Abu Ghraib torture scandal, I authored the 
first bill to ban cruel, inhuman, and degrading treatment of 
detainees. That legislation became the McCain Torture 
Amendment, which passed the Senate in December 2005 by an 
overwhelming 90-to-9 vote. But when President Bush signed the 
Amendment into law, he issued a signing statement claiming he 
had the authority to ignore the McCain Amendment. It turns out, 
you were deeply involved in this unprecedented signing 
statement. We need to know what you will do when you are called 
upon to stand up to this President or any President if he 
claims the power to ignore laws that protect fundamental human 
rights.
    You are going to have your hands full with this President. 
He is going to keep you busy.
    It is incumbent on any nominee to demonstrate that he or 
she will serve as an independent check or balance on the 
presidency. There are some warning flags. February 23rd, White 
House chief of staff, Reince Priebus, said, ``Neil Gorsuch 
represents the type of judge that has the vision of Donald 
Trump.'' I want to hear from you why Mr. Priebus would say 
that. Make no mistake, when it comes to the treatment of 
workers, women, victims of discrimination, people of minority 
religious faith, and our Constitution, most Americans question 
whether we need a Supreme Court Justice with the vision of 
Donald Trump.
    With my constitutional responsibility firmly in mind, I 
look forward to questioning tomorrow. Thank you, Mr. Chairman.
    [The prepared statement of Senator Durbin appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Senator Durbin. Now, the 
Senator from Utah.

           OPENING STATEMENT OF HON. MICHAEL S. LEE,
             A U.S. SENATOR FROM THE STATE OF UTAH

    Senator Lee. Thank you, Mr. Chairman, and thank you Judge 
Gorsuch. Welcome to the Committee. I also want to welcome your 
friends, family members, supporters, former colleagues, and 
people you have worked with over the years who have come to 
show their support. I know they are proud of you, and they are 
proud of you not just because of what you have done and what 
you have accomplished professionally, but also because of who 
you are personally: a man of integrity, a man of great 
accomplishment, a man of character, and a man of faith.
    Everyone knows that a Supreme Court confirmation hearing 
can be dramatic, even emotional at times. The stakes are high. 
As Senators, we understand that there are a few things that are 
more important than the obligation that we are performing here 
than the duty that we are carrying out in connection with this 
process. These days it seems like standing for a confirmation 
hearing in the United States Senate after being nominated to 
the Supreme Court of the United States can appear a little bit 
like running for political office.
    As we have seen over the last few weeks, there are interest 
groups out there, some supporting you, some opposing you, out 
there waging campaigns almost as if they were running a 
campaign for someone pursuing public office. Maybe that is why, 
especially on this side of the dais, it can be easy to forget 
that a nominee is an ordinary citizen, perhaps not ordinary in 
the usual sense, but at least that person is not a politician.
    You, sir, are not a politician, which means that the 
acrimony, the duplicity, the ruthlessness of today's politics 
are still a little foreign to you, are still quite unfamiliar 
to you. I hope that they will remain unfamiliar to you.
    In a former life when I was a practicing attorney, I had 
the good fortune of appearing in front of you on the Tenth 
Circuit, and so I know from my own personal experience that you 
are one of the best judges in the country. You come to oral 
argument prepared, and you ask fair, probing questions that are 
designed to get at one thing and one thing only, which is what 
the law says and what the law requires in each individual case, 
depending on the facts and circumstances of that case.
    You are not there to promote a personal agenda or a 
political agenda, and you are not there to grandstand. You are 
there to listen to both sides of the argument in the case. You 
write thoughtful and rigorous opinions. They are careful, and 
they are well reasoned. And they are even interesting and 
pleasant to read, which is very difficult to achieve in the 
world of appellate litigation. Now, I know I am easily 
entertained.
    [Laughter.]
    Senator Lee. But I find your opinions particularly 
interesting.
    You have the resume of a Supreme Court Justice, but I think 
what is most impressive and, for our purposes, what is most 
important about your career and about the approach you take to 
the law, is your fierce independence from partisan influence 
and from any personal biases that you might otherwise be 
inclined to harbor.
    The judiciary is set apart from and, in a way, set far 
above the other branches in our republic, the other organs of 
our constitutional system, specifically because we allow it to 
invalidate and interpret the actions of the elected branches. 
So, we have got two branches of government that are political 
in that they are run by people who are elected and stand for 
re-election at regular intervals, thus, making themselves 
directly accountable to the American people.
    Our confidence in our entire system, including our 
confidence in the American judiciary, depends entirely on 
judges just like you, judges who are independent and whose only 
agenda is getting the law right, regardless of whether any 
particular judge, or any particular litigant, or any particular 
member of the public like--might like or dislike the outcome in 
that case. You are essential to making us accountable because 
unless you do your job right, were not held accountable because 
our laws do not stand. That is what makes your role, and your 
particular unique approach, and your particular unique 
commitment to this so important.
    Now, I want to take a moment to address some of the unique 
criticisms that you yourself, Judge Gorsuch, might be facing 
this week. I am sure that during this hearing some of my 
colleagues might claim that you are outside the mainstream. In 
fact, we have sadly heard some of that already today. We have 
heard arguments to the effect that you are an originalist, and 
we have heard assertions to the effect that originalism is 
somehow so far out of the mainstream, that it is dangerous.
    Well, I would remind my colleagues who have raised such 
concerns or who might be harboring them, that if this is the 
case, then they are going to have to acknowledge the fact that 
there is a pretty broad spectrum of people on the U.S. Supreme 
Court they might be painting with that brush.
    Justice Elena Kagan, before she was Justice Kagan, when she 
was standing before this Committee, in the second day of her 
confirmation hearings said, referring to the Founding Fathers 
and the need to figure out what the Founding Fathers understood 
about particular words, about how those particular words were 
used by the founding generation, said, ``Sometimes they laid 
down very specific rules. Sometimes they laid down broad 
principles. Either way, we apply what they tried to do. In that 
way, we are all originalists.'' That was on June 29th, 2010, 
before this Committee.
    Moreover, these out-of-the-mainstream arguments, out-of-
the-mainstream approach, for addressing you, referring to you 
as an originalist, just does not stick. This is not a 
description that was attributed to you the last time you stood 
before this Committee and went through a confirmation process. 
Nowhere in the record is there any reference to you being 
outside the mainstream. In fact, your nomination to the United 
States Court of Appeals for the Tenth Circuit was so remarkably 
uncontroversial that one Senator and only one Senator--Senator 
Lindsey Graham from South Carolina--was the only Member of this 
Committee who even bothered to show up at your confirmation 
hearing.
    Now, I would have been there, too, Judge. I was not yet a 
Member of the United States Senate.
    [Laughter.]
    Senator Lee. You were confirmed unanimously by voice vote 
without a single ``no'' vote.
    I am sure that some of my colleagues will question your 
independence because, in their view, perhaps you have not 
sufficiently criticized the comments made by some of today's 
politicians. Personally, I think you have made your views on 
this subject very clear. I am sure some of my colleagues will 
complain that you are not providing any hints as to how you 
might rule in any particular case. But that, however, is a 
reason for your confirmation, certainly not against it.
    In our system, judges do not provide advisory opinions. 
They do not make legislation, they do not legislate, they do 
not make law, they do not set policy, in the same sense that 
those things are made in the political branches. They decide 
cases and controversies only after each side has had the 
opportunity to make its case before the bench, and they do so 
outside the realm of political influence.
    In an odd twist, some of the same colleagues who will 
question your independence will also push you to answer 
questions that you simply cannot. I am sure that some of my 
colleagues will pick apart some of your rulings, and they will 
try to say that you are hostile to particular types of claims 
or to particular plaintiffs. I do not think it is productive to 
evaluate someone's judicial record by looking at who wins or 
who loses in his courtroom, at least outside the context of 
evaluating how the law was interpreted in that case.
    It goes without saying that in our system you face the same 
burden of convincing a court, regardless of who you are. And 
judges do not decide cases--they certainly should never decide 
cases--based on their own personal preferences. But to my 
colleagues who go down that road, the record shows with 
abundant clarity that you apply the law neutrally in all cases 
without regard to the parties.
    Finally, I would urge my colleagues to keep in mind that 
while Judge Gorsuch's reputation will not be affected by how we 
treat his confirmation, the same cannot always be said of the 
Senate. The night Judge Gorsuch was nominated, he said, ``The 
U.S. Senate is the greatest deliberative body in the world.'' I 
tend to agree, but these days it seems like this title is more 
of a challenge than an observation. It is more of an aspiration 
than a present sense description of reality. So, I hope we 
prove you right this week.
    Thank you very much, and I really look forward to hearing 
answers to the questions we will raise to you.
    [The prepared statement of Senator Lee appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Senator Lee. Now, Senator 
Whitehouse.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
         A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Judge Gorsuch, welcome. As we discussed 
when we met, the question that faces me is, what happens when 
the Republicans get five appointees on the Supreme Court? I 
cannot help but notice the long array of 5-to-4 decisions, with 
all the Republican appointees lining up to change the law to 
the benefit of distinct interests: Republicans at the polls and 
big business pretty much everywhere.
    Let us look at the 5-to-4 decisions, first helping 
Republicans at the polls. All the Republican appointees' 5-to-4 
decisions on election law favor Republicans at the polls, 6-to-
0. Helping Republicans gerrymander, paving the way for the 
Republican red map plan that won the House against the American 
majority in 2012, Gobeille, 5-to-4, all the Republican 
appointees.
    Helping Republican legislatures keep Democrat-leaning 
minorities away from the polls with targeted voter suppression 
laws, Shelby County, 5-to-4 all the Republicans; Bartlett v. 
Strickland, 5-to-4, all the Republicans. Helping corporate 
money flood elections and boost Republican candidates, 
McCutcheon, 5-to-4, all the Republicans, counting the 
concurrence; Bullock, 5-to-4 all the Republicans. And the 
infamous Citizens United decision, 5-to-4 all the Republicans. 
In each area, the Court made new law, 5-to-4, and each decision 
predictably helped Republicans win elections. At 6-to-0, it is 
a partisan route.
    Then look at cases that pit corporations against human 
beings. All the 5-to-4 Republican appointee decisions line up 
to help corporations against humans. Citizens United and the 
political money decisions should, again, count here. All three 
of them, 5-to-4, all the Republicans. Then come decisions to 
protect corporations who have harmed their employees. In pay 
discrimination, Ledbetter, 5-to-4 all the Republicans. In age 
discrimination, Gross, 5-to-4 all the Republicans. In 
harassment cases, Vance, 5-to-4, all the Republicans. In anti-
retaliation cases, Nassar, yes, you guessed it, 5-to-4, all 
Republicans.
    Then there are the decisions that protect corporations from 
class action lawsuits. Wal-Mart v. Dukes, 5-to-4, and Comcast, 
5-to-4, both all Republicans. Then there are decisions that 
help corporations steer customers away from juries and into 
corporate-friendly mandatory arbitration. Concepcion and 
Italian Colors Restaurant, both 5-to-4, both all Republicans.
    The Iqbal decision, 5-to-4, all Republicans, helped bar the 
courthouse door for all types of plaintiffs. All of this helps 
keep corporations away from juries, the one element of 
government hardest for corporations to control. Indeed, as you 
know, tampering with a jury is a crime.
    The Court also helps big business against unions. Harris v. 
Quinn, 5-to-4, all Republicans. Last year Friedrichs was teed 
up as a 5-to-4 body blow against unions when Justice Scalia 
died. With a new 5-to-4 Court, they will be back.
    Throw in Hobby Lobby. Corporations have religious rights 
that supersede healthcare for their employees, 5-to-4, all 
Republicans. Add Heller and McDonald, reanimating for gun 
manufacturers a legal theory a former Chief Justice once called 
a fraud, 5-to-4, all Republicans.
    Help insulate investment bankers from fraud claims? Why 
not? Janus Capital Group, 5-to-4, all Republicans. Chamber of 
Commerce v. EPA, gave corporate polluters an unprecedented 
victory, again 5-to-4, all Republicans.
    That is an easy 16-to-0 record for corporations against 
humans. To me, every time seems like a lot.
    There is no coincidence here. Big business has law groups 
out trolling for test cases to go get those cases before the 
friendly Court. The Republican politico-industrial complex 
piles in with amicus briefs and floods to tell the Republican 
appointees on the Court what it wants. Republican Justices are 
even starting to give hints so big business lawyers can rush to 
get certain cases up pronto to the Court.
    It is kind of a machine. Special interests set up and fund 
front groups. The front groups appear as amici before the 
Court. The amicus briefs or the front groups tell the Court 
what the special interests want. The Court follows the amicus 
briefs. The decision benefits the special interests, and the 
special interests pour more money to the front groups. On it 
goes like turning a crank. The biggest corporate lobby of them 
all is winning better than two-to-one at the Court.
    This 5-to-4 rampage is not driven by principle. Over and 
over, judicial principles, even so-called conservative ones, 
are overrun on the Court's road to the happy result.
    Stare decisis, that is a big laugh. These are law-changing 
decisions, many upending a century or more of law and 
precedent. Textualism. The Second Amendment uses the military 
term, ``arms,'' and talks about militias, but never mind that 
when the gun lobby wants something. Originalism, there is a 
particularly good one. Find me a Founding Father who planned a 
big role for business corporations in American elections, or 
one who would have countenanced the steady strangulation of the 
civil jury without so much as a mention of the Seventh 
Amendment.
    The Citizens United majority even fiddled with Court 
procedure to get to the decision it wanted to deliver, dodging 
its way around a record that would have belied their findings 
of fact, setting aside that their findings of fact were 
factually preposterous, as events have shown, and that 
appellate courts are not even supposed to make findings of 
fact.
    It is not just us who notice. Top writers and scholars 
describe the Roberts Court as essentially a delivery service. 
Jeffrey Toobin wrote in 2009, ``Even more than Scalia, Chief 
Justice Roberts has served the interests and reflected the 
values of the contemporary Republican Party.'' Linda Greenhouse 
in 2014, ``I am finding it impossible to avoid the conclusion 
that the Republican-appointed majority is committed to 
harnessing the Supreme Court to an ideological agenda.'' Norm 
Ornstein has described what he called the new reality of 
today's Supreme Court: ``It is polarized along partisan lines 
in a way that parallels other political institutions and the 
rest of society in a fashion we have never seen.''
    Studies of the Court's decisions show it is the most 
corporate-friendly Court in modern history, with Justices 
Roberts and Alito vying to be the most corporate-friendly 
Justice. And the American public knows something has gone wrong 
at the Court. A 2014 poll revealed that a majority of Americans 
think a person will not get a fair shake in this Court against 
a corporation.
    Now, where do you fit in? When Hobby Lobby was in the Tenth 
Circuit, you held for a corporation having religious rights 
over its employees' healthcare. Your record on corporate versus 
human litigants comes in by one count at 21-to-2 for 
corporations. Tellingly, big special interests and their front 
groups are spending millions of dollars in a dark money 
campaign to push your confirmation.
    We have a predicament. In ordinary circumstances, you 
should enjoy the benefit of the doubt based on your 
qualifications, but several things have gone wrong that shift 
the benefit of the doubt. One, Justice Roberts sat in that very 
seat, told us he would just call balls and strikes, and then 
led his five-person Republican majority on that activist 5-to-4 
political shopping spree. Once burned, twice shy. Confirmation 
etiquette has been unhinged from the truth.
    Two, Republican Senators denied any semblance of due 
legislative process to our last nominee, one I would say even 
more qualified than you, and that is saying something. Why go 
through the unprecedented political trouble to deny so 
qualified a judge even a hearing if you do not expect something 
more amenable to come down the pike? Those political 
expectations also color the benefit of the doubt.
    Finally, the special interests who have done so well in 
that 5-to-4 extravaganza of decisions are now spending millions 
and millions of dollars campaigning to push your nomination. 
They obviously think you will be worth their money. These 
special interests also supported the Republican majority 
keeping this seat open.
    I am afraid at all costs, whoever now sits in that seat, 
the benefit of the doubt to answer this question. Will you 
saddle up with the other Republican appointees and launch the 
Court 5-to-4 again on another massive special interest and 
Republican election spree?
    I hope whatever we may disagree about on this Committee, we 
can at least agree that we cannot have a Court where litigants 
in these 5-to-4 decisions can predict how they will do based on 
who they are, because here is what it looks like now. If they 
are big Republican election interests, they will win every 
time. If they are corporations against a human being, they will 
win every time. And, Your Honor, every time seems like a lot.
    Thank you, Chairman.
    [The prepared statement of Senator Whitehouse appears as a 
submission for the record.]
    Chairman Grassley. Thank you. Senator Graham.

          OPENING STATEMENT OF HON. LINDSEY O.GRAHAM,
        A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

    Senator Graham. Thank you, Mr. Chairman. There is a reason 
I did not do this litany with Democratic nominees that appeared 
before the Committee. I do not think it would have made any 
difference in terms of how other people voted, and I did not 
expect them to vote with the Republican majority.
    Elena Kagan and Sonia Sotomayor, I could have spent a lot 
of time talking about how antagonistic they are to the Second 
Amendment, in my view, how the unborn does not have much of a 
chance in their Court, how the environmentalists always win, 
and there is no government too big to be said ``no'' to.
    The reason I did not do that is because I thought they were 
qualified, and if you believe this has been a great plan to get 
a Trump nominee on the Court, then you had to believe Trump was 
going to win to begin with. I did not believe that.
    [Laughter.]
    Senator Graham. Obviously, I did not believe that saying 
all the things I said----
    [Laughter.]
    Senator Graham [continuing]. Followed closely by Ben. But 
apparently what I said did not matter, and that is okay with 
me. The American people chose Donald Trump, and here is what I 
can say about the man in front of us.
    No matter who had won our primary, no one could have chosen 
better than Neil Gorsuch to represent conservatism on the 
Supreme Court. So, Donald Trump deserves to be congratulated 
for listening to a lot of people and coming up with, I think, 
the best choice available to a Republican President in terms of 
nominating somebody who is going to keep the conservative 
philosophy alive and well in the Court.
    And I doubt if you will be disappointed many times with 
Judge Gorsuch, but he is a pretty independent guy from what I 
can tell. You will probably be more--I have never been 
disappointed with Sotomayor and Kagan in the sense I knew what 
I was getting. They always vote with the liberal block. They 
are very qualified people. Sometimes the Court comes together 
9-to-nothing to reject something, but most of the time people 
break along the lines of where they came from.
    And I think Sotomayor and Kagan came from a view of the law 
that I do not accept in terms of who I would have chosen, but 
was well within the mainstream of judicial philosophy from the 
left. I thought they led exemplary lives quite frankly. There 
were a lot of attacks on them that I did not echo because I 
thought, give me a break. Really? Are these the two worst women 
in the world? They lived exemplary lives, were highly 
qualified, and that is why I voted for them.
    I thought that is what we should be doing, and I am 
beginning to wonder now how the game is played. I do remember 
when I voted for them, how many good editorials I have from 
papers that nobody in South Carolina read.
    [Laughter.]
    Senator Graham. I miss Harry. Harry is around here 
somewhere, Harry Reid. He said something about me. I cannot 
find it. But he basically said that I wished more people would 
follow Senator Graham's lead when it comes to voting for very 
highly qualified nominees. He said that on the floor. Maybe 
that will happen in the future. Well, time will tell.
    Now, as to whether or not this man is highly qualified, I 
am dying to hear the argument that he is not. You may not like 
the view he has of the law, but I am dying to hear somebody 
over there tell me why he is not qualified to be sitting here 
when a Republican President occupies down the street.
    Now, when you look at the Federalist Papers, I saw the 
musical, ``Hamilton.'' It was pretty good. Reading his work was 
even better. And the Federalist Papers 78, 87--I cannot 
remember the number. Basically, what he tells us is that the 
role of the Senate is, make sure that the President does not 
pick someone specially favored for their State and association 
to their family, someone really cronyism, I guess, is what we 
are supposed to be doing. And most Supreme Court Justices, up 
until modern times, basically were reconfirmed without with a 
voice vote.
    So, things have changed, and we cannot lay all the blame on 
our Democratic friends about politicizing the selection 
process. What I want to say to the public is, I am glad people 
like Judge Gorsuch are willing to go through this, and I am 
sure Justices Sotomayor and Kagan had wished on a couple of 
days they had not chosen that path, but I think they made it 
through, quite frankly, with flying colors.
    So, the issue for me is, I am waiting to hear somebody over 
there tell me why you are not qualified for the job that you 
are seeking. Twenty-seven hundred decisions, and you have been 
overruled once. An academic record. The reason I did not do all 
the things you did academically, I could not get into any of 
the schools--into the schools you were able to get into.
    But the way you have handled yourself, I think you should 
be proud of the way you have handled yourself on the court. I 
think all the statements by your colleagues who know you better 
than anybody up here when no TV camera is rolling say nothing 
but great things about you, even people who have a different 
philosophy.
    So, I just want you to know that from my point of view, you 
are every bit as qualified as Justices Sotomayor and Kagan. I 
think you are just as good a man as they are two fine women. 
And over the course of the next couple of days, the American 
people are going to get to understand who you are and, within 
limits, your judicial philosophy. They are going to want you to 
decide every case they do not like here, and you will have to 
say ``no.''
    And there is a reason I did not ask Justices Sotomayor and 
Kagan to give me an opinion as to what they would do when they 
got on the Court because I knew they would not tell me that. I 
did not really feel comfortable asking them that.
    As to Judge Garland, the one thing I can say for sure is 
that when Justice Scalia passed on February the 13th, we had 
already had three primaries on the Republican side, and the 
campaign was in full swing on the Democratic side. I thought 
long and hard about that. Are we doing something unfair here by 
not allowing the current President to nominate somebody and 
fill a vacancy in the last year of their presidency after the 
political process had started?
    So, when I started looking around at what other people 
thought, here is what Joe Biden thought in 1992. ``If someone 
steps down, I would highly recommend the President not name 
someone and not send a name up. If Bush did send someone up, I 
would ask the Senate to seriously consider not having a hearing 
on that nominee. It would be a pragmatic conclusion that once 
the political season is underway, and it is, action on known 
Supreme Court nominations must be put off until after the 
election campaign is over.'' Now, that is what my friend, Joe, 
said in 1992.
    The bottom line here is I have no doubt in my mind if the 
shoe were on the other foot, the other side would have delayed 
the confirmation process until the next President were elected. 
In a hundred years, when we have had the President of one party 
in power and the Senate in the hands of another party, I think 
we have had one person confirmed in the last year of a term. 
So, I do not feel like any injustice has been done to anybody 
here. And the bottom line, when you read Democratic words from 
the past, they are saying basically what we said.
    The one thing I can say is that I have been consistent. I 
have voted for everybody since I have been here, four: Justices 
Roberts, Alito, Sotomayor, and Kagan. And I feel all four had 
one thing in common: no Republican would have chosen Sotomayor 
or Kagan, but how could a Republican say they were not 
qualified for the job they had? They had lived an exemplary 
life, well qualified, and had years on the bench.
    Now, the shoe is on the other foot. I remember after I 
voted for Ms. Kagan, all the headlines in The Washington Post 
were, this will ensure that Graham gets primary. They were 
right. That is not the only reason, to my primary opponents, 
but that was the main reason, and I made it through just fine. 
And I do not know how we got here as a Nation.
    Scalia had 98-to-nothing. Ginsburg I think was 96-to-3. 
What happened between now and then? How did we go from being 
able to understand that Scalia was a well-qualified 
conservative, and Ginsburg was a well-qualified liberal, and 
recognize that elections matter? I do not know how we got 
there, but here is what I hope, that we turn around and go back 
to where we were because what we are doing is going to destroy 
the judiciary over time.
    Chairman Grassley. Thank you, Senator Graham. Now, Senator 
Klobuchar.

            OPENING STATEMENT OF HON. AMY KLOBUCHAR,
           A U.S. SENATOR FROM THE STATE OF MINNESOTA

    Senator Klobuchar. Thank you, Mr. Chairman. Welcome, Judge. 
We have already met once before in my office, and all of us on 
the Judiciary Committee are looking forward to hearing from 
you. And welcome to your family as well.
    This Committee has no greater responsibility than the one 
before us today. Our Constitution, our laws, and our values all 
depend on a Supreme Court that is impartial, fair, and just. 
Your nomination comes before us during an unprecedented time in 
our country's history. We are witnessing a singular moment of 
constitutional and democratic unease.
    In recent months, foundational elements of our democracy, 
including the rule of law, have been questioned, challenged, 
and even undermined. So, I cannot evaluate your credentials in 
the comfort of a legal cocoon. Instead, I must look at your 
views and record in the real world of America today. You see, 
you come before us this afternoon not only as a nominee sitting 
at a table alone with your friends and family behind you, but 
in the context of the era in which we live.
    From the highest levels of Government, we have heard 
relentless criticisms of journalists. Seventeen intelligence 
agencies have confirmed that Russia, an autocratic foreign 
government, attempted to influence our most recent election. At 
the same time, voting rights in the U.S. have been stripped 
from far too many, while dark money and extraordinary sums, 
adding up to an estimated $800 million in just 6 years, 
continues to have an outsized influence in our politics, 
distorting our representative democracy.
    Just last month, we saw the President of the United States 
refer to a man appointed to the Federal bench by President 
George W. Bush as a ``so-called judge,'' and we have sadly seen 
hate unleashed toward religious minorities from Jews to 
Muslims, venom directed at innocent Americans, from kids in 
restaurants being told to go back to where they came from, to a 
man gunned down while washing his car in his driveway.
    The pillars of our democracy and our Constitution are at 
risk. You are not the cause of these challenges, Judge, these 
challenges to our democracy, but if confirmed, you would play a 
critical role in dealing with them.
    This is a serious moment in our Nation's history, and as 
representatives of the American people, it is our duty up here 
to determine if you will uphold the motto on the Supreme Court 
building itself, to help all Americans achieve equal justice 
under law.
    Before I was elected to the Senate, I spent 8 years leading 
Minnesota's largest prosecutor's office. I have seen firsthand 
how the law has a real impact that extends far beyond the walls 
of a courtroom, whether it is crime victims and their families, 
or people who have seen a loved one sent to jail. The decisions 
made from the bench affect people living right now in the 21st 
century with 21st century problems.
    So, though the U.S. Constitution and its Bill of Rights 
were written in the 18th century, though the Fourteenth 
Amendment's guarantee of equal protection of the laws was 
written in the 19th century, the decisions made today affect 
not the lives of our 18th and 19th century ancestors, but of 
all Americans today.
    So, Judge, these hearings will not just be about your legal 
experience. They are about trying to understand what you would 
actually do on the Court, for the law is more than a set of 
dusty books in the basement stacks of a law library. It is the 
bedrock of our society. We need to know how you approach the 
law.
    After Judge Merrick Garland was nominated to the Supreme 
Court last year, we often heard about how he is a careful 
jurist who decides cases on the narrowest possible grounds, who 
builds consensus across the ideological spectrum, who does not 
inject political considerations into his rulings. We look 
forward to hearing what your judicial philosophy would be on 
the Court.
    Looking at your past decisions, I have questions about how 
you would approach your work. In a speech last year, you spoke 
about the differences between judges and legislators. You said 
that, ``While legislators may appeal to their own moral 
convictions and to claims about social utility to reshape the 
law as they think it should be in the future, that judges 
should be none of those things in a democratic society. 
Judges,'' you said, ``should instead strive to apply 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.''
    I want to understand better those views of the Constitution 
and how they square with modern day life. Due process, equal 
protection of the laws, these are general and sweeping terms. 
And the Supreme Court, which has the power of judicial review, 
has the constitutional duty to be the final arbiter of what the 
Constitution means, rulings that can impact voting rights, 
civil rights, and the right of people to marry.
    Many of the issues we face today are ones that this 
country's founders never considered, and, in fact, never could 
have considered because of all the social change and innovation 
that has taken place. We are no longer dealing with plows, 
bonnets, and colony deaths in England, but instead driverless 
cars, drones, and cybercrimes. And those were just the topics 
of the hearings I attended last week.
    I want to understand how your judicial philosophy, which, 
as you suggest, looks backward, not forward, may affect the 
rights of our fellow citizens. I also want to understand the 
implications of your views on legal precedent. One example of 
this occurs in the context of the Chevron doctrine.
    In stating that courts should generally defer to reasonable 
interpretations of Executive agencies, this 33-year-old case 
guarantees that the most complex regulatory decisions, ones 
judges themselves may have little or no expertise to handle, 
are made by the scientists and professionals best equipped to 
rise to these challenges. These modern agency decisions include 
things like rules protecting public safety, requirements 
against lead-based paint, and clean water protections for our 
Great Lakes.
    Last year in your concurring opinion in Gutierrez v. Lynch, 
you suggested that Chevron should be overturned, yet this act 
would have titanic real-world implications on all aspects of 
our everyday lives. Countless rules could be in jeopardy, 
protections that matter to the American people would be 
compromised, and there would be widespread uncertainty. Judge, 
if you believe it is really time to overturn Chevron, then we 
need to know with what you would replace it.
    Another opinion that I want to talk about is Riddle v. 
Hickenlooper. In your concurring opinion, you suggest that the 
Court should apply strict scrutiny to laws restricting campaign 
contributions. If the Supreme Court adopted that view, it could 
well compromise the few remaining campaign finance protections 
that are still on the books. The notion that Congress has 
little or no role in setting reasonable campaign finance rules 
is in direct contradiction with the express views of the 
American people.
    In recent polls, over three-quarters of Americans have said 
that we need sweeping new laws to reduce the influence of money 
in politics. While polls, as we know, are not a judge's 
problem, democracy should be. When unlimited, undisclosed money 
floods our campaigns, it drowns out the people's voices. It 
undermines our elections.
    Other questions about your views in money and politics are 
raised by your opinion in Hobby Lobby. In that opinion, you 
found that corporations were legal persons and could exercise 
their own religious beliefs. This ruling leaves open the 
troubling argument that corporations have a right to free 
speech equal to that of citizens, which would invalidate the 
prohibition of corporations donating. These are not the only 
First Amendment issues I will raise. I want to talk about New 
York Times v. Sullivan and freedom of the press, as well as an 
area you have great expertise in, antitrust.
    Judge, as I consider your nomination, I am reminded of 
something a Justice who hailed from Minnesota, Justice 
Blackmun, once said, ``Surely,'' he wrote, ``there is a way to 
teach law, strict and demanding though it might be, with some 
glimpse of its humanness and basic good. There is room for 
flexibility and different answers, and not all is Black and 
White. You see, there is a reason we have judges to apply the 
laws to the facts. It is because answers are not always as 
clear as we would like, and sometimes there is more than one 
reasonable interpretation.''
    As a prosecutor, I knew that every charging decision that 
we made, every case we chose to pursue, had real implications. 
It is the same with judges, for in the end it was not a law 
professor or Federal jurist who was helped by the Eighth 
Circuit is reliance on Chevron. It was an hourly Minnesota 
grocery store worker who got his hard-earned pension. And when 
the Court stripped away the rules that opened the door to 
unlimited super PAC spending, it was not the campaign financers 
or the ad men who were hurt. It was a grandma in Lanesboro, 
Minnesota, who actually believed that giving $10 to her Senator 
would make a difference.
    And as the granddaughter of an iron ore miner, I can tell 
you it was not a CEO or a corporate board chair whose life was 
saved by mining safety rules. It was the Minnesota iron ore 
workers like my grandpa, who went to work every day with a 
black lunch bucket 1,500 feet underground in a cage.
    My dad, who ended up as the first kid in his family to 
graduate from high school, and from there to community college, 
and then to the University of Minnesota, still remembers as a 
little boy standing in front of the caskets of those mine 
workers lining St. Anthony's Church. It was the worker 
protections, coupled with the ability to organize as a union, 
that finally made those miners' jobs safe.
    Judge, you have been rightfully praised for your impressive 
academic credentials and experience, but at these hearings I 
want to know more than just about your record. I want to know 
about how, if you are confirmed, your decisions will, in fact, 
reflect precedent and the law, whether your judgments and 
decisions will be good, whether they will be done in a way that 
will help all Americans, from that grandma in Lanesboro to that 
Minnesota grocery store worker. That is not politics. That is 
why we are having these hearings today.
    Thank you.
    [The prepared statement of Senator Klobuchar appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Senator Klobuchar. Now, 
Senator Cruz.

              OPENING STATEMENT OF HON. TED CRUZ,
             A U.S. SENATOR FROM THE STATE OF TEXAS

    Senator Cruz. Thank you, Mr. Chairman. Judge Gorsuch, 
welcome. Thank you for your decades of service, honorable 
service. Thank you for your family being here today, and thank 
you for your willingness to endure the spectacle of this 
confirmation hearing.
    February 13th of last year was a devastating day for those 
of us who revere the Constitution and the rule of law. On that 
day, we lost Supreme Court Justice Antonin Scalia. Justice 
Scalia was one of the greatest Justices to ever sit on the 
Bench. He was a trailblazing advocate for the original meaning 
of the Constitution, and a shining example of judicial 
humility.
    His death left an enormous hole not only in our hearts, but 
in the protections for the rule of law, and it left enormous 
shoes to fill, a daunting task that I know weighs on you as you 
consider the enormity of what is in front of you.
    Today there is a sharp disagreement about the very nature 
of the Supreme Court. Some people view the Court as a hyper-
powerful political branch. When they grow frustrated with the 
legislative process and the will of the people, they turn to 
the Court to try to see their preferred policies enacted.
    For conservatives, we understand the opposite is true. We 
read the Constitution and see that it imbues the Federal 
judiciary with a much more modest role than the left embraces. 
Judges are not supposed to make law. They are supposed to 
faithfully apply it.
    Justice Scalia was a champion of this modest view of the 
judicial role, but had his vacant seat been filled by Barack 
Obama or Hillary Clinton, Justice Scalia's legacy would have 
been in grave danger. If they filled his seat, we would have 
seen a Supreme Court where the will of the people would have 
been repeatedly cast aside by a new activist Supreme Court 
majority.
    We would have seen a Supreme Court majority that viewed 
itself as philosopher kings who had the power to decide for the 
rest of us what policies should govern our Nation and control 
every facet of our lives. We would have seen our democratic 
process controlled by five unelected lawyers here in 
Washington, DC.
    That would have been a profound and troubling shift in the 
direction of the Supreme Court and our Nation's future. That is 
why after Justice Scalia's untimely death, the Senate chose to 
exercise our explicit constitutional authority, and we advised 
President Obama that we would not consent to a Supreme Court 
nominee until the people in the midst of a Presidential 
election were able to choose. For 80 years, the Senate had not 
filled a Supreme Court vacancy that had occurred in a 
Presidential election year, and the Senate majority rightly 
decided that last year would not become the first in eight 
decades.
    The people, therefore, had a choice, a choice between an 
originalist view of the Constitution represented by Justice 
Scalia or a progressive and activist view of the Constitution 
represented by Barack Obama and Hillary Clinton. During the 
campaign, President Trump repeatedly promised to nominate 
Justices in the mold of Justice Scalia, and, indeed, he laid 
out a specific list of 21 judges, constitutionalists from whom 
he said he would choose his nominee. Judge Gorsuch was one of 
those 21.
    Issuing such a list was a move without precedent in our 
country's Presidential history, and it created the most 
transparent process for selecting a Supreme Court Justice that 
our Nation has ever seen. The voters had a direct choice. The 
voters understand the 21 men and women from whom the President 
would pick, and they had a very different vision of a Supreme 
Court Justice that would be put forth by Hillary Clinton.
    And in November, the people spoke in what was essentially a 
referendum on the kind of Justice that should replace Justice 
Scalia. The people chose originalism, textualism, and rule of 
law. The people chose judicial humility. The people chose 
protecting the Bill of Rights, our free speech, our religious 
liberty, our Second Amendment rather than handing policymaking 
authority over to judges on the Supreme Court.
    Given that history, given the engagement of the electorate 
nationally on this central issue, I would suggest that Judge 
Gorsuch is no ordinary nominee. Because of this unique and 
transparent process, unprecedented in the Nation's history, his 
nomination carries with it a super legitimacy that is also 
unprecedented in our Nation's history. The American people 
played a very direct role in helping choose this nominee.
    Like the renowned Justice he is set to replace, Judge 
Gorsuch is brilliant and has an impeccable academic record. His 
judicial record demonstrates a faithful commitment to the 
Constitution and the rule of law. He has refused to legislate 
his own policy preferences from the bench, while recognizing 
the pivotal role the judiciary plays in defending the 
fundamental liberties protected in the Bill of Rights.
    On the night he was nominated, Judge Gorsuch channeled 
Justice Scalia when he explained that, ``A judge who likes 
every outcome he reaches is very likely a bad judge, stretching 
for results he prefers rather than those the law demands.'' 
That is exactly right, and those words should give comfort to 
the American people and to my Democratic colleagues.
    And it is worth recalling that our friends on the 
Democratic side of the aisle understand this and, indeed, not 
too long ago agreed with it. A decade ago, Judge Gorsuch was 
confirmed by this Committee for the Federal Court of Appeals by 
a voice vote. He was likewise confirmed by the entire United 
States Senate by a voice vote without a single Democrat 
speaking a word of opposition. Not a word of opposition from 
Minority Leader Chuck Schumer, not from Harry Reid, or Ted 
Kennedy, or John Kerry. Not from Senators Feinstein, Leahy, or 
Durbin, who still sit on this Committee. Not even from Senators 
Barack Obama, Hillary Clinton, or Joe Biden.
    Not a one of them spoke a word against Judge Gorsuch's 
nomination a decade ago, and the question this hearing poses to 
our Democratic colleagues is, what has changed? What has 
changed? Ten years ago, Judge Gorsuch was so unobjectionable, 
he did not merit even a whisper of disapproval. In the decades 
since, he has an objectively exemplary record. By any measure, 
he has shown himself to be even more worthy of the bipartisan 
support he received back then.
    Unfortunately, modern reality suggests that is probably not 
something my Democratic colleagues feel they can do in today's 
political environment. Many probably believe they have no 
choice but to try to manufacture attacks against Judge Gorsuch, 
whether they want to or not, just to preserve their own 
political future and protect themselves from primaries back 
home.
    We are seeing some of these baseless attacks already. Most 
recently, some Democrats have tried to slander Judge Gorsuch as 
being ``against the little guy'' because he has dared to rule 
based on the law, the law that Congress has passed, and not on 
the specific identity of the specific litigants appearing 
before him. This is absurd.
    For one thing, many of these same critics who spent the 
last 8 years attacking the Little Sisters of the Poor, a 
Catholic charity of nuns, for having the audacity to live 
according to their deeply held religious beliefs. You really 
need to take a long look in the mirror if one day you find 
yourself attacking nuns, attacking the Little Sisters of the 
Poor, and then the next day you find yourself orating on the 
need to protect the little guy.
    A judge's job is not to protect the little guy or the big 
guy. A judge's job and a judge swears an oath to uphold the 
Constitution and to follow the law fairly, impartially, and 
equally for every litigant, little or big.
    In the past weeks as well, some of my Democratic colleagues 
have questioned Judge Gorsuch's independence and suggested that 
he needs to answer questions about the actions and statements 
and even tweets of the President who appointed him. I would 
ask, was Justice Ginsburg or Justice Breyer asked about the 
sexual harassment suit that had been filed against President 
Clinton by Paula Jones? No, neither was asked about that suit. 
Was Justice Kagan asked about President Obama's incendiary 
comments at the State of the Union attacking the Supreme Court 
for a decision he disagreed with? No, of course not.
    Those questions were not asked because they were 
inappropriate political questions that have nothing to do with 
the record of the nominee before this Committee. Justice 
Ginsburg, Justice Breyer, Justice Kagan were not asked those 
questions, and Judge Gorsuch should not be either. Instead, we 
should evaluate this nomination on the record, on the merits, 
and on that ground I have every confidence that Judge Gorsuch 
will be confirmed as the next Associate Justice of the Supreme 
Court.
    [The prepared statement of Senator Cruz appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Senator Franken. I mean, 
Senator Cruz.
    Now, Senator Franken.
    [Laughter.]

             OPENING STATEMENT OF HON. AL FRANKEN,
           A U.S. SENATOR FROM THE STATE OF MINNESOTA

    Senator Franken. Thank you, Mr. Chairman.
    Judge Gorsuch, congratulations on your nomination. You are 
a man of considerable qualifications and experience. And having 
reviewed your decisions, I can say that you are a man of strong 
opinions.
    But the task before this Committee is not to determine 
whether you are a man of conviction. Rather, it is incumbent 
upon us to determine whether the views that you espouse, and 
whether your interpretation of the Constitution, take proper 
measure of the challenges the American people face every day.
    We must determine whether your understanding of our 
founding document is one that will make real its promise of 
justice and equality to all Americans, Black and White, 
immigrant, Native American, gay, straight, and transgender.
    We must determine whether your interpretation of our laws 
and the Constitution will unfairly favor corporate interests 
over working families or limit the ability of Minnesotans to 
get their day in court.
    The Justices who sit on the Supreme Court wield enormous 
power over our daily lives, so before this Committee decides 
whether to advance your nomination, we have an obligation to 
fully examine your views on these important issues, and to make 
sure that those views are known to the public.
    That is really the whole purpose of these hearings, to 
allow the people of Minnesota, the American people, to meet 
you, to decide for themselves whether you are qualified to 
serve.
    But, Judge Gorsuch, having reviewed your decisions and your 
writings, I have concerns. In the days ahead, I will use this 
hearing as an opportunity to better understand your views and 
perhaps to alleviate those concerns.
    But in order for the hearing to serve its purpose, in order 
for the public to determine whether you should be confirmed, 
you must answer the questions this Committee poses fully, 
candidly, and without equivocation, so I hope that is how you 
will approach our exchanges.
    Now, with that in mind, I think it is important to 
acknowledge just exactly how it is that you came before us 
today, and we talked about this, namely through the Committee's 
failure to fulfill one of its core functions. Immediately 
following the death of Justice Scalia and before President 
Obama even named a nominee, my Republican colleagues announced 
that they would not move forward with filling the vacancy until 
after the Presidential election.
    The Majority Leader said, ``The American people should have 
a voice in the selection of their next Supreme Court.''
    The only problem with the Majority Leader's reasoning is 
that the American people did have a voice in this decision, 
twice.
    Nonetheless, when President Obama nominated Chief Judge 
Merrick Garland, the Republican Members of the Committee 
responded by refusing to hold a hearing, a truly historic 
dereliction of duty of this body and a tactic as cynical as it 
was irresponsible.
    As a result of my Republican colleagues' unprecedented 
obstructionism, Justice Scalia's seat on the Court remained 
vacant until President Trump was able to name a replacement.
    Now, during the campaign, then-candidate Trump made no 
secret about what kind of nominee he would select. In fact, he 
openly discussed his litmus test. He said that he would 
``appoint judges very much in the mold of Justice Scalia.'' 
During the final Presidential debate, then-candidate Trump 
said, ``The Justices I am going to appoint will be pro-life. 
They will have a conservative bent.''
    Now, Justice Scalia was a man of great conviction, and, it 
should be said, a man of great humor. But Justice Scalia 
embraced a rigid view of our Constitution, a view blind to the 
equal dignity of LGBT people and hostile to women's 
reproductive rights, and a view that often refused to 
acknowledge the lingering animus in laws and policies that 
perpetuate the racial divide.
    Judge Gorsuch, while no one can dispute the late Justice 
Scalia's love of the Constitution, the document he revered 
looks very different from the one that I have sworn to support 
and defend. So it troubles me that, at this critical juncture 
in our Nation's history, at this moment when our country is so 
fixated on things that divide us from one another, that 
President Trump would pledge to appoint jurists whose views of 
our founding document seek to reinforce those divisions rather 
than bridge them.
    This is an important moment in our history. The public's 
trust in our Government and in the integrity of our 
institutions is at an all-time low. But that erosion of trust 
did not take place overnight, and it did not happen on its own.
    The American people's loss of confidence in our public 
institutions was quickened by the Court. A study published in 
the Minnesota Law Review found that the Roberts Court is more 
likely to side with business interests than any Supreme Court 
since World War II.
    Time and time again, the Roberts Court issued decisions 
that limit our constituents' ability to participate freely and 
fairly in our democracy, decisions like Shelby County where the 
Court gutted one of our landmark civil rights laws and removed 
a crucial check on race discrimination at the ballot box, or 
like Concepcion, a 5-4 decision that allows corporations to 
place obstacles between consumers and the courthouse door.
    Perhaps most egregious of all was Citizens United, which 
paved the way for individuals and outside groups to spend 
unlimited sums of money in our elections.
    It is no surprise that, during the 2016 elections, voters 
from across the ideological spectrum, Democrats and Republicans 
alike, described our system as rigged. That is because it is. 
And the Roberts Court bears a great deal of responsibility for 
that.
    Now, in each one of those 5-4 decisions, Justice Scalia was 
among the majority. So as this Committee sets about the task of 
evaluating his potential successor, I want to better understand 
the extent to which you share Justice Scalia's judicial 
philosophy, and I will be paying close attention to the ways in 
which your views set you apart.
    One of the ways in which your views are distinct from 
Justice Scalia's is in the area of administrative law. Just 
this past August, you wrote an opinion in which you suggested 
that it may be time to reevaluate what is known as the Chevron 
doctrine.
    Now, in broad strokes, the Chevron doctrine provides that 
courts should be reluctant to overrule agency experts when they 
are carrying out their missions, like when the FDA sets safety 
standards for prescription drugs. This principle, outlined by 
the Supreme Court, recognized that our agencies employ 
individuals with great expertise in the laws that they are 
charged with enforcing, like biologists at the FDA, and that 
where those experts have issued rules in highly technical 
areas, judges should defer to their expertise.
    Now, administrative law can be an obscure and sometimes 
complicated area of law, but for anyone who cares about clean 
air or clean water, or about the safety of our food and of our 
medicines, it is incredibly important. And Chevron simply 
ensures that judges do not discard an agency's expertise 
without good reason. Justice Scalia recognized this to be true.
    But to those who subscribe to President Trump's extreme 
view, Chevron is the only thing standing between them and what 
the President's chief strategist Steve Bannon called the 
``deconstruction of the administrative state,'' which is 
shorthand for gutting any environmental or consumer protection 
measure that gets in the way of corporate profit margins.
    Speaking before a gathering of conservative activists last 
month, Mr. Bannon explained that the President's appointees 
were selected to bring about that deconstruction. And I suspect 
that your nomination, given your views on Chevron, is a key 
part of that strategy.
    So this hearing is important. Over the next few days, you 
will have an opportunity to explain your judicial philosophy, 
and I look forward to learning more about how you would 
approach the great challenges facing our country.
    But if past is truly prologue, then I fear that confirming 
you would guarantee more of the same from the Roberts Court, 
decisions that continue to favor powerful corporate interests 
over the rights of average Americans.
    During your time on the Tenth Circuit, you have sided with 
corporations over workers, corporations over consumers, and 
corporations over women's health. What this moment in our 
history, and in our Nation's history, calls for is a nominee 
whose experience demonstrates an ability to set aside rigid 
views in favor of identifying common ground and crafting strong 
consensus opinions, someone like Merrick Garland.
    But your record suggests that, if confirmed, you will 
espouse an ideology that I believe has already infected the 
Bench, an ideology that backs big business over individual 
Americans, and refuses to see our country as the dynamic and 
diverse Nation that my constituents wake up in every morning.
    As I said before, I see this hearing as an opportunity to 
learn more about your views, and perhaps to alleviate some of 
my concerns, so I hope that we are able to have a productive 
conversation.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Franken appears as a 
submission for the record.]
    Chairman Grassley. Before the Senator from Nebraska goes, I 
have not talked to the person sitting there and cannot get up 
and go, but I think, when you are done, we will take 5 minutes, 
and you can do whatever you want to do.
    [Laughter.]
    Chairman Grassley. Go ahead, Senator from Nebraska.

              OPENING STATEMENT OF HON. BEN SASSE,
           A U.S. SENATOR FROM THE STATE OF NEBRASKA

    Senator Sasse. Thank you, Mr. Chairman.
    Judge, this is a special moment in the life of our 
Republic. We have an opportunity to stand back from more than 
200 years of our history to evaluate our civic health and to 
recommit ourselves to a government that is intentionally 
limited, to powers that are intentionally distinguished and 
divided.
    That is what these next few weeks are actually about.
    Arguably, the most important thing the U.S. Senate will do 
this year is confirm the next Supreme Court Justice.
    I want to focus my opening remarks around the simple image 
of a judge's black robe. It is a strange thing that judges wear 
robes. You people are odd. But it is not something that we 
should just look past as an odd convention. It is something 
that we should look right at. It is not some relic from history 
that people wore long ago in an era of formality, like a 
powdered wig.
    So why do the robes exist, unfashionable and unattractive 
as they often are? The reasons are better summed up by a 
current sitting judge than I might be able to put them, 
``Donning a robe does not make me any smarter, but the robe 
does mean something. It is not just that I can hide the coffee 
stains on my shirt. It serves as a reminder of what is expected 
of us, what Burke has called `the cold neutrality of an 
impartial judge.' It serves, too, as a reminder of the 
relatively modest station we are meant to occupy in a 
democratic society. In other countries, judges might wear 
scarlet. Here, we are told to by our own plain, black robes, 
and I can attest to the standard choir outfit of the local 
uniform supply store as a good deal. Ours is the judiciary of 
an honest black polyester.''
    The author of these insightful words sits before us, Judge 
Neil Gorsuch, and that statement is an excellent lens through 
which to view the work of the Committee this week and, indeed, 
the work of the Court over the next century and beyond.
    I want to make three simple overlapping points about that 
judge's black robe. One, it changes the way that our eyes see 
the court. Two, it reiterates the calling of a judge to the 
judge. And three, it gives us a special opportunity to teach 
our kids something about our--about their Constitution, the 
enduring paper that defines what our Government can and cannot 
do.
    First, then, how does it change the way we see the court? 
When you look at the nine Justices sitting together in their 
robes, they blend in with one another. It is hard to tell them 
apart if you squint. And, thus, it calls attention to the 
office rather than to the person. That is because when the 
judge puts on his or her robe, it forces their personalities 
into the background so that we can focus on the important but 
the modest job that they have to do, which is to drill down on 
facts and law.
    Facts are objective. They do not change based on your 
personality. They are evaluated against written, objective 
laws, not against what the judge wishes the law said.
    Someone famously said that ``empathy'' is an essential 
ingredient in arriving at a just decision. This belief is well-
meant, but it is very foolish. For standing before a court, 
your gender, your skin, your bank account cannot decide your 
fate in the same way a judge's race, class, and gender should 
not decide your fate. Empathy is actually not the role of a 
Supreme Court Justice. It is, in a sense, our role, for we are 
men and women who have been hired and can be fired by the 
American people to empathize. We are to identify with the hopes 
and the struggles of 320 million Americans.
    But the judge, instead, has a different job, to faithfully 
and dispassionately apply the law to the facts of the 
particular case. The judge's robe is there to remind the judge 
and us of that--that if the facts are on your side, it should 
not matter which judge you sit before.
    Our ideal is one where you can trade out one judge for 
another judge, and you should get the same outcome. This is the 
heart of what we mean when we say that we believe in the rule 
of law, not of men or of women, or of Black or White, or rich 
or poor. We are not to be ruled by a judge's passions or by a 
judge's empathy or by a judge's policy preferences.
    Here is the second thing that the black robe is supposed to 
do. It is supposed to reiterate the calling of the judge back 
to the judge. By way of loose analogy, many people across our 
country sat in church pews yesterday morning and listened to 
someone preach from behind a big wooden pulpit wearing a robe. 
Why the pulpit? Why the robe? Because these things make it 
harder to see the preacher. They help us all understand that 
yesterday morning, for those of us in that tradition, knew that 
it was not about the messenger but about the message that was 
being passed on from above. It was also to remind the minister 
of the same cloaking. Likewise, a good judge on the bench knows 
that. It is not about you, so do not make it about you.
    I said that it is only a loose analogy because, of course, 
the job of a Supreme Court Justice is absolutely not to deliver 
some eternal word from God. It is, rather, to interpret a man-
made, written Constitution as objectively and faithfully as 
they can, inserting their opinions as little as possible.
    When you put on your robe, you are cloaking your personal 
preferences. You are cloaking your partisan views. There is not 
a red robe for Republicans. There is not a blue robe for 
Democrats. We issue here only black robes.
    This brings us to the third and final point, which is that 
the judge's robe is also to teach our kids how they should 
understand their Constitution. As all of us learned in 
``Schoolhouse Rock,'' the judiciary is not only a separate 
branch of government from the President and the Congress, but 
it is also a coequal one. We have different functions, but we 
have the same responsibility to be upholding and to teach the 
Constitution.
    As a coequal, the Court can examine whether the actions of 
the other two branches are, in fact, unconstitutional. Time and 
again, at important moments in our Nation's history, the Court 
has struck down laws passed by the Congress or put a stop to a 
President's Executive actions.
    Here is what that means: The primary job of the Supreme 
Court is not to uphold the will of the majority of the moment. 
The primary job of a Supreme Court Justice is not to reflect 
the popular opinions of the day. That might sound surprising. 
Do we not live in a democracy where the majority is supposed to 
rule? The answer to that question is only a very qualified 
``yes,'' for there are critical limits to that statement.
    The Constitution is a decidedly and intentionally anti-
majori-
tarian document. The Constitution exists to protect our rights 
and our liberties, even when we might hold unpopular views. And 
the role of the Supreme Court in protecting those rights and 
liberties is sometimes precisely to frustrate the will of the 
majority.
    Think about how the Constitution deals with religion and 
public opinion. The First Amendment prohibits the Government 
from establishing any state religion, and it guarantees that 
every citizen can worship or not worship, however their 
conscience dictates.
    If, however, at some moment polling showed a 51 percent 
popular desire in this country to pass a law making church 
attendance mandatory, or to subsidize a particular religious 
denomination, the Supreme Court would rightly strike down such 
flawed laws. This is because, in the Constitution, we decided 
that we would limit our own power. We the people decided, in 
the founding of this Republic, that we would restrain our own 
majoritarian impulses. By enacting the Constitution, we 
intentionally decided to tie our own hands so that there are 
certain things that a majority can never do, like invade 
someone's conscience. And if the majority in its arrogance 
should at some point in the future seek to cross that line, the 
Supreme Court will rightfully shout ``no.''
    When Congress passes an unconstitutional law, it is, in 
fact, the Congress that is violating the long-term will of the 
people, for the judiciary is there to assert the will of the 
people, as embodied in our shared Constitution, over and 
against that unconstitutional but perhaps temporarily popular 
law.
    Each branch serves the people but in unique ways. It is the 
job of the Congress and the President to act. It is the job of 
the Court often, to react. Each branch holds the others in 
check. Each branch faithfully seeks to uphold and teach the 
Constitution. Each branch serves the American people, but with 
distinct offices.
    When a Supreme Court Justice puts on his or her robe, we do 
not want them confusing their job with those of other branches. 
We want them policing the structure of our Government to make 
sure that each branch does its job, but only its job.
    Today, Judge Gorsuch sits in front of us wearing a suit and 
tie. Before he can put back on the black robe, he must answer 
this Committee's questions. And I expect that Mr. Gorsuch the 
citizen has policy preferences. He probably has desired 
outcomes. But I do not know what they are, and that is a good 
thing. And I expect, by the end of this week, it should be 
clear that Judge Gorsuch, the judge's judge, will faithfully 
embody the spirit of that black robe, for the American people 
deserve the comfort of a judiciary that is cold and impartial, 
not seeking to be super-legislators, for if a judge seeks to be 
a super-legislator, he or she should run for office so the 
American people can choose to hire them or fire them. But that 
is not the calling you have before us today.
    Thank you, and thank you to your family for being willing 
to endure this calling and this service and this hearing.
    Chairman Grassley. In 4 minutes and 59 seconds, I will call 
on Senator Coons. Stand at ease.
    [Recess.]
    Chairman Grassley. Senator Coons, would you proceed, 
please?

        OPENING STATEMENT OF HON. CHRISTOPHER A. COONS,
           A U.S. SENATOR FROM THE STATE OF DELAWARE

    Senator Coons. Thank you, Mr. Chairman.
    Welcome, Judge Gorsuch, and welcome to your family and your 
friends. Congratulations on your nomination, and I look forward 
to the opportunity to question you.
    I believe my constitutional duty to advise the President on 
this nomination to the Supreme Court is among my most important 
responsibilities as a Senator. A nominee confirmed to the 
Supreme Court shapes our law for decades. Justices decide cases 
that influence the lives of generations of Americans. This 
hearing is our opportunity to ask you, Judge Gorsuch, questions 
in front of the American people to better understand how you 
interpret the text of our Constitution and how you apply 
Supreme Court precedent.
    We will explore how your approach to interpreting our 
Constitution would impact our lives in the future. I am 
committed to ensuring the consideration of your nomination by 
this Committee is thorough and fair, and I am hopeful that as 
our hearing proceeds, it will promote an important dialogue 
about the Constitution and the courts. Based on our meeting, 
Judge Gorsuch, I know that you, too, hope that this moment can 
serve as a shared civic experience.
    I am considering your nomination with an open mind, and I 
would ask that you be forthcoming in your responses to our 
questions. I would like this hearing to be substantive and to 
reflect the best traditions of the Senate.
    However, I cannot let this moment, in commenting on the 
best traditions of the Senate, pass without expressing my deep 
regret that Chief Judge Merrick Garland was treated with 
profound and historic disrespect. The disrespect shown by 
Senate Republicans to Chief Judge Merrick Garland and to 
President Obama and to our institutions was unprecedented and 
deeply damaging. For nearly 300 days, longer than any other 
nominee, Chief Judge Garland's nomination to the Supreme Court 
sat without action. My Republican colleagues did not afford him 
a hearing and would not give him a vote.
    I believe we have a responsibility to work to re-elevate 
our democratic institutions above these narrow partisan 
politics. I will support a process worthy of its important 
purpose, to carefully evaluate a candidate for the highest 
court in the land.
    The American people are entitled to see you answer probing, 
thorough, and challenging questions about your views on a wide 
range of constitutional issues because the breadth of the 
issues that come before the Supreme Court cannot be overstated. 
Just in the last year, the Supreme Court considered cases 
involving Executive power, affirmative action, intellectual 
property, partisan gerrymandering, racial bias in the 
courtroom, and reproductive rights.
    The seat you would fill, Judge Gorsuch, if elevated, was 
occupied by Justice Scalia, and you have been compared to him. 
While it may seem at times to many that the Supreme Court is 
engaged in abstract intellectual exercises about originalism or 
textualism or a living Constitution, even a small subset of 
landmark decisions Justice Scalia took part in during his 
nearly 30 years on the Court demonstrates otherwise.
    It is because of Supreme Court decisions that gay men can 
no longer be criminally prosecuted for engaging in consensual 
relationships; that loving same-sex couples can get married in 
every State in our Union; that women cannot be denied 
attendance at one of the Nation's premier military academies, 
and that women are entitled to access the full range of 
reproductive healthcare; that juveniles and intellectually 
disabled people can no longer be executed; and that millions of 
Americans who obtained health insurance under the ACA have been 
able to keep that care, at least for now. These cases impacted 
the lives of millions of real Americans, and Justice Scalia 
applied his understanding of the Constitution and dissented in 
every one of them.
    I would like to use these hearings to explore your 
interpretation of the Constitution. I believe that our 
Constitution, which I view as our Nation's secular scripture, 
includes guarantees of equality and privacy, hallmarks of our 
modern American society. I believe in an independent judiciary 
that safeguards our rule of law from unlawful intrusions of the 
most powerful, even the President of the United States.
    The legitimacy of our Supreme Court transcends the outcome 
of any one case, but that legitimacy rests on the unyielding 
responsibility of Justices to put their personal political 
views aside to decide cases on their merits.
    Judge Gorsuch, your nomination has been championed by the 
ideologically driven Federalist Society and Heritage 
Foundation. Interest groups are already spending millions of 
dollars advocating for your confirmation. But as I have told 
you during our meetings, none of those facts will determine my 
vote on your nomination. I am instead looking to you to 
demonstrate your ability to separate politics from 
constitutional interpretation.
    As my colleague from the State of Utah, Senator Hatch, once 
noted, ``Judges that say what the law is promote liberty. 
Judges that say what they think the law should be undermine 
it.''
    I have spent a good deal of time reviewing your record. I 
appreciate that you are an engaging and careful writer. I also 
have some serious questions based on your decisions. What 
stands out to me is your tendency to go beyond the issues that 
need to be resolved in the case before you. I have seen a 
pattern in which you have filed dissents, dissents from denials 
of rehearing, concurrences, or even concurrences to your own 
majority opinions, to explore broader issues than what is 
necessary, to revisit long-settled precedent, and to promote 
dramatic changes to the law. This pattern concerns me because 
these additional writings hint at an unwillingness to settle on 
a limited conclusion and forge a narrow consensus with your 
colleagues.
    I want to know that you would apply the Constitution and 
settled precedent to reach consensus and resolve narrowly the 
disputes before you. And I want to know that our treasured 
freedoms would be safe in your stewardship. Our Constitution, 
as you know, is designed to protect our diversity of views. It 
guarantees to all of us the freedom of expression, the right to 
privacy, the liberty to make our most personal life decisions, 
equal protection, and the ability to worship freely.
    Take the freedom of religion, enshrined in the First 
Amendment, which says, in part, ``Congress shall make no law 
respecting an establishment of religion, or prohibiting the 
free exercise thereof.'' I believe we must balance our respect 
for the significance of faith and free exercise with concerns 
about impacts on others' liberty. As my colleagues know, I 
studied both law and divinity in school, and some of the most 
formative and meaningful experiences of my life have been 
guided by my Christian faith. The command to care for the most 
vulnerable among us inspires my work and service as a Senator, 
and I value opportunities to share with my colleagues in 
prayer.
    Throughout our Nation's history, religion has inspired 
countless acts of charity, kindness, and good works. But when I 
think about the Founders' wisdom to protect both church and 
state by ensuring their separation, I am in awe. Our United 
States were founded by people who came here for many reasons, 
seeking opportunity, freedom from oppression, and hoping in 
many cases to be free to practice their faith. From Pilgrims to 
Mormons, from the Amish to Jehovah's Witnesses, America from 
its founding to today has been home to many faiths from many 
parts of the world, and part of our Founders' genius was to 
abandon the European practice of having a state religion 
supported by state taxes.
    Now today across the U.S., churches and mosques, synagogues 
and temples find their own way, recruit and raise up their own 
believers and funds free from state interference and 
unsustained by state support.
    The Supreme Court over decades has sought to strike and 
preserve a careful balance between the free exercise rights of 
religious minorities and the power of legislatures to compel 
compliance with neutral laws.
    Recently, the Court has decided several landmark and 
controversial cases: in the Hobby Lobby case, where the free 
religious exercise rights of a few were held to permit the 
infringement on personal liberty of many; and in another 
important line of cases in which substantive due process rights 
have been held to guarantee a right to privacy and self-
determination even when longstanding practices and religiously 
motivated statutes are challenged as a result.
    I look forward to exploring these decisions with you. 
Religious freedom must be freedom not to have our values and 
practices pushed into the public square. While other nations 
are besieged by sectarian wars, inclusion of all faiths and all 
people have been guiding lights in the success of our 
democracy. However, at other times in our history, sincerely 
held religious beliefs have been invoked to deny millions of 
Americans full equality under the law in defense of laws 
prohibiting interracial marriage or LGBT relationships or 
reproductive rights.
    We live today in tumultuous times, as you know, Judge. The 
Supreme Court is likely to hear many important cases in the 
years to come. It will be important that we understand your 
values and framework for interpreting the Constitution on areas 
as important as Executive power, national security, the 
independence of the judiciary, deference to agencies, and 
personal liberty.
    There are disturbing developments that I see in our modern 
environment as affronts to religious freedom and personal 
liberty. President Trump campaigned on putting in place a 
Muslim ban and has signed unlawful and discriminatory Executive 
orders to deliver on that promise. The new administration's 
Justice Department has withdrawn guidance supporting 
protections for transgendered individuals. And the Attorney 
General testified under oath at his confirmation hearing before 
us that secular attorneys may not have the same claim to 
understanding the truth as religious ones.
    Our next Supreme Court Justice will play a pivotal role in 
sustaining and defending our rights during this critical time 
for our country and in the years to come. America needs a 
Supreme Court Justice who will protect the Constitution, not 
one who will countenance the faith or fear of some as a 
justification for infringing the liberty of many. It is against 
that backdrop, Judge, that I will be seeking to understand your 
commitment to the rule of law, the guarantees of the First 
Amendment, and individual liberty.
    I look forward to your testimony. Thank you.
    [The prepared statement of Senator Coons appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Senator Coons.
    Now I go to Senator Flake.

             OPENING STATEMENT OF HON. JEFF FLAKE,
            A U.S. SENATOR FROM THE STATE OF ARIZONA

    Senator Flake. Thank you, Mr. Chairman. And thank you, 
Judge Gorsuch. Thank you for being here, and thank you to your 
family as well and your many friends and associates who have 
come to support you. That says a lot for you to have so many 
willing to be here, and I have been astounded at the number of 
op-eds I have read and statements I have heard from those--not 
just those that you agree with, but those who do not always 
agree with you. That says a lot about you.
    I had a speech to deliver a while ago, and when it was fed 
into the teleprompter, your name was not as familiar as some, 
and it replaced it with ``Judge Grouch'' throughout the entire 
time.
    [Laughter.]
    Senator Flake. And I had to be careful.
    Judge Gorsuch. I had similar problems.
    Senator Flake. I think it is safe to say by the end of this 
week every spell checker in the country will know your name, 
and ``Judge Grouch'' is about as far as you can get from Judge 
Gorsuch in terms of your temperament. So I commend you. That 
may change by the end of the week as well, though.
    [Laughter.]
    Judge Gorsuch. I hope not.
    Senator Flake. I do not think so.
    As we all know, one of the most consequential decisions a 
President makes is who he or she will select to fill vacancies 
on the Supreme Court. This is a lifetime appointment. It means 
that a man or woman who is selected will likely be interpreting 
our laws for decades to come. Judge Antonin Scalia demonstrated 
how much one Justice can impact and shift the gravity of the 
Court, and no Justice in recent memory has so fundamentally 
influenced the trajectory of the Supreme Court or our approach 
to reading the law. He did this with an unshakable commitment 
to an originalist interpretation of the Constitution and a 
textualist approach to statutes.
    Justice Scalia's passing marked a watershed moment for the 
future of our judiciary. One law professor remarked, ``What 
lets the legal system survive is that people in power such as 
Scalia believe that the system controls their individual 
judgments. What will happen to the law without Justice Scalia 
to believe in it?''
    Now, fortunately, the President has nominated a jurist who 
believes in the rule of law.
    Now, in meeting with Judge Gorsuch and learning about his 
judicial philosophy, I was impressed by his respect for the law 
and his commitment to service. I have been particularly struck 
by his recognition that, ``It is for Congress, not the courts, 
to write new law,'' and that a Justice should make decisions 
based on what the law demands, not an outcome he or she 
desires. And as we discussed in my office, you said that when 
you don that black robe that Ben Sasse talked about, you 
understand that you are not a legislator. That is important.
    It was brought up before by one of my colleagues that says 
that Judge Gorsuch is pro-business or against the little guy. I 
think the record suggests that he faithfully applies the law 
and the laws as enacted by Congress. Good judges do not decide 
cases based on how big the guy is but based on the law and the 
facts.
    Now, I am not alone in thinking that. Harvard Law Professor 
Noah Feldman, a self-described liberal, recently wrote 
that,``Siding with workers against employers is not a 
jurisprudential decision. It is a political stance. And 
Justices, including progressive Justices, should not decide 
cases based on who the parties are.'' I think Judge Gorsuch's 
opinions show just that: He decides cases based on what the law 
says, not who the parties are.
    Judge Gorsuch has repeatedly reminded us that while we as 
legislators may appeal to our own moral convictions in shaping 
the law, judges in a democratic society should not decide cases 
based on their own moral convictions or their policy 
preferences. With Judge Gorsuch, I think the record shows that 
we can be confident that he will read the law as written and 
not legislate from the Bench.
    With regard to the separation of powers, Judge Gorsuch has 
cautioned against ``governmental encroachment on the people's 
liberties,'' which could occur should the political majorities 
of the legislative and executive branches be permitted to 
decide cases and the political unresponsive judiciary branch be 
allowed to create or execute policies. For my part, I am 
excited to confirm a Justice who reveres the separation of 
powers as a central principle of our Constitution.
    Judge Gorsuch has also demonstrated support for religious 
liberties. Our country has always valued the right of 
individuals to practice their faith according to the dictates 
of their own conscience. He once wrote that our religious 
freedom statutes ``do not just apply to protect popular 
religious beliefs. It does perhaps its most important work in 
protecting unpopular religious beliefs, vindicating this 
Nation's long-held aspiration to serve as a refuge for 
religious tolerance.''
    The Supreme Court later agreed with Judge Gorsuch that it 
is the Government's job to protect an individual's ability to 
practice their religion, not to instruct them how to practice 
their religion.
    Now, finally, as an Arizonan, I am proud of the fact that 
Judge Gorsuch is a fellow Westerner. Where you are from 
influences your understanding of cultural and regional 
sensitivities, and the current makeup of the Supreme Court has 
an unmistakable lack of geographic diversity. Of the eight 
current Justices, five of them were born in New York or New 
Jersey. As we say in Arizona and elsewhere, ``New York City.'' 
This is nice to have someone from the West with a Western 
perspective, and, fortunately, Judge Gorsuch fits that bill.
    When I met Judge Gorsuch earlier this week, we talked about 
our respective Western backgrounds. I told him about my days 
growing up on a cattle ranch in rural Arizona. He told me that 
his heart has always been in the American West. You learn a lot 
about a person by how they spend their time with their friends 
and family. There is no mistaking it with Judge Gorsuch. He is 
a Westerner through and through.
    Now, what makes Judge Gorsuch a true Westerner is more than 
just where he lives or what his personal interests are. In the 
West, we pride ourselves on being a free people with strong 
communities and limited Government. Judge Gorsuch's 
jurisprudence reflects what every Westerner knows to be true: 
An intrusive Federal Government cannot interfere with the 
ability of Western States to govern themselves. And perhaps 
more than anything, it will be Judge Gorsuch's Western 
perspective that most enriches debate on the Supreme Court for 
years to come.
    Now, there has been a lot said about what happened last 
year with the nomination of Merrick Garland. I find it striking 
and very revealing that one of the first calls that Judge 
Gorsuch made when he received this nomination was to Merrick 
Garland, his friend. I think that says a lot about the man, 
regardless of any of our thoughts, and certainly what happened 
here should not reflect on Judge Gorsuch. But I appreciate the 
temperament that you have and your willingness to subject 
yourself and your family and friends to this process. And I 
look forward to the rest of the hearing.
    I yield back.
    Chairman Grassley. Thank you, Senator Flake.
    Now, Senator Blumenthal.

         OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
          A U.S. SENATOR FROM THE STATE OF CONNECTICUT

    Senator Blumenthal. Thank you, Mr. Chairman. Thank you for 
being here, Judge. I live in the Western part of Connecticut.
    [Laughter.]
    Judge Gorsuch. Close enough.
    Senator Blumenthal. I love Colorado, and my first job was 
on a farm in Nebraska where my grandfather raised corn and 
cattle, so we can go into other commonalities. But I want to 
join in thanking you and your family and say that, despite the 
hardships of going through this process, I suspect there are 
quite a few lawyers in Connecticut who would not mind changing 
places with you.
    But I also want to thank one group that perhaps should be 
given gratitude, and that is your fellow judges on the Federal 
bench. Some of them are here. I have no doubt that many are 
watching. I have had the honor in the last 40 years to appear 
before many of them, and they make sacrifices that are often 
unappreciated by most Americans who enjoy the benefits of their 
service, often financial sacrifices, personal sacrifices, 
sometimes even physical threats, as happened when the schools 
were desegregated or when women's clinics were protected in the 
United States. And so I want to thank them and, through you, 
express my gratitude.
    The independence of those judges has never been more 
threatened and never more important, and a large part of the 
threat comes from the man who nominated you, who has launched a 
campaign of vicious and relentless attacks on the credibility 
and capacity of our judiciary to serve as a check on lawless 
Executive action. His demeaning and disparaging comments about 
the judiciary have shaken the foundations of respect for 
judicial rulings--rulings that hold the President accountable 
to the people and our Constitution.
    Respect for the opinions of our judges is fundamental, as 
you well know. Without it, our democracy cannot function. 
Alexander Hamilton said that the judiciary is the least 
dangerous branch because it has the power of neither the purse 
nor the sword. Essential to its power to protect us is its 
respect and trust and credibility. And the President has 
gravely undermined it, and that is why I believe you have a 
special responsibility here this week, which is to advocate and 
defend the independence of our judiciary against those kinds of 
attacks. It is not enough to do it in the privacy of my office 
or my colleagues' behind closed doors. I believe that our 
system really requires and demands that you do it publicly and 
explicitly and directly.
    We meet this week in the midst of a looming constitutional 
crisis. Just hours ago, not far from here, the Director of the 
FBI revealed that his agency is investigating potential ties 
between President Trump's associates and Russian meddling in 
our election. The possibility of the Supreme Court needing to 
enforce a subpoena against the President is no longer idle 
speculation. It did so in United States v. Nixon. So the 
independence of the judiciary is more important than ever, and 
your defense of it is critical.
    You are also the nominee of a President who set a set of 
litmus tests, saying that his nominee would be pro-life and 
pro-Second Amendment and of a conservative bent. In fact, he 
said that he would nominate someone, and I am quoting almost 
exactly in one of the debates, ``who would automatically 
overturn Roe v. Wade.'' So, again, if you fail to be explicit 
and forthcoming and definite in your responses, we have to 
assume that you will pass the Trump litmus test.
    Your nomination also imposes on you a special burden 
because of the process that brought you here. The President has 
largely outsourced the selection process to conservative 
groups. He specifically referred to them on May 11th when he 
said that a list would be prepared by the Heritage Foundation 
and the Federalist Society. On June 13th, he said, ``We are 
going to have great judges, conservative, all picked by the 
Federalist Society.''
    You must be clear that your views are not theirs, and while 
under ordinary circumstances this Committee might be satisfied 
with the platitudes of ``I cannot reach conclusions or state 
conclusions because of the possibility that I may have to 
consider a case before the Court,'' these times are not 
ordinary.
    The rule of law is more than the pillars and the judicial 
robes that people ordinarily associate with the U.S. Supreme 
Court. Justice has a human face and a voice and, as you know 
from being in the trenches, real clients with real lives, and 
the law has real consequences in their lives.
    I met with Alphonse Maddin, the trucker who was fired by 
TransAm Trucking. When he left his truck in sub-zero weather, 
that truck was disabled. It could not be driven, and he was 
freezing.
    I met with Patricia Caplinger, who was denied relief by 
your court after suffering a very serious injury resulting from 
a defective product use.
    I met with the children of Grace Hwang who was denied leave 
by Kansas State University even though she was suffering from 
cancer.
    I am troubled by the results in those cases for those real 
people, but also for the broader issues that those decisions 
reflect in workers' safety and consumer protection, as well as 
the rights of women to healthcare and reproductive decisions 
that are protected by the Fourth Amendment. And the right of 
privacy goes beyond just women's healthcare. It also relates to 
surveillance and Government snooping and a right that is 
central to our democracy.
    Let me just close by saying that you have a special 
obligation to be forthcoming about your views, not to prejudge 
the merits of a particular case before the Court, but to share 
your views on longstanding precedent that the President who 
nominated you indicated would be overturned. And you have an 
obligation to be forthcoming as well because the decision 
before us is not about Justice Scalia, nor is it about your 
confirmation 10 years ago. The Supreme Court is different. The 
Supreme Court is the ultimate resort of justice in this 
country. And as much as you may have encountered little 
difficulty 10 years ago, you now have a record. And we are here 
to judge that record and to make sure that our decision--and I 
agree with my colleagues that it will be probably one of the 
most consequential and profoundly important decisions that I 
make as a United States Senator--is the right one for the 
country and will above all make sure that the rule of law is 
preserved for real people with real lives, and that we assure 
that the independence of our judiciary will continue to protect 
us from overreaching and tyranny and the constitutional crisis 
that is now a real danger before us. Thank you for being here.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Blumenthal appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Senator Blumenthal.
    Now, the Senator from Idaho.

             OPENING STATEMENT OF HON. MIKE CRAPO,
             A U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. Thank you, Mr. Chairman. Judge, welcome and 
congratulations on the high honor of your nomination.
    Much of the discussion surrounding this nomination has 
centered on answering the key question: What kind of Justice 
should serve on the U.S. Supreme Court?
    Some want a judge in their own making--predictable, 
ideological and political. Others regard the role of judge as a 
final arbiter of justice--clothed in those dark, black robes, 
unquestioned, and seated on an elevated platform well above the 
court proceedings.
    In recent years, selecting judges has become more about a 
numbers game with the courts, measured at least in part by 
comparing vacancies filled by each President. Often, in fact, 
as recent as last week and this week, we read about Federal 
court proceedings invariably coupled with the name of the judge 
and the President who appointed him or her.
    Because venue shopping has become all too common a practice 
today, the individual judge can become more important than the 
facts of the case. In this scenario, the judge serves not 
justice, but politics in another form.
    Whenever Congress considers a judicial nomination, people 
talk earnestly about the importance of independence. For some, 
that word flows from the central work of the Founders of our 
Constitution, who created a separate branch of government 
empowered to review laws passed by the legislature and signed 
and executed by the President and the executive branch. To 
others, independence is more about giving judges the power to 
issue decisions without personal consequence.
    The true American vision of justice is one in which the 
judge fairly and impartially finds the facts and applies the 
law. The law is supreme. The facts decide the day. The judge 
could be substituted with another and the outcome remains the 
same. The President who nominated him or her is never mentioned 
in the article about the decision, and venue shopping is a 
relic of another era.
    This is the vision most Americans have of the proper judge 
on the Federal bench. As I reflect on the nomination of Judge 
Gorsuch, I think back to our meeting soon after his nomination 
was announced. I have met several Supreme Court nominees in my 
service in the Senate. All of them have impressive credentials 
and legal experience. But Judge Gorsuch stands out for a 
notable reason. He understands and is focused on the principle 
that a judge is the servant of the law, not the maker of it.
    One of his comments during our visit still resonates with 
me. He said, ``My personal views are irrelevant as a judge.'' 
Is that not the ideal illustration of a judge steadfastly 
committed to the law?
    To quote the late Justice Scalia, ``If you are going to be 
a good and faithful judge, you have to resign yourself to the 
fact that you are not always going to like the conclusions you 
reach. If you like them all the time, you are probably doing 
something wrong.''
    Judge Gorsuch recognizes that the law may be imperfect, 
being the product of an imperfect system. But there is a remedy 
to the imperfection of law: the political system, directly 
accountable to the public. The people choose policymakers, not 
Federal judges.
    The law can frustrate. In Black and White it is stark, and 
change comes slowly and often deliberately, just as our 
forebears designed. Law that can change in a moment and 
capriciously is inherently destabilizing.
    An activist judge who makes law plants insecurity in our 
system. Rather, our Constitution provides for law to be enacted 
legislatively with the sanction of the American people through 
the ballot box. Policy changes advanced by judges can be 
reversed and reversed again. Law properly grounded in the 
democratic and political process cannot.
    ``Equal protection under the law.'' ``Justice is blind.'' 
These are not just catchy phrases that echo back to our time in 
civic classes. These are guiding principles of our Republic and 
reaffirmed in the Fourteenth Amendment to our Constitution. 
Fundamentally, each of us should know courts will find for us 
when the law is on our side, whether we are rich or poor, 
strong or weak, or a big guy or a little guy. That is 
principled justice.
    Some may not like a particular law. That is fair and not 
unexpected. But the remedy for this disagreement is not 
changing judges but changing the law. Fortunately, our system 
of Government has the exact solution available to us: passing a 
new law through the deliberate, careful, and publicly 
accountable political processes.
    No one seriously questions Judge Gorsuch's fitness and 
capability to serve on the highest court in our land. His 
credentials are exemplary. He is widely respected for his 
intellect, his judgment, and his modesty. His admirers span the 
political spectrum. Judge Gorsuch is intelligent and open-
minded. He is exactly the model for an appointment to the U.S. 
Supreme Court.
    Mr. Chairman, I look forward to hearing from the nominee 
himself. The next few days will prove extraordinarily 
insightful as we discuss with Judge Gorsuch his philosophy of 
jurisprudence, what animates him to interpret the law, and his 
vision for the Federal judiciary.
    I look forward to this hearing. Thank you very much, Mr. 
Chairman.
    [The prepared statement of Senator Crapo appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Senator from Idaho.
    Now, the Senator from North Carolina.

             OPENING STATEMENT OF HON. THOM TILLIS,
        A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA

    Senator Tillis. Thank you, Mr. Chair. Judge Gorsuch, thank 
you for being here, and congratulations to you and to your 
family and friends who are either here present or watching on 
TV.
    I have had a couple of opportunities to be in your 
presence, and I really appreciate your calm, respectful 
demeanor, and I am completely convinced you have an at-rest 
heart rate of about 4.
    [Laughter.]
    Senator Tillis. Before I get into a few brief comments--and 
I want to be brief so that we can get through the comments and 
to the questions and move your nomination forward--I do think 
there is a little bit of confusion right now in terms of the 
comments made by some of my colleagues. This is not directed to 
you, Judge Gorsuch, but perhaps to those watching and to my 
Members.
    The nominee before us today is not President Trump. The 
nominee before us today is not Leader McConnell. And the 
nominee is not Judge Merrick Garland. It is one of the most 
extraordinarily talented and capable people that we could 
possibly have going to the Supreme Court. So I hope that this 
nomination hearing focuses on the one person before us who will 
go on, I believe, to fill the vacancy on the Supreme Court.
    This is a very important role that we have. I consider it 
one of the most important jobs that I have as a U.S. Senator. 
In the 2 years that I have been here, nothing rises to the 
level of importance of your nomination and the composition of 
the Supreme Court. These appointments last for life. They will 
outlast most Presidents and many Senators. It affects all 
Americans, and the decisions you render will last for decades.
    I have no doubt that you have the qualifications. As a 
matter of fact, Senator Graham--I associate myself with Senator 
Graham's comments. The only reason I did not pursue your 
academic line of schools mainly had to do with their admission 
requirements. I appreciate the hard work that you did 
academically. I appreciate the hard work that you did as a 
litigator. And the work that you have done as a judge I think 
is truly extraordinary.
    I want to just go back to a comment or a conversation we 
had in my office. I mentioned to you in my office that I do not 
like activist judges, period--conservative or liberal. It is 
not their role. The activists are us. We get elected. We go out 
to the people. We convince them that we want to make changes. 
We pass laws. Your job is to interpret them as a judge. And I 
believe that you responded to me that you fully understood that 
your role fell squarely within Article III and that mine fell 
squarely within Article I, and you saw the very bright line 
between the two.
    And I think you are going to do a great job. I think in 
your nomination acceptance, your quote was, ``It is for 
Congress and not the courts to write new laws. It is the role 
of judges to apply, not alter, the work of the people's 
representatives.''
    There have been some comments today made about cases that 
you have taken up, and I think they probably in some cases 
relate to the instances where you were not really happy about 
the outcome. And I look forward to getting to some of those. I 
think that two or three have been mentioned that I intend to go 
through as a part of my review of your decisions. There are a 
number of examples where you interpreted the law. You did not 
become an activist. You did not allow your empathy or your 
sympathy for a case to influence what your job is. I for one 
find that inspiring.
    And so, Mr. Chair, I am going to keep my comments short, 
not for a lack of a desire to want to speak more about Judge 
Gorsuch's extraordinary background and history and 
qualifications for the job, but because I desperately want the 
American people to get you to spend more time talking and let 
us spend more time listening so that they recognize the 
historic opportunity we have to confirm you to the Supreme 
Court. And I look forward to the remaining testimony.
    [The prepared statement of Senator Tillis appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Senator Tillis.
    And now I will call on the Senator from Hawaii.

           OPENING STATEMENT OF HON. MAZIE K. HIRONO,
            A U.S. SENATOR FROM THE STATE OF HAWAII

    Senator Hirono. Thank you, Mr. Chairman. Aloha, Judge 
Gorsuch.
    Judge Gorsuch. Hello.
    Senator Hirono. Thank you as well, of course, for being 
here.
    This hearing is about more than considering a nominee for 
the Supreme Court. It is about the future of our country. It is 
about the tens of millions of people who work hard every day, 
play by the rules, but do not get ahead. It is about the 
working poor who are one paycheck away from being on the 
streets. It is about Muslim Americans who are victims in a 
renewed wave of hate crimes asking for protection from the 
courts. It is about women having the choice of what to do with 
their bodies, our bodies. It is about LGBTQ Americans who want 
the same rights as everyone else.
    For me, this hearing is about the people in this country 
who are getting screwed every single second, minute, and hour 
of the day. I have into public service to help these people, 
and my questions over the coming days will draw on their 
experience as well as my own.
    My story might be unique for a United States Senator, but 
it is a story that is familiar for millions of people in our 
country. When I was nearly 8 years old, my mom changed my life 
when she brought me to this country from Japan, fleeing an 
abusive marriage. Back then there were no religious tests to 
determine who could immigrate to this country. There were no 
language requirements. You did not need any special skills. If 
President Eisenhower pursued the same policies President Trump 
would like to, it is very possible I would not be here today.
    I always knew I wanted to give back to my State and my 
country, but I never thought politics would be the path that I 
would choose. But the Vietnam War opened my eyes to how public 
service could create social change. I joined campus protests, 
questioned why we were sending so many young men to die in a 
far-off country.
    A small group of us decided that in order for things to 
change, we needed to do much more than protest. Many of us ran 
for office because we needed to take a seat at the table to be 
able to fight and help make lives better. It is why I am here 
today.
    Over the past few months, I have heard from thousands of 
people who are deeply worried about their families, their kids, 
and the future of our country under the Trump administration. 
Many of them are worried about what will happen if you are 
confirmed to the Bench.
    Apart from the legal analysis, whenever a case comes before 
a judge, it invariably involves real people, people who are 
often there because they have experienced the worst day in 
their lives. Whether they are victims of a crime, suffered a 
serious injury due to corporate malfeasance, or because they 
have lost their livelihood due to discriminatory behavior from 
their employer, each of them is looking to the Court to protect 
their interests and their rights.
    During our meeting, I was encouraged when you said that the 
purpose of Article III of the Constitution was to protect the 
rights of the minority through access to the courts. But as I 
have reviewed your opinions, I have not seen that the rights of 
minorities are a priority for you. In fact, a pattern jumps out 
at me. You rarely seem to find in favor of the little guy.
    In TransAm Trucking, your dissent argued that the company 
was justified in firing an employee who faced a choice between 
operating his vehicle in an unsafe manner and freezing to death 
in his truck.
    In a number of other cases, including Thompson School 
District, your decisions made it more difficult for families 
with special needs children to get the help they needed as the 
law intended.
    In Planned Parenthood of Utah v. Herbert, your dissent was 
far too deferential to the decisions of a Governor who based 
those decisions on unverified information.
    In Burwell v. Hobby Lobby, your opinion justified denying 
access to contraception based on the argument that 
corporations, like people, can hold religious beliefs.
    The facts in each of these cases might be different, but 
there is a clear pattern to your writing. You consistently 
choose corporations and powerful interests over people. But 
more than that, you have gone to great lengths to disagree with 
your colleagues on the Tenth Circuit so that you can explain 
why some obscure or novel legal interpretation of a particular 
word in statute must result in finding for a corporation 
instead of an individual who has suffered real live harm. This 
tendency demonstrates a commitment to ideology over common 
sense and, indeed, the purpose of the law, and it is deeply 
troubling.
    For example, again, in TransAm Trucking, you fixated on the 
plain meaning of the word ``operate,'' despite choosing a 
definition out of context and using it at odds of the clear 
purpose of the statute, which was a safety purpose. And in 
Longhorn Service Company, you found a difference between a 
``floor hole'' and a ``floor opening'' in order to side with a 
corporation trying to avoid a citation for a safety issue. You 
found a difference in these terms, between a ``floor hole'' and 
a ``floor opening,'' that the rest of your colleagues on the 
Tenth Circuit did not--truly a case of a distinction without a 
difference. It is like arguing whether your nomination is 
because of a vacancy or an opening on the Supreme Court.
    These decisions affected not just the individuals who came 
before you. As a Supreme Court Justice, your decisions will 
have lasting consequences for the rest of us.
    During the campaign, President Trump made it very clear 
that he had a series of litmus tests for his Supreme Court 
nominees. Over a 2-year period, the President said that his 
nominee must favor overturning Roe v. Wade, denying women 
access to healthcare on the basis of religious freedom, and 
upholding the Heller decision on guns, which the NRA believes 
prevents Congress, States, or local governments from passing 
commonsense gun safety legislation. Each of these tests would 
have a profound impact on the lives of every American.
    Donald Trump's litmus tests for his Supreme Court nominees 
were crystal clear. In nominating you, Judge Gorsuch, I can 
only conclude that you met the President's litmus tests. Your 
ideological perspective or, as some would say here, your 
judicial philosophy, on these issues matter because if you are 
confirmed, you will have a lifetime appointment to the Supreme 
Court.
    In our courtesy meeting, you said you have a heart, so, 
Judge Gorsuch, we need to know what is in your heart. We need 
to understand how you will grapple with a number of important 
questions the Court will be asked to consider in the years 
ahead.
    Will the Court protect the rights of working people and our 
middle class or side with corporations who want to dismantle 
organized labor in America?
    Will the Court uphold a woman's constitutional right to 
choose or upend decades of legal precedent to overturn Roe v. 
Wade?
    Will the Court protect free and fair elections by stopping 
unfettered campaign spending or allow corporations and the 
ultra-rich to hijack our democracy with dark money?
    Will the Court protect the right to vote for all Americans 
or allow States to use voter fraud as an excuse to 
disenfranchise vulnerable communities?
    Will the Court protect our land, water, our earth, or gut 
decades of environmental regulations?
    Will the Court protect access to our justice system or slam 
the courthouse door to all but the wealthiest among us?
    Judge Gorsuch, my colleagues, this is not merely a hearing 
to consider the confirmation of one Supreme Court Justice. No. 
We are considering the affirmation of our country's values. The 
Supreme Court does not just interpret our laws. The Supreme 
Court shapes our society. Will we be just? Will we be fair? 
Will America be a land of exclusivity for the few or the land 
of opportunity for the many? Will we be the compassionate and 
tolerant America that embraced my mother, my brothers, and me 
many decades ago?
    Make no mistake. A Supreme Court vacancy is not just 
another position we must fill in our Federal judiciary. A 
Supreme Court vacancy is a solemn obligation we must fulfill 
for our future generations. Let us treat it as such.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Hirono appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Senator from Hawaii.
    Now, the Senator from Louisiana.

            OPENING STATEMENT OF HON. JOHN KENNEDY,
           A U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Kennedy. Thank you, Mr. Chairman.
    How are you doing, Judge?
    Judge Gorsuch. Great. Thank you very much.
    Senator Kennedy. I walked by the Supreme Court the other 
day. I live nearby. And on that building, as many of us know, 
are the words ``Justice, the Guardian of Liberty.''
    Now, we live in cynical times, but I think those words are 
sacred--sacred to most Americans. And they really tell us 
everything we need to know about the importance of the U.S. 
Supreme Court, in my judgment.
    Without justice, without equal treatment by the law, 
liberty--which is why our country was founded--becomes an empty 
promise.
    So even though it is easy to look to elected officials, the 
President, Congress, Governors as last protectors of liberty, 
we as Americans have entrusted that, I think we can all agree, 
to our Supreme Court. And that is why, in my judgment, this 
hearing is important. And that is why we need, if we can, to go 
beyond politics, beyond the person who lives in the White 
House, beyond whatever the issue of the day happens to be, and 
we need to try to truly understand our role in this process, 
which is to advise and consent.
    I hope we can focus on temperament, on legal philosophy, on 
legal reasoning, on qualifications, on experience. And for just 
a minute, I hope we can forget that we are all politicians 
here, you excluded----
    Judge Gorsuch. Thank you, Senator.
    Senator Kennedy [continuing]. And focus instead on the 
judiciary and the role we get to play in affecting that most 
American of institutions, the U.S. Supreme Court.
    Now, I have had the opportunity to meet Judge Gorsuch and 
to read his work, and I like what I see. A former Governor in 
my State once said of the then-Attorney General, ``If you want 
to hide something from him, put it in a law book.'' You 
obviously do not have that problem. You appear to me to be 
exceptionally well qualified to be a Supreme Court Justice. I 
was especially impressed with your Doctor of Philosophy in law. 
That stuck out to me. A D.Phil from Oxford is probably the most 
difficult terminal degree in the world. You also attended 
Columbia and Harvard, and they are satisfactory as well.
    I have read about 20 of your opinions. My favorite is A.M. 
v. Holmes. Your dissent was very short, four pages, but you 
packed a lot in those four pages. As far as I am concerned, 
that dissent should be required reading in every law school.
    All I can say after reading those 20 opinions--some of 
which I agreed with, some of which I did not--is that you write 
really, really well. Your opinions are engaging, whether you 
agree with them or not. Judge Gorsuch is direct, clear, 
concise. You are collegial, and you have a clean grasp of the 
law. There is no boilerplate language that lawyers often put in 
their briefs, and sometimes judges do as well.
    I also might add that another thing struck me about your 
opinions. You show concern for the parties. You use their 
names. You do not refer to the parties as ``appellants'' or 
``appellees'' or ``respondents.'' You call them by their name, 
and I like that.
    Judge Gorsuch's respect for judicial independence and for 
precedent, in my judgment, is apparent in all of his opinions. 
He is an unyielding supporter of the separation of powers, and 
I believe that he genuinely understands and values the role of 
the judiciary as a check on both the legislative and executive 
branches. And that is very, very important to me.
    As are we all, I am rather fond of the Constitution and the 
structure that it creates, separating powers so no branch of 
government can bully another or bully the American people.
    One of the main purposes of the United States Constitution, 
in my opinion, is to tell us when to stop, to reaffirm that the 
authority of the state over its people is limited and it is 
finite.
    Let me be blunt. I am looking for a judge, not an 
ideologue. I do not want somebody on the U.S. Supreme Court who 
is blinded by ideology. I am not interested in people who want 
to use the judiciary to advance their own personal policy 
goals, whether they are to the right or to the left.
    I want a judge to apply the law as it is as best he 
understands it, not to try to reshape the law as he wishes it 
to be.
    I also want a person who is intellectually curious, who is 
earnest in his desire to rule fairly, and who is willing to 
really fight for his view of justice.
    I guess what I want is a cross between Socrates and Dirty 
Harry, and I believe you just might be that person.
    Let me say one final thing. I am an officer of the court, 
as a lawyer, as are you. None of the questions that I am going 
to ask you today are designed to trick you, as if I could. Nor 
are they designed to suggest that you should violate Canon 
3(A)(6) of the Code of Conduct for United States Judges, which 
says, ``A judge should not make public comment on the merits of 
a matter pending or impending in any court.'' Nor will my 
questions be designed to cause you to violate Rule 2.10(A) of 
the American Bar Association Model Code of Judicial Conduct, 
which, as you know, states, ``A judge shall not make any public 
statement that might reasonably be expected to affect the 
outcome or impair the fairness of a matter pending or impending 
in a court.''
    And, finally, nor will my questions be designed to ask you 
to violate Rule 2.10(B) of the American Bar Association Model 
Code of Judicial Conduct, which states, ``A judge shall not, in 
connection with cases, controversies, or issues that are likely 
to come before the court, make pledges, promises, or 
commitments that are inconsistent with the impartial 
performance of the adjudicative duties of his judicial 
office.''
    If you think any of my questions today or tomorrow or later 
this week cross those lines, I hope you will speak up so we can 
talk about it.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Kennedy appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Senator from Louisiana.
    Now it is your opportunity to take a rest while other 
people say what I imagine will be very good things about you. 
So we are going to call to the bench Senator Bennet and Senator 
Gardner and Neal Katyal. We will take Senator Bennet and 
Senator Gardner first. Mr. Katyal was Acting Solicitor General 
for President Obama. I know you have busy schedules, and I want 
to thank you for taking time to introduce our nominee today. So 
would you depart from the table? And the----
    Judge Gorsuch. You do not have to ask me twice, Mr. 
Chairman.
    [Laughter.]
    Chairman Grassley. Okay. And then we will have the other 
people come. Just stand at ease for just a couple minutes here. 
It will not take very long.
    [Pause.]
    Chairman Grassley. It is my understanding that you two have 
kind of decided that Senator Gardner should go first and then-
Senator Bennet.
    And then when you folks depart the table, we will have Mr. 
Katyal come to the table.
    Senator Gardner.

    PRESENTATION OF HON. NEIL M. GORSUCH, NOMINEE TO BE AN 
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY 
  HON. CORY GARDNER, A U.S. SENATOR FROM THE STATE OF COLORADO

    Senator Gardner. Thank you, Mr. Chairman. Chairman 
Grassley, Ranking Member Feinstein, I would like to begin by 
thanking all of you on the Committee for your hard work during 
these hearings in the next several days.
    Today, it is with great pleasure that I introduce, along 
with my colleague and fellow Coloradan, Senator Michael Bennet, 
and share my strong support for our outstanding Supreme Court 
nominee, Judge Neil Gorsuch.
    If you have ever had the privilege of visiting Confluence 
Park in Denver, you will notice a plaque bearing a poem by 
Colorado Poet Laureate Thomas Hornsby Ferril. It is a poem 
known as ``Two Rivers,'' describing the settlement of the West: 
``I wasn't here, yet I remember them, that first night long 
ago, those wagon people who pushed aside enough of the 
cottonwoods to build our city where the blueness rested.'' 
Where the optimistic blueness of our Colorado skies rests 
against the mountains and the plains, we are reminded about how 
incredibly diverse our great Nation is, its people and its 
geography.
    Judge Gorsuch's nomination helps recognize that, indeed, 
there are highly qualified jurists west of the Mississippi 
River. Judge Gorsuch is a fourth-generation Coloradan, skier, 
fly fisher, serving on a court that represents 20 percent of 
our Nation's landmass, whose family roots reflect the grit and 
determination that built the West.
    Once confirmed, Mr. Gorsuch will join Justice Byron White 
and be only the second Coloradan to have served on the U.S. 
Supreme Court and the only Coloradan to be serving on the U.S. 
Supreme Court who did not break the NFL rushing record. But the 
good news is, today, he does have the endorsement of number 
seven, John Elway, of the great Denver Broncos.
    Should he be confirmed, Judge Gorsuch will make history as 
he represents the first Generation X Justice of the U.S. 
Supreme Court, the emerging generation of American leadership. 
Judge Gorsuch was confirmed to the Tenth Circuit Court 
unanimously by voice vote in 2006. Eleven years ago, Senator 
Graham presided over an empty Committee room, empty dais. What 
a difference a court makes.
    But when you look at his record, his writing, his 
statements, it is easy to see why Judge Gorsuch has such 
overwhelming appeal. Judge Gorsuch is not an ideologue. He is a 
mainstream jurist who follows the law as written and does not 
try to supplant it with his own personal policy preferences. As 
he said, ``Personal politics or policy preferences have no 
useful role in judging. Regular and healthy doses of self-
skepticism and humility about one's own abilities and 
conclusions always do.''
    Judge Gorsuch is not an activist judge but rather a 
faithful adherent to and ardent defender of our Constitution. 
He is an originalist, as Justice Kagan even described herself 
in her confirmation hearing to the U.S. Supreme Court.
    Judge Gorsuch recognizes that the judiciary is not the 
place for social or constitutional experimentation, and that 
efforts to engage in such experimentation delegitimize the 
court. As he said, ``This overweening addiction to the 
courtroom as the place to debate social policy is bad for the 
country and bad for the judiciary. As a society, we lose the 
benefit of give-and-take of the political process and the 
flexibility of social experimentation that only the elected 
branches can provide.''
    Judge Gorsuch has a deep appreciation and respect for the 
constitutional principles of Federalism and the separation of 
powers prescribed by our Founding Fathers. As he stated, ``A 
firm and independent judiciary is critical to a well-
functioning democracy.'' Judge Gorsuch understands the 
advantage of democratic institutions and the special authority 
and legitimacy that come from the consent of the governed. As 
he said, ``Judges must allow the elected branches of government 
to flourish and citizens, through their elected representatives 
to make laws appropriate to the facts and circumstances of the 
day.''
    Judge Gorsuch appreciates the rule of law and respects the 
considered judgment of those who came before him. As he said, 
``A good judge will seek to honor precedent and strive to avoid 
its disparagement or displacement.''
    It is this appropriate temperament, this fidelity to the 
Constitution, this remarkable humility that has made Judge 
Gorsuch a consensus pick among Colorado's diverse legal and 
legislative communities.
    Former Colorado Senator, Democrat Ken Salazar, in praising 
Judge Gorsuch's temperament during his Circuit Court 
confirmation, said, ``A judicial nominee should have a 
demonstrated dedication to fairness, impartiality, precedent, 
and the avoidance of judicial activism from both the left and 
the right. I believe that Mr. Gorsuch meets this very high 
test.''
    Jim Lyons, a prominent Colorado lawyer and former adviser 
to President Bill Clinton, said, ``Judge Gorsuch's intellect, 
energy, and deep regard for the Constitution are well known to 
those of us who have worked with him and have seen firsthand 
his commitment to basic principles. Above all, this 
independence, fairness, and impartiality are the hallmarks of 
his career and his well-earned reputation.''
    Colorado's former Democratic Governor Bill Ritter and 
former Republican Attorney General John Suthers jointly said, 
``It is time to use this confirmation process to examine and 
exalt the characteristics of a judge who demonstrates that he 
or she is scholarly, compassionate, committed to the law, and 
will function as part of a truly independent, apolitical 
judiciary. Judge Gorsuch fits that bill.''
    According to the Denver Post, Marcy Glenn, a Denver 
attorney and Democrat, recalls two cases before Gorsuch in 
which she represented underdogs. And I quote Marcy Glenn, ``He 
issued a decision that most certainly focused on the little 
guy.'' Judge Gorsuch has a consistent record of applying the 
law fairly, and his reputation among his peers and lawmakers is 
evidence of it.
    For all of these reasons cited today, I am certain Judge 
Gorsuch will make Colorado proud and that his opinions will 
have a positive impact on this country for generations to come. 
I look forward to Judge Gorsuch receiving a fair hearing and, 
after that, to working with my distinguished colleagues on both 
sides of the aisle to expeditiously confirm his nomination.
    Thomas Hornsby Ferril wrote another poem. This one 
memorialized on a mural on the walls of the Colorado Capitol 
rotunda. It ends with these words: ``Beyond the sundown is 
tomorrow's wisdom, today is going to be long, long ago.''
    The wisdom of Neil Gorsuch, guardian of the Constitution, 
will serve our Nation well for generations to come.
    Mr. Chairman, Committee Members, thank you.
    [The prepared statement of Senator Gardner appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Senator Gardner.
    Now, Senator Bennet.

         PRESENTATION OF HON. NEIL M. GORSUCH, NOMINEE
        TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT
 OF THE UNITED STATES, BY HON. MICHAEL BENNET, A U.S. SENATOR 
                   FROM THE STATE OF COLORADO

    Senator Bennet. Thank you, Mr. Chairman. I want to thank 
you and the Committee for allowing me to be here today. It is a 
distinct privilege to be here with my colleague, Senator 
Gardner from Colorado, to introduce Judge Neil Gorsuch, a son 
of Colorado born and raised in Denver with a distinguished 
record of public service, private practice, and outstanding 
integrity and intellect. And I welcome as well his wife, 
Louise, who met the judge during their studies at Oxford and 
who moved from the United Kingdom to Colorado, where they now 
live with their two daughters in Boulder.
    Senator Gardner has done a great job summarizing Judge 
Gorsuch's professional background. His experience and his 
approach to his work has earned him the respect of the bench 
and the bar in our State.
    Judge Gorsuch's family has deep roots in Colorado. His 
grandfather grew up in an Irish tenement in Denver and began 
supporting the family at the age of 8. His other grandfather 
was a lawyer who worked his way through law school, serving as 
a streetcar conductor in Denver. And his grandmother was one of 
the first women to graduate the University of Denver in the 
1920s.
    As a person and as a lawyer, Judge Gorsuch exemplifies some 
of the finest qualities of Colorado, a State filled with people 
who are kind to one another, who, by and large, do not share 
the conceit that one party or one ideology is all right and the 
other all wrong, and who are conscious of the legacy we owe the 
generations who forged our State out of a Western territory of 
the United States.
    If confirmed, Judge Gorsuch will be the first Justice since 
Sandra Day O'Connor from the West. No less an authority than 
Justice Scalia observed this lack of representation when he 
wrote in dissent that the Court has ``not a single genuine 
Westerner,'' and then added with parentheses, ``California does 
not count.''
    [Laughter.]
    Senator Bennet. And with respect to our Ranking Member, I 
think I speak for my colleague from Colorado that, on this 
point, and perhaps this point alone, he, I, and Justice Scalia 
are in agreement.
    [Laughter.]
    Senator Bennet. I am also here because I believe the Senate 
has a constitutional duty to give fair consideration to this 
nominee, just as we had a duty to consider fairly Judge Merrick 
Garland, President Obama's nominee to fill this vacancy.
    I am not naive about the reasons the Senate majority denied 
Judge Garland a hearing and a vote. The Senate's failure to do 
its duty with respect to Judge Garland was an embarrassment to 
this body that will be recorded in history and in the lives of 
millions of Americans.
    And it is tempting to deny Judge Gorsuch a fair hearing 
because of the Senate's prior failure. But, Mr. Chairman, two 
wrongs never make a right. The Supreme Court is too important 
for us not to find a way to end our destructive gridlock and 
bitter partisanship.
    In my mind, I consider Judge Gorsuch as a candidate to fill 
the Garland seat on the Supreme Court. And out of respect for 
both Judge Garland and Judge Gorsuch's service, integrity, and 
commitment to the rule of law, I suggest we fulfill our 
responsibility to this nominee and to the country by 
considering his nomination in the manner his predecessor 
deserved but was denied.
    Mr. Chairman, there is a second cloud that hangs over this 
confirmation hearing. It is President Trump's reckless attacks 
on the judiciary. These attacks, like the President's attacks 
on the free press, have no precedent in the history of our 
Republic.
    The independence of our courts is an essential strength of 
our democracy. Attacking the judicial branch erodes the public 
confidence that gives force to their judgments. It damages the 
very foundation of our constitutional system.
    Disagreeing with a court's decision is acceptable. 
Disparaging a judge is always wrong.
    I have no doubt that, unlike the President, Judge Gorsuch 
has profound respect for an independent judiciary and the vital 
role it plays as a check on the Executive and legislative 
branches. I may not always agree with his rulings, but I 
believe Judge Gorsuch is unquestionably committed to the rule 
of law.
    Mr. Chairman, it is customary for Senators to introduce 
nominees from their home State, and I am not here today to take 
a position or persuade any of our colleagues how to vote. That 
is a matter of conscience for each of us. I am keeping an open 
mind about this nomination and expect this week's hearings will 
shed light on Judge Gorsuch's judicial approach and views of 
the law. Like many Americans, I look forward to the Committee's 
questions and the testimony from the nominee.
    And as one of two Americans privileged to represent the 
State of Colorado in the United States Senate, I am here this 
afternoon to uphold a tradition with the hope that, in some 
small way, it helps restore the Senate's strong history of 
comity and cooperation, especially in our Nation's most 
difficult times.
    Whatever the results of this hearing, we Senators must 
respond in some way to the expectations of most Coloradans and 
most Americans who are eager for us to work together and to 
treat each other with respect, particularly when it comes to 
extraordinarily important decisions like this one.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Bennet appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Senator Bennet, Senator 
Gardner. Thank you very much, and you are dismissed.
    And we will have Mr. Katyal come to the table now.
    And as I said, he was Acting Solicitor General in the 
previous administration.
    Thank you very much, and you may proceed at your will.

    INTRODUCTION OF HON. NEIL M. GORSUCH, NOMINEE TO BE AN 
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, BY 
  NEAL KATYAL, NEAL KATYAL, FORMER ACTING SOLICITOR GENERAL, 
                         WASHINGTON, DC

    Mr. Katyal. Thank you, Mr. Chairman and Senator Feinstein. 
It is my privilege to introduce Judge Gorsuch to this honorable 
Committee.
    Unlike Senators Gardner and Bennet, I am, unfortunately, 
only a part-time Colorado resident, but I am very proud to see 
this distinguished judge with an excellent first name be 
nominated for this position.
    [Laughter.]
    Mr. Katyal. Judge Gorsuch was born in Denver in 1967, the 
fourth generation of his family to hail from Colorado. He 
attended Columbia and Harvard Law School, and later clerked for 
Judge David Sentelle and Justices White and Kennedy. Judge 
Gorsuch then spent a decade at a law firm. And after serving in 
a leadership role at the Justice Department, he returned to 
Colorado as a Federal judge. I suppose the fly fishing in DC 
just was not good enough.
    In the few minutes I have, I would like to bring in my 
world of litigating cases before the Supreme Court of the 
United States. I have argued 32 cases over the last decade, two 
more arguments coming next month. My arguments have been on 
behalf of the most diverse client base imaginable: death 
penalty inmates, States, the Federal Government, Native 
American Tribes, our Nation's largest corporations, what the 
great Senator from Hawaii called the so-called little guy, and 
everyone in between.
    I can tell you the one thing you really want when you are 
in front of the Court is just an opportunity to be treated 
fairly; to have your position listened to, not caricatured, and 
treated with the gravity it deserves; to have jurists who work 
day and night to get the right answer, not motivated by party 
or politics, but by justice. And honestly, that is how our 
Supreme Court works. Every time I am up there, I get a lump in 
my throat because I see it firsthand. And I wish the Court 
would televise its proceedings so that the American public 
would see what I get to see every day.
    [Laughter.]
    Mr. Katyal. And it is because of that deep need for 
fairness, on the Court that, I am, like so many Americans are, 
outraged that Merrick Garland does not sit on the Court today. 
I have had the pleasure of appearing before him, and he has 
grilled me, once for over an hour. Indeed, I think maybe using 
the word ``pleasure'' is probably the wrong word to use.
    Garland's brilliance, his experience, his fairness and 
meticulous attention to detail make him perhaps the most 
qualified nominee ever to have been named to the Supreme Court, 
and there is no doubt in my mind that if Merrick Garland had 
been confirmed and another vacancy had opened up, Judge Gorsuch 
would be sailing through this body with something close to 100-
to-0 vote.
    It is a tragedy of national proportions that Merrick 
Garland does not sit on the Court, and it would take a lot to 
get over that. Indeed, there is less than a handful of people 
that the President could have nominated to even start to 
rebuild that loss of trust. But in my opinion, Neil Gorsuch is 
one.
    I say that knowing many people in my party will disagree 
and think the damage cannot be repaired, no matter who the 
nominee is. I can understand that sentiment. For those folks, 
there is nothing I can say about the nominee to make things 
right.
    But if you have not closed your mind to the possibility of 
a new nominee, despite the undeserved and unprecedented 
treatment of Merrick Garland, I would like to tell you a bit 
about Judge Gorsuch. There is a reason why our Supreme Court 
Bar has lined up behind Judge Gorsuch. There is a reason why 
the American Bar Association has given him the highest rating. 
I have seen Judge Gorsuch in action, and I have seen him 
hearing cases and studied his written opinions. This is a 
first-rate intellect and a fair and decent man.
    Judge Gorsuch and I served together on the Federal 
Appellate Rules Committee. It is complicated work and, quite 
honestly, not the sort that most people find particularly 
interesting. But the judge commits himself to it fully, and his 
work reflects his commitment to resolving disputes according to 
established standards. That is, the judge's work reflects his 
dedication to the rule of law.
    The judge's commitment to the rule of law would endear him 
well to our Founders. Ours is a government of laws, not of men 
and women. That principle is the essence of constitutional 
government and the foundation of our freedoms.
    Yet, if ours is to remain a government of laws, the subject 
of the laws must not be allowed to interpret it for themselves. 
No one can be a judge in his own cause. The Founders forged a 
judiciary independent of the Executive and legislative 
branches. ``The complete independence of the courts of justice 
is peculiarly essential in a limited Constitution,'' Alexander 
Hamilton wrote in Federalist 78. ``Without this, all the 
reservations of particular rights or privileges would amount to 
nothing.''
    We live in a unique time. The current President has 
displayed open contempt for the courts, attacking judges who 
disagree with him and even questioning their legitimacy and 
motives. Judges who have questioned the President's authority 
have had to be placed under increased scrutiny and protection 
because of the reaction among some Members of the public.
    Between the President's attacks on the judiciary and his 
controversial policies, he seems intent on testing the 
independence and integrity of our court system, and that brings 
me back once again to my support of Judge Gorsuch. As a judge, 
he has displayed a resolute commitment to the rule of law and 
the judiciary's independence. Even those who disagree with him 
can see the judge's decisions are meticulously crafted and 
grounded in the law and our Constitution. And when the judge 
believes the Government has overstepped its powers, he is 
willing to rule against it.
    It is very difficult to make the transition to Justice. I 
have seen Justices Kagan and Breyer go through it firsthand. It 
is not just the massive power all of a sudden that one wields. 
It is also the glare of the spotlight, an awareness of becoming 
part of history, and, most important, getting along with eight 
new colleagues who will be at your side for decades.
    To do this well is hard. It requires equal parts and equal 
servings of humility and ability. That is what Justices Kagan 
and Breyer brought to their transitions, and what Judge Gorsuch 
has. In short, to make up a word, Judge Gorsuch has 
``humibility,'' humility and ability.
    In sum, Judge Gorsuch and I come from different sides of 
the political spectrum. We disagree about many things, but we 
agree on the most important things, that all people are equal 
before the law and that a judge's duty is to uphold the law and 
uphold these principles and the Constitution above all.
    The judge has done that during his time on the bench, and I 
know he will continue to do so as a Justice on the Supreme 
Court. It is, therefore, my honor to recommend that his 
nomination be reported favorably to the Senate.
    [The prepared statement of Mr. Katyal appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Mr. Katyal. I know you have a 
busy schedule. Thank you for being here.
    We will wait until--do you want to change everything that 
you have to do?
    Judge, will you come forward? And before you sit, would you 
raise your right hand to be sworn?
    [Witness sworn.]
    Chairman Grassley. Thank you. Please be seated. And you may 
tell us what you want us to hear at this point.

 STATEMENT OF HON. NEIL M. GORSUCH, NOMINEE TO BE AN ASSOCIATE 
       JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

    Judge Gorsuch. Mr. Chairman, Senator Feinstein, Members of 
the Committee, I am honored and I am humbled to be here.
    Since coming to Washington, I have met with over 70 
Senators. You have offered me a warm welcome and wise advice. 
Thank you.
    I also want to thank the President and the Vice President. 
They and their teams have been so gracious to me, and I thank 
them for this honor.
    I want to thank Senators Bennet and Gardner and General 
Katyal for their kind introductions, reminding us that long 
before we are Democrats or Republicans, we are Americans.
    Sitting here, I am acutely aware of my own imperfections. 
But I pledge to each of you and to the American people that, if 
I am confirmed, I will do all my powers permit to be a faithful 
servant of the Constitution and laws of this great Nation.
    Mr. Chairman, I could not even attempt to do this without 
Louise, my wife of more than 20 years. The sacrifices she has 
made, and her open and giving heart, leave me in awe.
    I love you so much.
    We started off in a place very different than this one, a 
tiny apartment and little to show for it. When Louise's mother 
first came to visit, she was concerned by the conditions--
understandably. As I headed out the door to work, I will never 
forget her whispering to her daughter, in a voice I think 
intended to be just loud enough for me to hear, ``Are you sure 
he is really a lawyer?''
    [Laughter.]
    Judge Gorsuch. To my teenage daughters watching out West, 
bathing chickens for the county fair, devising ways to keep our 
determined pet goat out of the garden, building a semi-
functional plyboard hovercraft for science fair, driving 8 
hours through a Wyoming snowstorm with high school debaters in 
the back arguing the whole way, these are just a few of my very 
favorite memories. I love you girls impossibly.
    To my extended family here and across Colorado, when we 
gather, it is dozens of us. We hold different political and 
religious views, but we are united in our love. And between the 
family pranks and the pack of children running rampant, whoever 
is hosting is usually left with at least one drywall repair.
    To my parents and grandparents, they are no longer with us. 
But there is no question on whose shoulders I stand. My mom was 
one of the first women graduates of the University of Colorado 
Law School. As the first female Assistant District Attorney in 
Denver, she helped a program to pursue deadbeat dads. And her 
idea of daycare sometimes meant I have to spend the day 
wandering the halls or tagging along behind the police 
officers. She taught me that headlines are fleeting, courage 
lasts.
    My dad taught me that success in life has very little to do 
with success. Kindness, he showed me, is a great virtue. He 
showed me too that there are few places closer to God than 
walking in the wilderness or wading a trout stream, even if it 
is an awfully long drive home with the family dog after he 
encounters a skunk.
    To my grandparents, as a boy, I could ride my bike to their 
homes. They were a huge influence. My mom's father, poor and 
Irish, worked to help support his family as a boy after losing 
his own dad. But the nuns made sure he got an education, and he 
became a doctor.
    Even after he passed away, I heard stories for years from 
grateful patients who recalled him kneeling by their bedsides 
so they might pray together. His wife, my grandmother, grew up 
on a Nebraska farm, where an icebox was not something you 
plugged into the wall but something you lowered into the 
ground. With 7 children, she never stopped moving, and she 
never stopped loving.
    My dad's father made his way through college working on 
Denver's trolley cars. He practiced law through the Great 
Depression. And he taught me that lawyers exist to help people 
with their problems, not the other way around. His wife came 
from a family of pioneers. She loved to fish, and she is the 
one who taught me how to tie a fly.
    I want to thank my friends, so many of whom are here, 
liberals and conservatives and independents from every kind of 
background and belief. Many hundreds have written this 
Committee on my behalf, and I am truly touched by their 
support.
    They have been there for me always, not least when we 
recently lost my Uncle Jack, a hero of mine and a lifelong 
Episcopal priest. He gave the benediction when I took an oath 
as a judge 11 years ago. I confess I was hoping he might offer 
a similar prayer soon. As it is, I know he is smiling.
    I want to thank my fellow judges across the country. 
Judging is sometimes a lonely and hard job. But I have seen how 
these men and women work, how hard they work, with courage and 
collegiality, independence, and integrity. It is their work 
that helps make real the Constitution and laws of the United 
States for all of us.
    I want to thank my legal heroes. Byron White, my mentor, a 
product of the West, he modeled for me judicial courage. He 
followed the law wherever it took him, without fear or favor to 
anyone. War hero, Rhodes Scholar, and, yes, the highest paid 
NFL football player of his day. In Colorado today, there is 
God, there is John Elway, and there is Peyton Manning. In my 
childhood, it was God and Byron White.
    I also had the great fortune to clerk for Justice Kennedy. 
He showed me that judges can disagree without being 
disagreeable, that everyone who comes to court deserves 
respect, that a case is not just a number or a name but a 
life's story and a human being with equal dignity to my own.
    Justice Scalia was a mentor too. He reminded us that words 
matter, that the judge's job is to follow the words that are in 
the law, not replace them with those that are not. His 
colleagues cherished his great humor too. Now, we did not agree 
on everything. The Justice fished with the enthusiasm of a New 
Yorker. He thought the harder you slapped the line on the 
water, somehow the more the fish would love it.
    Finally, there is Justice Jackson. He wrote so clearly that 
everyone could understand his decisions. He never hid behind 
legal jargon. And while he was a famously fierce advocate for 
his client when he was a lawyer, he reminded us that, when you 
become a judge, you fiercely defend only one client--the law.
    By their example, these judges taught me about the rule of 
law and the importance of an independent judiciary, how hard 
our forebears worked to win these things, how easy they are to 
lose, how each generation must either take its turn carrying 
the baton or watch it fall.
    Mr. Chairman, these days, we sometimes hear judges 
cynically described as politicians in robes, seeking to enforce 
their own politics rather than striving to apply the law 
impartially. But if I thought that were true, I would hang up 
the robe. The truth is, I just do not think that is what a life 
in the law is about.
    As a lawyer for many years working in the trial court 
trenches, I saw judges and juries, while human and imperfect, 
striving hard every day to fairly decide the cases I put to 
them.
    As a judge now for more than a decade, I have watched my 
colleagues spend long days worrying over cases. Sometimes the 
answers we reach are not the ones we personally prefer. 
Sometimes the answers follow us home at night and keep us up. 
But the answers we reach are always the ones we believe the law 
requires. And for all its imperfections, I believe that the 
rule of law in this Nation truly is a wonder, and that it is no 
wonder that it is the envy of the world.
    Of course, once in a while, we judges do disagree. But our 
disagreements are not about politics, but about the law's 
demands.
    Let me offer an example. The first case I wrote as a judge 
to reach the Supreme Court divided 5-to-4. The Court affirmed 
my judgment with the support of Justices Thomas and Sotomayor, 
while Justices Stevens and Scalia were in dissent.
    Now that is a lineup some might think unusual. But 
actually, it is exactly the sort of thing that happens, 
quietly, day in and day out, in the U.S. Supreme Court and in 
the courts across this country.
    I wonder if people realize that Justices Thomas and 
Sotomayor agree about 60 percent of the time, or that Justices 
Scalia and Breyer agreed even more often than that, all in the 
very toughest cases in our entire legal system.
    And here is another example about my record. Over the last 
decade, I have participated in over 2,700 appeals. Often these 
cases are hard, too. Only about 5 percent of all Federal 
lawsuits make their way to decision in a Court of Appeals. I 
have served with judges appointed by President Obama all the 
way back to President Johnson. And in the Tenth Circuit, we 
hear cases from six different States covering two time zones 
and 20 percent of the continental United States.
    But in the West, we listen to one another respectfully. We 
tolerate. We cherish different points of view. And we seek 
consensus whenever we can. My law clerks tell me that 97 
percent of those 2,700 cases I have decided were decided 
unanimously, and that I have been in the majority 99 percent of 
the time. That is my record, and that is how we do things in 
the West.
    Of course, I make my share of mistakes, too. As my 
daughters never tire of reminding me, putting on a robe does 
not make me any smarter. And I will never forget my first day 
on the job. Carrying a pile of briefs up the steps to the 
bench, I tripped on the hem of my robe and just about 
everything went flying.
    But troublesome as the robe can be, the robe does mean 
something to me, and not just that I can hide coffee stains on 
my shirt. Putting on a robe reminds us judges that it is time 
to lose our egos and open our minds. It serves, too, as a 
reminder of the modest station we judges are meant to occupy in 
a democracy. In other countries, judges wear scarlet, silk, 
ermine. Here, we judges, we buy our own plain black robes. And 
as Senator Sasse knows, I can attest the standard choir outfit 
at the local uniform supply store is a pretty good deal. Ours 
is a judiciary of honest black polyester.
    When I put on the robe, I am also reminded that, under our 
Constitution, it is for this body, the people's 
representatives, to make new laws, for the Executive to ensure 
those laws are faithfully executed, and for neutral and 
independent judges to apply the law in the people's disputes.
    If judges were just secret legislators, declaring not what 
the law is but what they would like it to be, the very idea of 
a government by the people and for the people would be at risk. 
And those who came before the court would live in fear, never 
sure exactly what the law requires of them, except for the 
judge's will.
    As Alexander Hamilton said, liberty can have nothing to 
fear from judges who apply the law, but liberty has everything 
to fear if judges try to legislate, too.
    In my decade on the bench, I have tried to treat all who 
come before me fairly and with respect, and afford equal right 
to poor and to rich. I have decided cases for Native Americans 
seeking to protect Tribal lands, for class actions like one 
that ensured compensation for victims of a large nuclear waste 
pollution problem produced by corporations in Colorado. I have 
ruled for disabled students, for prisoners, for the accused, 
for workers alleging civil rights violations, and for 
undocumented immigrants. Sometimes, too, I have ruled against 
such persons. My decisions have never reflected a judgment 
about the people before me, only a judgment about the law and 
the facts at issue in each particular case.
    A good judge can promise no more than that, and a good 
judge should guarantee no less, for a judge who likes every 
outcome he reaches is probably a pretty bad judge, stretching 
for policy results he prefers rather than those the law 
compels.
    Mr. Chairman, as a student many years ago, I found myself 
walking through the Old Granary burial ground in Boston. It is 
where Paul Revere, John Hancock, and many of our Founders are 
buried. And there, I came across the tombstone of a lawyer and 
judge who today is largely forgotten, as we are all destined to 
be soon enough. His name was Increase Sumner. And written onto 
his tombstone over 200 years ago was this description of the 
man: ``As a lawyer, he was faithful and able; as a judge, 
patient, impartial, and decisive. In private life, he was 
affectionate and mild; in publick life, he was dignified and 
firm. Party feuds were allayed by the correctness of his 
conduct; calumny was silenced by the weight of his virtues; and 
rancour softened by the amenity of his manners.''
    Mr. Chairman, those words stick with me. I keep them on my 
desk. They serve for me as a daily reminder of the law's 
integrity, that a useful life can be led in its service, of the 
hard work it takes, and an encouragement to good habits when I 
fail and when I falter. At the end of it all, I could ask for 
nothing more than to be described as he was. And if confirmed, 
I pledge to you that I will do everything in my power to be 
that man.
    [The prepared statement of Judge Gorsuch appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Judge.
    I have just a few words to say, to read, but before I do 
that, we will convene tomorrow at 9:30. Each person will have 
30-minute rounds. I want to finish the first round tomorrow, so 
not taking into consideration any of the judge's needs to get 
away from the table for time to eat and do other things, I 
would suggest that we have at least 10 hours of work to do, in 
addition to whatever the judge needs. So I ask you to be 
prepared for that.
    And the way I would like to do it, since each person has a 
half-hour, if you start your last question before the time runs 
out, I will ask the judge to give a short answer. But I think 
we have to move on very quickly and get it done.
    And then the next day, we have 20-minute rounds, and there 
will be as many rounds as people need, because I would like to 
get done by Wednesday night. And if we can get it so I can get 
to bed at 9 o'clock like I like to, I would appreciate it.
    We have questions for the record being due at 5 p.m. This 
timeline is consistent with how we have handled past Supreme 
Court nominations. I want everybody to know that now so that 
Members and their staffs can be working on written questions 
throughout the week.
    With that, we will recess until----
    Senator Feinstein. When?
    Senator Leahy. Five p.m. when?
    Chairman Grassley. Oh, I am sorry. Friday at 5 p.m.
    With that, the meeting is adjourned.
    [Whereupon, at 3:15 p.m., the Committee was recessed.]
    [Additional material submitted for the record for Day 1 
follows Day 4 of the hearing.]



                          CONTINUATION OF THE



                      CONFIRMATION HEARING ON THE



                   NOMINATION OF HON. NEIL M. GORSUCH



                   TO BE AN ASSOCIATE JUSTICE OF THE



                   SUPREME COURT OF THE UNITED STATES

                              ----------                              


                        TUESDAY, MARCH 21, 2017

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:35 a.m., in 
Room SH-216, Hart Senate Office Building, Hon. Charles E. 
Grassley, Chairman of the Committee, presiding.
    Present: Senators Grassley, Hatch, Graham, Cornyn, Lee, 
Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy, 
Durbin, Whitehouse, Klobuchar, Franken, Coons, Blumenthal, and 
Hirono.

         OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Chairman Grassley. Welcome back, Judge Gorsuch. Glad to 
have you back, and I am sure you are glad to be here.
    Good morning, everybody. I would like to welcome everyone 
and especially our nominee, as I just did.
    This is day two of the Supreme Court nominee's hearing. We 
have a long day in front of us. So we will immediately turn to 
Members' questions. It is my intention to get through all 
Members' first round of questions today. So it is important 
that we all stick to our time limit so that we can stay on that 
schedule.
    I realize that 10 hours is a long time for you to sit there 
and answer questions for 20 of us. So I am going to defer to 
you when you might need a break. In the meantime, I would 
anticipate a break about 30 minutes for lunchtime. And I hope 
for the Members of the Committee, I have not made up my mind on 
this yet, but we do have a vote scheduled at noon. And I 
might--I am sorry?
    Senator Leahy. There are two votes.
    Chairman Grassley. Two? Okay. We have two votes at noon. So 
it might be appropriate to use that period of time for our 
lunch break. I will make a decision on that later on.
    So with that understanding with you and to accommodate you 
because you are the person that has to sit there and answer 
questions, and so whatever your needs are, you let us know.
    Judge Gorsuch. Thank you, Senator.
    Chairman Grassley. I started yesterday morning, Judge and 
audience, with Justice Scalia's comments that our Government of 
laws and not men is the pride of our constitutional democracy. 
Our democracy requires judges to let the people's elected 
representatives do the lawmaking.
    You, Judge, said that Justice Scalia's great accomplishment 
was, to quote you, ``remind us of the differences between 
judges and legislators.'' Legislators, in other words, consult 
their own moral convictions to shape law, as we best think it 
to be. But you said that judges cannot do those things, rightly 
so from my point of view.
    Our Constitution is also our charter of liberty. Justice 
Scalia said that our Constitution guarantees our liberties 
primarily through its structure. That happens to be the 
separation of powers. You, Judge, said much the same thing, 
you, ``What would happen to disfavored groups and individuals'' 
if we allowed judges to act like legislators? ``The judge would 
need only his own vote to revise the law willy nilly in 
accordance with preferences.''
    The separation of powers in our system requires an 
independent judiciary made of judges respectful of the other 
two branches, but not beholden to them. Judges must be equally 
independent of the President who nominates them and us Senators 
who confirm the same judiciary Members.
    Let us start with independence from the Executive. No one, 
not even the President, is above the law. One of the most 
remarkable things about your nomination is the broad bipartisan 
support that you have received.
    You have earned great praise from individuals who are not 
exactly staunch supporters of the President, but who strongly 
supported your nomination. Yesterday, we heard from one of 
them, Neal Katyal. President Obama's former Solicitor General 
said that you ``will not compromise principle to favor the 
President.''
    In 2006, former Colorado Senator Salazar, a Democrat, said 
that you have ``the sense of fairness and impartiality that is 
a keystone of being a judge.'' And legal commentator Jeffrey 
Rosen similarly praised you for your independence.
    So let us start with my first question. I would like to 
have you describe, in any way you want to, what judicial 
independence means and specifically tell us whether you would 
have any trouble ruling against a President who appointed you.
    Judge Gorsuch. That is a softball, Mr. Chairman. I have no 
difficulty ruling against or for any party other than based on 
what the law and the facts in the particular case require, and 
I am heartened by the support I have received from people who 
recognize that there is no such thing as a Republican judge or 
a Democratic judge. We just have judges in this country.
    When I think of what judicial independence means, I think 
of Byron White. That is who I think of. I think of his fierce, 
rugged independence. He did his--he said, ``I have a job.'' 
People asked him what his judicial philosophy was, I will give 
the same answer. I decide cases.
    It is a pretty good philosophy for a judge. I listen to the 
arguments made. I read the briefs that are put to me. I listen 
to my colleagues carefully, and I listen to the lawyers in the 
well.
    And this experience has reminded me what it is like to be a 
lawyer in the well. It is a lot easier to ask the questions, I 
find, as a judge than it is to have all the answers as the 
lawyer in the well.
    So I take the process, the judicial process, very 
seriously. And I go through it step by step and keeping an open 
mind through the entire process as best as I humanly can, and I 
leave all the other stuff at home. And I make a decision based 
on the facts and the law.
    Those are some of the things judicial independence means to 
me. It means to me the judicial oath that I took--to administer 
justice without respect to persons, to do equal right to the 
poor and the rich, and to discharge impartially the duties of 
my office. It is a beautiful oath. It is a statutory oath 
written by this body. That is what judicial independence means 
to me.
    Happy to talk about the separation of powers, too, if you 
would like, Mr. Chairman, which you referenced in there. Or I 
am happy to answer another question. Entirely up to you.
    Chairman Grassley. Well, your record made clear that you 
are not afraid to fulfill your role independently, and you just 
emphasized that. You vacated orders of administrative agencies 
acting outside their authority, and you have ruled on cases 
where Congress has overstepped its bounds.
    So I think you can maybe speak about the separation of 
powers, but at the same time, maybe you could give me a couple 
of your cases that demonstrate your commitment to that 
independence of the executive branch of government?
    Judge Gorsuch. Sure. On the first point, you know, I have 
decided, as I noted yesterday, over 2,700 cases, and my law 
clerks tell me that 97 percent of them have been unanimous. 
Ninety-nine percent I have been in the majority.
    They tell me as well that, according to the Congressional 
Research Service, my opinions have attracted the fewest number 
of dissents from my colleagues of anyone I have served with 
that they have studied over the last 10 years. Now the 
Congressional Research Service speculates whether that is 
because I am persuasive or I believe in collegiality. I do not 
see why it has to be a choice.
    My law clerks also tell me that in the few cases where I 
have dissented that I am as likely almost to dissent from a 
Democrat-appointed colleague as a Republican-appointed 
colleague, and that is again because we do not have Democrat or 
Republican judges.
    According to the Wall Street Journal, I am told that of the 
eight cases that they have identified that I have sat on that 
have been reviewed by the U.S. Supreme Court, our court was 
affirmed in seven of them. Now I think Louise might argue for 
the eighth because in that case, the Supreme Court did not like 
a procedural precedent of our court that, as a panel, we were 
bound to follow. So they remanded it back.
    We decided it on the merits, as the Court instructed. Cert. 
denied. Eight out of eight?
    On the separation of powers, it is, Mr. Chairman, the 
genius of the Constitution. Madison thought that the separation 
of powers was perhaps the most important liberty-guaranteeing 
device in the whole Constitution, and this is a point of civics 
that I do think maybe is lost today, how valuable the 
separation of powers is.
    That you have in Article I the people's representatives 
make the law. That is your job. And I do not think it is an 
accident that the Framers put Article I first. Your job comes 
first. You make the law.
    Article II, the President's job is to faithfully execute 
your laws. And our job, Article III, down at the bottom, is to 
make sure that the cases and controversies of the people are 
fairly decided.
    And if those roles were confused and power amalgamated, the 
Founders worried that would be the very definition of tyranny. 
And you can see why. Judges would make pretty rotten 
legislators.
    We are life tenured, right? You cannot get rid of us. It 
only takes a couple of us to make a decision, or 9, or 12, 
depending on the court. That would be a pretty poor way to run 
a democracy.
    And at the same time, with respect, legislators might not 
make great judges because they are answerable to the people. 
And when you come to a court with a case or a controversy about 
a past--past facts, you want a neutral, rigidly neutral, fair, 
scrupulously fair decisionmaker. You want somebody who is going 
to put politics aside.
    So the separation of powers I do not think has lost any of 
its genius over 200 years. In fact, it has proven it.
    Chairman Grassley. Thank you.
    I have heard my colleagues and people not in the Senate say 
that now more than ever we need a Justice who will be 
independent of the President who nominated him or her. So I 
would like to ask about your nomination and your independence.
    A lot has been made about the list of judges then-candidate 
Trump proposed as possible nominees. To me, it was the most 
transparent that we have had in history, and we did not have 
Secretary Clinton give out such a list.
    Of course, you were not on the first group that came out 
and otherwise added later. So I am curious. When did you first 
learn that you were on candidate Trump's extended list?
    Judge Gorsuch. Well, Mr. Chairman, you are right. There 
were two lists, as I recall, over the summer. And I was not on 
the first list. And I remember having breakfast one day with a 
friend, who may be here. Bryan? There you are. You remember 
this?
    [Laughter.]
    Judge Gorsuch. We were having breakfast one day, and he 
said, ``Neil, you are not on the list.'' And I said, ``You are 
right. I am not on the list.'' He said, ``You should be on the 
list.''
    And I said, ``I love my life in Colorado. I would not 
change a thing. I am a happy man. I have a loving wife, 
beautiful home and children, a great job with wonderful 
colleagues. I am a happy person.''
    I am walking away from breakfast, and I get an email from 
Bryan saying, ``There is a new list--''
    [Laughter.]
    Judge Gorsuch. ``And you are on it.'' That was the first I 
heard of it.
    Chairman Grassley. And I assume you thanked him.
    Judge Gorsuch. I do not know about that.
    [Laughter.]
    Judge Gorsuch. I do not think he--you did not know? I do 
not think we--we were all surprised.
    Chairman Grassley. I am kidding.
    Judge Gorsuch. And at any rate, we are where we are.
    Chairman Grassley. Okay. Tell me about the process that led 
to your nomination. Did anyone ask you to make any promises or 
assurances at all about your view on certain legal issues or 
the way that you would rule in certain cases?
    Judge Gorsuch. Senator, I think you would be reassured by 
the process that unfolded. I try to live under a shell during 
the campaign season, watch baseball and football, go about my 
business. But I did hear lots of talk of litmus tests from all 
around. It was in the air.
    And I do not believe in litmus tests for judges. I have 
written about that years ago. I was not about to become party 
to such a thing.
    And I am here to report that you should be reassured 
because no one in the process, from the time I was contacted 
with an expression of interest for a potential interview to the 
time I was nominated, no one in that process, Mr. Chairman, 
asked me for any commitments, any kind of promises about how I 
would rule in any kind of case.
    Chairman Grassley. And that is the way it should be.
    So we have just discussed your independence from the 
President, but there is also independence from the legislative 
branch. It is odd that some of the same folks who will claim 
that you are not independent from the President will turn 
around and try to extract from you promises and commitments 
before they pass judgment on your nomination. The irony, of 
course, is that extracting commitments during the confirmation 
process is exactly what would undermine your independence as a 
judge.
    One way that they will do this is asking you about 
precedent. So let us talk about that. For starters, I have a 
book here that you co-wrote, an 800-page book on precedent. 
Your 12 co-authors included judges from across the ideological 
spectrum, such as Bill Pryor, who was also on President Trump's 
Supreme Court list, and Diane Wood, who was reportedly on 
President Obama's list.
    You have also touched on the value of precedent in speeches 
that you have given or in your opinions. For instance, in the 
speech you gave honoring Justice Scalia last year, you said 
this. ``Even when a hard case does arise, once it is decided, 
it takes on the force of precedent, becomes an easy case in the 
future, and contributes further to the determinacy of our 
law,'' especially if more recent opinions have called into 
question the rationale of the original case.
    But you have also suggested that there may be circumstances 
where it is appropriate to revisit precedent. Specifically, you 
wrote that it may be appropriate to reconsider a decision where 
it has become a ``presidential island surrounded by a sea of 
contrary law.''
    So there may be times where it is appropriate to reconsider 
certain decisions, especially if more recent opinions have 
called into question the rationale of the original decision.
    I think all of us would agree, for instance, that Brown v. 
Board of Education, which finally overruled a repugnant 
``separate, but equal'' standard in Plessy, is a textbook 
example of this. So with these things in mind, I would like to 
explore the approach that you take to Supreme Court precedents. 
Could you tell us what you believe is the value of precedent in 
our legal system?
    Judge Gorsuch. Absolutely, Senator. And if I might, Mr. 
Chairman, go back just a moment to promises? I have offered no 
promises on how I would rule in any case to anyone, and I do 
not think it is appropriate for a judge to do so, no matter who 
is doing the asking.
    And I do not because everybody wants a fair judge to come 
to their case with an open mind and to decide it on the facts 
and the law. One of the facts and one of the features of law 
that you have to decide it on is the basis of precedent, as you 
point out. And for a judge, precedent is a very important 
thing.
    We do not go reinvent the wheel every day. And that is the 
equivalent point of the law of precedent. We have an entire law 
about precedent, the law of judicial precedent. Precedent about 
precedent, if you will.
    And that is what that 800-page book is about. It expresses 
a mainstream consensus view of 12 judges from around the 
country appointed by, as you point out, Presidents of both 
parties, great minds. Justice Breyer was kind enough to write a 
foreword to it. It makes an excellent doorstop.
    [Laughter.]
    Judge Gorsuch. And in it, we talk about the factors that go 
into analyzing precedent, any consideration of precedent, and 
there are a bunch of them. You have alluded to some of them. 
The age of the precedent, very important factor.
    The reliance interests that have built up around the 
precedent, has it been reaffirmed over the years? What about 
the doctrine around it? Has it built up, shored up, or has it 
become an island, as you point out?
    Those are all relevant considerations. Its workability is a 
consideration, too. Can people figure out how to abide it, or 
is it just too confusing for the lower courts in their 
administration? Those are all factors that a good judge will 
take into consideration when examining any precedent. You start 
with a heavy, heavy presumption in favor of precedent in our 
system.
    Alexander Hamilton who said that is one important feature. 
I think it was Hamilton who said one important feature of 
judges, if we are going to give them life tenure and allow them 
that extraordinary privilege, they should be bound down by 
strict rules and precedents.
    Francis Bacon called precedent the anchor of the law. So 
you start with that heavy presumption in favor of precedent. 
You consider those factors in that light. And yes, in a very 
few cases, you may overrule precedent. It is not an inexorable 
command, the Supreme Court has said.
    That is the law of precedent, as I understand it and I 
believe is expressed in that book with my very highly respected 
colleagues.
    Chairman Grassley. As a lower court judge, you are bound by 
not only Supreme Court precedent, but as you have demonstrated, 
the precedent of your own court. But as a Supreme Court 
Justice, part of your job will be to decide when existing 
Supreme Court precedent need not be reconsidered. How will you 
decide when you revisit existing precedent?
    Judge Gorsuch. Mr. Chairman, I do not think the 
considerations change. It is the same analysis that I would 
have as a Supreme Court Justice, if I am fortunate enough to be 
confirmed, that I have when I am considering Circuit precedent 
as a Circuit Judge. It is the exact same process. The exact 
same rules apply.
    Chairman Grassley. Okay. This is the fourteenth Supreme 
Court hearing that I have participated in. So I have a pretty 
good idea of some of the questions that you are going to get 
today. You are going to be asked to make promises and 
commitments about how you will rule on particular issues.
    Now they will not necessarily ask you that directly. For 
instance, how will you rule on this issue or that issue? 
Instead, they will probably ask you about old cases, whether 
they were correctly decided. Of course, that is another way of 
asking the very same question. They know that you cannot 
answer, but they are going to ask you anyway.
    I have heard Justices nominated by Presidents of both 
parties decline to answer questions like these. That is 
because, as the nominee put it, ``A judge sworn to decide 
impartially can offer no forecasts, no hints, for that would 
show not only disregard for the specifics of this particular 
case, it would display disdain for the entire judicial 
process.''
    Now you probably know that is what Justice Ginsburg said at 
her hearing, and it is what we call ``the Ginsburg standard.'' 
The underlying reason for this is, of course, is that making 
promises or even giving hints undermines the very independence 
that we just talked about.
    I would like to ask you if you agree with what I just said?
    Judge Gorsuch. I do, Mr. Chairman.
    Chairman Grassley. So let me ask you about a couple of 
Supreme Court cases. In Heller, Supreme Court held that the 
Second Amendment protects an individual's right to bear arms. 
If I ask you to tell me whether Heller was rightly decided, 
could you answer that question for me?
    Judge Gorsuch. Senator, I would respectfully respond that 
it is a precedent of the U.S. Supreme Court, and as a good 
judge, you do not approach that question anew, as if it had 
never been decided. That would be a wrong way to approach it.
    My personal views, I would also tell you, Mr. Chairman, 
belong over here. I leave those at home.
    Mr. Katyal yesterday said that what he wants is a fair 
judge, and that is what I wanted as a lawyer. I just wanted a 
judge to come in and decide on the facts and the law of my 
client's case and leave what he had for breakfast at the 
breakfast table.
    And part of being a good judge is coming in and taking 
precedent as it stands, and your personal views about the 
precedent have absolutely nothing to do with the good job of a 
judge.
    Chairman Grassley. Let me ask you about Citizens United. In 
this case, the Supreme Court held that the Government cannot 
restrict independent political expenditure by a nonprofit 
corporation. Do you agree with that decision?
    Judge Gorsuch. And Senator, I would give you the same 
response. I know people have their views personally about lots 
of Supreme Court decisions and about a lot of other things. We 
are all human beings. I get that. I am not an algorithm. They 
have not yet replaced judges with algorithms, though I think 
eBay is trying and maybe successfully.
    We are all human beings. But the judge's job is to put that 
stuff aside and approach the law as you find it, and that is 
part of the precedent of the U.S. Supreme Court that I am sworn 
as a sitting judge to give the full weight and respect to due 
precedent.
    Chairman Grassley. Those two cases were 5-4 decisions. So 
let me ask you about something that was unanimous, Hosanna-
Tabor. The Supreme Court ruled 9-0 that the Obama 
administration could not tell a church who its ministers can 
be.
    The only thing controversial about that case was that the 
Obama administration actually tried to convince the Supreme 
Court that a bunch of Government bureaucrats could tell a 
church who its ministers could be. Like I said, that case was 
9-0.
    Can you tell me if that case was decided correctly?
    Judge Gorsuch. Respectfully, Senator, I would give you the 
same answer.
    Chairman Grassley. Okay. Those are relatively recent cases. 
Let us talk about cases that have been around for a while. Let 
us look at Gideon v. Wainwright. It was decided unanimously a 
long time ago, 50 years or more.
    It says a criminal defendant has the right to an appointed 
attorney if he cannot afford one. Everyone who watches cop TV 
shows know this law. Does that make a difference? Can you tell 
me if you agree with the principle of Gideon? Is it the same 
answer, the same reason?
    Judge Gorsuch. Mr. Chairman, it is certainly a seminal 
decision of the U.S. Supreme Court. There is no doubt about it. 
It is a very old decision of the Supreme Court now. It has been 
reaffirmed many times. There is a lot of reliance interest 
built around it.
    So I could talk to you about the factors that a good judge 
considers in analyzing precedent and the weight due a 
precedent, but I am not in a position to tell you whether I 
personally like or dislike any precedent. That is not relevant 
to my job.
    Gideon is a seminal precedent of the U.S. Supreme Court, 
and it deserves respect on that basis. Precedent is kind of 
like our shared family history as judges. It deserves our 
respect because it represents our collective wisdom. And to 
come in and think that just because I am new or the latest 
thing and know better than everybody who comes before me would 
be an act of hubris inappropriate to the judicial role.
    Chairman Grassley. What if I asked you about Bush v. Gore?
    Judge Gorsuch. I know some people in this room have some 
opinions on that, I am sure, Senator. But as a judge, it is a 
precedent of the U.S. Supreme Court, and it deserves the same 
respect as other precedents of the U.S. Supreme Court when you 
are coming to it as a judge. And it has to be analyzed under 
the law of precedent.
    Chairman Grassley. Well, let us go to kind of a more 
controversial issue, but along the same lines I have been 
asking you. I think the case that most people are thinking 
about right now and the case that every nominee gets asked 
about, Roe v. Wade, can you tell me whether Roe was decided 
correctly?
    Judge Gorsuch. Senator, again, I would tell you that Roe v. 
Wade, decided in 1973, is a precedent of the U.S. Supreme 
Court. It has been reaffirmed. The reliance interest 
considerations are important there, and all of the other 
factors that go into analyzing precedent have to be considered.
    It is a precedent of the U.S. Supreme Court. It was 
reaffirmed in Casey in 1992 and in several other cases. So a 
good judge will consider it as precedent of the U.S. Supreme 
Court worthy as treatment of precedent like any other.
    Chairman Grassley. What about Griswold, which was decided a 
few years before Roe, the case where the Court found 
constitutional right to privacy? Can you tell me your views on 
Griswold?
    Judge Gorsuch. Senator, it is a precedent that is now 50 
years old. Griswold involved the right of married couples to 
use contraceptive devices in the privacy of their own home.
    And it is 50 years old. The reliance interests are obvious. 
It has been repeatedly reaffirmed. All very important factors 
again in analyzing precedent.
    Chairman Grassley. Well, I think I am going to stop 
questioning, but I would kind of sum up what you and I just 
talked about in regard to precedent so everybody understands 
the principles that are at stake here.
    There are two reasons why you cannot give your opinion on 
these cases. One, I believe, is independence, and the other one 
is fairness to future litigants. Is that the way you see it?
    Judge Gorsuch. It is, Senator. If I were to start telling 
you which are my favorite precedents or which are my least 
favorite precedents or if I view precedent in that fashion, I 
would be tipping my hand and suggesting to litigants that I 
have already made up my mind about their cases. That is not a 
fair judge.
    I did not want that kind of judge when I was a lawyer, and 
I do not want to be that kind of judge now. And I made a vow to 
myself I would not be. That is the fairness problem.
    And then the independence problem. If it looks like I am 
giving hints or previews or intimations about how I might rule, 
I think that is the beginning of the end of the independent 
judiciary, if judges have to make, effectively, campaign 
promises for confirmation. And respectfully, Senator, I have 
not done that in this process, and I am not about to start.
    Chairman Grassley. Thank you. I will yield back 8 seconds.
    [Laughter.]
    Chairman Grassley. Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chair.
    Welcome, Judge, and good morning to you again.
    Judge Gorsuch. Good morning, Senator.
    Senator Feinstein. Since we are on Roe, I was not going to 
begin with this, but I well recall the time we spent in my 
office, and we talked about precedent. And in my opening 
remarks, I indicated that if anything had super precedent, Roe 
did in terms of the numbers, and I have put that in the record. 
Here is why it becomes of concern.
    The President said that he would appoint someone who would 
overturn Roe. You pointed out to me that you viewed precedent 
in a serious way, in that it added stability to the law. Could 
you elaborate on the point that you made in my office on that?
    Judge Gorsuch. I would be delighted to, Senator.
    Part of the value of precedent, it has lots of value. It 
has value, in and of itself, because it is our history, and our 
history has value intrinsically.
    But it also has an instrumental value in this sense. It 
adds to the determinacy of law. We have lots of tools that 
allow us to narrow the realm of admissible dispute between 
parties so that we can--people can anticipate and organize 
their affairs. It is part of the reason why the rule of law in 
this country works so well.
    We have statutes. We have rules. We have a fact-finding 
process and a judicial system that is the envy of the world. 
And precedent is a key part of that because, as the Chairman 
pointed out when he quoted an old piece of mine, once a case is 
settled, that adds to the determinacy of the law.
    What was once a hotly contested issue is no longer a hotly 
contested issue. We move forward. And Senator, the value of 
that is the U.S. Supreme Court takes something like 70 or 80 
cases a year. That is a tiny fraction of all the disputes in 
our Federal legal system, right?
    Senator Feinstein. Right.
    Judge Gorsuch. My law clerks tell me it is something like 
.001 percent, and they are unanimous in those cases, which have 
divided Circuit Judges. That is why the Supreme Court largely 
takes the case, because it has divided us. It is one of the 
rare cases where we disagree. They are unanimous 40 percent of 
the time.
    Senator Feinstein. One other question.
    Judge Gorsuch. Sure.
    Senator Feinstein. Do you view Roe as having super 
precedent?
    Judge Gorsuch. Well, Senator, super precedent is----
    Senator Feinstein. In numbers?
    Judge Gorsuch. It has been reaffirmed many times. I can say 
that.
    Senator Feinstein. Yes.
    Judge Gorsuch. Yes.
    Senator Feinstein. Yes, dozens.
    All right. I would like now to go to--to take you back to 
2005, when you were in the Justice Department, and I want to 
explain to you why I am going here. This has to do with 
torture.
    The Intelligence Committee was informed in 2006, and 
Attorney General Gonzales played a role in this, of the nature 
of the enhanced interrogation techniques, and we were given a 
very soft view. Senator Rockefeller became the Chairman of the 
Committee in 2007 and began a study of three detainees and the 
enhanced interrogation techniques.
    When I became Chairman in 2009, I added that, and we took 
all of the major detainees and looked at them in a 6-year 
study. The staff spent long hours analyzing every cable, every 
email, looking at more than 100 interviews, and essentially 
putting in a 7,000-page report, 32,000 footnotes documenting 
where the information--there are no conclusions. There are just 
facts.
    That 7,000-page report has remained classified. I have read 
it. We have put out a 450-page summary, which is public. And in 
that summary, we indicated that those cases that the 
administration spelled out where torture produced operable 
intelligence was simply not so. We elaborate on that in the big 
report, and my hope is that one day, not too distant, that 
report will be declassified so the American people can actually 
see.
    But I wanted to ask you some questions along these lines. 
It is my understanding that a set of talking points were 
prepared for a press conference for the Attorney General on 
November 22, 2005. The talking points asked whether, 
``aggressive interrogation techniques employed by the 
administration yielded any valuable information.'' And in the 
margin next to this question, you hand-wrote one word, ``yes.''
    What information did you have that the Bush 
administration's aggressive interrogation techniques were 
effective?
    Judge Gorsuch. Senator, I would have to see the document. I 
do not recall. I have been sitting here.
    Senator Feinstein. All right. That is fair enough.
    Judge Gorsuch. It has been a long, long time.
    Senator Feinstein. Why do we not do this? I would be happy 
to share the documents with you. I took these pages out of my 
binder. I think they were there----
    Judge Gorsuch. Fair enough.
    Senator Feinstein [continuing]. So I would not have to 
pause, and I--but let me just hold up that answer.
    Judge Gorsuch. Sure.
    Senator Feinstein. And we will get you the documents on 
that.
    Judge Gorsuch. Thank you.
    Senator Feinstein. Because--let me do the next question. In 
December 2005, after the passage of the Detainee Treatment Act, 
you advocated that President Bush should issue a signing 
statement to accompany the law. In an email you sent to Steven 
Bradbury and others, you said the signing statement would--this 
is your quote--``help inoculate against the potential of having 
the administration criticized sometime in the future for not 
making sufficient changes in interrogation policy in light of 
the McCain portion of the amendment. This statement clearly and 
in a formal way would be hard to dispute later, puts down a 
marker to the effect that McCain is best read as essentially 
codifying existing interrogation policies.''
    To be clear, the context was that earlier in 2005, the 
Justice Department's Office of Legal Counsel had concluded that 
CIA interrogation tactics like waterboarding and sleep 
deprivation did not amount to cruel, inhuman, or degrading 
treatment. I read your email as advocating a continuation of 
these interrogation techniques and, worse, saying that Senator 
McCain's amendment actually codified them, which it did not.
    Is that true? And does it not mean that when you wrote this 
in an email that you were condoning waterboarding as lawful?
    Judge Gorsuch. Senator, I would want to see the email. 
Again, I do not feel comfortable commenting on documents that 
are not in front of me. But I can say this, that I do 
remember----
    Senator Feinstein. My staff has the documents here.
    Judge Gorsuch. Great.
    Senator Feinstein. They can bring them down to you----
    Judge Gorsuch. That would be great.
    Senator Feinstein [continuing]. Right now.
    Judge Gorsuch. Thank you. That would be wonderful.
    Senator Feinstein. Okay. And then I will put aside this 
part.
    Judge Gorsuch. Okay.
    Senator Feinstein. You will have the documents because 
there are more--and I will go on to the next subject.
    Judge Gorsuch. No, that is fine. I am happy to----
    Senator Feinstein. Is that all right?
    Judge Gorsuch. Of course.
    Senator Feinstein. I know, I want you to look at the 
documents.
    Judge Gorsuch. I would like to just know what I am talking 
about. My recollection generally from 12 years ago----
    Senator Feinstein. Eric, bring him the documents, please.
    Judge Gorsuch. Thank you, Eric.
    [Laughter.]
    Judge Gorsuch. My recollection generally, working on the 
Detainee Treatment Act, Senator, was that at that time after 
Rasul was issued by the Supreme Court, there were a lot of 
habeas petitions coming in from detainees at Guantanamo Bay. 
Some brought by my friend Neal Katyal.
    And there was an effort by some in the administration, 
along with many on Capitol Hill, to try and provide a regime 
for the processing of those claims in a way that would conform 
with the Youngstown ideal of Congress and the President acting 
together in unison, and that Senator McCain and Senator Graham 
put together legislation that emphasized that not only was 
torture unacceptable, which it always had been under U.S. law, 
but that cruel, inhuman, and degrading treatment was also 
unacceptable under U.S. law.
    Senator Feinstein. Let me help you here. I know from the 
documents that you worked on the Graham effort.
    Judge Gorsuch. Yes.
    Senator Feinstein. For example, a self-assessment that you 
wrote said that you ``helped coordinate the legislative effort 
on the Graham amendment within DOJ and in consultation with DoD 
and others.''
    Judge Gorsuch. That is absolutely right, Senator. I sure 
did, and I am proud of it because we managed to come up with a 
bipartisan bill that I think passed this body with over 80 or 
maybe 90 votes, I do not remember, which did two things. One, 
affirmed this country's commitment to prevent cruel, inhuman, 
and degrading treatment and, second, which provided a regime 
that was agreed by the Congress and the President on how 
Guantanamo detainees should have their claims processed.
    Senator Feinstein. Except after you read the documents, 
just so you know, the conclusion that we come away with is that 
when the bill on the McCain amendment was about to be voted on, 
you forwarded press articles explaining what having these two 
provisions together meant. That was the McCain amendment 
prohibiting torture and confining it to the Army Field Manual.
    Judge Gorsuch. Yes.
    Senator Feinstein. And the Graham amendment, which would 
bar habeas. In other words, a detainee could not use the habeas 
corpus right to file in a court of law and challenge their 
conditions of detention. So that was looked at as offsetting 
McCain, but basically preventing habeas corpus from being used. 
And of course, it was overturned by the Court.
    Judge Gorsuch. Senator, you are absolutely right that it 
was eventually litigated, as all these things are. It was a 
bipartisan effort, and it was between the Department of 
Defense--Department of Defense wanted congressional approval 
for something so that they knew what the rules would be. They 
were desperate to have some congressional involvement and 
investment in this process.
    And as a lawyer--that is all I was. I was a lawyer for a 
client, right? I was advising them on how to go about doing 
that legally in conjunction with Senator Graham's office and 
others.
    And it was a bipartisan effort, and we put together our 
best effort. The D.C. Circuit upheld it. The Supreme Court of 
the United States, eventually many, many years later, found 
that the process was insufficient, and that is the Boumediene 
case, as you know, Senator.
    But to say that there was no process would be inaccurate, 
too, because the Detainee Treatment Act had a long list of 
prescribed processes, and the question just simply was whether 
they were adequate enough under the suspension clause. And that 
was a close case that divided the Court very closely, and I 
respect that decision as a precedent of the U.S. Supreme Court 
no less than any other, Senator.
    Senator Feinstein. One last question on this.
    Judge Gorsuch. Sure.
    Senator Feinstein. When President Bush signed the Detainee 
Treatment Act, he issued a statement that basically said he 
would only construe the law consistent with his powers as 
Commander-in-Chief. According to press reports, administration 
officials confirmed, ``The President intended to reserve the 
right to use harsher methods in special situations involving 
national security.''
    In other words the signing statement reflected the 
President's belief that he had the power to not comply with the 
law he had just signed. According to emails, and this you will 
verify, and you were involved in preparing that signing 
statement, and you advocated for the issuance of the signing 
statement.
    They even showed you saying to the top State Department 
lawyer that Harriet Miers, the White House counsel, ``needs to 
hear from us. Otherwise, this may wind up going the wrong 
way.''
    Judge Gorsuch. Well, Senator, I can tell you what I recall. 
I have not read----
    Senator Feinstein. Okay. That is fair enough.
    Judge Gorsuch. I need to read the email. But my loose 
recollection of something that happened I think 11, 12 years 
ago is that there were individuals in maybe the Vice 
President's office who wanted a more aggressive signing 
statement along the lines that you have described and that 
there were others, including at the State Department, who 
wanted a gentler signing statement.
    And my recollection, sitting here, as best I can give it to 
you without studying the email, is that I was in the latter 
camp. John Bellinger, among others, I would have associated 
myself with there.
    And I do not know what was in the President's head when he 
wrote the signing statement. I cannot tell you that. I do not 
know. I can only tell you what I remember, and I certainly 
would never have counseled anyone that they could disobey the 
law.
    Senator Feinstein. Okay. I have no reason not to believe 
you, but if you will read those.
    Judge Gorsuch. Sure.
    Senator Feinstein. And then in my second round, we will go 
back to it.
    Judge Gorsuch. Sure.
    Senator Feinstein. And I would be very happy to--because I 
think you will see that we did not make this up, okay?
    Judge Gorsuch. Senator, I am not suggesting you are. And I 
am--there was a tug of war among parties in the White House.
    Senator Feinstein. Oh, I am sure of that.
    Judge Gorsuch. Right. And----
    Senator Feinstein. I wanted to know which side you were on.
    Judge Gorsuch. Well, count me in with John Bellinger most 
of the time on these things, okay?
    Senator Feinstein. Okay.
    Judge Gorsuch. All right?
    Senator Feinstein. Okay.
    Judge Gorsuch. And that is my recollection. And Matt Waxman 
would be another one. And so that is my recollection, Senator, 
sitting here, and I will study these.
    Senator Feinstein. Okay. Let me ask you a question on 
wiretapping. In December 2005, news broke that President Bush 
had ordered the NSA to intercept the content of certain 
communications of Americans without a court order, outside of 
the requirements of the Foreign Intelligence Surveillance Act, 
known as FISA.
    You helped prepare the public defense of the program. For 
example, in draft testimony that you prepared for Attorney 
General Gonzales defending the program, you wrote this: ``These 
authorities are vested in the President, and they are inherent 
in the office. They cannot be diminished or legislated away by 
other co-equal branches of government.''
    Paul Clement, President Bush's Solicitor General, ``found 
this proposition unconvincing, and it was removed from the 
testimony.''
    Do you still believe that the President has inherent 
authority--this is important--to intercept the communications 
of Americans in the United States that cannot be legislated 
away by Congress?
    Judge Gorsuch. Goodness, no, Senator.
    Senator Feinstein. Good.
    Judge Gorsuch. And I did not believe it at the time. What I 
was serving at the time, as I recall--again, my recollection, 
and I would be happy to review whatever you have before you--is 
that I was acting in the capacity as a speechwriter and taking 
material produced by the components that were responsible for 
litigating these issues, including Mr. Clement, Paul Clement, a 
dear friend of mine, and the Office of Legal Counsel and others 
and assembling it to put words together that sounded like 
English.
    And I think people like my writing, and that was my job. I 
think I was the scribe.
    Senator Feinstein. Okay. Let us move on. I would like to go 
to the Heller case.
    When we met in my office, we discussed the Heller decision, 
which you said you were open to discussing since the case had 
been decided. At that time, you said you thought both the 
majority opinion, written by Justice Scalia, and the dissent, 
written by Justice Stevens, were brilliant examples of 
originalism, where both Justices sought to explain their 
reasoning by looking at the original public meaning of the 
Second Amendment. Which decision did you agree with and why?
    Judge Gorsuch. Well, Senator, I think we have alluded to my 
difficulty here. I do think everything you just said is 
accurate. Both Justice Scalia and Justice Stevens wrote 
excellent opinions in that case.
    I am not here, though, to grade my bosses' work. That would 
be kind of impertinent of me, I suspect, and certainly, I am 
sure they would think so. I also worry that saying I agree with 
one or the other will indicate to clients or to litigants in 
future cases--because it is now a precedent of the U.S. Supreme 
Court. It is binding. It is the law.
    Senator Feinstein. Right.
    Judge Gorsuch. Whether we like it or not, it is the law. 
And if I start saying I like one opinion or I like the other 
opinion, I am signaling----
    Senator Feinstein. All right. I will let you off the hook. 
Let me go to another one.
    Judge Gorsuch. Thank you.
    [Laughter.]
    Judge Gorsuch. Thank you, Senator.
    Senator Feinstein. In D.C. v. Heller, the majority opinion, 
written by Justice Scalia, recognized that--and I am quoting--
``Of course, the Second Amendment was not unlimited.'' Justice 
Scalia wrote, for example, laws restricting access to guns by 
the mentally ill or laws forbidding gun possession in schools 
were consistent with the limited nature of the Second 
Amendment.
    Justice Scalia also wrote that ``weapons that are most 
useful in military service, M16 rifles and the like, may be 
banned'' without infringing on the Second Amendment.
    Do you agree with that statement that under the Second 
Amendment, weapons that are most useful in military service, 
M16 rifles and the like, may be banned?
    Judge Gorsuch. Senator, Heller makes clear the standard 
that we judges are supposed to apply. The question is whether 
it is a gun in common use for self-defense, and that may be 
subject to reasonable regulation. That is the test, as I 
understand it. There is lots of ongoing litigation about which 
weapons qualify under those standards, and I cannot prejudge 
that litigation sitting here.
    Senator Feinstein. No. I am just asking you, do you agree 
with his statement? ``Yes'' or ``no'' would be fine.
    Judge Gorsuch. Are the statements out of the Heller 
decision from the United States----
    Senator Feinstein. Justice Scalia's statement.
    Judge Gorsuch. Well, whatever is in Heller is the law, and 
I follow the law.
    Senator Feinstein. Do you agree with that?
    Judge Gorsuch. Well, it is not a matter of agreeing or 
disagreeing, Senator, respectfully. It is a matter of it being 
the law. And my job is to apply and enforce the law.
    Senator Feinstein. All right. Fair enough. Let me give you 
another one. The Fourth Circuit. Judge Harvie Wilkinson 
authored a separate concurrence in the Fourth Circuit case 
Kolbe v. Hogan. Here is what he said.
    ``No one really knows what the right answer is with respect 
to regulation of firearms. I am unable to draw from the 
profound ambiguities of the Second Amendment, an invitation to 
courts to preempt this most volatile of political subjects and 
arrogate to themselves decisions that have been historically 
assigned to other, more democratic actors.
    ``Disenfranchising the American people on this life and 
death subject would be the gravest and most serious of steps. 
It is their community, not ours. It is their safety, not ours. 
It is their lives, not ours.''
    Do you agree with Judge Wilkinson that the Second Amendment 
is ambiguous? If so, should the ambiguity be decided by the 
courts or by legislatures?
    Judge Gorsuch. I would begin by saying I hold Judge 
Wilkinson in high regard. He is a very fine man and a very fine 
judge.
    Senator Feinstein. Can you do a ``yes'' or ``no''?
    Judge Gorsuch. No, I wish I could.
    Senator Feinstein. I wish you could, too.
    Judge Gorsuch. But you know, the Supreme Court of the 
United States is not final because it is infallible, as Justice 
Jackson reminds us. It is infallible because it is final. And 
Judge Wilkinson had his view, and the Supreme Court has spoken, 
and Heller is the law of the land.
    And 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 is a very 
fine judge who takes his oath seriously.
    Senator Feinstein. Okay. 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 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 have 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 Texas 
Southwestern Medical Center v. Nassar in 2013, which made it 
more difficult for employees to prove they have 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 is only fair to ask you, do you disagree 
with any of the majority opinions that Justice Scalia joined in 
these cases? If so, which ones do you especially disagree with 
and why? These have already been decided.
    Judge Gorsuch. I understand, Senator. But again, if I 
indicate my agreement or disagreement with a past precedent of 
the U.S. Supreme Court, I am doing two things that worry me 
sitting here.
    The first thing I am doing is I am signaling to future 
litigants that I cannot 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 have 
had post-Ledbetter Act cases in my court, for example.
    Senator Feinstein. Then how do we have confidence in you 
that you will not just be for the big corporations?
    Judge Gorsuch. Oh----
    Senator Feinstein. That you will be for the little man. 
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 am just looking for something that would indicate that 
you would give a worker a fair shot. Maybe it is in your 
background somewhere that I do not know about, but I would like 
to have you respond to it any way you can.
    Judge Gorsuch. Senator, I really appreciate that, and I 
think there is a way you can take a look at this question 
without me potentially prejudging a case. And I appreciate your 
respect for that.
    And just to finish that thought. I am concerned that I have 
to look the litigant in the eye in the next case. And if I 
prejudge that case, they can look at me and say you are not a 
fair judge, and I have no answer for that. I have 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 would suggest that does not represent the body 
of my work. I have written 2,700--I have participated in 2,700 
opinions over 10\1/2\ years, and if you want cases where I have 
ruled for the little guy as well as the big guy, there are 
plenty of them, Senator.
    The Ute Indian Tribe----
    Senator Feinstein. Would you be willing to submit some of 
them?
    Judge Gorsuch. Oh, goodness.
    Senator Feinstein. It is hard to read 2,700 cases.
    Judge Gorsuch. I will name a bunch of them right now.
    Senator Feinstein. It took me a long time on TransAm.
    Judge Gorsuch. I am sorry, Senator. Of course. Ute 5 and 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 point you to the Magnesium case, similar pollution case 
in the Salt Lake City area. Colorado's effort with renewable 
energy, upheld that. Orr v. City of Albuquerque, involving 
pregnancy discrimination in the police department in 
Albuquerque.
    W.D. Sports, a discrimination claim. Casey, Energy West, 
Crane. Simpson v. CU, involving young women who had been 
harassed by the football team. A.M., Browder, Sutton--I can 
give you a long, long list, Senator.
    Senator Feinstein. That is helpful. Well, that is helpful. 
And we will find them, and we will read them.
    Judge Gorsuch. And Senator, the bottom line, I think, is 
that I would like to convey to you from the bottom of my heart 
that I am a fair judge. And I think if you ask people in the 
Tenth Circuit ``Is he a fair judge?'' you are going to 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 10 years ago.
    And Senator, I cannot guarantee you more than that, but I 
can promise you absolutely nothing less.
    Senator Feinstein. Okay. I have a minute and 21 seconds. 
Let us talk Chevron. That has 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 is 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 is still the law. It is working. The goal is--I have read 
articles that say there will be 54 miles by 2025 if this 
continues.
    What is wrong with that? How else could we have done it?
    Judge Gorsuch. I am not aware of anything wrong with that, 
Senator. I have never suggested otherwise.
    Senator Feinstein. But what you have 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.
    Judge Gorsuch. I appreciate the opportunity to correct this 
misunderstanding, Senator.
    Senator Feinstein. Sure. Appreciate it.
    Judge Gorsuch. The case I think you are referring to is 
Gutierrez.
    Senator Feinstein. That is correct.
    Judge Gorsuch. It involved an undocumented immigrant to 
this country, okay? And the question was, there were two 
conflicting statutes. One said he could apply for immediate 
discretionary relief in this country from the Attorney General. 
The second said he had to wait outside the country for 10 
years.
    We had a judicial precedent that said the first statute 
controls. That was the ruling of our court.
    After that, 3 or 4 years, I cannot remember exactly, the 
Board of Immigration Appeals, in its infinite wisdom, says our 
interpretation is wrong. Chevron--you have to undo 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 is 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 is what the case was about, and it suggested, 
respectfully, Senator, that under the APA, the Administrative 
Procedures Act, this body tasked judges to decide legal 
questions and left to administrative agencies great deference 
when it comes to fact-finding, okay?
    That is how I read Section 706 is, fact-finding by 
scientists, biologists, chemists. The experts get great 
deference from the courts. 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 is going in for the 
kick?
    Senator Feinstein. I think I have exceeded my time.
    Judge Gorsuch. Oh, I am sorry.
    Senator Feinstein. I apologize. Thank you very much.
    Judge Gorsuch. No, I apologize.
    Senator Feinstein. Thank you.
    Chairman Grassley. I want to make clear to everybody you 
did not exceed your time because I said if you asked your 
question before the last second is up, and you did, that we 
would give whatever time it took for that to be done. If 
everybody follows that rule, I think we will be treating 
everybody fairly.
    Before I call on Senator Hatch, I would 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 will just quote the first paragraph. ``Democrats have 
come up empty trying to find something scandalous that Neil 
Gorsuch has said, so now they are blaming him for what he will 
not 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.''
    Without objection, I enter that in the record.
    [The information appears as a submission for the record.]
    Chairman Grassley. Senator Hatch.
    Senator Hatch. 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. He reminded us,'' as you put 
it, ``that legislators may appeal to their own moral 
convictions and to claims about social utility to shape the law 
as they think it should be in the future. But the judges should 
do none of these things in a democratic society.''
    I think that accurately describes Justice Scalia's view. Is 
that also your own view?
    Judge Gorsuch. Senator, it is, though I have to confess, 
that lecture was attended by about 20 people, and it has a lot 
more attention since.
    [Laughter.]
    Senator Hatch. Well, we are 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, 
``It is not our job,'' and, ``It simply is not our business.'' 
What is an appellate court's job in your view?
    Judge Gorsuch. It is a limited, 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 a--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 do not 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 if they manage to do 
that, I tell them their next job is to try and persuade me I am 
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 is law. And it is a great joy, and it 
is a great privilege, and it is a daunting responsibility to 
come in every day and to try and get it right.
    And then, I go listen to the arguments of the lawyers. I do 
not treat them as catspaws. They are not there to be toyed 
with. I treat them, I hope, always as respected colleagues who 
have lived with the arguments, studied the cases, know the 
facts far better than I do. 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 cannot tell you how many times in 
the Tenth Circuit I have gone through that whole process. I go 
to conference, and I think I know my mind. And then one of my 
colleagues--Harris Hartz was here yesterday--he is often the 
one. There are plenty of others, who say something absolutely 
brilliant, changes my mind.
    And that is the judicial process, and that is the role I 
see for the appellate judge.
    Senator Hatch. Well, thank you. That is very good 
explanation.
    We held a confirmation hearing for Justice Sonia Sotomayor 
in 2009. Senator Charles Schumer, now the Minority Leader, was 
a Member of this Committee and praised the nominee in this way. 
``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.'' Do you agree with Senator Schumer that 
your duty as a judge is to follow the law even when it requires 
ruling against sympathetic litigants?
    Judge Gorsuch. Yes, Senator. I cannot tell you that when I 
go home and take off the robe I am not a human being and that I 
do not 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 is my oath.
    There is not every law in the book I love, you love. I am 
sure of that. But my job is not to write the laws, it is to 
apply the laws. And I try to do that, and that enough is enough 
for a day's work, and it is enough for a life's work.
    Senator 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 of this letter be 
included in the record at this point.
    Chairman Grassley. Without objection, it will be included.
    [The information appears as a submission for the record.]
    Senator 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 ``personify a disinterested philosophy 
that respects judicial modesty combined with compassionate 
appreciation of the lives impacted by your decisions.'' Now, 
how can you do both?
    Judge Gorsuch. Senator, I am 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. I told my kids when they 
asked me what my job was when I was young, it is 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 is the job description. 
But you have to believe in something larger than yourself and 
that you are 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.
    Senator Hatch. Well, the Fourth Amendment protects the 
right to be free from ``unreasonable searches and seizures.'' 
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?
    Judge Gorsuch. May I offer an example, Senator, I think 
might be helpful?
    Senator Hatch. Sure. Sure.
    Judge Gorsuch. I take United States v. Jones, a recent case 
from the U.S. 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. 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 is a trespass to chattels in a search 200 
years ago, it has to be today, though the technology is 
obviously different.
    So, the technology changes, but the principles do not. And 
it cannot 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.
    Senator Hatch. Well, you were--you authored the opinion in 
Meshworks v. Toyota Motor Sales. Now, this 2008 case applied 
principles from earlier cases involving photography, a 
relatively 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 technologies or new 
applications of old technologies? 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?
    Judge Gorsuch. Well, Senator, I think it is 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 is how 
lawmaking through the judicial process happens. That is proper 
judicial decisionmaking.
    It is a very different thing if you want to create a 
revolution in the area and change the law dramatically. That is 
for this body to do. It is for judges to interpret the law as 
best they can from the original understanding to current 
circumstances, and apply it to current circumstances.
    So, in Meshworks that is exactly what we did, and looked at 
old case law having to do with copyright and applied it to 
digital media, the same principles from the beginning of the 
Copyright Act, just applied to a new medium.
    Senator Hatch. Well, several of your writings have called 
into question the so-called Chevron doctrine that has 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.
    Now, as you probably know I am 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. Reexamining Chevron is 
not about being anti or pro-regulation. Rather, it is about 
restoring the constitutional allocation of powers between the 
three branches. It is about maintaining fidelity to the laws 
passed by Congress and the exact bounds of authority granted to 
regulatory agencies. And it is about ensuring that the 
bureaucracy abides by the law, no matter what its policy goals, 
liberal or conservative.
    Judge, do you agree that there is nothing extreme or 
inherently ideological when the Supreme Court said in Marbury 
v. Madison that, ``It is emphatically the province and duty of 
the judicial department to say what the law is?''
    Judge Gorsuch. Senator, Marbury v. Madison is the 
cornerstone of----
    Senator Hatch. It sure is.
    Judge Gorsuch. Of the law in this country. I do not know 
anybody who wants to go back and reconsider that. I hope not.
    Senator 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 ``no friend of the little guy.'' We have 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: ``I do 
not know who decided that the Democratic critique of U.S. 
Supreme Court nominee Judge Neil Gorsuch would be that he does 
not side with the little guy.'' It is a truly terrible idea.
    Now, Mr. Chairman, I ask that this column by Professor 
Feldman be placed in the record at this point.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator 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 in the record an 
essay I wrote on the subject that appeared at Scotusblog.com.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Hatch. Now, Judge, how would you respond to that 
type of criticism?
    Judge Gorsuch. Senator, a good judge does not give a whit 
about politics or the political implications of his or her 
decision, decides 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 is a job. You do your 
very best, and you go home, and that is 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 Democrat 
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 do not think of them that way.
    But my decisions have always been independent, regardless 
of who I am agreeing or disagreeing with. And have 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 want 
to some examples, I would point you to Carloss, Krueger, 
Ackerman, three recent Fourth Amendment cases ruling for the 
accused, the least amongst us, against the Government.
    Senator Hatch. Well, in 2005, before being appointed to the 
Appeals Court, you wrote an 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 are criticized for that same common sense idea, and 
I want to give you a chance to respond. How does relying on 
courts to make policy undermine both democracy and the 
legitimacy of the Federal judiciary?
    Judge Gorsuch. Well, again, it goes to our separation of 
powers. Judges would make very poor legislators. We are not 
equipped for it. We are not responsive to the people. Cannot 
elect us, cannot get rid of us. You are stuck with us. And we 
do not have the opportunities to talk to people, to have 
hearings like this one in places like this.
    I am permitted four law clerks for 1 year at a time right 
out of a law school. It is kind of an evanescent crowd. It 
replenishes itself every year. Now, if you were to make laws, I 
do not think you would 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 is just not 
how anyone would design the railroad. And so, those are some of 
the problems I see, Senator.
    Senator Hatch. Well, thank you. And that----
    Judge Gorsuch. With all respect to my law clerks. I love 
them very much.
    [Laughter.]
    Judge Gorsuch. They are like family, but they are not the 
same as your staffs and the investigative powers you have.
    Senator Hatch. Well, they are lucky to be with you is all I 
can say.
    In that same--in that National Review piece, you pointed 
out some liberal policies of lawyers 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 policies that were liberal, not that they 
were achieved through litigation. Again, I want to give you a 
chance to respond.
    Judge Gorsuch. Well, I would say that in that article--I 
would say a couple things about it. First, as I pointed out and 
I believe, the courts are a very important place for the 
vindication of civil rights and for minorities.
    Senator Hatch. Yes.
    Judge Gorsuch. It is a place where unpopular voices get 
heard the same as popular voices. In a democracy and the 
legislature, majorities win. That is not the case in courts. 
The best argument should prevail. So, they play an important 
role.
    And, second, I pointed out that one thing that we lack as 
judges to make good policy decisions as legislators is the 
ability to compromise. These bodies, legislative bodies, you 
can put together a compromise. Judges, somebody has to win, 
somebody has to lose, Senator. It is not a great place to 
compromise, and, again, we are not great--we are not well-
equipped to do your work.
    At the same time, I did criticize--I pointed out a column 
by a liberal columnist, self-identified liberal columnist, very 
fine man, and I agreed with him that his side had done some--
spent perhaps too much time in court instead of in front of the 
legislature. I can report to you, having lived longer, as I did 
report to you in 2006, that the problem lies on both sides of 
the aisle, that I see lots of people who resort to court 
perhaps more quickly than perhaps they should.
    Senator Hatch. Well, some liberal organizations are 
claiming that in private practice you represented only big 
corporations. Your former law partner, David Frederick, who 
happens to be on the board of directors of the liberal American 
Constitution Society, has a very different take.
    In an opinion piece published in The Washington Post, he 
describes your work at the firm this way: ``Over the course of 
his career, he has represented both plaintiffs and defendants. 
He has defended large corporations, but also sued them. He has 
advocated for the Chamber of Commerce, but also filed and has 
prevailed with class actions on behalf of consumers. We should 
applaud such independence of mind and spirit in Supreme Court 
nominees.''
    Now, Mr. Chairman, I ask consent that this column 
appropriately titled, ``There is No Principled Reason to Vote 
Against Gorsuch,'' be included in the record at this point.
    [No response.]
    Senator Hatch. Mr. Chairman.
    Chairman Grassley. Without objection, it is ordered.
    [The information appears as a submission for the record.]
    Senator Hatch. Judge, is that an accurate description of 
your work in private practice?
    Judge Gorsuch. It is, and I am grateful that David is here 
today with me.
    Senator Hatch. Well, I am grateful he is here, too.
    Judge Gorsuch. Senator, I represent--I wanted to go to a 
place where I could represent plaintiffs as well as defendants, 
not pick one side of the ``v.'' I thought that would make me a 
better lawyer, and I would see more of life that way, and I 
did.
    And we represented small plaintiffs. My very first trial, I 
represented a man who bought a gravel pit, and the prior owner 
would not leave, and he stole the gravel, and we had to kick 
him out. And then he brought a bunch of lawsuits, we thought 
malicious use of process, trying to kick my guy out. Well, we 
found an old statute that said when you furtively mine another 
person's property, you get statutory damages.
    It was quite an unexpected find. It was like a hundred-
year-old law, no furtive mining, the no furtive mining statute. 
And we brought suit, and we won a claim for conversion and 
malicious use of process, among other things, in county court. 
It may have been one of the highlights of my career when one of 
the jurors came up afterwards and said to me, son, you are a 
young Perry Mason.
    [Laughter.]
    Judge Gorsuch. That was my first trial, Senator. I 
represented large defendants. I represented large plaintiffs as 
well, along with a very significant team, my partners. We won 
what was at that time--I do not know if it still is, they 
probably have done better now--the largest plaintiff side 
antitrust verdict that had been affirmed in American history.
    We represented class actions of consumers, some dry holes, 
some successful, all sorts of clients--individuals, companies, 
nonprofits. Represented pension funds, public employee pension 
funds, a variety of clients. It was a great and wonderful 
practice, and I loved every minute of it.
    Senator Hatch. You are a person with great experience for 
your young age, I have to say.
    Liberal groups also claim that you favor employers over 
employees. In fact, they suggest that you actually--you are 
actually biased in that direction. An analysis published in the 
Stanford Law Review, however, came to a very different 
conclusion.
    Now here is the conclusion: ``After surveying his labor and 
employment decisions, it is clear that Judge Gorsuch does not 
favor or oppose employees, employers, unions, or the NLRB. His 
opinions do not show pro-labor or anti-labor tendencies.'' The 
author says that parties who come before you, ``can rely on a 
record of fair analysis and resistance to simply rubber 
stamping business interests or Executive agency actions.''
    Now, Mr. Chairman, I ask that this essay be included in the 
record at this point.
    Chairman Grassley. Without objections, so ordered.
    [The information appears as a submission for the record.]
    Senator Hatch. Judge, is that your goal to focus only on 
the facts on the law in every case?
    Judge Gorsuch. Sir, I am heartened by that article. I had 
not read that one, and----
    Senator Hatch. It is a good article.
    Judge Gorsuch. But to answer your question, when I became a 
judge, they gave me a gavel, not a rubber stamp, and nobody 
comes to my court expecting a rubber stamp.
    Senator Hatch. That is good. The Supreme Court recently 
decided two cases coming from your court that involved the 
Religious Freedom Restoration Act, a bill that I was 
instrumental in. I was one of its authors. I talked Senator 
Kennedy into coming on board. When Clinton signed it on the 
South Lawn, Kennedy was the biggest duck in the puddle. He was 
very proud of that particular bill.
    RFRA makes it difficult for the Government to substantially 
burden the exercise of religion, and applies this protective 
standard to everyone and to every exercise of religion. Now, 
these cases addressed whether the Affordable Care Act's birth 
control mandate violated RFRA, or the Religious Freedom 
Restoration Act. You were in the majority deciding that RFRA 
applied to the plaintiffs in both cases, and that the birth 
control mandate failed to meet RFRA standard.
    Opponents of your nomination do not like this result, and 
they accuse you of being anti-woman. That, of course, is not 
true at all, and any fair person would have to conclude it is 
not true. Your critics simply demand that as a judge, you must 
follow of their political priorities that availability of birth 
control is more important than religious freedoms.
    Now, I have two questions about your decision. Is that not 
really a policy dispute that should be addressed by Congress, 
and was your job in these cases to impose your or anyone else's 
priorities, or to interpret and apply those statutes the way 
Congress enacted them?
    Judge Gorsuch. Senator, our job there was to apply the 
statute as best as we could understand its purpose as expressed 
in its text. And I think every judge who faced that case, 
everyone, found it a hard case and did their level best, and 
that is all any judge can promise or guarantee. I respect all 
of my colleagues who addressed that case.
    Senator Hatch. Well, we respect you for doing so.
    You wrote a concurring opinion in the Hobby Lobby case. You 
wrote about the Religious Freedom Restoration Act this way: 
``It does perhaps its most important work in protecting 
unpopular religious beliefs, vindicating the Nation's 
longstanding aspiration to serve as a refuge of religious 
tolerance.'' In other words, Congress enacted RFRA to apply 
broadly and robustly to ensure that, among other things, the 
little guy would be protected as much as the big one. Is it 
fair to say that the Court's decision in Hobby Lobby and your 
concurring opinion upheld this purpose, and in doing so, 
effectively promoted religious tolerance?
    Judge Gorsuch. Well, I might give you even a couple other 
examples of RFRA's application that I have been involved in 
that might shed some light on this. It is the same statute that 
applies not just to Hobby Lobby. It also applies to Little 
Sisters of the Poor and protects their religious exercise. And 
it has also been applied in a case where I appointed counsel 
because I saw something potentially meritorious there. And our 
court held it applied to a Muslim prisoner in Oklahoma who was 
denied a halal meal.
    Senator Hatch. Right.
    Judge Gorsuch. It is also the same law that protects the 
rights of a Native American prisoner who was denied access to 
his prison sweat lodge, and appeared solely in retribution for 
a crime that he committed, and it was a heinous crime, but it 
protects him, too. And I wrote those decisions as well, 
Senator, yes. I wrote the Native American prisoner case, and I 
participated in and I wrote a concurrence in the Muslim 
prisoner case.
    Senator Hatch. Well, thank you for doing so. I also want to 
give you a chance to answer and respond to a few things that 
were said during statements on Monday. One of my Democratic 
colleagues said, ``It is important to know whether you are a 
surrogate for President Trump or for particular interest 
groups.'' Are you?
    Judge Gorsuch. No.
    Senator Hatch. Of course not. Another Senator mentioned 
just a few of the thousands of cases in which you participated 
and said, ``I am troubled by the results in those cases.'' He 
never took issue with how you applied the law in those cases. 
He said only that the results troubled him. And as I described 
Monday in my opening statement, I contrasted judges who focus 
on the process or arriving at a result with judges who focus on 
what they want the result to be. Which approach do you 
associate with?
    Judge Gorsuch. I associate myself with the approach I think 
all good judges attempt, to follow the law wherever it leads.
    Senator Hatch. My time is up, Mr. Chairman. I am sorry.
    Chairman Grassley. Senator Leahy.
    Senator Leahy. Well, thank you, Judge Gorsuch. Good to have 
you back.
    Now, you know from our earlier discussions, and I had told 
you very frankly that, of course, I felt that if the 
Republicans had followed the Constitution and practice, Chief 
Judge Merrick Garland would be on the Supreme Court today. I 
also respected you for calling Chief Judge Garland when your 
nomination was announced, and I understand you respect him as a 
jurist. Is that correct?
    Judge Gorsuch. Very much so, Senator. Whenever I see his 
name attached to an opinion, it is one I read with special 
care. He is an outstanding judge.
    Senator Leahy. Do you think he was treated fairly by this 
Committee, yes or no?
    Judge Gorsuch. Senator, as I explained to you before, I 
cannot get involved in politics. And there are judicial canons 
that prevent me from doing that, and I think it would be very 
imprudent of judges to start commenting on political disputes 
between themselves or the various branches.
    Senator Leahy. The reason I ask that question, since this 
Committee began holding hearings--public hearings of Supreme 
Court nominations began in 1916. I was not here at that time, 
but it has never denied a hearing or a vote to a pending 
nominee ever until Chief Judge Garland.
    I can express an opinion. I think it was shameful. I think 
it has severely damaged the reputation of this Committee. I 
think it has severely damaged the reputation of Senators who 
concurred with that. We were anything but the conscience of the 
Nation in that regard, and those who proudly held their hand up 
and swore that they would uphold the Constitution of the United 
States did not.
    Now, it becomes more of a problem because it appears the 
President outsourced your selection to the far right, big 
money, special interest groups. And you may not like that 
terminology, but even Republican Senators have praised the fact 
that the President had gone to this group and had a list when 
he was running for office of who he could select from. A list 
given not by--prepared by him, but by these special interest 
groups, and they want--they have an agenda.
    They are confident you share their agenda. In fact, the 
first person who interviewed you for this nomination said they 
sought a nominee who understands things like we do. And, Mr. 
Chairman, I would ask that an article in the Wall Street 
Journal entitled ``Trump's Supreme Court Whisperer,'' be 
included in the record.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Leahy. And another one which The New York Times, 
``In Gorsuch, Conservative Activist Sees Test Case Reshaping 
the Judiciary,'' that those be included in the record.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Leahy. Now, the two far right interest groups that 
recommended you to the President, and I want you to have a 
chance to talk about this, the Federalist Society and the 
Heritage Foundation, applauded the Citizens United decision, 
which allowed unrestricted corporate money to pour into 
elections.
    You have suggested that the Constitution and laws should be 
grounded solely in the original meaning of the text. You said 
judges should, I quote, ``should strive to apply the law as it 
is, focusing backward, not forward.'' If they do that--let us 
go to the First Amendment. Do you believe that James Madison 
and the other drafters of the First Amendment understood the 
term ``speech'' to include corporate money being funneled into 
campaigns?
    Judge Gorsuch. Senator, I can tell you that the Supreme 
Court of the United States has a lot of precedent in this area, 
as you are well aware, quite a lot of it permitting Congress to 
compel disclosure, to limit contributions, and a lot of other 
case law in this area. There is a lot of precedent in this 
area.
    Senator Leahy. Well, is there--is there precedent from the 
drafters that ``speech'' include corporate money being put into 
corporations and being put into campaigns?
    Judge Gorsuch. Senator, that was exactly what was at issue 
in part in Austin, and then again in Citizens United. And the 
Supreme Court issued a variety of opinions on that subject, on 
that very subject, looking back to the original understanding 
of the First Amendment to see whether it embraced the speech at 
issue in those cases. And different Justices came to different 
conclusions on that score.
    Senator Leahy. But nothing in the Federalist Papers that 
talked about corporate money going into campaigns. Is that 
correct?
    Judge Gorsuch. Well, Senator----
    Senator Leahy. That is an easy ``yes'' or ``no.''
    Judge Gorsuch. I think there is an awful lot in the 
Federalist Papers and elsewhere that were relevant to and 
considered by both concurrences and dissents in Citizens 
United.
    Senator Leahy. But nothing about corporate money.
    Judge Gorsuch. I do not remember that term, no, Senator.
    Senator Leahy. Trust me--trust me, there was not.
    Judge Gorsuch. I trust you.
    Senator Leahy. Okay.
    Judge Gorsuch. Entirely.
    [Laughter.]
    Senator Leahy. No, you do not have to.
    Judge Gorsuch. Not that much?
    [Laughter.]
    Senator Leahy. I will let it go.
    [Laughter.]
    Senator Leahy. In Citizens United, Justice Kennedy 
indicated that restrictions on campaign donations could only be 
justified by concerns about quid pro quo corruption. Now, 
President Trump has said, that the reason he made campaign 
donations was so that when he needs something from them, ``they 
are there for me.'' His campaign contributions buy favors.
    Shouldn't Congress, not the courts, make the determination 
about the potential for corruption, especially if we are 
talking about quid pro quos?
    Judge Gorsuch. Senator, I think there is lots of room for 
legislation in this area that the Court has left. The Court 
indicated that if, you know, proof of corruption can be 
demonstrated, that a different result may be obtained on 
expenditure limits.
    Senator Leahy. You do not believe that putting an unlimited 
amount of money by somebody who has a particular interest in 
the outcome of actions by the Congress, putting an unlimited 
amount of money into specific campaigns, that is not enough to 
show the intent to buy favors, or enough to show corruption?
    Judge Gorsuch. I am not sure I tracked the question, 
Senator. I am sorry.
    Senator Leahy. If you have corporate money that is 
basically unlimited under Citizens United that can be funneled 
through various special interest groups, does that at least 
raise concerns about quid pro quo corruption?
    Judge Gorsuch. I think Citizens United made clear that quid 
pro quo corruption remains a vital concern and is subject for 
potential legislation. And I think there is ample room for this 
body to legislate, even in light of Citizens United, whether it 
has to do with contribution limits, whether it has to do with 
expenditure limits, or whether it has to do with disclosure 
requirements.
    Senator Leahy. If somebody were to out and out buy a vote 
or buy a favor, we would all agree that is corruption, is it 
not?
    Judge Gorsuch. I think Justice Kennedy would agree with 
you, yes.
    Senator Leahy. Well, would you agree with me?
    Judge Gorsuch. I would follow the law, and that is my 
understanding--that would certainly fall within my 
understanding of the law.
    Senator Leahy. When I was a prosecutor, we would call that 
corruption.
    Judge Gorsuch. All right. I will trust you there, too, 
Senator.
    Senator Leahy. And I did. Now, but influence is different 
ways. For example, when you became a judge, you were here in 
Washington. You were working in Washington. I understand there 
were three extremely well-qualified Coloradan women attorneys 
who were on the short list being considered by the Bush White 
House.
    The Denver Post did a profile of these women, and at that 
point--and your name was not on that list. At that point, a 
billionaire, a conservative donor, intervened. He lobbied the 
White House to appoint you. You were his lawyer. He liked you. 
He made donations to the same far right interest groups that 
were on the list that recommended you to President Trump. Are 
these areas of concern?
    Judge Gorsuch. Senator, with respect to my nomination, as I 
recall----
    Senator Leahy. I am talking about the Circuit.
    Judge Gorsuch. Yes, yes. As I recall, all of my clients, or 
an awful lot of them, came out of the woodwork to say nice, 
supportive things about me. And Phil Anschutz was one, and I 
think there are probably letters in there from the fellow with 
the gravel pit, too, and----
    Senator Leahy. Which one do you think the White House 
listened to the most, Mr. Anschutz or a gravel pit owner? I 
mean, let us----
    [Laughter.]
    Judge Gorsuch. Senator----
    Senator Leahy [continuing]. Let us be realistic.
    Judge Gorsuch. Senator, I think what they probably listened 
to was the fact that they had seen me in action at the 
Department of Justice. That is my guess if you ask me to guess, 
but that is a guess because I did not make the decision.
    Senator Leahy. I raise this because some of these same 
people helped to fund the group that put you on the list for 
President Trump.
    Now, President Trump, as you know, has attacked judges who 
dared to uphold the Constitution. He is going after them. He 
has said things that I do not think any one of us would do. So, 
you have to prove that you will be an independent judge. You 
have heard that from both sides here.
    Let me ask you a question in this--in this regard. You are 
a person who believes in religious freedom. You said that 
before. In December 2015, the Senate Judiciary Committee 
adopted my sense of the Senate that ``The United States must 
not bar individuals from entering into the United States based 
on their religion.'' This passed almost every Senator with the 
exception of then-Senator Sessions, and a couple others voted 
for it. Now, does the First Amendment allow the use of a 
religious litmus test for entry into the United States?
    Judge Gorsuch. Senator, this is an issue that is currently 
being litigated actively, as you know, and I----
    Senator Leahy. Well, I am not asking about the litigation 
in the Ninth Circuit or anything. I was--I am asking about the 
fact, is a blanket religious test, is that consistent with the 
First Amendment?
    Judge Gorsuch. Senator, we have a free exercise clause that 
protects the free exercise of religious liberties by all 
persons in this country. If you are asking me how I would apply 
it to a specific case, I cannot talk about that for 
understandable reasons.
    Senator Leahy. Well, because the President----
    Judge Gorsuch. The understandable reasons, just so I am 
frank and candid with you as I can be. Senator, when you ask me 
to apply it to a set of facts that look an awful lot like a 
pending case in many Circuits now, my worry----
    Senator Leahy. I will try a hypothetical. Would the 
President have the authority to ban all Jews from the United 
States or all people that come from Israel?
    Judge Gorsuch. Senator----
    Senator Leahy. Would that be an easy question?
    Judge Gorsuch. We have a Constitution, and it does 
guarantee free exercise. It also guarantees equal protection of 
the laws and a whole lot else besides. And the Supreme Court in 
Zadvydas has held that due process rights extend even to 
undocumented persons in this country, okay? I will apply the 
law. I will apply the law faithfully and fearlessly, and 
without regard to persons. I do not care----
    Senator Leahy. How about with regard to religion?
    Judge Gorsuch. Anyone, any law is going to get a fair and 
square deal with me. My job as a judge is to treat litigants 
who appear in front of me as I wished to be treated when I was 
a lawyer with my client, large or small. I did not want them 
discriminated against because they were a large company or a 
small individual with an unpopular belief. And that is the kind 
of judge I have tried to be, Senator, and I think that is my 
record.
    Senator Leahy. Well, Judge, let me ask you this. Do you--do 
you agree with me that there should not be a religious test in 
the United States?
    Judge Gorsuch. I need to know more specifics.
    Senator Leahy. Well, let me give you an example. Should 
there be a religious test to serve in the military?
    Judge Gorsuch. Oh, Senator, that would--that would be 
inappropriate, yes. That is against the law. That is against 
the law.
    Senator Leahy. Well, of course, we go right back to the--
should we ban people based solely on their religion, solely on 
their religion?
    Judge Gorsuch. Senator, we have the Religious----
    Senator Leahy. Not on whether they form a threat or 
something, but you ban somebody solely on their religion?
    Judge Gorsuch. Senator, we have not just the First 
Amendment free exercise clause in this country, very important 
protection. We have not just the equal protection guarantee of 
the Fourteenth Amendment, which prohibits discrimination on the 
basis of race, gender, ethnicity. We also have the Religious 
Freedom Restoration Act that Senator Hatch mentioned, which was 
a bipartisan bill passed by this body with the support of 
Senator Kennedy and Senator Schumer when he was in the House.
    And that imposes an even higher standard on the Government 
than the First Amendment when it comes to religious 
discrimination. It says that there--if there is any sincerely 
held religious belief, earnestly held religious belief, the 
Government must meet strict scrutiny before it may regulate on 
that basis, strict scrutiny being the highest standard known in 
American law.
    Senator Leahy. Well, the reason I ask these questions, 
there is a legitimate concern. I hear stories from my 
grandparents when signs used to say ``No Irish Need Apply'' or 
``No Catholic Need Apply.'' I am sure Senator Feinstein can 
speak about those of her religion.
    President Trump promised a Muslim ban. He still has on his 
website to this day, he has called for a total and complete 
shutdown of Muslims entering the United States. And a 
Republican Congressman recently said, ``The best thing the 
President can do for his Muslim ban is to make sure he has 
Gorsuch on the Supreme Court before the appeals get to that 
point.''
    Judge Gorsuch. Senator, a lot of people say a lot of silly 
things.
    Senator Feinstein. That sounds silly.
    Judge Gorsuch. My grandfather----
    Senator Leahy. Well, that is more than silly. That is a--he 
wants--this Congressman wants you on the Court so they can 
uphold a Muslim ban.
    Judge Gorsuch. Senator, he has no idea how I would rule in 
that case. And, Senator, I am not going to say anything here 
that would give anybody any idea how I would rule in any case 
like that could come before the Supreme Court or my court of 
the Tenth Circuit. It would be grossly improper of a judge to 
do that.
    It would be a violation of the separation of powers and 
judicial independence if someone sitting at this table, in 
order to get confirmed, had to make promises or commitments 
about how they would rule in a case that is currently pending 
and likely to make its way to the Supreme Court.
    Senator Leahy. Well, the President's national security 
determinations, are those reviewable by the Court?
    Judge Gorsuch. Senator, no man is above the law.
    Senator Leahy. Okay, because they have asserted that their 
national security determinations are unreviewable by the Court. 
I have heard Presidents--other Presidents say that in the past. 
I disagree when they say that. Do you disagree?
    Judge Gorsuch. Senator, as a judge--as a judge, I apply the 
law, and the law here I think is Youngstown. I look to Justice 
Jackson, okay, and Justice Jackson wrote a brilliant opinion in 
Youngstown. Now, it is really important to know who he was. He 
was the fiercest----
    Senator Leahy. I wrote a paper on that, so I know it.
    Judge Gorsuch. I know you did. I know you did. Well, I 
know--we talked about it. And, you know, here was the fiercest 
advocate of Executive power as FDR's Attorney General. Fierce 
advocate of Executive power. And when he became a judge, he 
said, ``The robe changes a man or it should.'' And you go from 
being an advocate to being a neutral adjudicator.
    In the Youngstown system of analysis when it comes to 
presidential power and foreign affairs, has three categories. 
One, the President acting with the concurrence of Congress. 
That is when the President is acting at his greatest strength 
because there are shared responsibilities in our Constitution. 
He has Commander-in-Chief power. This body has power of the 
purse and the power to declare war assigned to it in Article I.
    When the--when the Congress and the President are in 
disagreement, that is the other end of the spectrum. The 
President there is acting with the--at the lowest ebb of his 
authority. And when Congress is silent, that is the gray area 
in between. That is how a court, as opposed to a lawyer or 
advocate, approaches the problem.
    Senator Leahy. Well then, let us go to that then. President 
Trump has declared that torture works. And he said, I quote 
him: ``Bring a hell of a lot worse than waterboarding.'' A 2002 
memo authored by Jay Bybee from the Office of----
    Senator Feinstein. Legislative----
    Senator Leahy [continuing]. Legal Counsel, claimed that any 
effort by Congress to regulate the interrogation of battlefield 
combatants would violate the Constitution's sole vesting of the 
Commander-in-Chief in the President.
    Now, considering the fact that Congress has passed a law on 
this, what controls?
    Judge Gorsuch. Well, have a Convention Against Torture and 
implementing legislation which ban torture. We have the 
Detainee Treatment Act, which we talked about earlier, which 
bans cruel, inhuman, and degrading treatment. We also happen to 
have an Eighth Amendment.
    Senator Leahy. Well, let me ask you this. Does the 
President have the right to authorize torture if it violates 
the laws that have been passed by Congress and any other ones 
you cited?
    Judge Gorsuch. Senator, no man is above the law.
    Senator Leahy. Well then, let me ask you another question. 
President Bush's warrantless surveillance program, when you 
were working there, resulted in the illegal collection of 
thousands of Americans' communications. Now, many of us felt 
that was a direct violation of our surveillance laws.
    Justice Department Attorney John Yoo justified the program. 
He said, ``The statutes passed by Congress cannot infringe on 
the President's inherent power under the Constitution to 
conduct national security searches.'' So, do you believe that 
President Bush's warrantless surveillance program was justified 
because the President had ``inherent power'' to override our 
surveillance laws to conduct national security searches?
    Judge Gorsuch. Senator, as a judge, before I even try to 
decide a question like that, I would want briefs and argument, 
and I would want to go through the whole judicial process. I 
would not begin to try and attempt to offer an off-the-cuff 
opinion like that.
    Senator Leahy. Well, let me ask it a different way. If 
Congress passed a specific law on surveillance, and if a 
President said I am going to violate that law because I am 
President, does he have that power?
    Judge Gorsuch. No man is above the law, Senator.
    Senator Leahy. Senator Lee, who was here a minute ago--I do 
not know if he--Senator Lee led the efforts to pass the USA 
Freedom Act to end the NSA bulk collection of Americans' phone 
records, had a clear decree from Congress that dragnet 
collection of Americans' phone records is not permitted. Is it 
still your answer that the President does not have the power to 
supersede that law?
    Judge Gorsuch. Senator, I cannot issue advisory opinions at 
this table in cases or controversies and how they would come 
out.
    Senator Leahy. Not----
    Judge Gorsuch. And I just--I cannot do it. It would not be 
responsible.
    Senator Leahy. Is that law----
    Judge Gorsuch. But every law that this body passes I take 
seriously. I respect this body, and nobody is above the law in 
this country, and that includes the President of the United 
States.
    Senator Leahy. Well, when you were there, and I do not know 
whether these are among the things that Senator Feinstein gave 
you. But when Jay Bybee wrote, ``Any effort by Congress to 
regulate the interrogation of battlefield combatants would 
violate the Constitution's sole vesting in the Commander-in-
Chief and the President,'' and you appeared--advocated for a 
similar view when you attempted to give President Bush the 
flexibility not to be bound by Senator McCain's legislation.
    Judge Gorsuch. Senator, my recollection is that Mr. Bybee 
was long gone from the Department before I ever showed up, and 
that by the time I got there, the Department and the President 
were willing to work with Congress to try and establish a 
regime that would govern operations at Guantanamo. That is my 
recollection.
    And my role was a lawyer and predominately overseeing 
litigation filed by others against the Government. I had a role 
as a lawyer, a significant one, but I was not a policymaker, 
Senator.
    Senator Leahy. Were you involved in Hamdan v. Rumsfeld?
    Judge Gorsuch. Senator, Hamdan, I recall, was a decision 
that passed in the first instance on the Detainee Treatment 
Act. So, to the extent I was involved and providing advice as a 
lawyer about the Detainee Treatment Act, I am sure, yes.
    Senator Leahy. You have read the Shelby County decision. If 
you were on the Court, which side would you have voted with?
    Judge Gorsuch. Senator, I admire the various ways----
    [Laughter.]
    Judge Gorsuch. You would be a formidable companion in the 
courtroom.
    Senator Leahy. Yes, Senator Feinstein said, ``Do not let it 
go to your head, Pat.''
    [Laughter.]
    Judge Gorsuch. Oh, he should.
    Senator Leahy. And I am not. I am not. I am just--I am a 
lawyer from a small town.
    Judge Gorsuch. Yes, right. I have heard that story.
    [Laughter.]
    Judge Gorsuch. Whenever a lawyer says, ``I am just a lawyer 
from a small town,'' watch out. He is about--last time--you got 
to watch your wallet, because it is gone quickly in my 
experience. And I might have played that line once or twice 
myself.
    Senator Leahy. No, but I ask these questions because there 
were--both Justice Alito when he was before us and Justice 
Roberts, and Judge Alito and Judge Roberts, answered some 
precedent questions. And you say there are no precedent 
questions you could answer?
    Judge Gorsuch. Well, no, Senator, I am happy to say Shelby 
is a precedent of the U.S. Supreme Court. It is a recent one. 
It is a controversial one. I understand that. What its 
precedential reach will prove to be remains to be seen because, 
for example, as I read it, the decision left room for Congress 
to legislate in this area if it wishes, to make new findings, 
and to express a new possible regime for Section Four and 
Section Five coverage. And that possibility is live and could 
yield further litigation, undoubtedly would.
    Senator Leahy. You have been critical of class actions, and 
Justice Scalia in the Ledbetter case and the Wal-Mart v. Dukes 
case made it more difficult, I believe, for Americans to have 
their day in court. Would you join Justice Scalia's decision in 
Wal-Mart? Just whatever answer you want.
    Judge Gorsuch. Senator, I would tell you that my record on 
class actions, I think, will reflect, if you look, and I know 
you have, that I represented class actions. I represented 
people fighting class actions. I have ruled against class 
actions, and I have ruled for class actions. And in each case, 
it depends upon the facts and the law presented to me.
    The most recent class action case, significant one that I 
can think of, involved residents who live near Rocky Flats, a 
uranium processing plant that made nuclear weapons outside of 
Denver. And those folks filed a class action for damage to 
their property, and it took 25 years for that case bouncing up 
and down and back and forth across the legal system before I 
finally issued a decision saying stop, enough, they win. They 
had a trial, a jury found for them, and they win. Finish the 
lawsuit.
    And I believe it has been finished, and I believe they have 
been finally paid, though, of course it has been so long, many 
of them, it is their children who are getting the money.
    Chairman Grassley. Before Senator Graham, I thought I would 
give some directions. We have this vote at noon. It is just one 
roll call vote, and Senator Graham should finish about 12:11 or 
12:12. And then we will adjourn, depending on when your last 
word is--answer to his question, 30 minutes later. So, 
somewhere around 12:40, 12:45, I will gavel the Committee back 
into session.
    And you need to be reminded that you should not be offended 
as Members go to vote, and you will have your 30 minutes, and I 
hope that is enough because I want to keep this moving. You can 
be back here around 12:45 or thereabouts. I will wait until you 
get the orders.
    [Laughter.]
    Chairman Grassley. Does that detract from anything?
    Judge Gorsuch. We are okay.
    [Laughter.]
    Chairman Grassley. Okay.
    Senator Graham.
    And, Senator Graham, if I go ahead of time, you will recess 
the Committee?
    Senator Graham. Yes, sir.
    Chairman Grassley. Until that time?
    Senator Graham. Yes, sir.
    Chairman Grassley. Thank you.
    Senator Graham. Judge, I want to read a statement here that 
I associate myself with. ``I certainly do not want you to have 
to lay out a test here in the abstract, which might determine 
what your vote or your test would be in a case you have yet to 
see that may well come before the Supreme Court.''
    Does that sound like a reasonable standard?
    Judge Gorsuch. Yes, Senator.
    Senator Graham. That is what Senator Leahy said on July 
21st, 1993. I think it was good then. I think it is good now.
    You are not a political person. I am, so I am going to take 
a bit of a moment here to talk about the fairness of what is 
going on, in terms of you and Judge Garland.
    Judge Garland was a fine man. I am sure I would have voted 
for him. At the time his nomination came about, we were in the 
middle of selecting a new President. We were in the last year 
of President Obama's term.
    To my Democratic colleagues, I want to remind you of some 
things that people on your side have said.
    June 25th, 1992, it was an election year. There was a 
suggestion that maybe one of the judges on the Supreme Court 
would step down before the election in November. This is what 
the Chairman of this Committee, Joe Biden, said about that 
possibility then. ``It would be our pragmatic conclusion that 
once the political season is underway, and it is, action on a 
Supreme Court nomination must be put off until after the 
election campaign is over.
    ``If someone steps down, I would highly recommend the 
President not name someone, not send a name up.'' If Bush did 
not send someone up, I would ask the Senate to seriously 
consider--if Bush ``did send someone up, I would ask the Senate 
to seriously consider not having a hearing on that nominee.''
    That was Joe Biden on the possibility of a vacancy coming 
about by somebody stepping down, not dying, once the campaign 
season was afoot.
    Justice Scalia passed away in February. There had already 
been three primaries. The campaign season, in my view, was 
afoot.
    This is what Senator Reid said on May 19, 2005: ``The 
duties of the United States Senate are set forth in the 
Constitution of the United States. Nowhere in that document 
does it say the Senate has a duty to give presidential 
nominees'' a vote.
    This is Senator Schumer in the last--July 27th, 2007: ``We 
should reverse the presumption of confirmation. We should not 
confirm any Bush nominee to the Supreme Court except in 
extraordinary circumstances.''
    That was the last year of President Bush's last term.
    To my Democratic colleagues, on November 21st, 2013, you 
decided, when you were in charge of this body, by a 52-to-48 
vote, to change the rules of the United States Senate with the 
nomination of executive branch appointments and all judges 
below that of the Supreme Court.
    I am not going to ask you whether you think that was fair 
or not, because that is not your job.
    I will say to the public, I thought it was incredibly 
unfair. I thought it was a power grab by our Democratic 
colleagues that will change the nature of the judiciary for the 
rest of our lives, because what you have done is you made it 
that you can confirm a judge now within one party if you have 
over 50 votes, not having the requirement to reach across the 
aisle to pick up a vote or two, which is a moderating 
influence. That is lost forever, for all judges below the 
Supreme Court.
    I was in the Gang of 14 that was formed to deal with a 
wholesale filibuster of all Bush nominations. New to the body, 
I felt it would be bad to change a 100-and-something, almost 
200 years, I guess, plus precedent of how we deal with 
nominations coming from a President. But there was a wholesale 
filibuster of everything Bush, and there were 14 of us--I think 
I am one of two or three left--that believed that it was wrong 
to filibuster Supreme Court judges and judges in general 
because you do not like the outcome of the election.
    And we came up with a standard that you should only 
filibuster in extraordinary circumstances, which I think is 
consistent with what Hamilton had in mind in terms of the role 
of the Senate, that you expect a Republican nominee or a 
Republican President to pick someone different than a Democrat 
President because that is what the campaigns are all about.
    Qualified judges--and I believe that Sotomayor and Kagan 
were well within the reasonable mainstream of judges who would 
be to the left of center in the judicial philosophy world. That 
is why I voted for them.
    But now things are different. I believe that vote November 
21st, 2013, forever changed the way the Senate works when it 
comes to Executive appointments of judicial nominations and 
will do long-term damage to the judiciary as a whole because 
the most ideological will be rewarded.
    We do not have that requirement yet for the Supreme Court, 
and I hope we never will. Time will tell. I am not optimistic.
    At the time of that vote, the Senate had confirmed 19 of 
President Obama's judicial nominations. That same time in 
President Bush's second term, there had been four confirmed. I 
thought it was a manufactured crisis. I thought it was 
politically motivated. And when it comes to cries of being 
unfair, they fall on deaf ears.
    As to Judge Garland, a fine man.
    I fully expected Trump to lose. He won. I think he deserves 
the right of every President to pick qualified people. And that 
is just not me saying that.
    This is what the Federalist Papers No. 76 said about the 
requirement of advise and consent. This is what Mr. Hamilton 
wrote a very long time ago, in 1788. ``The Senate could not be 
tempted, by the preference they might feel to another, to 
reject the one proposed; because they could not assure 
themselves, that the person they might wish would be brought 
forward by a second or by any subsequent nomination. They could 
not even be certain, that a future nomination would present a 
candidate in any degree more acceptable to them. . . . To what 
purpose then require the co-operation of the Senate? . . . It 
would be an excellent check upon a spirit of favoritism in the 
President, and would tend greatly to prevent the appointment of 
unfit characters from State prejudice, from family connection, 
from personal attachment, or from a view to popularity.''
    That was the check and balance, advise and consent rules of 
the game that were established in 1788.
    When you look at the history of the Senate's role in 
confirming Justices to the Supreme Court, it has changed 
dramatically. Many of the judges to the Supreme Court were 
confirmed without a hearing, some without even a recorded vote.
    I am not here to say that my party is without fault in the 
area of judges. We are not. I am here to say that, in 2013, 
November 2013, the game changed in a way that I think Mr. 
Hamilton would be very disappointed in. And it is not that I do 
not understand. I very much do.
    When my time came for Sotomayor and Kagan to appear before 
this Committee, I knew what awaited me if I applied the 
Hamilton standard. Partisan people abound on both sides of the 
aisle. The ferocity by which people wanted me to vote ``no'' 
was real, apparent, and I could feel it.
    I believed that if Strom Thurmond could vote for Ginsburg, 
and that 98 Senators could vote for Scalia, that there was a 
point in time where it was expected that you would vote for 
somebody you would not have chosen. You would use the 
qualifications of that person.
    So we find ourselves here today, confronting a nomination 
of one of the most qualified people, I think, President Trump 
could have chosen from the conservative world.
    You are not an unfit person. I do not think there is any 
reason to suggest that you are his favorite.
    Had you ever met President Trump personally?
    Judge Gorsuch. Not until my interview.
    Senator Graham. In that interview, did he ever ask you to 
overrule Roe v. Wade?
    Judge Gorsuch. No, Senator.
    Senator Graham. What would you have done if he had asked?
    Judge Gorsuch. Senator, I would have walked out the door. 
It is not what judges do. They do not do it at that end of 
Pennsylvania Avenue, and they should not do it at this end 
either, respectfully.
    Senator Graham. This is what the Democratic Leader in the 
House said about you: ``Neil Gorsuch is a very hostile 
appointment and a very bad decision, well outside the 
mainstream of American legal thought. If you breathe air, drink 
water, eat food, take medicine, or in any other way interact 
with the courts, this is a very bad decision.''
    I want to ask you to respond to what I think is complete, 
absolute political garbage.
    And statements like that were also directed against 
Justices Sotomayor and Kagan. I remember Sotomayor being called 
a racist because she gave a speech that was edgy. I remember 
Elena Kagan being called unpatriotic because she was involved 
in a decision at Harvard to kick the ROTC unit off the campus.
    And the reason I did not buy one was a racist and the other 
was unpatriotic is because I took the time to look at the way 
they lived their lives, and I listened to what people had to 
say who had interacted with them all their lives.
    To my Democratic colleagues, if you take the time to listen 
to people who have interacted with Judge Gorsuch throughout his 
entire career, you will find pretty quickly that he is a fine, 
decent man who has tried to be a good father, a good husband, a 
good lawyer, and a good judge. And if you do not want to take 
the time, it says more about you than him.
    All I can say is, it is impossible to conclude that what 
Nancy Pelosi said about you is anything other than political 
talk because there are no facts to justify that.
    The ABA gave you the most highly qualified rating they 
could give anybody. I just want you to know that I believe you 
have led a life you should be proud of, that you have tried 
your best to be a good father, a good husband, a good lawyer, 
and a good judge.
    Now, let us talk about our interaction a long time ago.
    Judge Gorsuch. Thank you, Senator, for those very kind 
words.
    Senator Graham. Well, it was something you have earned, not 
something that you need to thank me for.
    The bottom line is, are we at war, in your view, as a 
Nation?
    Judge Gorsuch. Senator, all I know is that there are a lot 
of young men and women out there in harm's way so that we may 
sit here and have this conversation.
    Senator Graham. It would be news to them we are not at war.
    Judge Gorsuch. I am sure that is right.
    Senator Graham. It would be news to the families who have 
lost a loved one in this fight. So I think we are at war.
    Would you agree with me it is not a traditional war?
    Judge Gorsuch. Certainly not, Senator.
    Senator Graham. There is no capital to conquer, no air 
force to shoot down, and no navy to sink. There is no taking of 
Berlin and Japan.
    Do you agree with me it would be hard to determine when the 
war is actually over?
    Judge Gorsuch. Senator, that was a question that the Court 
struggled with in the Hamdi case, as you know.
    Senator Graham. And we had a lot of conversations about how 
to proceed forward when you were in the Bush administration. Is 
that correct?
    Judge Gorsuch. We did.
    Senator Graham. And you were in the camp of the--the 
Youngstown steel camp, that if Congress is involved, the 
President is stronger, not weaker. Is that right?
    Judge Gorsuch. That is right, Senator.
    Senator Graham. But there are some authorities that the 
President as Commander-in-Chief has that cannot be taken away 
by the Congress. They are inherent to the job. Is that true 
also?
    Judge Gorsuch. There are certainly people who believe that, 
Senator.
    Senator Graham. Well, I am one of them.
    Having said that, because you cannot have 535 Commanders-
in-Chief, Senator McCain and myself were trying to pass 
legislation that basically codified the practices of the Bush 
administration post-waterboarding. Is that a fair summary of 
the conflict?
    Judge Gorsuch. Yes, Senator. I believe it is.
    Senator Graham. There were people in the Bush 
administration who did not want to go down the road that 
waterboarding was torture. That was not the view of Senator 
McCain or myself.
    At the end of the day, the Detainee Treatment Act codified 
how we treat enemy combatants in a time of war, in terms of 
practices we can employ in terms of interrogation standards. Is 
that correct?
    Judge Gorsuch. Yes.
    Senator Graham. And it also tried to come up with a system 
of judicial review. I was in the camp that we are at war, and, 
in past wars, you do not give enemy prisoners lawyers. I do not 
remember any German or Japanese prisoner having a lawyer when 
they were captured.
    So, traditionally, is it the Commander-in-Chief's job to 
determine who the enemy force is?
    Judge Gorsuch. There is certainly legal authority 
suggesting that, Senator.
    Senator Graham. And it is the Court's job to determine if 
the procedures in question pass muster.
    Judge Gorsuch. That is correct, Senator. Of course, this 
body plays a role too.
    Senator Graham. So the dilemma was that I believed it was 
the Department of Defense, the Commander-in-Chief's job to 
determine the enemy force, because that is their expertise. And 
Congress could regulate the naval and land forces, and we had a 
say about how they could do that, and the courts have a say as 
to whether or not the procedures used by the President or 
Congress pass constitutional muster. Is that the general layout 
of this situation?
    Judge Gorsuch. That is the separation of powers at work.
    Senator Graham. And there was a crosscurrent here.
    There was an email that you were not part of, you were not 
included on the email, but it says: Neil and I have just been 
told separately this is not what the White House wants. We have 
been given authorization to engage on the Graham amendment, not 
just authorization. They want us to engage to eliminate, if 
possible, but if not, to fix. DoD, not DOJ, has lead, which may 
be what led to DOJ-LA's confusion. But the key point for us is 
that we have greenlight to engage on Graham.
    And what I was trying to do was preserve the Combatant 
Status Review Tribunal concept, the ARB, Administrative Review 
Board concept, and allow the courts to judge the work product 
at the D.C. Circuit Court of Appeals, to have judicial review, 
but let the CSRT go first.
    Do you remember that?
    Judge Gorsuch. I do.
    Senator Graham. Okay. And it was settled in the Congress 
where the Combatant Status Review Tribunal would have the first 
shot at determining whether somebody is an enemy combatant and 
the D.C. Circuit Court of Appeals could review their work 
product to see if it was capricious, arbitrary, if it made 
sense.
    The Supreme Court in Boumediene struck that down, saying it 
was not an adequate substitute for habeas. Is that correct?
    Judge Gorsuch. That is absolutely correct, Senator.
    Senator Graham. And your role in all this was trying to 
find out a way to engage Congress on the Detainee Treatment 
Act, because it was your view that Congress being involved 
would strengthen the President's hand.
    Judge Gorsuch. As a lawyer?
    Senator Graham. Yes.
    Judge Gorsuch. I was not a policymaker, but I did advise.
    Senator Graham. As a lawyer.
    Judge Gorsuch. As did many others. There were many other 
very fine lawyers too, Senator, who advised the administration 
that engaging Congress would be a good idea, because we had 
read our Youngstown and our Justice Jackson.
    Senator Graham. Any lawyer, I think, who understands this 
area of the law would suggest the President is stronger when he 
has congressional support.
    The signing statement, is it fair to say there was a 
conflict between the Vice President's office and other parts of 
the Bush administration about what the signing statement should 
say or look like?
    Judge Gorsuch. That is my recollection, and that is about 
all I can recall.
    Senator Graham. I remember it very well because Vice 
President Cheney's signing statement was going to be, we have 
inherent authority to do whatever we think we need to do. And 
there were a lot of other people saying, no, you do not have 
the authority just to set aside a law. You have to have a 
reason to object to it.
    So I just want the public to understand that, when it comes 
to this man, I have seen him in action in very complicated, 
emotional matters, where you had one group of people who could 
give a damn about the terrorist and another group of people 
that wanted to criminalize what I thought was a real-world 
fight. And we tried to find that middle ground.
    And in a 5-4 decision, the Supreme Court struck down my 
proposal, and we fixed it later with a huge bipartisan vote so 
that every enemy combatant today has a habeas proceeding where 
the Government has to prove by a preponderance of the evidence 
you are, in fact, an enemy combatant. Then if they reach that 
conclusion, you can be held under the law of war as long as you 
are a threat to our Nation.
    Is that a fair summary of where we are at?
    Judge Gorsuch. That is my understanding, Senator.
    Along the way, your legislation did prevail in the D.C. 
Circuit, and in the Supreme Court, of course, it was a close 
call. It was 5-4, as I recall.
    Senator Graham. And that just proves that five people can 
be wrong.
    [Laughter.]
    Senator Graham. While I disagree, I certainly respect the 
Court's decision.
    Judge Gorsuch. You are not going to get me to commit on 
that one either.
    Senator Graham. No, do not worry. I am not even going to 
try.
    The bottom line here is, there will be more legislation 
coming regarding the role of the Government in gathering 
information. But from sort of a civics point of view, which 
Senator Sasse is going to take you through, there is a 
difference between the law of war and domestic criminal law. Do 
you agree with that?
    Judge Gorsuch. Yes, Senator.
    Senator Graham. That a common criminal, the goal of the law 
is to prosecute a crime that one individual or group committed 
against another individual or group. That is correct?
    Judge Gorsuch. That is right.
    Senator Graham. The law of war is about winning the war.
    Judge Gorsuch. Well, Senator, there are----
    Senator Graham. How you fight the war.
    Judge Gorsuch. There are, as you know, rules about that, 
too.
    Senator Graham. Right.
    Judge Gorsuch. Laws about that.
    Senator Graham. Yes. And we are fighting an enemy who has 
no rules that would do anything. And I have always been in the 
camp that I do not want to be like them. I think that is their 
weakness. And the strongest thing we could do is stand up for a 
process that stood the test of time, which is intelligence-
gathering in a humane way. Because they would cut our heads 
off, it does not make us weak because we will not cut their 
heads off. It actually makes us stronger, over the arc of time. 
So that is my commercial about that.
    So there will be more litigation, and there are no bad guys 
or girls when it comes to challenging precedent. Do you agree 
with that? People have the right to do that.
    Judge Gorsuch. To challenge precedent?
    Senator Graham. Yes.
    Judge Gorsuch. Every person is allowed to come to court to 
bring whatever claim they have. That is how our system works.
    Senator Graham. That is how Brown v. Board of Education 
came about.
    Judge Gorsuch. You are exactly right, Senator.
    Senator Graham. Okay. Let us talk about Roe v. Wade.
    What is the holding of Roe v. Wade, in 30 seconds?
    [Laughter.]
    Judge Gorsuch. The holding of Roe v. Wade, in 30 seconds, 
Senator, is that a woman has a right to an abortion. It 
developed a trimester scheme in Roe that specified when the 
state's interests and when the woman's interests tend to 
prevail.
    Senator Graham. Okay. So let me just break it down.
    The Court said there is a right to privacy, that the 
Government cannot interfere with that right in the first 
trimester. Beyond the first trimester, the Government has more 
interest as the baby develops. Is that fair to say?
    Judge Gorsuch. That was the scheme set forth.
    Senator Graham. And I think medical viability was the test 
that the Court used.
    Judge Gorsuch. Well, that is the test that the Court came 
around and applied in Casey in 1992.
    Senator Graham. Okay.
    Judge Gorsuch. And so viability became more of the 
touchstone rather than a rigid----
    Senator Graham. Is it fair to say that medical viability in 
1992 may be different than it is in 2022, medically?
    Judge Gorsuch. Senator, I am not a scientist or a doctor.
    Senator Graham. I would suggest that medical viability may 
change as science progresses, so you may have people coming in 
and saying, in light of scientific medical changes, let us look 
at when medical viability occurs.
    That is one example of litigation that may come before you. 
I have legislation that says, at 20 weeks, the unborn child is 
able to feel excruciating pain. And the theory of the 
legislation is that the state has a compelling interest to 
protect an unborn child from excruciating pain, which is caused 
by an abortion.
    I am not asking you to agree with my legislation. I am 
saying that I am developing--we are one of seven nations that 
allow wholesale, on-demand, unlimited abortion at 20 weeks, the 
fifth month of pregnancy. I would like to get out of that club.
    But we are going to have a debate in this body and the 
House about whether or not we want to change the law to give an 
unborn child protection against excruciating pain at 20 weeks 
because you can--the standard medically is that, if you operate 
on an unborn child at 20 weeks, the medical protocols are such 
that you have to provide anesthesia because you do not want to 
hurt the child in the process of trying to save the child. So 
medical practice is such that, when you operate on an unborn 
child at 20 weeks, which you can do, you have to provide 
anesthesia.
    And my theory is, well, let us just look at it the other 
way. Should you allow an abortion on-demand of a child that can 
feel excruciating pain? Is that what we want to be as a Nation? 
Does that run afoul of Roe v. Wade?
    I am going to make the argument that there is a compelling 
state interest at that stage of the pregnancy to protect the 
child against death that is going to be excruciatingly painful.
    You do not have to say a word. I am just letting everybody 
know that, if this legislation passes, it will be challenged 
before you, and you will have to look at a new theory of how 
the state can protect the unborn.
    And here is what I think. You will read the briefs, look at 
the facts, and make a decision. Am I fair to conclude that?
    Judge Gorsuch. Senator, I can promise you no more than 
that, and I guarantee you no less than that, in every single 
case that comes before----
    Senator Graham. Well, this is a real-world situation that 
may develop over time because 70-something percent of the 
American people side with me on the idea that, at 20 weeks, we 
should not be in the club of seven nations that allow abortion 
on-demand, because that is in the fifth month, and that does 
not make us a better nation.
    There will be people on the other side saying, no, that is 
an erosion of Roe, and it will go to the Court, maybe, if it 
ever passes here.
    And the only reason I mention this is that everybody who 
wants to challenge whatever in court deserves a person like 
you, a person like you, no matter what pressures are applied to 
you, will say over and over again: I want to hear what both 
sides have to say. I want to read their legal arguments, look 
at the facts, and I will decide.
    That, to me, is reassuring, and that is exactly the same 
answer I have from Sotomayor and Kagan, no more, no less. And 
we can talk forever about what you may or may not do. If you do 
anything different than that, I think you would be unworthy of 
the job.
    Now, about what is going on in the country with President 
Trump, whether you like him or you do not, he is President. But 
you have said several times that he is not above the law as 
President. Is that correct?
    Judge Gorsuch. Yes, Senator.
    Senator Graham. You told Senator Leahy, if there was a law 
passed that a Muslim could not serve in the military, you 
believe, based on current law, that would be an illegal act.
    Judge Gorsuch. Senator, yes. I see that having all sorts of 
constitutional problems, under current law.
    Senator Graham. So if we have laws on the book that prevent 
waterboarding, do you agree with me that the Detainee Treatment 
Act prevents waterboarding?
    Judge Gorsuch. Yes, Senator. That is my recollection of it.
    Senator Graham. So in case President Trump is watching, 
which he may very well be, one, you did a good job from picking 
Judge Gorsuch. Number two, here is the bad part----
    [Laughter.]
    Senator Graham [continuing]. If you start waterboarding 
people, you may get impeached.
    Is that a fair summary?
    Judge Gorsuch. Senator, the impeachment power belongs to 
this body.
    Senator Graham. Okay, that is even better.
    Would he be subject to prosecution?
    Judge Gorsuch. Senator, I am not going to speculate.
    Senator Graham. But he is not above the law?
    Judge Gorsuch. No man is above the law.
    Senator Graham. Okay.
    Judge Gorsuch. No man.
    Senator Graham. Thank you. I think you are a man of the 
law, and I really want to congratulate the President that 
picked you.
    Quite frankly, I was worried about who he would pick. Maybe 
somebody on TV.
    [Laughter.]
    Senator Graham. But President Trump could not have done 
better in choosing you, and I hope people on the other side 
will understand that you may not like him--I certainly did not 
agree with President Obama, but I understood why he picked 
Sotomayor and Kagan. And I hope you can understand why 
President Trump picked Neil Gorsuch. I hope you will be happy 
with that, because I am.
    Judge Gorsuch. Thank you, Senator.
    Senator Graham [presiding]. We will recess until 12:45.
    [Recess.]
    Chairman Grassley. Senator Durbin.
    Senator Durbin. Thanks, Mr. Chairman, and thanks, Judge.
    Just to be clear, going back to Senator Graham's line of 
questioning, you helped draft the provision stripping the 
courts of jurisdiction which was struck down by the Supreme 
Court in Hamdan, and you were not involved in the drafting of 
the McCain section of the bill on the Detainee Treatment 
amendment.
    Judge Gorsuch. Senator, that would not fit quite with my 
recollection.
    Senator Durbin. Please.
    Judge Gorsuch. My recollection is that Senator McCain and 
Senator Graham wrote the legislation with input from the 
Department of Defense and the Department of Justice, and a 
whole lot of others besides. And I was one voice among a great 
many, and that in terms of when it was struck down, Hamdan held 
that the Detainee Treatment Act did not apply retroactively, it 
only applied prospectively; and then several years later--gosh, 
I want to say it was 2008, maybe?--the Court came back around 
in Boumediene.
    Senator Durbin. So what I am driving at, though, is the 
McCain section relative to cruel, inhuman, and degrading 
treatment. And I assume or I hope you have had a chance to take 
a glance at the emails that Senator Feinstein gave you. You 
said in your email you wanted a signing statement to the effect 
that the view is that McCain is best read as essentially 
codifying existing interrogation policies.
    So what interrogation policies did you think the McCain 
amendment was essentially codifying?
    Judge Gorsuch. Senator, I have not had a chance to look at 
that. I am sorry. I just scarfed down a sandwich over the 
break, and I will be happy to read it, but I am not sure what I 
can answer you, here sitting, off the top of my head. It was 12 
years ago, and I am doing the best I can with my recollection. 
My recollection----
    Senator Durbin. I am trying to get this leap from your 
memory of this email, which I understand there were 100,000 
pages of emails.
    Judge Gorsuch. Exactly.
    Senator Durbin. In fairness to you.
    Judge Gorsuch. I think the Department of Justice has 
produced something like 200,000 pages of stuff.
    Senator Durbin. I will concede that point. But your lack of 
memory at the moment, and contrast that with your clear 
statement that you believe that the McCain bill, which I 
supported, outlawed waterboarding.
    Judge Gorsuch. Sitting here, that would be my 
understanding, Senator.
    Senator Durbin. The problem with what I have just described 
is when you were talking about a signing statement, 
waterboarding was still happening, and you were saying in your 
email, ``I want to essentially codify existing interrogation 
policy.'' There is an inconsistency there which we are going to 
have to wait until the second round to resolve.
    Judge Gorsuch. Okay.
    Senator Durbin. Okay. Let me read something to you and ask 
you for a reaction. It is a statement that was made about 8 
days ago by a Congressman named Steve King of Iowa, and here is 
what he said: ``You cannot rebuild your civilization with 
somebody else's babies. You have to keep your birth rate up, 
and that you need to teach your children your values. In doing 
so, you can grow your population, you can strengthen your 
culture, and you can strengthen your way of life.''
    The reaction to that statement was overwhelming. Civil 
rights leader Congressman John Lewis called it ``bigoted'' and 
``racist.'' Republican House Speaker Paul Ryan said he clearly 
disagreed with King's comments, went on to say, the Speaker 
``clearly disagrees and believes America's long history of 
inclusiveness is one of its great strengths.''
    What would your reaction to that statement be?
    Judge Gorsuch. Senator, I can talk about my record, and I 
can tell you that as a Federal judge, when a defendant comes to 
court with an allegation that the sentencing judge made 
improper comments based on his ethnicity, me and my 
colleagues--my colleagues and I have removed that judge from 
the case.
    I can tell you that when an immigration lawyer fails to 
provide competent counsel time and time again, I have sent him 
to the bar for discipline.
    I can tell you that when it comes to access to justice, I 
have written on this topic; I have worked on this topic for the 
last 6 years, together with many wonderful people on the Rules 
Committee, trying to make our civil litigation system cheaper 
and faster, because it takes too long for people to exercise 
their Seventh Amendment liberties.
    And I can tell you together with my colleagues, when we 
found that the level of representation of inmates on death row 
was unacceptable in our Circuit, a whole bunch of us--I cannot 
take too much credit--tried to do something about it.
    I can tell you that when prisoners come to court, pro se, 
handwritten complaints, and I see something that might be 
meritorious in them, I appoint counsel. That is my record, 
Senator.
    Senator Durbin. Can you describe your relationship with 
Professor John Finnis?
    Judge Gorsuch. Sure. He was my dissertation supervisor.
    Senator Durbin. When did you first meet him?
    Judge Gorsuch. Whenever I went to Oxford, so it would have 
been 1990----
    Senator Durbin. 1992.
    Judge Gorsuch. Well, it could have been two or three. 
Somewhere in there.
    Senator Durbin. And what was his relationship with you or 
you with him?
    Judge Gorsuch. He was my dissertation supervisor, and I 
would describe that as a relationship between teacher and 
student, and he was a very generous teacher, particularly 
generous with his red ink on my papers. I remember sitting next 
to the fire in his Oxford office, like something out of ``Harry 
Potter,'' and he always had a coal fireplace burning, and 
sometimes whether I was being raked over the coals. He did not 
let an argument that I was working on go unchallenged from any 
direction.
    Senator Durbin. So that was over 20 years ago that you 
first met him?
    Judge Gorsuch. Whatever it is, it is, yes.
    Senator Durbin. Do you still have a friendship, a 
relationship with him?
    Judge Gorsuch. Last time I saw him, gosh, when he--I know I 
saw him when he retired, and there was a party held in his 
honor. And I remember seeing him then, and that was a couple of 
years ago.
    Senator Durbin. Did he know you were from Colorado?
    Judge Gorsuch. I do not know. It must have at some point 
come out in our conversations. I do not know when.
    Senator Durbin. And do you recall saying some words of 
gratitude for his help in writing your book?
    Judge Gorsuch. He did not write my book, Senator.
    Senator Durbin. Help write?
    Judge Gorsuch. He did not help write my book. I wrote my 
book. I certainly expressed gratitude to my dissertation 
supervisor in a book that is basically my dissertation.
    Senator Durbin. I think you were quoted as saying, in 2006, 
you thanked Finnis for his ``kind support through draft after 
draft.''
    Judge Gorsuch. And there were a lot of drafts, Senator. I 
mean, golly, that was a very tough degree. That was the most 
rigorous academic experience of my life, and I had to pass not 
just him but an internal examiner and an external examiner, and 
that was hard. That was hard.
    Senator Durbin. In 2011, when Notre Dame ran a symposium to 
celebrate his work, you recalled your study under him, and you 
said, ``It was a time when legal giants roamed among Oxford's 
spires.''
    Judge Gorsuch. Oh, yes. Yes.
    Senator Durbin. You called him one of the great scholars.
    Judge Gorsuch. Well, and Oxford has a stable--and it is 
part of the reason why it was such a privilege. I mean, here I 
was a kid from Colorado, and I have a scholarship to go to 
Oxford. I had never been to England, to Europe before. And at 
Oxford at that time, they had John Finnis, Joe Raz, Ronald 
Dworkin. H.L.A. Hart was even still alive then.
    Senator Durbin. So let me, if I can, read a couple 
statements from Professor Finnis. In 2009, Professor Finnis 
wrote about England's population. He said England's population 
had ``largely given up bearing children at a rate consistent 
with their community's medium-term survival.'' He warned they 
were on a path to ``their own replacement, as a people, by 
other peoples, more or less regardless of the incomers' 
compatibility of psychology, culture, religion, or political 
ideas and ambitions, or the worth or viciousness of those ideas 
and ambitions.''
    He went on to say, ``European states in the early 21st 
century move . . . into a trajectory of demographic and 
cultural decay . . . population transfer and replacement by a 
kind of reverse colonization.'' 
    Had you ever read that before?
    Judge Gorsuch. Nope.
    Senator Durbin. Had you heard it before?
    Judge Gorsuch. Nope. Not to my recollection.
    Senator Durbin. Could you distinguish what he said with 
what Congressman Steve King said?
    Judge Gorsuch. Senator, I am not here to answer for Mr. 
King or for Professor Finnis. We----
    Senator Durbin. But I am asking your reaction to these 
things. Do you feel that what Professor Finnis wrote about 
purity of culture and such is something that we should condemn 
or congratulate?
    Judge Gorsuch. Senator, before I expressed any view on 
that, I would want to read it, and I would want to read it from 
beginning to end----
    Senator Durbin. I just read it to----
    Judge Gorsuch. Not an excerpt. And, Senator, I have had a 
lot of professors. I have been blessed with some wonderful 
professors. And I did not agree with everything they said, and 
I would not expect them to agree with everything I have said.
    Senator Durbin. Well, let me ask you this specific one. It 
was 1993, and you were at Oxford, and this is when you believe 
you first met this professor. Professor Finnis was tapped by 
the then-Colorado Solicitor General, Timothy Tymkovich, to help 
defend a 1992 State constitutional amendment that broadly 
restricted the State from protecting gay, lesbian, and bisexual 
people from discrimination.
    During the course of the deposition which he gave in 
support of that effort, Finnis argued that antipathy toward 
LGBT people, specifically toward gay sex, was rooted not just 
in religious tradition but Western law and society at large. He 
referred to homosexuality as ``bestiality'' in the course of 
this as well.
    Were you aware of that?
    Judge Gorsuch. Senator, I know he testified in the Romer 
case. I cannot say sitting here I recall the specifics of his 
testimony or that he gave a deposition.
    Senator Durbin. I guess the reason I am raising this is 
this is a man who apparently had an impact on your life, 
certainly your academic life, and I am trying to figure out 
where we can parse his views from your views, what impact he 
had on you as a student, what impact he has on you today with 
his views.
    Judge Gorsuch. Well, I guess, Senator, I think the best 
evidence is what I have written. I have written over--oh, gosh, 
written or joined over 6 million words as a Federal appellate 
judge. I have written a couple of books. I have been a lawyer 
and a judge for 25 or 30 years. That is my record, and I guess 
I would ask you respectfully to look at my credentials and my 
record, and some of the examples I have given you are from my 
record about the capital habeas work, about access to justice. 
I have spoken about overcriminalization publicly. Those are 
things I have done, Senator.
    Senator Durbin. And what about LGBT and Q individuals?
    Judge Gorsuch. Well, Senator, there are--what about them?
    Senator Durbin. Well, the point I made is----
    Judge Gorsuch. They are people, and----
    Senator Durbin. Of course. But what you said earlier was 
that you have a record of speaking out, standing up for those 
minorities who you believe are not being treated fairly. Can 
you point to statements or cases you have ruled on relative to 
that class?
    Judge Gorsuch. Senator, I have tried to treat each case and 
each person as a person--not a this kind of person, not a that 
kind of person. A person. Equal justice under law. It is a 
radical promise in the history of mankind.
    Senator Durbin. Does that refer to sexual orientation as 
well?
    Judge Gorsuch. Senator, the Supreme Court of the United 
States has held that single-sex marriage is protected by the 
Constitution.
    Senator Durbin. Judge, would you agree that if an employer 
were to ask female job applicants about their family plans but 
not male applicants, that would be evidence of sex 
discrimination prohibited by Title VII of the Civil Rights Act?
    Judge Gorsuch. Senator, I would agree with you it is highly 
inappropriate.
    Senator Durbin. You do not believe it is prohibited?
    Judge Gorsuch. Senator, it sounds like a potential 
hypothetical case that might be a case or controversy I might 
have to decide, and I would not want to prejudge it sitting 
here at the confirmation table. I can tell you it would be 
inappropriate.
    Senator Durbin. Inappropriate. Do you believe that there 
are ever situations where the costs to an employer of maternity 
leave can justify an employer asking only female applicants and 
not male applicants about family plans?
    Judge Gorsuch. Senator, those are not my words, and I would 
never have said them.
    Senator Durbin. I did not say that. I asked you if you 
agreed with the statement.
    Judge Gorsuch. And I am telling you I do not.
    Senator Durbin. Thank you.
    In Hwang v. Kansas State, the case involved a cancer-
stricken professor. You wrote an opinion that noted that EEOC 
guidance commands deference ``only to the extent its reasoning 
actually proves persuasive.''
    EEOC's enforcement guidance on pregnancy discrimination 
provides as follows: ``Because Title VII 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?
    Judge Gorsuch. Senator, there are a lot of words there, and 
if you are asking me to parse them out and give you a legal 
opinion--and I fear that you may be--I would respectfully say I 
would have to study it in the course of a judicial case.
    Senator Durbin. Well, let me bring it right down to the 
operative words: whether employers should or should not make 
inquiries into whether an applicant or employee intends to 
become pregnant.
    Judge Gorsuch. Senator, I would need to--it sounds like you 
are asking me about a case or a controversy, and with all 
respect, when we come to cases and controversies, a good judge 
will listen. Socrates said the first virtue of a good judge is 
to listen courteously and decide impartially.
    Senator Durbin. I think you know why I am asking these 
questions.
    Judge Gorsuch. No. This one I do not.
    Senator Durbin. The reason I am asking about your views on 
pregnancy, women, and the workplace 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 did 
not 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 it 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?
    Judge Gorsuch. No, Senator, and I would be delighted to 
actually clear this up.
    Senator Durbin. Please.
    Judge Gorsuch. Because the first I heard of this was the 
night before my confirmation hearing. I have been teaching 
legal ethics at the University of Colorado for 7 or 8 years. It 
has been a great honor and pleasure. I teach from a standard 
textbook that every professor--well, I do not know if every 
professor--a number of professors at CU and elsewhere use. It 
is an excellent textbook, Professors Lerman and Schrag.
    One of the chapters in the book confronts lawyers with some 
harsh realities that they are 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, and that is 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 would 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 is 
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 are 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--the hypothetical is that 
it is 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 is a 
choice, too. It is a hard choice.
    Or you can push back in some way, shape, or form. And we 
talk about the pros and the cons in a Socratic dialogue so 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 is 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, could not 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.
    Senator Durbin. And I wanted to give you that opportunity. 
I told you yesterday we would get to the bottom of this and I 
would give you your 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 do not know 
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 had an impact. It was profound.
    The question, of course, was the military orders in the 
United States and 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 internment camp, and that whole 
military directive was challenged in this case. And it was 
interesting that it was upheld in 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 
would like to ask your thoughts on them.
    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 would 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 confirmed that as well. Are we up 
to it in terms of constitutional protection and the role of the 
Court?
    Judge Gorsuch. We better be. Senator, a wise old judge, 
kind of like Judge Johnson, you are going to hear from; he is 
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 does not happen 
everywhere else around the world. We take it for granted in 
this country. It is 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 
is humbling, that prospect, to me. And 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.
    Senator Durbin. Let me ask you about another case that has 
been referred to. Yesterday, many of us mentioned Al Maddin 
sitting in that truck--it was about 3 in the morning--on I-88, 
west of Chicago. I have 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 either 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 cold, he unhitched the trailer and took his tractor 
to a place for some gas and to warm up and then returned to it 
when they fixed it.
    Seven different judges took a look at those facts and came 
down on Al Maddin's side, except for one: you. Why?
    Judge Gorsuch. Senator, this is one of those you take home 
at night. The law said that the man is protected and cannot be 
fired if he refuses to operate an unsafe vehicle. The facts of 
the case, at least as I understood them, was that Mr. Maddin 
chose to operate his vehicle, to drive away and, therefore, was 
not protected by the law. He would be protected if he refused 
to operate, but he chose to operate. Now, Senator----
    Senator Durbin. But you know the distinction, though, 
because his dispatcher told him, ``Do not leave unless you drag 
that trailer.''
    Judge Gorsuch. Right.
    Senator Durbin. And he said, ``I cannot do it. You know, 
the brakes are frozen.'' And he went out there in 14 below and 
unhitched that trailer, he thought, because he was in danger. 
And when you wrote your dissent in this, you said it was an 
unpleasant option for him to wait for the repairman to arrive.
    Judge Gorsuch. I said more than that, Senator. I said----
    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 and generic phrase 
``health and safety.'' You went on to write, ``After all, what 
under the sun, at least at some level of generality, does not 
relate to `health and safety'?''
    We had a pretty clear legislative intent for a driver who 
feels he is in danger of his life, perhaps, and you dismiss it, 
the only one of seven judges, and say, ``No. You are fired, 
buddy.'' And, you know, he was blackballed from trucking 
because of that. Never got a chance to drive a truck again.
    Judge 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 wrote, I said it was an 
unkind decision. I said it may have been a wrong decision, a 
bad decision. But my job is not to write the law, Senator. It 
is 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 have been stuck on a highway in Wyoming in a snowstorm. I 
know what is involved. I do not make light of it. I take it 
seriously. But, Senator, this gets back to what my job is and 
what it is not. And if we are going to pick and choose cases 
out of 2,700, I can 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.
    You know, I would point you, for example, to W.D. Sports or 
Casey, Energy West, Crane, Simpson v. CU. That is just a few 
that come to mind that I have scratched down here on a piece of 
paper.
    Senator Durbin. Judge, we up here are held accountable for 
our votes, and I have been in Congress for a while, and I have 
cast a lot of them. Some of them I am not very proud of; I wish 
I could do it all over again. I have made mistakes. But your 
accountability is for your decisions, as our accountability is 
for our votes. And if were picking and choosing, it is to try 
to get to the heart of who you are and what you will be if you 
are given a chance to serve on the Supreme Court.
    I would 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 Court 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 the Dictionary law and so many different 
aspects of this.
    What I was troubled by--and I asked you then, and I will 
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 is right and wrong when it comes to family planning, and 
the Court says that is what will decide it, 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. You 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-in 
corporations in America, 60 million people had 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 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 
the company to say, as you told me, ``There is some kind of 
family planning I like and some I do not like''?
    Judge 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 at the Tenth Circuit am I a serious and careful 
judge, I think you will hear that I am. And I am delighted to 
have an opportunity to talk to you about that decision.
    As you know, in RFRA, the Religious Freedom Restoration 
Act, Congress was dissatisfied with the level of protection 
afforded 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 does not offend the First 
Amendment. So laws banning the use of peyote, Native Americans, 
tough luck, even though it is essential to their religious 
exercise, for example.
    This Congress decided 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 abridged 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.
    Okay. I have applied that same law, RFRA and RLUIPA--they 
are companion statutes--to Muslim prisoners in Oklahoma who 
seek halal meals, to Native Americans who wish to use an 
existing sweat lodge in Wyoming, and to Little Sisters of the 
Poor. Hobby Lobby came to court and said, ``We deserve 
protections, too. We are a small family held company.'' A 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 are entitled to 
protection, too, under that law.''
    It is 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 statute? Congress did not 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 are not otherwise 
defined. That is what a good judge does. He does not make it 
up. He goes to the Dictionary Act.
    In the Dictionary Act, Congress has defined ``person'' to 
include corporation. So you cannot 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. In 
fact, the Government in that case conceded that nonprofit 
corporations can exercise religion. Conceded that. So that is 
the case.
    Then we come to the strict scrutiny side.
    Senator Durbin. I do not want to cut you off.
    Judge Gorsuch. Oh, I am sorry.
    Senator Durbin. I am going to get in big trouble with the 
Chairman----
    Judge Gorsuch. Oh, I do not want to get you in trouble.
    Senator Durbin [continuing]. From Iowa here.
    Chairman Grassley. I think I would want you to continue 
your answer to his question.
    Judge Gorsuch. I am sorry, Mr. Chairman.
    Chairman Grassley. No, please. I want you to continue.
    Judge Gorsuch. Okay. All right. So then you have the 
religion, the first half of the test met. All right? So then 
you go to the second half. Does the Government have a 
compelling interest in the ACA in 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 was not as strictly 
tailored as it could be because the Government had provided 
different accommodations to churches and other religious 
entities.
    The Greens did not 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 could not provide an explanation why it 
could not do the same thing here. And that is the definition of 
``strict scrutiny.''
    Now, Congress can change the law. It can go back to Smith 
v. Maryland if it wants to, eliminate RFRA altogether. It could 
say that only natural persons have rights under RFRA. 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 am sorry. But we did our level best, 
and we were affirmed by the U.S. Supreme Court, and it is a 
dialogue like any statutory dialogue between Congress and the 
courts.
    Senator Durbin. Thank you, Judge, and thank you, Mr. 
Chairman.
    Chairman Grassley. The Senator from Texas.
    Senator Cornyn. Thank you, Mr. Chairman.
    Before I start, yesterday in my statement I mentioned an 
op-ed in The New York Times written by Neal Katyal. My 
apologies to him if I have butchered his name. With a name like 
Cornyn, I am used to it, but I apologize.
    Judge Gorsuch. I get a lot worse. I have a lot worse the 
other day.
    Senator Cornyn. The title of the op-ed is ``Why Liberals 
Should Back Neil Gorsuch.'' I would like to ask consent that 
this be included in the record, along with other supportive 
letters.
    Chairman Grassley. Without objection, all documents will be 
included.
    [The information appears as submissions for the record.]
    Senator 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?
    Judge Gorsuch. That is the easiest question of the day, 
Senator. Thank you. No.
    And I have to correct myself. Senator Durbin, it is not 
Smith v. Maryland. That is third-party doctrine. It is 
Employment Division v. Smith that we are talking about. I 
apologize to you for that.
    Senator Cornyn. Well, I am glad to hear you answer my 
question the way you did. I expected that you would. But that 
seems to be implied in some of the questioning that you are 
getting, that you look at who the litigants are and who you 
would like to win, the little guy, as we have heard--and I will 
get to that again in a minute--and then go back and try to 
justify the outcome. But I agree with you; that is not what 
good judges do.
    I want to return briefly to, I know, something you have 
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' 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 and 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?
    Judge Gorsuch. I think so, Senator, to the best of my 
recollection.
    Senator Cornyn. Okay. 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 not 
have to pay attention to the law, or perhaps had authorities 
that were not otherwise laid out in the statute, that the 
President could disregard what Congress has passed and what the 
President had signed into law.
    On the other hand, there were those like you in an email 
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 and 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 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, 
here, I will just read it. It says, ``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 as Commander-in-Chief and 
consistent with the constitutional limitations on judicial 
power.''
    So that is the statement in the signing statement that you 
sought to make more expansive and accommodate the three 
concerns that you raised. Is it not correct?
    Judge Gorsuch. Senator, your understanding of events is a 
lot fresher than mine, but sitting here, I cannot disagree with 
anything you have said.
    Senator Cornyn. Well, and I understand this is, what, 12 
years ago.
    Judge Gorsuch. Something like that.
    Senator Cornyn. And you were asked questions initially by 
Senator Feinstein without the benefit of actually being able to 
refresh your memory from reading the emails. 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. You know, 
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 has actually practiced law in the 
trenches, as you said you have and you did, you were concerned 
and write in this article about your concerns for access to 
justice for the little guys--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?
    Judge Gorsuch. I really appreciate this opportunity and 
venue to be talking about these things because these I care 
about and I can talk about as a judge.
    I wrote that article in conjunction with some input from a 
lot of wonderful people, so I cannot take total credit for it. 
And I thank them, and you can see who I thank.
    My point there was threefold, starting with the fact that 
too few people can get to court with legitimate grievances 
today. That is 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 services?
    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 am not a big blame guy. But I am a look-inside guy. And what 
do I see in our profession? There are three things that I 
pointed to in that article.
    First, our own ethical rules. It is a very unusual 
profession where we are allowed to regulate ourselves. It is 
quite an extraordinary privilege. Usually it is the 
legislature, right? But lawyers basically regulate themselves. 
And do all of our ethical rules necessarily help our clients or 
do some of them help us more than they help our clients?
    And I point to some that, for instance, regarding the 
unauthorized practice of law, why is it you have to be a lawyer 
to help parents with disabled children in administrative 
proceedings to seek relief under IDEA? That was an example I 
pointed to.
    Why is it that every time certain companies that provide 
online 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 cannot get a landlord-tenant contract drawn 
up?
    Those are all results of our ethical rules, and I am not 
sure whether they are worth the price that we pay for them. It 
is estimated, I have heard--I cannot verify it--that our 
ethical rules result in a $10 billion a year surplus to lawyers 
from clients every year. That was one.
    Number two was our own rules of procedure which yield cases 
like the one we talked about that took 25 years to resolve. 
That is wrong. That is wrong. We should be able to resolve 
cases in less time than it takes for my law clerks to be born, 
raised, and get through law school.
    And the third thing I pointed to was our legal educational 
system, where we have 3 years of post-graduate education for 
everybody who wants to have anything to do with lawyering. The 
best lawyer in the country in this history came from your 
State, Senator Durbin, and he did not ever go to law school. 
And he always said the best way to become a lawyer, read the 
books. Still true.
    And other countries around the world do not have 3 years of 
post-graduate legal education. Now, this is where Justice 
Scalia and I--this is a disagreement. He thought 3 years was 
necessary for everybody. I am not convinced. In England, where 
I studied, you could become a lawyer through 3 years of an 
undergraduate degree or 1 year as a post-graduate degree, all 
followed by a lot of on-the-job practical training. And I 
wonder whether all that debt is worth it or whether it induces 
people to pick jobs that they have to pick to pay their debt 
rather than to serve the people they would like to serve.
    Those are the problems I talk about in that article.
    Senator Cornyn. Judge, you make this statement, that the 
``rules sometimes yield more nearly the opposite of their 
intended result, expensive and painfully slow litigation that 
itself is a form of injustice.'' Can you think of many things 
more unjust for people of modest means in America than being 
denied access to the courts because our system is so expensive 
and so time-consuming they just simply cannot afford it?
    Judge Gorsuch. I think it is a problem when 80 percent of 
the American College of Trial Lawyers, the best lawyers in the 
country, arguably--they certainly think they are. Sorry.
    [Laughter.]
    Judge Gorsuch. When 80 percent of them say that good claims 
are priced out of court and 70 percent of them say that cases 
are settled based on litigation costs rather than the merits of 
the litigation, that is a problem both ways. And these are 
lawyers who operate on both sides of the ``v.''
    Senator Cornyn. So basically you either have to be able to 
pay a lawyer's hourly rate or you have to agree to some 
contingent fee arrangement, and lawyers are not going to take a 
contingent fee case unless there is at least some reasonable 
prospect for their being compensated out of any settlement and 
judgment, ordinarily.
    Judge Gorsuch. Ordinarily. Some do. What we are seeing 
today, though, Senator, is an explosion of pro se, that is, 
filings by the person without a lawyer. And that is what I was 
trying to address there. I do think access to justice in large 
part means access to a lawyer. Lawyers make a difference. I 
believe that firmly. My grandpa showed that to me, what a 
difference a lawyer can make in a life.
    Senator Cornyn. Judge, let me ask you about another case 
involving the little guy. This was an immigration case that you 
will recall was a conflict between two provisions of 
immigration law, Gutierrez-Brizuela v. Lynch. I hope I 
pronounced that approximately correctly.
    Do you recall the case?
    Judge Gorsuch. I do, and we have talked a little bit about 
it with Senator Feinstein, and I would be happy to----
    Senator Cornyn. Well, I am happy to hear it again because I 
heard, I believe it was, Senator Feinstein--maybe I am mistaken 
there--or maybe one of our other colleagues--I apologize if I 
misstated that--that talked about this deference to 
administrative agencies as being necessary and a fundamental 
doctrine. But can you explain how that ended up hurting the 
little guy in that case?
    Judge Gorsuch. So, Senator, in that case there were two 
statutes that this undocumented immigrant faced. He was trying 
to remain in the country.
    One statute said that he had the right to apply for 
immediate discretionary relief from the Attorney General. No 
promises about the outcome, but he could at least apply to the 
Attorney General.
    The other statute seemed to suggest that he had to wait 10 
years out of the country before he could seek relief.
    Now, I am not criticizing Congress' handiwork here, okay? 
But those two statutes appeared a little in conflict. So the 
case came to our court in the first instance, and our court 
held that the first statute trumped, that the man had a right 
to apply for immediate discretionary relief and did not have to 
wait 10 years out of the country. And then some number of years 
later--I cannot remember whether it was 3 or 4, I want to say. 
Do not hold me to that. The Board of Immigration Appeals in its 
infinite wisdom comes back and says we are wrong. The Court of 
Appeals got it wrong; the 10-year statute trumps.
    Okay. It says, though, that we are not just wrong, but we 
are wrong retroactively. So it is as if our decision never 
existed. And this man, who had relied on our holding to apply 
for immediate discretionary relief, was denied the opportunity 
to do so and told now he had to go start his 10-year waiting 
period.
    Now, instead of 10 years, it is now equivalent of, what, 13 
or 14 years. And to me, that just seemed like he had the rug 
pulled out from underneath him. And I think a person in this 
country should be able to rely on the law as it is, and it is a 
matter of due process and fair notice. When he is told that is 
the law, he should be able to rely on it.
    And I also think it is a separation of powers question. 
When, with all respect, a bureaucracy can overrule neutral, 
dispassionate judges on the meaning of a law based on their 
political whims at the moment, that is a separation of powers 
issue, I think, and maybe an equal protection issue, too, 
because a political branch can single out people for disfavor. 
Judges are sworn to treat every person equally in that Vermont 
marble.
    Senator Cornyn. In this case the little guy was actually 
relying upon a judgment of a court of law----
    Judge Gorsuch. Yes, he----
    Senator Cornyn [continuing]. And was effectively, or at 
least the attempt was to overrule that court decision by an 
administrative regulation or interpretation. Is that correct?
    Judge Gorsuch. Yes.
    Senator Cornyn. And if you had applied the Chevron test--we 
have talked about that a little bit--said if it is ambiguous, 
the statute is ambiguous, and the agency's interpretation is a 
legal one, then you are obligated to enforce the agency 
decision rather than the judgment of the court of law.
    Judge Gorsuch. Senator, we did apply the Chevron case 
faithfully because we had to, and I also wrote separately to 
ask questions, because I am a Circuit Judge. You know, I never 
dreamt I would be sitting here, I can tell you that, when I 
wrote this opinion. And part of my job as a Circuit Judge is to 
tee up questions for my bosses. And it struck me, here is a 
question. Is this result consistent with the Administrative 
Procedures Act? Which says in Section 706 that we are supposed 
to defer to agencies when it comes to questions of fact, to the 
scientists, to the biologists. But when it comes to questions 
of law, APA Section 706 entrusts courts to decide what the law 
is. And is this consistent with our values of equal protection, 
due process, and separation of powers?
    Those are questions I raised, Senator, to tee up for my 
bosses.
    Senator Cornyn. So you actually applied the Chevron test in 
your judgment and wrote a separate opinion raising these 
questions perhaps for review by the Supreme Court.
    Judge Gorsuch. I follow precedent.
    Senator Cornyn. It sounds like it, even when you disagree 
with the outcome.
    Judge Gorsuch. Well, we got to an outcome we could live 
with there, too, Senator, and applied Chevron. But I did raise 
it in the separate concurrence to raise these questions. You 
know, I do not know how I would rule if I were a Supreme Court 
Justice on the question. I have to be honest with you, Senator 
Cornyn, because I would want to do what a good judge does. Keep 
an open mind, read the briefs. And I could change my mind. I 
think here of my old boss, Dave Sentelle, who, when I clerked 
for him, he wrote a panel opinion going one way at the 
beginning of the year, and by the end of the year he wrote an 
en banc opinion, an opinion for the full court, reversing his 
own panel opinion.
    Now, some people say that is a man who does not have a 
spine, something like that. I say that is a judge with an open 
mind.
    Senator Cornyn. Well, speaking for myself, the idea that 
agencies, unelected bureaucrats, have the latitude to interpret 
their own legal authorities if the Congress is ambiguous and 
their interpretation is deemed reasonable is a troubling 
concept, because if there is one part of the Federal Government 
that is completely out of control of the regular voters in this 
country, it is the bureaucrats who do not stand for election 
like Members of Congress do. And so I hope it is something that 
we legislatively can look at as a way to help rein in the 
regulatory state, which, in my humble opinion, hasten out of 
control.
    Let me talk to you about the Establishment Clause, if I 
may. I firmly believe the Supreme Court has lost its way in 
limiting religious expression in this country. That is my 
opinion. And part of my conviction stems from an experience I 
had 20 years ago when I had a chance to argue before the U.S. 
Supreme Court. I had that chance on two occasions when I was 
Attorney General of Texas. This case was called the ``Santa Fe 
Independent School District v. Doe.'' The school district in 
southeast Texas, around Galveston, had a practice before 
football games of inviting a student to offer a prayer or a 
poem or maybe just an inspirational thought before the football 
game. They got sued by the ACLU, and that case ended up going 
to the U.S. Supreme Court where the Court held by a vote of 6-3 
that student-led prayer was unconstitutional. That led the late 
Chief Justice Rehnquist to make the statement that rather than 
neutrality toward religious expression, that the Court now 
exhibits ``hostility to all things religious in public life.''
    We do not seem to have many limits on expressions of sex, 
violence, or crime in the public square, but we do seem to have 
compunctions about religious expression in the public square. 
And I wonder if you could just talk to us a little bit about 
your views, not prejudging cases but the sorts of 
considerations that you believe the Founders, for example, had 
in mind.
    And, of course, as I am asking you the question, I am 
already thinking through my head here. I am not asking you to 
prejudge any future case, so let me give you the latitude to 
answer the question any way you deem fit. But I have to tell 
you, I am very troubled by what Chief Justice Rehnquist called 
``hostility to religious expression in the public square'' and 
what that has done to change our country, not in a good way.
    Judge Gorsuch. Senator, I appreciate your thoughts, and it 
is a very difficult area doctrinally because you have two 
commands in the First Amendment that are relevant here. You 
have the Free Exercise Clause on the one hand, and you have the 
Establishment Clause on the other. So you are guaranteed free 
exercise of religion, and you are also guaranteed no 
establishment of religion. Those two commands are in tension 
because, to the extent we accommodate free expression, at some 
point the accommodation can be so great that someone is going 
to stand up and say you have established or you passed a law 
respecting the establishment of religion. It is a spectrum and 
it is a tension. And as in so many areas of law, judges have to 
mediate two competing and important values that our society 
holds dear.
    The Court has struggled in Establishment Clause 
jurisprudence to provide a consistent, comprehensive test. I 
think that is a fair statement. The current dominant test is 
called the ``Lemon test,'' and it asks whether the intent is to 
establish a religion, promote a religion, whether the effect is 
to help advance a religion, and whether there is too much 
entanglement between state and religion.
    It has proved a difficult test, according to six Justices 
at least who have expressed dissatisfaction with this test, but 
never at the same time.
    So Lemon endures, and academics have thoughts about various 
options and alternatives, I know, and the Justices themselves 
have expressed various and sundry ideas.
    I can tell you as a lower court judge just trying to 
faithfully do what the Supreme Court wants us to do, it is a 
bit of a challenge in this area. We struggle along.
    Senator Cornyn. Well, just as one citizen to another, let 
me tell you I think it is a morass, and, unfortunately, the 
result is like Chief Justice Rehnquist said, ``hostility to 
religious expression in the public square,'' and I think our 
country is poorer for it.
    My final topic, at least for this round, let me ask a 
little bit about originalism and textualism. Our mutual friend, 
Bryan Garner, mentioned to me that textualism is not the same 
thing as being a strict constructionist. I know we use that 
phrase, at least colloquially some. But if a judge is not going 
to be bound by the text of the Constitution or the text of a 
statute, what is a judge going to be bounded by?
    Judge Gorsuch. Well, Senator, I hope it is not what he had 
for breakfast. And, you know, when I was a lawyer, all I wanted 
was a judge who put all of his personal things aside, her 
personal views, and come to the law and the facts in each case 
fairly. And I do think when we are talking about interpreting 
the law, there is no better place to start than the text. Maybe 
here I have to blame Sister Mary Rose Margaret. She taught me 
how to read, and she taught me how to diagram a sentence. And 
it was under pain of the hot seat paddle, which hung above her 
desk for all to see.
    I used to say she could teach a monkey how to read. I think 
she did: Me. And I think that is where we want to start for a 
couple of reasons, with the text of the law.
    First, we go back to the due process considerations, the 
fair notice considerations we spoke of earlier. Before I put a 
person in prison, before I deny someone of their liberty or 
property, I want to be very sure that I can look them square in 
the eye and say, ``You should have known. You were on notice 
that the law prohibited that which you are doing.'' I do not 
want to have him say, ``How am I supposed to tell?'' I need an 
army of lawyers to figure that out. Some people can afford 
armies of lawyers. Most Americans cannot. It is a matter of 
fair notice and due process.
    The other part, again, is separation of powers 
considerations. If I start importing my feelings, if I treat 
statutes or laws as Rorschach inkblot tests, I have usurped 
your role. I have taken away the right of self-government by 
the people, for the people.
    I took a jog to the Lincoln Memorial the other morning 
before the start of all this. Second Inaugural address. There 
it is. Believe in government for the people, by the people. 
Maybe that is the--gosh, is that the----
    Senator Whitehouse. Gettysburg.
    Judge Gorsuch. It is the Gettysburg Address, isn't it? I 
read them both. Thank you, Senator. It is the Gettysburg 
Address. It is the Gettysburg Address.
    Senator Cornyn. Well, Judge, let me ask you--I am sorry to 
interrupt you.
    Judge Gorsuch. No. I am sorry. It is just a matter of 
separation of powers. It is not my job to do your job.
    Senator Cornyn. Well, what sort of escapes me is if people 
who argue that somehow judges are not bound by the text of a 
statute, it is the text of a statute that Congress votes on. So 
how in the world, if it is something else other than the text 
that ought to direct the outcome, how could anybody have that 
kind of fair notice that we depend upon so people can align 
their affairs consistent with the law?
    Judge Gorsuch. Right. And it is not a matter of strict 
construction. Strict construction in my mind sounds like I am 
putting the finger on the scale toward a particular 
interpretation, maybe even a pro-government interpretation. I 
do not see it that way at all. A judge should try and reach a 
fair interpretation, what a reasonable person could have 
understood the law to mean at the time of his actions. That is 
a pretty good starting place for fair notice and for separation 
of powers, I think, Senator.
    Senator Cornyn. Thank you, Judge.
    Judge Gorsuch. Thank you.
    Chairman Grassley. Mr. Whitehouse.
    Senator Whitehouse. Thank you, Chairman. Let me ask 
unanimous consent to put into the record a letter from over 100 
groups dated March 14, 2017, regarding what they describe as 
Judge Gorsuch's troubling money and politics record and a 
letter from Demos dated March 9, 2017, urging opposition to 
Judge Gorsuch's confirmation, and a New York Times article 
captioned ``Neil Gorsuch has web of ties to secretive 
billionaire.''
    Chairman Grassley. Without objection, all three documents 
will be included.
    [The information appears as submissions for the record.]
    Senator Whitehouse. Thank you.
    Before we get into that, Judge, let me--since we we are 
talking about separation of powers, could you just reflect on 
whether the constraint that an appellate court is obliged to 
take the findings of fact as lower courts have found them and 
cannot indulge in its own fact-finding or fact-making. Does 
that have a separation-of-powers element to it in terms of 
constraining the free-range wanderings of a court that could 
make up its own facts and then go in that direction?
    Judge Gorsuch. I have not thought about that, Senator, to 
be honest with you. I know----
    Senator Whitehouse. How about the question presented? 
Should the Supreme Court in the question presented try to keep 
the question narrow to the case presented so that it is not 
using an expansive question presented to enable itself to 
wander throughout the legal landscape beyond the constraints of 
the case?
    Judge Gorsuch. Senator, it is generally, as you know, on 
the facts the practice of an appellate court not to review or 
overturn the facts of a trial court except in the presence of 
clear error.
    Senator Whitehouse. Very rare, yes.
    Judge Gorsuch. And that is very--that is a very important 
standard.
    Senator Whitehouse. Yes.
    Judge Gorsuch. It may--I have not thought about it in 
separation of powers, but it is a very important principle that 
I take seriously. I was a trial lawyer for a long time.
    Senator Whitehouse. And in terms of the constraint to 
narrow the question, does that have separation-of-powers 
overtones as well?
    Judge Gorsuch. And I give you kind of a similar answer on 
that, Senator. I do not know about that, but I would say it is 
an important general practice. Sometimes there are exceptions 
that a court can and should go beyond a question presented, but 
it is pretty rare. Usually, we stick within--well, we do not--
the questions presented are whatever the parties present to us 
on an intermediate court. They get to choose. We do not get to 
choose.
    Senator Whitehouse. That is part of what separation of 
powers is about in terms of constraining the judicial branch to 
actual cases and controversies, correct?
    Judge Gorsuch. Well, we generally refrain from examining 
arguments that have not been adequately developed or made for 
risk of improvident mistakes.
    Senator Whitehouse. Now, let me turn to another topic. Let 
us talk for a minute about money, and in particular, let us 
talk about dark money. Are you familiar with that term?
    Judge Gorsuch. In the loosest sense.
    Senator Whitehouse. How would you describe it in the 
loosest sense just to make sure you and I are on the same 
wavelength?
    Judge Gorsuch. Senator, I--as I understand it, you may be 
referring to money that is not spent by a candidate or a party 
in connection with----
    Senator Whitehouse. And where you actually do not know who 
the true source of the money is.
    Judge Gorsuch. Okay.
    Senator Whitehouse. Is that a fair enough definition for us 
to----
    Judge Gorsuch. Sure.
    Senator Whitehouse [continuing]. Agree on? Okay. Could you 
let us know first what you know about the campaign that is 
being run to support your confirmation? There has been a lot of 
talk about how this is outside of politics and we are above 
politics, but there is a group that is planning to spend $10 
million on TV ads in which their own press release describes as 
a comprehensive campaign of paid advertising, earned media, 
research, grassroots activity, and a coalition enterprise, all 
adding up to the most robust operation in the history of 
confirmation battles. That sounds pretty political to me. And I 
am wondering what you know about that.
    Judge Gorsuch. I have heard a lot about it, Senator, from 
you, from others. I have heard a lot about it.
    Senator Whitehouse. Do you know--what do you know about it?
    Judge Gorsuch. I know that there is a lot of money being 
spent in this by, as I understand it, both sides. I think it 
is----
    Senator Whitehouse. Well, I would not leap to that 
conclusion at this point.
    Judge Gorsuch. Okay. I know what I have read; I know what I 
have heard from friends and family and acquaintances. I know 
what you are saying, what you have just indicated.
    Senator Whitehouse. Do you know----
    Judge Gorsuch. There appears to be a lot of money being 
spent----
    Senator Whitehouse. Do you know who is spending the money?
    Judge Gorsuch. Senator, I could speculate based on what I 
have read and what I have heard, but I do not know individuals 
who are contributing. I do not know that.
    Senator Whitehouse. Do you know if your friend Mr. Anschutz 
is contributing?
    Judge Gorsuch. I do not know.
    Senator Whitehouse. Do you think that it should matter who 
is contributing? Do you think that there is a public interest 
in the public knowing who is contributing?
    Judge Gorsuch. Well, Senator, I think we have a long 
tradition from Buckley v. Valeo indicating that this body has 
robust authority to regulate disclosure. And----
    Senator Whitehouse. Yes, but my question is do you think 
there is a public interest----
    Judge Gorsuch. Senator----
    Senator Whitehouse [continuing]. In disclosure of political 
funds in a democracy? That is, I do not think, a prejudgment. 
That is just a values proposition and one of the considerations 
that you ought to be able to answer without much hesitation.
    Judge Gorsuch. And, Senator, what I am prepared to say is I 
recognize that, as a matter of First Amendment interests, the 
Supreme Court has validated the proposition that disclosure 
serves important functions in a democracy. At the same time the 
Supreme Court has also acknowledged that those disclosure 
functions can sometimes themselves have unintended 
consequences, as with the NAACP case, which I know you are 
familiar with, where you can use disclosure as a weapon to try 
and silence people. And we have a long history in this----
    Senator Whitehouse. That is hardly the case with respect to 
the dark money operation that is funding this campaign in your 
favor, is it not?
    Judge Gorsuch. Senator, I am not prejudging any case. What 
I am suggesting to you is that there are interests here in this 
area of First Amendment disclosure. That is what we are talking 
about----
    Senator Whitehouse. Yes.
    Judge Gorsuch. In my mind generally, okay, that are 
competing. On the one hand in order for informed voters and 
citizens to be able to make decisions, the Supreme Court in 
Buckley has validated the interest that this body has in 
regulating disclosure.
    Senator Whitehouse. And in theory so did the Court in 
Citizens United.
    Judge Gorsuch. And in theory in Citizens United. At the 
same time, the Court has also recognized in NAACP, for example, 
that disclosure can be used as a weapon to silence voices. And 
we have a long history of anonymous speech serving valuable 
functions in this country----
    Senator Whitehouse. So here is a----
    Judge Gorsuch. A Publius.
    Senator Whitehouse. Here is a live example right now. We 
have this $10 million that is being spent on behalf of your 
confirmation. Do you think, for instance, that we on this panel 
ought to know who is behind that and--well, answer that, and 
then I have will go on to a related question.
    Judge Gorsuch. Senator, that is a policy question for this 
body. And this----
    Senator Whitehouse. Well, it is also a question of 
disclosure. You could ask right now that as a matter of 
courtesy, as a matter of respect to the process, that anybody 
who is funding this should declare themselves so that we can 
evaluate who is behind this effort.
    Judge Gorsuch. Senator----
    Senator Whitehouse. Right? That would not be a policy 
determination. That would be your values determination.
    Judge Gorsuch. It would be a politics question, and I am 
not, with all respect, Senator, going to get involved in 
politics. And if this body wishes to pass legislation, that is 
a political question for this body. And there is ample room for 
this body to pass disclosure laws for dark money or anything 
else it wishes to that can be tested in the courts. So, 
Senator, with all respect, the ball is in your court.
    Senator Whitehouse. Do you really think that a Supreme 
Court that decided Citizens United does not get involved in 
politics?
    Judge Gorsuch. Senator, I think every Justice on the 
Supreme Court of the United States is a remarkable person 
trying their level best to apply the law faithfully. I am just 
not----
    Senator Whitehouse. And got deeply involved in politics, 
did they not? They changed the entire political environment, 
the entire political ecosystem with one decision. You must 
recognize that.
    Judge Gorsuch. Senator, it is a precedent of the U.S. 
Supreme Court. There were thoughtful opinions by Justices on 
both sides.
    Senator Whitehouse. I did not say that they were not 
thoughtful. I was responding to your question that they do 
not--your response that they do not get involved in politics. 
What could be more involved in politics than to open this ocean 
of dark money that flooded into our politics?
    Judge Gorsuch. Senator, what I mean to suggest is that I 
believe every Justice on the Court is trying to apply the First 
Amendment and the laws of this country faithfully. You may 
disagree with them. Many people do. I understand that. It is 
hard. Judges make half the people unhappy 100 percent of the 
time. That is our job description. And people do criticize 
judges. I understand your criticism.
    Senator Whitehouse. This is a little different.
    Judge Gorsuch. But I do not question their motives, 
Senator.
    Senator Whitehouse. This is a little different. I think you 
have seen more like 90 percent of the public unhappy with 
Citizens United because they see the problem that it caused in 
our democracy. And in that case it was not just a question of 
two parties and you are going to make one of them angry because 
you decided for the other. This is the Supreme Court operating 
in its role as the legal constitutional guide to the operation 
of American democracy. And if they get that wrong, that is a 
much, much bigger deal whether their motivations were pure or 
impure. When or whether they got that wrong is a bigger 
question than just which party won, would you not agree?
    Judge Gorsuch. Senator, if a court errs as a matter of law, 
there are various remedies. There is a legislative remedy 
because there is always another law to be passed and another 
case to test. Every case comes on its own facts with its own 
record and can be analyzed anew. And then there is the law of 
precedent, which we have discussed, I wrote this 800-page book 
on, makes a great doorstop, gift for Christmas. I have a really 
bad deal on royalties.
    Senator Whitehouse. And another way for the Court to clean 
up after itself if it----
    Judge Gorsuch. Yes, that is what I am suggesting. There is 
a way to do that, right? Precedent is not an inexorable 
command, and so the Court can reverse itself. It happens.
    Senator Whitehouse. If a question were to come up regarding 
recusal on the Court, how would we know that the partiality 
question in a recusal matter had been adequately addressed if 
we did not know who was spending all of this money to get you 
confirmed? Hypothetically, it could be one individual. 
Hypothetically, it could be your friend Mr. Anschutz. We do not 
know because it is dark money. But if you were to ever find 
that out or even if you were to have suspicions I think in any 
challenge as to whether recusal was appropriate or not where 
that to happen say in a lower court, these would be facts that 
would be noteworthy and that we would be entitled to have an 
answer to.
    So it is kind of odd to be sitting here in a U.S. Supreme 
Court nomination hearing with a $10 million spend taking place 
for you out there in the political world and absolutely no idea 
who is behind it. Is that any cause of concern to you?
    Judge Gorsuch. Senator, I am not sure what the question for 
me is.
    Senator Whitehouse. Is it any cause of concern to you that 
your nomination is the focus of a $10 million political 
spending effort and we do not know who is behind it?
    Judge Gorsuch. Senator, there is a lot about the 
confirmation process today that I regret, a lot.
    Senator Whitehouse. Yes?
    Judge Gorsuch. A lot. When Byron White sat here, it was 90 
minutes. He was through this body in 2 weeks, and he smoked 
cigarettes while he gave his testimony. There is a great deal 
about this process I regret. I regret putting my family through 
this.
    Senator Whitehouse. But to my question----
    Judge Gorsuch. Senator, the fact of the matter is, it is 
what it is, and it is this body who makes the laws. And if you 
wish to have more disclosure, pass a law and a judge will 
enforce it, Senator.
    Senator Whitehouse. There are going to be--that is just 
not--that just does not do, Judge Gorsuch. There are going to 
be questions that you will be asked to decide on the U.S. 
Supreme Court that are going to be dependent on the values you 
bring to this. I do not think you can avoid talking about those 
values here. You are an expert on antitrust law, correct? You 
are very good at that.
    Judge Gorsuch. I would not count myself an expert, Senator. 
I----
    Senator Whitehouse. And when you write about antitrust law, 
you understand that there are values to which the law should be 
directed if it is going to be successful. You have written 
about the values of competition, that the antitrust laws should 
operate in such a way as to maximize and support competition 
and that the antitrust laws that should be read in such a way 
as to maximize and support innovation. Those are proper values 
for a judge applying antitrust law to pursue, are they not?
    Judge Gorsuch. Senator, a judge applying antitrust law 
looks to precedent predominantly for guidance as to what----
    Senator Whitehouse. A lower judge does?
    Judge Gorsuch. Yes. And so----
    Senator Whitehouse. The Supreme Court, usually it is a new 
question; otherwise, it would not be there for you.
    Judge Gorsuch. Well, Senator, respectfully, I disagree. A 
Supreme Court Justice is bound by precedent to.
    Senator Whitehouse. No, but the question likely presented 
in the case is one that is new. Otherwise, it would not be in 
the Supreme Court. They would not have taken it for review, and 
it would have been settled at the Circuit or Judge--at the 
District Judge level, no?
    Judge Gorsuch. Senator, the precise question may be new but 
the notion that precedent would not bring to bear instructions 
and information on how it should be decided would be mistaken 
as well.
    Senator Whitehouse. I guess what I am saying is that the 
part of the decision that is guided by precedent is not the 
part that I am asking about. The part that I am asking about is 
the values determination, and I am trying to determine if you 
think that openness with respect to the money that flows around 
in our democracy in such large numbers right now is a value 
that is worth pursuing. Is it a touchstone, is it a lodestar, 
or is it just a burden on people's communication?
    Judge Gorsuch. I would refer you again to Buckley v. Valeo 
and the NAACP.
    Senator Whitehouse. I am asking actually you, not----
    Judge Gorsuch. And I am giving you my answer, Senator, as 
best I can----
    Senator Whitehouse. Okay.
    Judge Gorsuch. Which is the First Amendment, which I am 
sworn to uphold as a judge. It contains two competing messages 
here. On the one hand, it has regularly recognized the rights 
of this body to legislate in this area if it wishes to do so. 
If it has not done so, with respect, that is not my fault. 
Okay. It is on legislators to legislate. And Buckley recognizes 
their authority.
    On the other hand, it is recognized there may be limits 
when it chills expression, as it did in the NAACP case. And we 
have to be worried about that because there is room in our 
democracy----
    Senator Whitehouse. So if we have to be worried about the 
chilling of expression, which is a value proposition that you 
have just enunciated, should we not--am I not also entitled to 
ask the question about whether we should be worried about the 
influence of dark money essentially corrupting our politics?
    Judge Gorsuch. Senator, what I am saying----
    Senator Whitehouse. I am taking a lot of time to get what I 
would think would be a fairly simple answer.
    Judge Gorsuch. Well, I am sorry, but I do not think this is 
simple stuff at all, Senator. I think this is hard stuff. And I 
think you have First Amendment concerns and precedents, all 
right, in the area----
    Senator Whitehouse. Yes.
    Judge Gorsuch. That would have to be considered. We would 
have to see what law Congress enacted. I would then want to go 
through the full judicial process, Senator. I would want to 
read the briefs. I would want to keep an open mind. I would 
want to----
    Senator Whitehouse. But you just asserted right here that 
the value of not chilling speech was something that we should 
consider, right?
    Judge Gorsuch. I said the Supreme Court of the United 
States in NAACP recognized that the First Amendment protections 
we all as people in this country enjoy----
    Senator Whitehouse. Which is a value that we should 
consider.
    Judge Gorsuch. Can be chilled sometimes.
    Senator Whitehouse. And not chilling is a value that we 
should consider.
    Judge Gorsuch. It is a First Amendment right we are talking 
about, Senator.
    Senator Whitehouse. And where does anonymity--let us say $1 
billion in anonymous funding into our elections, where does 
that fit in in your--into the values that you bring to this?
    Judge Gorsuch. In the first instance, Senator, it is for 
this body to legislate----
    Senator Whitehouse. Yes.
    Judge Gorsuch. And then it would come to court and the 
record will be made.
    Senator Whitehouse. Of course, Citizens United did actually 
overrule a law that we had written, so that is hardly the be 
all and the end all.
    Judge Gorsuch. It is a dialogue. It is a separation-of-
powers dialogue that we have in all areas. Congress passes a 
law, a lawsuit is brought, a record is made, a factfinder makes 
facts, judges determine the law, a ruling is issued, Congress 
responds, and the cycle continues. And, Senator, that is our 
history in this area and so many others.
    Our founders were brilliant. They did not give me all the 
power. I do not wear a crown; I wear a robe. They did not give 
you all the power. They provided it----
    Senator Whitehouse. When it comes to the determination to 
state what the law is, particularly in constitutional matters, 
they actually did give the Supreme Court the power, and that is 
why it is important to us to ask these questions now before you 
go on to the Supreme Court and we have no accountability left. 
And so the values that you bring to that in those areas where 
you are not just implementing Congress' will but are bringing 
your own values to the constitutional document that we 
treasure, that is why I think these questions are important.
    Let me ask something slightly different. You said you knew 
Judge Garland?
    Judge Gorsuch. I do. I would not claim him as my closest 
personal friend but someone whom I admire greatly. And it----
    Senator Whitehouse. And would you describe--how would you 
describe any differences that you may have in judicial 
philosophy with Chief Judge Garland?
    Judge Gorsuch. I would leave that for others to 
characterize. I do not like it when people characterize me, and 
I would not prefer to characterize him. He can characterize 
himself.
    Senator Whitehouse. What is interesting is that this group 
sees a huge difference between you that I do not understand. 
The dark-money group that is spending money on your election 
spent at least $7 million against him getting a hearing and a 
confirmation here and indeed produced that result by spending 
that money, and then now we have $10 million going the other 
way. That is a $17 million delta, and for the life of me I am 
trying to figure out what they see in you that makes that $17 
million delta worth their spending. Do you have any answer to 
that?
    Judge Gorsuch. You would have to ask them.
    Senator Whitehouse. I cannot because I do not know who they 
are. It is just a front group.
    There is a--it has been I think fairly and fully documented 
that there is a small group of billionaires who are working 
very hard to influence and even to control our democracy: 
Kochs, Mercers, DeVoses, and, yes, Anschutzes. They often 
network together. They attend planning conferences. They pool 
their resources.
    As a candidate, President Trump made fun of the beg-a-thon, 
to use his word, that the Koch brothers run every year to bring 
candidates to their conference. They set up an array of benign-
sounding front groups to both organize and conceal their 
manipulation of our politics. And Supreme Court Justices 
socialize with this small group, and then they go and they 
tender--render decisions that give that small group immense 
political advantage, particularly the ability to hide the 
political expenditure of their money. And then they go back and 
socialize some more with that group and they even speak at the 
beg-a-thon political retreats. Does that look right to you?
    How, as a judge, do you think--as a Justice of the Supreme 
Court should you comport yourself in terms of keeping a 
distance from interests that are before the Court?
    Judge Gorsuch. Senator, I have no information about 
anything you have just described. I do not know about that.
    Senator Whitehouse. And--wow, because guess what? You are 
going to be asked to make decisions on the Supreme Court that 
if you do not know that, you are going to have a very hard time 
figuring out how to make the right call. That is a--it is a 
real concern.
    You know, this is the first Supreme Court in the history of 
the United States that has nobody on it who has ever run for 
political office ever, and yet it makes these wild leaps like 
Citizens United that completely deform democracy and then I do 
not know if they do not know what they are doing; I do not know 
what the motivation is. You--I sure do not know, but I do think 
it is a concern to be asked to make decisions like that without 
a real grounding in what is going on around you.
    Let me ask a little bit just about--to narrow it down more 
to just the judicial branch. What do you think the Court's 
approach should be to the sort of machinery of corporate 
influence that surrounds the Supreme Court? There are corporate 
front groups that have been described as the think tank--as 
disguised political weapon that surround the Court and 
constantly pelt it with amicus briefs on behalf of big 
corporate and industrial interests. At this point they are--in 
the 5-to-4 decisions I listed yesterday, their record is 16-to-
0 with the Supreme Court in terms of helping the corporate 
interests, so it looks like they are doing really, really well, 
these frequent-flier corporate front amici.
    When they turn up at the Supreme Court, should they 
disclose more about whose interests they represent? Would it be 
good for the reputation of the Supreme Court and for our 
democracy if people knew who actually funded them when they 
turn up?
    Judge Gorsuch. Senator, to your earlier question, I think I 
can talk about my record. I am not a philosopher king, but I 
can talk about my record. And my record is that in the last 10 
years I do not think there has been a single motion to recuse 
me. I have tried to be very careful in which cases I hear.
    Senator Whitehouse. This is a----
    Judge Gorsuch. And----
    Senator Whitehouse. Go ahead.
    Judge Gorsuch. I take that very seriously as part of my 
obligation as a judge. I cannot claim I am perfect but I have 
tried awful hard, and I have not had a motion filed against me 
because I do take seriously impartiality and the appearance of 
impartiality.
    Senator Whitehouse. So----
    Judge Gorsuch. And, Senator, all I can say to you is I 
commit to maintaining my impartiality as best I can and to 
recuse where the law suggests I should. And----
    Senator Whitehouse. So back to my question about these 
amicus briefs and not knowing who is behind the front groups 
who turn up and pelt the Court with the briefs.
    Judge Gorsuch. Senator, there is a----
    Senator Whitehouse. The corporate rule----
    Judge Gorsuch. Corporate disclosure statement rule as I 
recall.
    Senator Whitehouse. Yes, but it is not much of one because 
here is what it says. It says that the filers shall identify 
every person other than the amicus curiae, its Members, or its 
counsel who made a monetary contribution to fund the 
preparation or submission of the brief. As you know, the 
preparation and submission of a brief is not particularly 
expensive, and the monetary contribution is not ordinarily 
reported as being the funders of the organization.
    So if an--as I understand it, if an organization gives $100 
million to a front group and says go in there and do not put my 
name on any of this stuff but this is what I want you to do, as 
long as the front group then pays for the brief itself, there 
is no filing that reports who the interest is behind it. And I 
worry that we have an operation going--surrounding the Court 
that the Court itself is actually blind to the true roots of 
and should the Court not understand what the interests are 
behind these front groups?
    Judge Gorsuch. Well, I think that is a very interesting 
suggestion and one I will take to heart, Senator. Obviously, 
this Congress has a role in rulemaking process as well, and 
there is a rulemaking Committee and a Rules Enabling Act 
process for the lower courts, and the Supreme Court has its own 
rulemaking process. And I appreciate that information for both 
functions----
    Senator Whitehouse. And as a----
    Judge Gorsuch. And welcome your involvement.
    Senator Whitehouse [continuing]. Supreme Court Justice, you 
will also have a role in policing the judiciary as the top 
court. One of the things that has cropped up is special 
interest training camps basically at lush resorts for lower 
court judges. As much as 40 percent of the Federal judiciary 
has gone to these special-interest-funded training sessions 
described by one writer as a ``cross between Maoist cultural 
re-education camps and Club Med.'' There has been a wide array 
of condemnation of this practice from editorialists of all 
stripes. And is that something as a matter of kind of 
protecting the integrity of the courts to which the Supreme 
Court should attend itself?
    Judge Gorsuch. Senator, I know as a sitting judge I 
disclose every trip I take that is not official business that 
anybody else pays for.
    Senator Whitehouse. And to your credit you went to none of 
these as far as I can tell.
    Judge Gorsuch. Thank you, Senator. I appreciate that 
acknowledgment. I do go to a lot of moot courts and things like 
that and, you know, and everything I have done is disclosed. So 
that is--it is all there, there. You have all the information.
    Senator Whitehouse. Yes. I will just note that some of the 
editorializing about this, ``It creates an egregious ethical 
conflict of interest bordering on wholly improper out-of-court 
communication with special interest lobbyists or 
representatives of people who have filed lawsuits.'' Another 
said, ``It looks like an interest group has put part of the 
Federal judiciary in its saddle.'' A third said, ``The conflict 
is clear and the judge's participation is mindboggling.'' And, 
by the way, all of those came from newspapers below the Mason-
Dixon line. That is not just Yankee elitists talking.
    So my time is expired, but I look forward to further 
rounds. And I appreciate your time with me.
    Judge Gorsuch. Thank you.
    Chairman Grassley. Who am I to tell you how you should 
answer questions, but if I were sitting where you were and 
values were brought up, it seems to me it is the Congress that 
deals with values, as Representatives are people and you look 
at the law.
    And when it comes to briefs, I would assume that you do not 
care who paid for them. You are only interested in what the 
brief says.
    Senator Lee.
    Senator Lee. Thank you, Mr. Chairman, and thank you, Judge.
    What you are seeing here is the confluence that occurs by 
operation of the Constitution between law and politics. And you 
as a textualist understand as well as anyone where the word 
politics comes from. You break the word down into its two Greek 
roots and you have poly, which means many, and ticks, which are 
bloodsucking parasites.
    [Laughter.]
    Senator Lee. It works out.
    I would also like to echo something said by our Chairman a 
moment ago. When we are focused on the identity of the parties, 
on the identity of those speaking to the Court, the identity of 
those people might matter more if your focus is on their 
identity. If, on the other hand, your focus is on the law and 
what the law requires, the focus is likely to be different.
    Judge Gorsuch, are you a lawmaker?
    Judge Gorsuch. No, Senator.
    Senator Lee. Have you ever held a position as a State 
legislator?
    Judge Gorsuch. No, Senator.
    Senator Lee. Have you ever held a position as a Member of 
Congress?
    Judge Gorsuch. Goodness, no.
    Senator Lee. Have you ever held any public office in a 
policymaking arena outside the Federal judiciary?
    Judge Gorsuch. I have served on my kids' schoolboard----
    Senator Lee. Have you----
    Judge Gorsuch. But that is about as close to policy as I 
care to get.
    Senator Lee. Have you had any role in setting Federal--in 
establishing and making laws governing Federal campaign 
finance?
    Judge Gorsuch. No, Senator. That is this body's province.
    Senator Lee. Okay. It seems to me, Judge, that it would be 
unfair for anyone to state or to imply that you then are 
responsible somehow for the expressive conduct of third 
parties, third parties who are not you. It would be unfair for 
me to attribute to you something that someone else is saying.
    And it would seem to me to be especially unfair to say to 
you as a sitting Federal judge and nominee for Supreme Court of 
the United States to say to you that you have to tell someone 
else something that they should not say because otherwise that 
might cause problems for you when you did not make the set of 
laws to begin with.
    By the way, were you involved in the Citizens United case?
    Judge Gorsuch. Senator, I was not involved in the Citizens 
United case, and I appreciate the opportunity to clarify that 
fact. I would also like to clarify that nobody speaks for me, 
nobody. I speak for me. I am a judge. I do not have spokesmen. 
I speak for myself.
    Senator Lee. Thank you for clarifying that for us.
    Judge, yesterday, you referred to the fact that you had 
some of your law clerks here with you yesterday. I suspect some 
of them are here today as well. Tell us a little bit about the 
relationship that exists between a judge and the judge's law 
clerks. It is more than just a job, is it not, more than just a 
job or an adventure? It is sort of part of the legal education 
experience that many lawyers are able to go through, is that 
right?
    Judge Gorsuch. As your father knew well. It is one of the 
great joys of this job and one of the great surprises, right? 
You practice law for 20 years, you are used to working with 
pretty senior people, and then all of a sudden you show up, as 
I did my first day, and there is a pile of briefs waiting in a 
tiny office that has not been decorated, there is a chair, have 
at it. And you get to hire four brand-new young folks straight 
out of law school who do not know a darn thing. Have at it. 
Have fun.
    Senator Lee. Did you acknowledge that when you were a law 
clerk?
    Judge Gorsuch. Well, you know, part of the reason why I am 
a judge is because of my experience as a law clerk, a shared 
experience with the same fellow your dad clerked for, Byron 
White, and we used to race writing opinions. And this is the 
humility of maybe the smartest lawyer I knew. I am talking 
about a Rhodes Scholar, first-in-his-class-from-Yale type 
stuff. And he would say first one done with the draft wins. 
What does it mean to win drafting an opinion? That was not real 
clear to me.
    But he was a pretty competitive guy, and what it meant was 
whoever got the first draft done, the other one went in the bin 
and we worked off the draft of the guy who won. I never won. 
And he could only type with these big paws--he had these big 
hands, thick, you know, pulling up sugar beets. And so he would 
hunt and peck and he could still beat me.
    It is a very close relationship. It is an intimate working 
relationship. And it becomes one of the great joys of your 
life. You see these young people--I have been out to pasture 
for 10 years. I thought I was done, you know. That was my life. 
I love my life. I love my home State. I hope I am making them 
proud.
    And you see these young people come and go and you get to 
see what they go on to do, and they go on to do such wonderful 
things. I have had young people who go on to clerk for the 
Supreme Court, about a dozen of them, for all kinds of 
Justices, Justices Scalia and Thomas, Justices Kennedy, Kagan, 
and Sotomayor. And that is a deep and inspiring thing.
    And you watch them go on beyond that, some of them are 
teaching, kids at Harvard, Vanderbilt, Notre Dame. Some 
people--a young lady who is doing fishery policy in South 
Africa, all sorts of really wonderful things, and it just gives 
you hope and heart for the future.
    You know, as I tell my students, somebody has to run the 
zoo, and you want it to be the best and the brightest. And it 
is so heartening to see these young people, some of whom are 
the first in their family to go to college, immigrants to this 
country, rise to the very top.
    Senator Lee. Winston Churchill was known to have said that 
we shape our buildings, and then our buildings shape us. There 
seems to be a corollary here with law clerks, and you shape 
your law clerks. They end up probably having an influence on 
you as well. At a minimum I would think that you develop the 
kind of relationship with them to where they know you. They 
know your jurisprudential style. They know your quirks. They 
know most likely what you like to have for lunch. But you would 
say there develops a pretty close relationship between a law 
clerk and the judge during a clerkship. Would you agree with 
that?
    Judge Gorsuch. I always think that a family that skis 
together, stays together. We skied together.
    Senator Lee. Yes. And it is much more true of skiing than 
snowboarding I think. Just snowboarding is a lot more painful.
    Judge Gorsuch. That is a value judgment I am happy to make.
    Senator Lee. Yes. One of the reasons I ask about this is 
because I have some letters that I would like to introduce for 
the record. There is a piece written by three lawyers who 
clerked both for you and Justice Scalia. I tried really hard to 
think of a great term for this, the Scalia-Gorsuch combo or 
something like that, but I could not come up with anything 
interesting. But that is a good duo for whom these lawyers had 
clerked. And they have written a great piece talking about you. 
It is entitled ``A Principled and Courageous Choice.'' I would 
like to submit that for the record.
    Chairman Grassley. Without objection, it will be submitted.
    [The information appears as a submission for the record.]
    Senator Lee. They write, ``Judge Gorsuch's opinions reflect 
the principle Justice Scalia spent his career defending, that 
in a democracy the people's elected representatives, not 
judges, get to decide what the laws should be and what laws we 
should have.'' They go on to say that they believe that you, 
Judge Gorsuch, will be, quote, ``as principled, as courageous, 
and as committed to the Constitution and our country,'' close 
quote, as Justice Scalia was. So they go on to urge that we 
confirm you to the Supreme Court.
    I would also like to enter into the record another letter 
that is written by someone else who clerked for you, Judge 
Gorsuch, and who also clerked for Justice Kagan on the Supreme 
Court. He writes, quote, ``Gorsuch will make an exceptional 
Supreme Court Justice. He possesses a rare combination of 
intelligence, humility, and integrity, not to mention a fierce 
commitment to the rule of law. In fact, he is remarkably 
similar on these metrics to Supreme Court Justice Elena 
Kagan.'' He also goes on to write, quote, ``This zeal for the 
rule of law gives me every confidence that Gorsuch, like Kagan, 
will stand firm against any effort by the Trump Administration 
to abuse Executive power,'' close quote. He writes that 
``Liberals should welcome a nominee like Gorsuch.'' I would 
like to enter this one into the record also, Mr. Chairman.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Lee. Thank you, Mr. Chairman.
    Let us move on. One of my colleagues earlier today asked 
some questions about remarks that you assisted in preparing, 
remarks that were prepared for delivery by then-Attorney 
General Alberto Gonzales in connection with the Senate 
Judiciary Committee Oversight hearing concerning the terrorist 
surveillance program. This was a hearing that occurred on 
February 6, 2006. One of my colleagues referred to this this 
morning. Are you familiar with what I am describing?
    Judge Gorsuch. Very vaguely.
    Senator Lee. Okay. My understanding is that at the time you 
were serving as the Principal Deputy Associate Attorney 
General. Would that be correct to say you were in that 
position?
    Judge Gorsuch. Quite a mouthful.
    Senator Lee. Yes, quite a mouthful. That is why it is 
commonly known as the PDAAG, but most people might not 
immediately recognize the term PDAAG, as I am sure they would 
in your household.
    So the issue in that hearing as I understand it was whether 
or not this TSP program was unlawful. And you were involved, as 
I understand it, not on the basis of your expertise in this 
area but on the basis of your writing ability, based on the 
fact that people recognized your ability to write, a talent 
that has now become apparent to many of us as we have reviewed 
your judicial writings.
    You were brought in as a scrivener of sorts, someone who 
would give voice so to speak to what the Attorney General might 
say and not based on your expertise of this TSP program. Is 
that consistent with your recollection of these events?
    Judge Gorsuch. It is, Senator.
    Senator Lee. Okay. It is also my understanding that not 
only were you not thoroughly familiar with this TSP program, 
but you legally could not have been. It was impossible for you 
to be familiar with that program for the simple reason that you 
did not even have the clearance necessary to know the details 
of the program and therefore could not speak to those details.
    Judge Gorsuch. Sitting here, that is my recollection, too.
    Senator Lee. Okay. So as a result of that, any work that 
you did on those prepared remarks, it would have been done 
based on your limited understanding, based on a limited set of 
facts that you were given in preparing. And then anything you 
would have done from that moment forward you would have said, 
look, I do not know the facts of this, I cannot know the facts 
of this, you all are going to have to fill in the details. I 
have done the best I can based on assumptions I have drawn and 
the limited facts I have been given about this program.
    Judge Gorsuch. Yes. That is my recollection, too.
    Senator Lee. Thank you. Some of my colleagues have 
suggested that your rulings reflect a particular bias, a bias 
in favor of the big guy and against the little guy. It is not 
always apparent in every case whether there is in fact a big or 
a little party. I suppose in some cases it is open to dispute. 
In other cases it might be very apparent that one out-powers 
the other in terms of economic heft and access to good lawyers 
and so forth.
    But I have reviewed your work, and I would like to say 
that, yes, in some instances it is easy to identify a party 
that might thusly be described as little. And I cannot discern 
any bias in your work that favors one type of party over 
another. In fact, there are a whole lot of cases where you have 
ruled in favor of the little guy.
    Among those cases was one discussed just a few minutes ago 
in your conversation with my colleague Senator Cornyn in 
Gutierrez-Brizuela v. Lynch. That was a ruling that was most 
decidedly in favor of a little guy. In fact, it does not get 
much more little guy than a David going against a Goliath that 
is the Federal Government, a David who is someone in a very 
precarious position relative to the Federal Government against 
the entity with more money and more lawyers than any enterprise 
that has ever existed on planet Earth.
    Other cases in which I know you have ruled in favor of the 
little guy include but are by no means limited to Fisher v. 
City of Las Cruces and Holmes, Orr v. City of Albuquerque, 
Williams v. W.D. Sports, and Walton v. Powell. Now, these cases 
do not all fit into a common framework. In fact, they involve a 
pretty wide range of issues, including cases involving 
qualified immunity against police officers, cases arising under 
the Family Medical Leave Act, sex discrimination cases, and 
cases involving politically motivated firings.
    So these are just a few examples, but just to be clear and 
going into this as a judge, do you have any bias that you can 
detect? How do you approach a case? Do you look at a case and 
say this person is well-represented and powerful; this one is 
less well-represented and not powerful? Does that influence how 
you approach the law in any case?
    Judge Gorsuch. Senator, you try to treat each person as a 
person. We are all just people at the end of the day. And that 
equal-justice promise, the equal protection under law is the 
most radical guarantee I am aware of in the history of human 
law, a recognition that no one is better than anyone else.
    And, Senator, all I can tell you are some facts. These are 
the facts of my record. Ninety-seven percent of the time out of 
2,700 cases, we have ruled unanimously. Ninety-nine percent of 
the time, I am in the majority. According to the Congressional 
Research Service, as I understand it, of the judges studied in 
the Tenth Circuit, my opinions attract the fewest dissents. 
They are not sure whether it is because I seek consensus or 
because I am persuasive. I do not care which it is.
    My law clerks tell me as well that I am as likely to 
dissent from a Democrat as a Republican-appointed colleague, 
not that that matters.
    Senator Lee. By the way, what if this were not the case? 
What if you were dissenting in a lot more cases? What if you 
were a lot more likely to dissent from one type of judge versus 
another? Would that----
    Judge Gorsuch. Senator, I know the men and women of the 
Tenth Circuit. I know the judges with whom I served. I question 
the motives of none, ever. We disagree sometimes, but when we 
disagree, it is about the law, not politics.
    And I think sometimes really in this country we are kind of 
like David Foster Wallace's fish. He wrote about a fish 
swimming in an aquarium, and it spent so much time in water and 
is so surrounded by it that the fish does not even realize it 
is in water. And I feel like sometimes when we nitpick and we 
complain about the quality of justice in this country--which 
leaves a lot to be desired; there is much room for improvement. 
I am not here to say it is perfect or anywhere close to it. We 
are a work in progress. But the rule of law in this country is 
so profoundly good compared to anywhere else in the world that 
we can complain and know that we are protected because of the 
rule of law.
    I think we are a little bit like David Foster Wallace's 
fish. We are surrounded by the rule of law. It is in the fabric 
of our lives so much so we kind of take it for granted.
    You know, just to go on, you know, my work on Access to 
Justice in the Rules Committee and outside the Rules Committee, 
speaking on it, I mean we are talking about 
overcriminalization, capital habeas. I have removed judges and 
lawyers when I have had to or sought their removal. I believe 
in our Seventh Amendment jury trial right. I have ruled for the 
least amongst us when it comes to immigrants--we have talked 
about a couple of examples--and criminal defendants.
    I can give you a whole long line of cases I can cite where 
I have ruled for Fourth Amendment claimants and other criminal 
defendants: Ford, Makkar, Farr, Games-Perez, Sabillon-Umana's, 
Spaulding, Carloss, Ackerman, Krueger. That is just criminal 
that I have just jotted down here.
    Environmental cases: Rocky Flats, Magnesium in the 
renewable energy case. Civil rights you mentioned: Orr, W.D. 
Sports, K.C., Energy West, Crane, C.U. v. Simpson. Those are 
just some that come to mind.
    Senator Lee. So does this tell us that you are in fact 
objective or does it just tell us that you are really, really 
good at covering up the fact that you are not objective? I 
mean, it seems to me that if you were biased and determined to 
rule only for the big guy, only for large, wealthy 
corporations, it would be an awful lot of work to go to, in 
order to rule for the little guy as often as you have.
    Judge Gorsuch. Senator, I am not buying into any of that, 
with respect. With respect, I view my job to be fair. It is 
what General Katyal said to you all yesterday. What he wants is 
a fair judge. That rang true to me when I heard it. I did not 
know he was going to say that. That is exactly what I thought 
when I was a lawyer. I just wanted to go into court and have 
the judge hear my client, hear them, really hear them as a 
person on the facts and the law and leave everything else 
alone, at home where it belongs.
    And that is hard. I am not here to tell you it is easy and 
I am not here to tell you I am perfect, okay? I am a human 
being. I am not an algorithm. But I try really hard, and it is 
almost like an athlete. It is something judges practice. And 
hopefully, we get better at it with time.
    Senator Lee. When you say fair, you are not talking about 
fairness necessarily in some abstract ethereal sense, in some 
Solomonic way in which you are just being wise in your own 
mind. You are being fair in a manner that is consistent with 
and dictated by your judicial oath and your oath to uphold and 
protect and defend and operate within and subject to the 
constraints of the United States Constitution, a Constitution 
that puts the power to prescribe laws with prospective general 
applicability in the political branches of government, in the 
legislative branch and in the executive branch insofar as the 
Executive is involved in the lawmaking process and then insofar 
as the Executive is involved in the execution of those laws.
    The judicial branch, on the other hand, is there to give 
effect and meaning to those words not just based on what is 
fair in some abstract sense but also what is fair in the sense 
that you have to decide who the decisionmaker is, who makes the 
law and how to give effect to those words.
    One of the many cases that comes up from time to time is 
one called TransAm Trucking v. Administrative Review Board. You 
wrote in that case, ``It might be fair to ask whether TransAm's 
decision''--meaning the decision to fire the driver in 
question--``was a wise or kind one.'' But then you say, ``It is 
not our job to answer questions like that.''
    So you do not have to respond to this, but let me tell you 
how I interpret the language that was an issue in that case as 
someone who has served as a law clerk in the Federal judiciary 
and as someone who has litigated cases. If I were involved in 
that case, a case in which the judge wrote those words, I might 
think to myself, regardless of whether I like the law and 
regardless of whether I like the decision made by the employer 
in that case, this is a judge who is bound by the law and is 
acknowledging as much in his opinion.
    So I would like to ask about the law in that case, in the 
TransAm Trucking case. The applicable statute said that you 
cannot fire someone for, quote, ``refusing to operate a 
vehicle.'' Is that consistent with your recollection?
    Judge Gorsuch. Sitting here, that is my recollection.
    Senator Lee. In that case, the trucker was fired because he 
operated his vehicle, the vehicle that he was assigned to, 
against company orders. Is that a fair summary based on what 
you remember from that case?
    Judge Gorsuch. Yes, Senator.
    Senator Lee. So one could argue--and I think one could 
argue conclusively, and I think it was argued and decided in 
that case, that this was a fairly clear application of the law 
because if what the law said that the person could not be fired 
for refusing to operate a vehicle and that statute were being 
invoked not in the context of where the person was fired for 
refusing to operate a vehicle but where the person in fact 
operated a vehicle, those are two different things, are they 
not?
    Judge Gorsuch. I thought so, Senator. That was my judgment 
in that case.
    Senator Lee. Dickens wrote that the law is an ass, and 
sometimes you might encounter cases where that is true. 
Sometimes you can look at those who make the laws and say, 
exhibit A, Your Honor, as to why this law is an ass, but it is 
not your job to rewrite the law. It is not your job to write it 
in the first place, and it is not your job to rewrite it after 
the fact, is it?
    Judge Gorsuch. I do not believe so, Senator.
    Senator Lee. You had another case under the same statue 
that was involved in the TransAm case. It is a 2007 case called 
Copart, Inc. v. Administrative Review Board. In that case a 
trucker had been fired for refusing to drive a truck that he 
considered unsafe. You wrote an opinion ruling in favor of the 
trucker and awarding him attorney's fees, is that right?
    Judge Gorsuch. Senator, your recollection is better than 
mine on the attorney's-fees issue.
    Senator Lee. Courts do not always award attorney's fees, 
but as I recall, the Court did in that case.
    So I do not really understand the argument that some are 
making or the implication some are trying to raise that you 
were somehow unfair in the TransAm case because, after all, in 
the TransAm case you applied the law, it did not apply in the 
way the terminated employee wanted it to apply in that case, 
but you applied it fairly in the other case.
    I also wanted to bring your attention to another case that 
has been mentioned by some of my colleagues, and that is the 
Hwang case. It is the case where a professor with cancer wanted 
to extend her leave. The university said no, and the professor 
sued. The panel ultimately concluded that the law required her 
to show that she could continue to perform her job if the 
university provided an accommodation. And all the parties in 
that case agreed that she could not, that she could not 
continue to perform it.
    That, as I recall, was a unanimous opinion. Is that 
correct?
    Judge Gorsuch. Senator, that was another very hard case to 
go home after. The individual there had--was sick, very sick 
and had been given I think 6 months off I think already if I 
remember correctly. And I cannot remember whether it was 
University of Kansas or Kansas State. And then she was asking 
for another 6 months off and the university said no, and she 
sued under the Rehabilitation Act, which prescribes that 
reasonable accommodations must be provided to workers to 
perform their essential job functions. But to prevail, they 
have to show they can perform their essential job functions.
    And it was undisputed in that case she just could not 
through no fault of her own. And the District Court said that 
is just not a claim under the Rehabilitation Act, maybe for 
breach of contract, maybe something else, but not under Federal 
statutory law. That is my recollection sitting here. And my 
panel of three judges unanimously agreed that was the correct 
application of law in those facts. No one is here to say that--
love the law in every case and the results it yields.
    I am here to say that I promise to apply the law 
faithfully, and I can guarantee you no more and promise you no 
less than that, Senator, in every case.
    Senator Lee. If I am remembering that case correctly, Judge 
Lucero was on that panel with you, is that right?
    Judge Gorsuch. I do not recall.
    Senator Lee. I will check to make sure. I think he was, and 
Judge Lucero was not nominated by a Republican President.
    Judge Gorsuch. Judge Lucero is one of my dear friends and 
colleagues, and he was appointed by President Clinton. That is 
true. He did an excellent job.
    Senator Lee. So if you were wrong in this case, then so was 
he. You did write in that case also something that I thought 
showed a fair amount of reflection on the plight of the 
plaintiff in that case, writing, quote, ``By all accounts, the 
plaintiff was a good teacher suffering a wretched year,'' close 
quote, indicating that you were aware of her plight. This is 
hardly the kind of statement made by a judge who is 
unsympathetic. This is in context the kind of statement made by 
a judge who understands the deeply human context of every case 
and also understands the deeply sacred nature of the oath you 
took to uphold and protect and defend the Constitution of the 
United States and to operate within the constraints of the 
Constitution. For that, I thank you and I respect you.
    Judge Gorsuch. Thank you, Senator.
    Chairman Grassley. Thank you, Senator Lee.
    I want to make an announcement that we will take a 10-
minute break after Senator Klobuchar.
    Judge, just so you know the plan, we are going to take that 
10-minute break, and I hope it will not be 11 or 12 minutes.
    Senator Klobuchar.
    Senator Klobuchar. All right. Thank you very much, Mr. 
Chairman.
    Thank you, Judge. As I said yesterday, your nomination 
comes before us during an unprecedented time in our Nation's 
history. In recent months, foundational elements of our 
democracy have been challenged and questioned and even 
undermined, and for that reason I just cannot look at your 
nomination in the comfort of a legal cocoon, and I believe we 
should evaluate your record and philosophy against the backdrop 
of the real world today.
    So starting with something easy with the real world, 
Senator Grassley and I are leading a bill on cameras in the 
courtroom. I am not going to ask you specifically about that 
bill for Federal courts, but a number of your fellow people who 
are sitting at that table in years past, including Justice 
Sotomayor, have said that they were open to it and were 
positive about bringing cameras into the Supreme Court. And 
just to give you a sense of why this is so interesting, only a 
few people can get in there, yet the decisions affect everyone 
in America.
    Even just last month, 1.5 million Americans tuned in to 
CNN's broadcast when the Ninth Circuit heard arguments 
challenging the President's refugee and travel ban.
    So what is your opinion on having cameras in the Supreme 
Court?
    Judge Gorsuch. Senator, that is a very important question. 
I appreciate the opportunity to discuss it with you.
    I come to it with an open mind. It is not a question that, 
I confess, I have given a great deal of thought to. I have 
experienced more cameras in the last few weeks than I have in 
my whole lifetime by a long, long way. I have to admit, the 
lights in my eyes are a bit blinding sometimes, so I would have 
to get used to that.
    Senator Klobuchar. But would you favor it or not?
    Judge Gorsuch. Senator, I would treat it like I would any 
other case or controversy. That is what I can commit to you, 
that I would want to hear the arguments. I know there are 
Justices on both sides of this issue, right?
    Senator Klobuchar. I think Justice Souter said over his 
dead body would they have cameras, but I was hoping that things 
have changed. I was hoping that things have changed since then 
and that we see just more and more interest in these decisions, 
and I hope that you will remain open to it and will favor it.
    My second question, which also pertains to transparency, is 
a discussion you had with Senator Whitehouse about the Federal 
rules for Federal judges in terms of disclosing trips and 
things like that, and you had said that you had not taken those 
trips, but if you had you would have disclosed them, and I 
appreciate that.
    Do you think that there should be that same kind of Federal 
ethics standard for Supreme Court Justices?
    Judge Gorsuch. Well, Senator, what I said is I disclosed 
every trip that is reportable.
    Senator Klobuchar. Okay, I am sorry. Yes. But the specific 
question is on Supreme Court Justices.
    Judge Gorsuch. Yes. I know that the rules are different. I 
do not know how different they are. I have not studied that, 
Senator.
    Senator Klobuchar. Would you favor them having the same set 
of rules that apply to you right now?
    Judge Gorsuch. Senator, I would say two things. First, I 
have no problem living under the rules I have lived under. I am 
quite comfortable with them. And I have had no problem 
reporting every year, to the best of my abilities, everything I 
can. So I can tell you that. It does not bother me what I have 
had to do. I consider it part of the price of service, and it 
is a reasonable and fair one.
    I would also say I do not know what the arguments are. I 
have not studied them, and I would want to commit to you that I 
would give it very fair consideration, and I would want to hear 
what my colleagues have to say.
    Senator Klobuchar. Okay. Yes. It is pretty straightforward 
to me, because it applies to the other Federal judges. I do not 
think this is a matter of precedent or what has happened. You 
are going to be, in the words of Hamilton, if you get 
confirmed, in the room where it happens. So all we are trying 
to do is to make this as transparent as possible of what 
people's interests are. So I just hope you will consider that.
    Judge Gorsuch. Of course I will.
    Senator Klobuchar. And I think I will move on to some of 
the harder stuff here.
    Judge Gorsuch. I pledge to you I will consider both of 
those things.
    Senator Klobuchar. Okay. Thank you.
    On the issue of precedent, I think this idea of an 
independent judiciary is important, now more than ever, so I 
want to start with that. When you accepted the President's 
nomination you said, ``A judge who likes every outcome he 
reaches is very likely a bad judge.'' And in your book you said 
again that good judges often decide cases in ways antithetical 
to their own policy preferences when the law so requires.
    So I want to ask, can you give me an example of a Supreme 
Court case that you believe was wrongly decided under the law 
but that you will continue to follow if you are confirmed 
because the precedent is so strong?
    Judge Gorsuch. Senator, I think that is just another way, 
honestly, of trying to get at which Supreme Court precedents I 
agree with and I disagree with.
    Senator Klobuchar. I do not think it is. It is something 
that you actually said when the President nominated you, and 
you said it in public. You said that this is a definition of a 
judge, someone who respects precedent so much that they are 
still going to enforce the law. So I just thought there could 
be one example, even if it is a really old one.
    Judge Gorsuch. Well, I think Senator Lee and I were just 
talking about a couple of cases where the results were not 
attractive to me as a person where I followed the law to the 
best of my abilities, and did so with my colleagues.
    Senator Klobuchar. Yes. One of the reasons I am asking this 
is that several past nominees have made this promise about 
respecting precedent before this Committee, and these are 
people you respect and admire, Justices. At the same time they 
said they would respect precedent, and then they later became 
Justices with a lifetime appointment and they overturned 
precedent.
    One of those examples is Citizens United. Two past nominees 
who later became Justices stated they would honor precedent 
during their hearings, and then they joined an opinion that not 
only broke from precedent but gutted a law passed by Congress, 
releasing this unprecedented wave of money.
    So do you view Citizens United as a departure from prior 
precedent?
    Judge Gorsuch. Senator, Citizens United did overrule 
Austin. So in that respect, it is an example of a court that, 
in part, overruled a precedent, and that is part of the law of 
precedent too, as we have talked about, that you start with a 
strong presumption in favor of precedent. That is the anchor of 
the law. It is the starting point. But there are instances when 
a court may appropriately overrule precedent after considering 
a lot of factors, and we have talked about them, and I am happy 
to discuss them with you again if you would like, but I do not 
want to waste your time either, so you tell me.
    Senator Klobuchar. So you see this as something where there 
was precedent--I mean, you can go back to Buckley v. Valeo. As 
you know, parts of that, as you discussed earlier with my 
colleagues, stayed in place, but it overturned parts of that: 
Austin, McConnell. There was just a number of cases that it 
overturned. To us up here, it was a major overturning of 
precedent. So that is why we are so concerned when people say, 
oh, we are going to respect precedent, and then they come in 
and do that.
    And, actually, you have suggested that you would actually 
go further than Citizens United, and that was in Riddle v. 
Hickenlooper, a 2014 case. While it was a narrow case about 
campaign finance caps on individual contributions to major 
political candidates, the outcome of the case is not really one 
I want to talk about. That was all the judges--I think there 
was an agreement on the case.
    But you alone wrote a concurring opinion, and that is what 
I wanted to focus on, suggesting that making a political 
contribution was a fundamental right that should be afforded 
the highest level of constitutional protection, which is strict 
scrutiny. If the Supreme Court adopts the standard that you 
suggested, the few remaining campaign finance limitations that 
we have in place and left on the books could fall.
    So do you believe that strict scrutiny is the appropriate 
standard for reviewing campaign finance regulations?
    Judge Gorsuch. Senator, I welcome the opportunity to 
clarify Riddle v. Hickenlooper. In that case, the law in 
Colorado allowed individuals to contribute more money to major-
party candidates than to minor-party candidates.
    Senator Klobuchar. I know, I really do. I read the case. I 
understand that. But I just want to, with my limited time, 
focus on that concurring opinion, because that is what the 
actual opinion said. But then you took it a step further to 
talk about this possibility.
    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 is any basis for applying 
strict scrutiny to contribution limits that apply evenly across 
the board? Why else would you have cited that opinion?
    Judge Gorsuch. I am happy to try and explain again. So, the 
facts of the case, and that is 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 I know you are 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 am 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 is something 
less than strict scrutiny in the First Amendment context for 
contributions. That is the instruction that I as a lower court 
judge have in the First Amendment context. But this was an 
equal protection challenge, okay? Saying it is not just 
contributions. It is the inequality of contributions that is 
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.
    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 of the equal protection 
context? And I pointed to two excellent opinions by wonderful 
District Judges in the area, Judge Boasberg and Judge----
    Senator Klobuchar. All right, all right. I really did read 
it. Okay, okay. I understand that, but here is the deal, that 
the other judges were happy to just decide it on that narrow 
basis, right? So then you write the concurring opinion to bring 
up this other issue, and I think again about Justice White, who 
is your mentor or was your boss, and there is a Law Review 
article by the Dean of Tulane: ``Time and time again, Justice 
White avoided broad theoretical bases for a decision when a 
narrow fact-specific rationale would suffice.'' And yet you 
write this concurrent----
    Judge Gorsuch. Can I answer you, Senator?
    Senator Klobuchar. Yes.
    Judge Gorsuch. Because I am almost there, okay? So I write 
to point out this conflict in the Supreme Court's directions 
that I saw.
    Senator Klobuchar. Okay.
    Judge Gorsuch. All right? And then I said in our case, 
Byron White, it does not matter, because Colorado could not 
meet even a rational basis test. Forget about whether it is 
strict scrutiny or something close to strict scrutiny. It could 
not meet rational basis test because Colorado could not 
articulate any good reason, any--maybe there is one out there. 
I do not know. But I said they have articulated nothing.
    Senator Klobuchar. Okay, but let us just continue on now 
with some other cases, because it is a bit of a pattern.
    Judge Gorsuch. Okay.
    Senator Klobuchar. 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 finances, it opens up the possibility 
that you would strike down, then, this idea that corporations 
should not be giving money directly to campaigns.
    Do you think these creatures of statute have the same 
constitutional rights as living, breathing human beings?
    Judge Gorsuch. Goodness no, Senator. Hobby Lobby had 
nothing to do with the First Amendment of the Constitution.
    Senator Klobuchar. But it was about corporations.
    Judge Gorsuch. It was, under RFRA.
    Senator Klobuchar. So you do not think, then--maybe we can 
end this line here. So you do not think that they would have 
these rights, a corporation would have these rights under the 
First Amendment?
    Judge Gorsuch. I do not 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 are 
dealing with statutes, what words we are supposed to use and 
what definitions are.
    And, Senator, if in RFRA, again, if this body wishes to say 
only natural persons enjoy RFRA rights, that is fine, and I 
will abide that direction. I am not here to make policy; I am 
here to follow it.
    Senator Klobuchar. Okay. On to another policy that is 
pretty important. That is the Chevron case. 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--you do not imply; you say--it could have 
titanic real-world implications when it comes to our rules, 
13,500 cases on the books since 1984. In your book you say you 
do not 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 have your 
answer. That was good. But in the concurring opinion you say, 
``There is an elephant in the room with us today.'' Sorry, 
guys, he was not 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. Maybe the time has 
come to face the behemoth.''
    That sounds to me like, again, you are going a step further 
and talking about overturning a major precedent, and I want to 
know if that is what you mean, if you think it should be 
overturned, and if you have considered the ramifications of 
that when Justice Scalia himself was the original champion of 
the Chevron doctrine.
    Judge 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----
    Senator 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.
    Judge Gorsuch. Senator, I am 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 is not 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 is 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 the 
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.
    Senator Klobuchar. But as a Supreme Court Justice, if you 
were to make this decision to overturn Chevron, would you 
consider the implications on all of the cases in the U.S., and 
the rules and the uncertainty that it would create?
    Judge Gorsuch. Goodness, Senator, yes.
    Senator Klobuchar. And would you overturn it? Is that what 
this means when you talk about maybe it is time to face the 
behemoth?
    Judge 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 there as I conceived it was to say, hey, 
listen, look at some of the implications, the real-world 
implications of what we are doing here.
    Senator Klobuchar. Okay, 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?
    Judge Gorsuch. Senator, I do not pre-judge it. I can tell 
you what did pre-exist it. It was Skidmore deference, which was 
an opinion written by Justice Jackson, actually. That is what 
pre-existed. So there was deference before, and we had the 
administrative state for 50 years, and agencies would issue 
rules and decisions. I do not know what all the consequences 
would be, and I would pledge to you--I was not thinking about 
being a Supreme Court Justice then. I was identifying an issue 
for my bosses.
    If I am so fortunate as to become a Justice, I would try 
and come at it with as open a mind as a man can muster. And I 
would tell you, remind you, what I bear in mind would be David 
Sentelle. When I was with him as a law clerk, he 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 en banc court, 
the full court, reversing himself. Now, some people think that 
does not 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 is what I would 
commit to you.
    Senator Klobuchar. Okay. Let us go to another piece of this 
philosophy, and that is originalism; in other words, where the 
words and phrases in the Constitution should be interpreted 
according to their original public meaning or how the Founders 
and their contemporaries would have understood them. Regardless 
of whether you characterize yourself as an originalist, you 
have applied originalism in several decisions, including last 
year in Codova v. City of Albuquerque, where in a separate 
concurring opinion you described the Constitution as a 
``carefully crafted text judges are charged with applying 
according to its original public meaning,'' which are the 
buzzwords 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 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?
    Judge Gorsuch. Well, Senator, I would certainly agree that 
the Constitution must endure, and that it is 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 is important to try and understand law 
according to its original understanding, public meaning. Words 
have meaning.
    Senator Klobuchar. So you do not agree with McCulloch about 
adapting to the crises of human affairs----
    Judge Gorsuch. No, Senator.
    Senator Klobuchar. So you do agree.
    Judge Gorsuch. I am trying to answer----
    Senator Klobuchar. I just want a yes or no, that is all.
    Judge Gorsuch. Well, I think it takes--these are 
complicated things that take more than a yes or no, 
respectfully. What I would say is the Constitution does not 
change. The world around us changes, and we have to understand 
the Constitution and apply it in light of our current 
circumstances. That is what we are trying to do as judges.
    So, for example, one of my favorite cases in this area is 
Jones, right? The 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 would have qualified as a trespass to channels and a 
search by the Government, and says 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 the 
people's liberties now than it was 200 years ago.
    Senator Klobuchar. So when the Constitution refers 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 
could not vote?
    Judge Gorsuch. Senator, I am not looking to take us back to 
quill pens and horses and buggies.
    Senator Klobuchar. Okay. But if you could just answer that 
question? It is pretty important to me.
    Judge Gorsuch. I am trying to.
    Senator Klobuchar. Okay.
    Judge Gorsuch. Of course women can be President of the 
United States. I am the father of two daughters, and I hope one 
of them turns out to be President of the United States.
    Senator Klobuchar. Great. Okay, that is wonderful. How 
about the Air Force? I agree with you; that is good. So in that 
case you would say, well, we cannot take it at its literal 
words. So then the Constitution also says Congress has 
authority to oversee the land and naval forces, but there is 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.
    Judge Gorsuch. Senator, I think the generals in the Air 
Force can rest easy.
    Senator Klobuchar. Okay, great.
    Judge Gorsuch. Let me give you another----
    Senator Klobuchar. How about Virginia--let us keep going 
here because I am almost out of time here. In United States v. 
Virginia, the Court held that the Virginia Military Institute 
violated the Equal Protection Clause of the Fourteenth 
Amendment by excluding all women from VMI's military training. 
In his dissent, Justice Scalia stuck to his 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 meaning?
    Judge Gorsuch. And the majority in that case argued that it 
was.
    Senator Klobuchar. Okay.
    Judge 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 
is quite radical and significant, and that was what the 
majority of the Supreme Court of the United States held.
    Senator Klobuchar. So would you agree, then, that when you 
look at other things, would you be willing to apply this same 
approach to equal rights for minority groups, women, LGBT, 
including transgender people, racial minorities, the same 
approach you used when you just made the statement about the 
``he'' and ``his'' in the Constitution, about not having the 
Air Force, about the Virginia Military decision?
    Judge Gorsuch. Senator, a good judge applies the law 
without respect to persons. That is part of my judicial oath.
    Senator Klobuchar. Okay. So do you see it--your textualism, 
the original public meaning, then, would you apply it to these 
other contexts as well that I just mentioned?
    Judge Gorsuch. Senator, what I am trying to say to you is I 
do not take account of the person before me. Everyone is equal 
in the eyes of the law.
    Senator Klobuchar. Okay. I am just trying to figure out 
this, because I think for some things, a lot of people who 
subscribe to this theory, they say we can have originalism for 
some cases but not for others, and I call it selective 
originalism. It just seems to me when you look at some of the 
opinions that use originalism that you have and some do not, 
but I have one----
    Judge Gorsuch. Senator, if I might respond to that?
    Senator Klobuchar. Yes.
    Judge Gorsuch. I would ask you to take a look at Jones 
again; Kyllo, the search of a home using a heat-seeking device. 
I would ask you to maybe take a look at Crawford, the right to 
confront witnesses, maybe as well the Apprendi-Booker line 
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 his sentence tried by a jury of 
his peers. Those are all what one might characterize as 
originalist opinions protecting individual liberties.
    Senator Klobuchar. You know what? We could do it on the 
second round. That would be good.
    Judge Gorsuch. All right.
    Senator 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?
    Judge Gorsuch. Senator, I have not studied that, and it 
would be presumptuous of me to offer an opinion in a court that 
I have not sat upon.
    Senator Klobuchar. Okay. Well, it may be very relevant when 
this refugee case comes up, so you might want to study up on 
it.
    I am going to end here. I am going to do a lot of work on 
antitrust in the next round. I know you are an expert. Senator 
Lee and I have been heading up that Subcommittee for a long 
time. But I am going to end with freedom of the press in honor 
of my dad. He was a newspaper reporter his whole life, and I am 
especially concerned in today's world, where we are seeing 
these attacks on the media, about maintaining the press' role 
as a watchdog.
    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 do not 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?
    Judge 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 are 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 case. Proof of actual malice is required to 
state a claim. That has been the law of the land for, gosh, 50, 
60 years.
    I could point you to a case in which I have applied it, and 
I think it might give you what you are 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. He claimed 
he was not a Member, just a fellow traveler, and sought damages 
for that. Our court declined to grant that relief, saying that 
substantial truth is protected even if it is not strictly true, 
and much more is required by the First Amendment in order to 
state a claim.
    Senator Klobuchar. Okay. In Branzburg v. Hayes, a Supreme 
Court case, they did not recognize the reporter's privilege, at 
least 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 courts should 
recognize a reporter's privilege?
    Judge Gorsuch. Senator, I know those cases come up from 
time to time, so I have to be very careful.
    Senator Klobuchar. Okay.
    Judge Gorsuch. Your description of the case is entirely 
accurate.
    Senator Klobuchar. Thank you very much.
    Judge Gorsuch. Thank you.
    Chairman Grassley. Okay. Before we recess, I would like to 
enter into the record a commentary in the Chicago Tribune 
called ``Crying Wolf Over Neil Gorsuch,'' written by Dennis 
Hutchison, a lifelong registered Democrat. Specifically, he 
talks about concerns over Chevron deference.
    He writes, ``There are two sides to deference, however. My 
guess is that pro-Chevron advocates will soon be begging 
Federal courts not to defer to interpretive findings of 
agencies.'' End of quote.
    I enter that in the record without objection.
    [The information appears as a submission for the record.]
    We will recess for 10 minutes, so that means we will 
reconvene at 3:31.
    [Recess.]
    Chairman Grassley. Senator Cruz, it is your turn now.
    Senator Cruz. Thank you, Mr. Chairman.
    Judge Gorsuch, congratulations on making it through more 
than half of a long day and making it through with flying 
colors. And I think this hearing has been helpful for 
illustrating the proper temperament and approach that we should 
expect of a Federal judge, and I think you are acquitting 
yourself in an excellent manner.
    This hearing has focused on a lot of weighty matters. So 
let me start with something lighter and a topic on which I 
believe you have some familiarity. What is the answer to the 
ultimate question of life, the universe, and everything?
    [Laughter.]
    Judge Gorsuch. Forty-two.
    Senator Cruz. Thank you, Judge.
    And for those who are watching who may be a bit confused at 
this exchange, could you explain what it is to which we are 
referencing?
    Judge Gorsuch. Well, Senator, sometimes we have young 
people who come to court to be sworn in. Often, they are my law 
clerks. There are a couple of them right there. They have not 
enjoyed this privilege yet, and they come to court and they are 
very nervous.
    And the clerk tells us about their career and their record 
and submits them to the court. I move their admission to the 
bar. Are there any questions from the bench? And it is sort of 
like this. It is a bit intimidating. This has been a reminder 
to me of what it is like to be down here rather than up there.
    And the last time I had this kind of interaction with 
Senator Lee, it was when he was down here and I was up there. 
Any rate, I sometimes ask them that question to put them at 
ease, and they all know the answer, and they all know the 
answer because they have all read Douglas Adams' ``Hitchhiker's 
Guide to the Galaxy.''
    And if you have not read it, you should. It may be one of 
my daughters' favorite books, and so that is a family joke.
    Senator Cruz. Well, it is a book I very much enjoyed as 
well, and it is, I think, a delightful example of the humanity 
of a judge that we--that your record has demonstrated.
    You began your career with the opportunity to serve as a 
law clerk to Byron White. Byron White was an extraordinary man. 
Byron White was the only Justice that John F. Kennedy put on 
the Supreme Court. Byron White is, I believe--in fact, I am 
quite certain--the only Supreme Court Justice in history to 
lead the NFL in rushing and also to graduate first in his class 
from Yale Law School.
    Could you share with this Committee what it was like to be 
a law clerk for Byron White and to interact with him every day 
during your clerkship?
    Judge Gorsuch. You know, as I said, he really was my 
childhood hero. And to actually get picked out of the pile to 
spend a year with him, as Senator Lee's dad did--that is 
something we share in common, too--was and remains the 
privilege of a lifetime. And it has everything to do with why I 
am here.
    I would not have become a judge, but for watching his 
example. And the humility with which he approached the job, and 
I do not mean a phony humility. I mean real humility, every 
day. He always said two heads were better than one.
    He would sit down in my office, plunk himself down in a 
chair across the desk. He would be talking about a case and 
say, ``Ugh.'' It always started with a grunt. I mean, that is 
how he started a conversation. It was like ``hello''--``ugh.'' 
``So what does the great Judge Gorsuch think about this one?''
    And you were expected to have a view about pretty much 
anything and everything that he asked, and he would just sit 
there and chuckle at you. And he would laugh at you, and you 
were wondering what he thought. He never revealed his hand, and 
he would just walk out of the office. He would say, ``Oh, that 
is what Judge Gorsuch thinks. Okay.''
    And then he would go back, and he would think about it 
himself. And then he would come back in again, and just the 
whole thing would repeat itself as he was working through each 
case himself. He would want to bounce ideas off of this know-
nothing 20-year-old, 20-something-year-old kid.
    And that, to me, taught me everything about what it means 
to be a judge and the fact that when asked his judicial 
philosophy in this sort of setting, he said it is to decide 
cases. And I know a lot of people think that is just mundane or 
maybe cover dishonesty in some way. It is just not true. It was 
the humility of the man.
    He knew that lawyers worked really hard because he had been 
a lawyer, a workaday lawyer for 14 years, I think it was, in a 
law firm. He tried cases--small cases, big cases--and he knew 
what it was like to have to be the lawyer in the well and how 
hard it is to have all the answers, how easy it is to ask the 
questions.
    Senator Cruz. Now you and I both had the experience of 
clerking at the Supreme Court after Justice White had ended his 
time on the basketball court.
    Judge Gorsuch. Yes. Well----
    Senator Cruz. Or maybe you were luckier than I? For those 
who do not know, above the Supreme Court, above the roof of the 
courtroom, is a basketball court, which is referred to tongue-
in-cheek as ``the highest court in the land.'' And Justice 
White, for many years, would play in the basketball games, NFL 
Hall of Fame football player with a bunch of pencil-necked law 
clerks.
    Judge Gorsuch. Yes.
    Senator Cruz. And his elbows and fouls were legendary. When 
I was clerking, he was no longer playing. Were you lucky enough 
to get him up on the basketball court?
    Judge Gorsuch. He would come up for a game of horse with 
the clerks, former law clerks at reunions.
    Senator Cruz. How is his jump shot?
    Judge Gorsuch. His best shot at that age, and we are 
talking in his seventies, late seventies, was from the free 
throw line back up over his head like that. And he could hit it 
pretty regularly.
    [Laughter.]
    Judge Gorsuch. His eye-hand coordination was just uncanny. 
So I remember those, those law clerk reunions at the basketball 
court where he would come up and stiffly throw it up and sink 
it.
    I remember walking through with him in the basement, arm in 
arm, liked to walk arm in arm at that age, and we walked past 
all the portraits of all the former Supreme Court Justices, 
which are down at ground level. And he would ask me, ``Ugh,'' 
grunt, ``how many of these guys do you honestly recognize?''
    And I was one of those pencil-necked law clerks, and the 
truth was I thought I knew a lot about the Supreme Court, the 
law, and the answer was about half, the honest answer. And he 
said, ``Me, too.'' And he said, ``The truth is we will all be 
forgotten soon enough, me included.''
    And I remember saying, ``Justice, that is impossible. You 
are one of the greats. No way you are going to be forgotten.'' 
His portrait now hangs down in the basement.
    Senator Cruz. Well, there is wisdom in that humility.
    Let us shift to another topic, a topic that has been raised 
some in this hearing, which is there are some Democratic 
Senators on this Committee who have raised a challenge to the 
notion of originalism and, indeed, have painted originalism as 
some quaint and outdated mode of interpreting the Constitution.
    Have suggested that their view of the Constitution, it is a 
living, breathing, changing document, flexible enough to 
become--to accommodate whatever policy outcome the particular 
judge might desire. The alternative is that a judge is obliged 
to follow the Constitution, the text of the Constitution as 
informed by the original understanding at the time it was 
adopted.
    Do you share the view of the Democratic attacks that 
originalism is somehow a quaint and outdated notion of reading 
the Constitution for what it says?
    Judge Gorsuch. Senator, I want to say a few things about 
that, and I appreciate the opportunity. The first is that 
sometimes we, in our discourse today, our civil discourse, use 
labels as a way to not engage with other people, to treat and 
divide us and them.
    And as a judge, I just do not think that is a very fair or 
appropriate or useful way to engage in discourse. So I am 
worried about using labels in ways that are sometimes an excuse 
for engagement with the ideas, sometimes pejoratively.
    The truth is I do not think there is a judge alive who does 
not want to know about whatever legal text he or she is charged 
with interpreting something about its original meaning, as 
enacted. And I do not think this is an ideological thing. I 
look at decisions like Jones, which we have talked about, or 
decisions like Kyllo, the thermal imaging of a home. Is that a 
search under the Fourth Amendment?
    The Supreme Court goes back and looks at the original 
history and says it is equivalent to Peeping Toms, which, of 
course, would be a search under the Fourth Amendment. The 
Constitution is no less protective today of the people's 
liberties than it was 200 years ago.
    Or when we look at Crawford and the right to confront 
witnesses and not just have pieces of paper flying in evidence 
that you cannot confront reasonably. To cross-examine your 
opponent, fundamental right of the Sixth Amendment. Look back 
to the original understanding. That informs us.
    Or in the Fifth Amendment, Justice Stevens in Apprendi 
wrote a very fine examination of the original history of the 
Constitution and said it is not right that an individual should 
be sentenced to prison and then hand sentence on the basis of 
facts a jury has not found. Those are all originalist, if you 
want to put that label on it, opinions. Every one of them.
    You could look at Powell v. McCormack about the 
qualifications of Members of Congress. That was written by 
Chief Justice Warren. It is a very careful--you might agree or 
disagree with it, but it is a very careful examination of the 
original history and understanding of the relevant provisions 
of the Constitution.
    Or Heller, Second Amendment case. Justice Scalia and 
Justice Stevens both, majority and dissent, wrote opinions that 
are profoundly thoughtful in examining the original history of 
the Constitution. I guess I am with so many other people who 
have come before me, Justice Story, Justice Black, and yes, 
Justice Kagan, who, sitting at this table, said we are all 
originalists in this sense, and I believe we are.
    Senator Cruz. Well, Judge, I thank you for that very 
scholarly and erudite answer. You are right that Justice Kagan 
gave an answer that had many similar aspects and said we apply 
what they say, what they meant to do. So in that sense, we are 
all originalists.
    And you know, you referenced the Kyllo case. I think it 
does--it serves well to rebut the caricature that some on the 
left try to paint of originalism. There, dealing with thermal 
imaging, you know, the notion that, gosh, how could the Framers 
possibly imagine modern contrivances, modern contraptions?
    Well, thermal imaging did not exist in the 1700s.
    Judge Gorsuch. Right.
    Senator Cruz. The Framers had no idea what it was. And so 
under the caricature that some of the Democrats have suggested, 
you would assume the originalists in the case would all line up 
on the side of saying, well, gosh, the Fourth Amendment does 
not cover that. And yet, the Kyllo case, the majority opinion, 
5-4, was written by Justice Scalia, perhaps the leading 
originalist on the Court.
    It was joined by Justice Thomas, and indeed, Justice 
Stevens dissented in that case. And so I think that case 
illustrates that any judge doing his or her job, a thorough 
understanding of the original understanding of the language is 
essential to effectively doing your job.
    Would you share your thoughts about how the Constitution 
intersects with modern technology? How a 200-plus-year-old 
document can possibly be applied in a world of internet and 
technology and changing--changing reality?
    Judge Gorsuch. Well, it is just these discussions we have 
been having, right? You go back and you look to the evidence of 
what it was understood at the time to protect. Of course, 
Madison did not know about thermal imaging or GPS tracking 
devices or DNA or email. And no one is looking to take us back 
to the horse and buggy day or quill pens or to turn back the 
clock on anything.
    The point is to apply the law in a way that allows us to be 
able to say as judges it is not what we wish. It is what the 
law was understood to mean. It has a fixed meaning, as Madison 
said, in the fixed meaning canon of construction. That the 
Constitution should have a fixed meaning, all right?
    And the judges may disagree over what that is. We disagree 
once in a while. Not as often as some would like to portray, 
once in a while. But our disagreements are not political 
disagreements. They are disagreements over what the law is. 
That has been very important to me.
    And the other thing it does is it is a due process value. 
We are interpreting the law in a way that we can charge people 
with notice of because we are judging them for their past 
conduct. People lose their liberty, their property on the basis 
of our interpretations of the law. That seems to me that it 
should only be fair that there are interpretations we can 
charge them with notice of, right?
    Similar thing when we come to statutory interpretation, 
right? What does that text mean? What could a reasonable reader 
understand that text to mean?
    You know, my favorite case in statutory interpretation when 
I teach this stuff and talk to my law clerks about it is the 
fish case. There the statute read something like, I am not 
going to get it exactly right, but if you destroy email 
documents or other tangible objects when you know the cops are 
after you, you go to jail.
    Well, what does that mean in the context of a fisherman who 
knows that the Coast Guard is after him, and he has an illegal 
catch and he throws it overboard? That case went to the U.S. 
Supreme Court. It is a great case. And it divided in a way that 
people do not expect, right?
    Justice Ginsburg wrote the majority opinion and along with 
Justice Alito writing a concurrence, saying fish? This statute 
is about email. Nah, no, no. Justice Kagan and Justice Scalia 
wrote a dissent, saying fish? That is a tangible object, right? 
He had notice. He should not have done it.
    And so these things do not divide along any kind of 
ordinary ideological line. I am confident that there are 
Justices who in that case or in Heller or in any of these cases 
would, as a matter of policy, have come out differently than 
they did as in a matter of judging. And that, to me, is all the 
difference in the world. We are not doing what we would like, 
but what we think the law is.
    Senator Cruz. Let us turn to another topic. Some of my 
colleagues on the Democratic side have raised some questions 
about the Federalist Society and have raised it with a tone 
that suggests it is some nefarious and secret organization. 
Indeed, I was waiting to see the question ``Are you now or have 
you ever been a member of the Federalist Society?''
    [Laughter.]
    Senator Cruz. And given that context, for the sake of 
candor, I will go ahead and self-report now. I am and have been 
a member of the Federalist Society since I was 21 years old and 
a first-year law student, when I happily joined. And indeed, 
there are over 60,000 Members, law students and lawyers and, 
indeed, those just interested in the Constitution and the rule 
of law.
    And one of the things that has struck me about the 
Federalist Society is the incredible range and diversity of 
opinions within the Federalist Society. You have conservatives. 
You have libertarians. You have those with--who believe in 
fidelity to law and would not ascribe to either of those 
labels.
    And I understand you gave a talk at a Federalist Society 
event at the problems of over-criminalization. Can you tell us 
a bit about that talk?
    Judge Gorsuch. Yes, I think it is fun to go into audiences 
and challenge them sometimes a bit. I think it is important. 
And as to the Federalist Society, I do not have a card either, 
and I really do not want a back statement for past dues.
    [Laughter.]
    Judge Gorsuch. But I attend maybe one event a year or 
something like that. It is all alumni forums that you all have. 
And at that speech, I did talk to the society about the problem 
of over-criminalization as I saw it.
    On the Federal statutory books today, we have approximately 
5,000 criminal laws. That does not count, of course, all the 
criminal laws at the State and local level, and Congress pours 
out a lot of new criminal laws all the time. Most of those laws 
are of relatively recent vintage.
    I asked my law clerks to go find out, okay, now how many of 
those--how many laws do we have that have criminal penalties 
that are in regulations, too, right? Just out of curiosity. And 
I thought they'd be able to come back with a number.
    And apparently--they reported back, and I trust them. They 
are pretty smart. They came back and said that scholars have 
given up trying to count the number. They gave up at around 
300,000.
    And Madison warned, you know, he lived in a time when there 
were too few written laws, so that the king could pretty much 
do as he wished. Tyrannical king. That is the experience they 
had. But he foresaw a world and warned about a world in which 
we have too many laws to the point where the people cannot know 
what the law is.
    And of course, there is the great example of Caligula, 
right, who posted laws, ancient Roman emperor, deliberately 
posted laws written in a hand so small and up so high that 
nobody could tell what the law was. Better to keep the people 
on their toes. Sorry.
    And that is a problem, too, right, for due process, fair 
notice. And the truth is in like so much else in life, we are 
aiming for the golden mean. Not too much, not too little. A 
point where people have enough fair notice, but are not 
overwhelmed. That is what I spoke about.
    Senator Cruz. Well, and I agree with you. It is a 
significant problem, one that this Committee has addressed 
multiple times, and I hope will continue to address. Indeed, I 
am reminded of one legal thinker who famously observed, ``In 
heaven, there is no law, and the lion lies down with the lamb. 
In hell, there is nothing but law, and due process is 
meticulously obeyed.''
    And living in a situation where, by the account you just 
shared, there are over 300,000 potential crimes in a regulatory 
sense, at some point makes it exceedingly difficult for an 
honest citizen to conduct himself or herself in a way that does 
not run afoul of the law. And then that is something that 
should concern all of us.
    You know, I would note when you gave this speech, would you 
say it is fair to say that not everyone at the Federalist 
Society who heard your speech agreed with everything you said?
    Judge Gorsuch. Oh, goodness. That was the whole point of 
this speech, Senator.
    Senator Cruz. Well, and in my experience, a great many 
Federalist Society debates--events are structured as debates, 
where you have sometimes sharply contrasting views for the 
purpose of intellectual discussion and, hopefully, thinking in 
addressing hard problems.
    Judge Gorsuch. And there is a counterpart to the Federalist 
Society now, the American Constitutional Society. One of my 
friends who was just here is on the board. It does similar good 
work.
    Senator Cruz. Sure.
    Judge Gorsuch. I think these societies, debating societies, 
useful to ideas percolating, being shared in a civic way, in a 
way that we can discuss with one another calmly, coolly, 
thoughtfully. Not yelling at one another, not using labels to 
dismiss one another. That is what I get out of it. I learn 
things.
    Senator Cruz. I would note that the Federalist Society 
describes its purpose as ``It is founded on the principles that 
the state exists to preserve freedom, that the separation of 
governmental powers is central to our Constitution, and that it 
is emphatically the province and duty of the judiciary to say 
what the law is, not what it should be.''
    And I can think of very few people qualified to be a judge 
who would not agree with those basic precepts about the 
foundation of our country.
    Let me turn to a different topic, which is several of my 
colleagues on the Democratic side have focused on corporations 
and have been critical of decisions such as the Supreme Court 
decisions in Citizens United or Hobby Lobby and have put forth 
the proposition that corporations are not people and, hence, 
cannot have First Amendment rights, cannot have free speech 
rights, cannot have religious liberty rights. And while that 
may be a perfectly fine debating point in a Committee of the 
United States Senate, in a courtroom, it runs foursquare into 
decades, if not centuries, of precedents on the other side.
    The New York Times is a corporation. Judge Gorsuch, is 
there any credible argument that The New York Times enjoys no 
First Amendment protections whatsoever?
    Judge Gorsuch. No, Senator.
    Senator Cruz. The NAACP is a corporation. Is there any 
credible argument that the NAACP has no First Amendment 
protections?
    Judge Gorsuch. I think these are long-settled precedents we 
are talking about.
    Senator Cruz. And the same, I would note, is true for the 
NRA, for La Raza, for the ACLU. Every one of those is 
corporations, the Sierra Club, and every one of those the 
Supreme Court has for decades held--Simon and Schuster, a major 
book publisher. There is--every one of those, the Supreme Court 
has held, are protected by the First Amendment.
    Is that a fair characterization?
    Judge Gorsuch. I believe it is.
    Senator Cruz. I think that is important to note in the 
public debate that part of the reason we have such a robust 
arena of free speech, part of the reason I think it is a good 
thing that on gun issues we have the NRA and the Brady Center 
debating back and forth, citizens of good intentions and morals 
believing strongly on an issue, expressing their First 
Amendment rights, petitioning Congress, speaking out publicly. 
And the First Amendment exists to protect your right on one 
side or the other to speak and let the public domain resolve 
that issue.
    Let me turn to a different issue and return perhaps to a 
lighter topic. I understand that you like to take your law 
clerks, some of them very much not from the West, to the Denver 
rodeo every year and to have them observe and react to cattle 
roping and bronc riding and mutton busting. Is that true, and 
can you share a bit of your experiences and, even better, 
theirs in that regard?
    Judge Gorsuch. Well, Senator, I get law clerks from all 
over the country, many from my region. I maybe favor my region, 
but I get plenty from out of the area, too.
    And we have a great rodeo in Denver every year, the Grand 
National, and it begins with a parade down 17th Street, which 
would be like a parade down Pennsylvania Avenue in DC, where 
you have cattle, it is a cattle drive down the main road in 
Denver. They shut it down. That is how you mark the opening of 
the Grand National.
    And the closing of the Grand National is celebrated by the 
prize steer getting to spend a little time in the Brown Palace 
Hotel. Now the Brown Palace Hotel is like the Willard or pick 
your favorite fancy, at the Plaza in New York. Yes, they bring 
the prize steer into the lobby of the Brown Palace.
    And in between, there is a rodeo and the stock show, and 
the kids show their animals. My kids never made it to the Grand 
National. They are more county fair types with their chickens 
and their rabbits and dogs and whatever. But the kids compete 
to the Grand National, this Grand National. This is big time.
    And then there is mutton busting, and I think my children 
still have PTSD from mutton busting.
    [Laughter.]
    Judge Gorsuch. Mutton busting, as you know, comes sort of 
like bronco busting for adults. You take a poor little kid. You 
find a sheep----
    [Laughter.]
    Judge Gorsuch. And you attach the one to the other and see 
how long they can hold on. And you know, it usually works fine 
when the sheep has a lot of wool, and you tell them to hold 
on--I tell my kids hold on monkey-style, you know, really get 
in there, right, get around it.
    Because if you sit upright, you go flying right off, right? 
So you want to get in. But the problem when you get in is that 
you are so locked in that you do not want to let go, right? And 
so then the poor clown has to come and knock you off the sheep.
    And my daughters, you know, they got knocked around pretty 
good over the years.
    Senator Cruz. Well, as a Texan, I think everyone's life 
could be rendered richer by going to the rodeo, and I thank you 
for sharing that experience with your clerks.
    Judge Gorsuch. Well, I am sorry. We could talk mutton 
busting all day.
    Chairman Grassley. Senator Franken.
    Senator Franken. Good to see you, Judge. Evidently, there 
is no animal abuse laws----
    [Laughter.]
    Judge Gorsuch. You sound like my daughters on that score, 
Senator.
    Senator Franken. You know, I wanted to get to some 
questions, but first I want to talk about TransAm Trucking 
because Senator Durbin brought it up. Then Senator Lee brought 
it up. And I want to just go through the facts real quickly 
because I understand the reasoning behind your dissent, but I 
am actually kind of puzzled by it as well.
    Okay. So Alphonse Maddin is a truck driver. He has made a 
stop off the interstate at 11 p.m.. He comes back on--or he is 
about to come back on, notices his brakes are frozen on his 
trailer.
    Okay. So he decides I am not going to go on--it is 
dangerous to go with frozen brakes onto the interstate, frozen 
brakes on my long trailer. He is in the cab, and he calls in 
for--pulls over to the side, calls in for a repair. Gets the 
dispatcher. The dispatcher says, well, you know, wait. Hang on 
there. Wait.
    Okay. A couple hours goes by. The heater is not working in 
his cab. It is 14 below zero, 14 below zero. He calls in and he 
says, my feet, I cannot feel them. I cannot feel my feet. My 
torso, I am beginning not to be able to feel my torso. And they 
say hang on, hang on, wait for us.
    Okay. Now he actually falls asleep, and at 1:18 a.m., his 
cousin, I think, cousin calls him and wakes him up. And his 
cousin says that he is slurring his speech, and he does not 
make much sense.
    Now Mayo Clinic in Minnesota says that is hypothermia. And 
he had fallen asleep. If you fall asleep waiting in 14 below 
zero weather, you can freeze to death. You can die.
    He calls them back, and a supervisor says wait. You have to 
wait. So he has a couple choices here. Wait or take the trailer 
out with the frozen brakes onto the interstate.
    Now when those brakes are locked, and you are pulling that 
load on a trailer with its brakes locked, you can go maybe, 
what, 10, 15 miles an hour. Now what is that like on an 
interstate? Say you are going 75 miles an hour. Someone is 
going 75 miles an hour. They come over a hill and slam into 
that trailer.
    Also he has hypothermia. He is a little woozy. Probably 
figures that is not too safe. I do not think you would want to 
be on the road with him, would you, Judge?
    Judge Gorsuch. Senator----
    Senator Franken. You would or not? It is a really easy yes 
or no.
    Judge Gorsuch. Would I want to be on the----
    Senator Franken. Would you like to be on the road with him?
    Judge Gorsuch. Would I want to be on the road with him?
    Senator Franken. Yes.
    Judge Gorsuch. With the hitched trailer or the unhitched 
trailer, Senator?
    Senator Franken. Well, either, but especially with the 
hitched trailer with the locked brakes.
    Judge Gorsuch. No. I do not think that was a serious 
option. I agree with you.
    Senator Franken. Okay. I thought that was--I would not want 
to be there either.
    Judge Gorsuch. Yes. An unhitched trailer----
    Senator Franken. So what he does is he unhitches it---
    Judge Gorsuch. Right.
    Senator Franken [continuing]. And goes off in the cab.
    Judge Gorsuch. And then I believe he comes back 15 minutes 
later.
    Senator Franken. And he comes back after he gets warm so 
that he can be there when it gets repaired.
    Judge Gorsuch. Right.
    Senator Franken. Okay. He gets fired. He gets fired. And 
the rest of the judges all go that is ridiculous. He should 
not--you cannot fire a guy for doing that. It was--there were 
two safety issues here.
    One, the possibility of freezing to death or driving with 
that rig in a very, very dangerous way. Which would you have 
chosen? Which would you have done, Judge?
    Judge Gorsuch. Oh, Senator, I do not know what I would have 
done if I were in his shoes, and I do not blame him at all for 
a moment for doing what he did do.
    Senator Franken. But what----
    Judge Gorsuch. I empathize with him entirely.
    Senator Franken. Okay. Just we have been talking about this 
case. You have not decided what you would have done? You have 
not thought about for a second what you would have done in his 
case?
    Judge Gorsuch. Oh, Senator, I thought a lot about this case 
because I----
    Senator Franken. And what would you have done?
    Judge Gorsuch. I totally empathize and understand----
    Senator Franken. I am asking you a question. Please answer 
the questions.
    Judge Gorsuch. Senator, I do not know. I was not in the 
man's shoes, but I understand why he did----
    Senator Franken. You do not know what you would have done? 
Okay. I will tell you what I would have done. I would have done 
exactly what he did.
    Judge Gorsuch. Yes. I understand----
    Senator Franken. And I think everybody here would have done 
exactly what he did, and I think that is an easy answer, 
frankly. I do not know why you had difficulty answering that.
    Okay. So you decide to write a thing in dissent. If you 
read your dissent, you do not say it was like subzero. You say 
it was cold out. The facts that you describe in your dissent 
are very minimal. But here is the--here is the law that--and 
you go to the language of the law, and you talk about that. ``I 
go to the law.''
    A person may not discharge an employee who refuses to 
operate a vehicle because the employee has reasonable 
apprehension of serious injury to the employee or the public 
because of the vehicle's hazardous safety or security 
condition. That is the law.
    And you decided that they had the right to fire him, even 
though this law says you may not discharge an employee who 
refuses to operate a vehicle because he did operate the 
vehicle. Is that right? That is your--that is how you decided, 
right?
    Judge Gorsuch. That is the gist of it.
    Senator Franken. Well, no. Is that how you decided? That is 
what you decided, right?
    Judge Gorsuch. Well, Senator, there are a lot more words in 
the opinions, both in the majority by my colleagues and in 
dissent, but that--I am happy to agree with you that is the 
gist of it.
    Senator Franken. Right. Well, that is what you have said. 
And I--look, I am not a lawyer, but I have been on this 
Committee for about 8 years, and I have paid some attention. So 
I know that what you are talking about here is the plain 
meaning rule. Here is what the rule means.
    When the plain meaning of a statute is clear on its face, 
when its meaning is obvious, courts have no business looking 
beyond the meaning to the statute's purpose. And that is what 
you used, right?
    Judge Gorsuch. That is what was argued to us by both sides, 
Senator.
    Senator Franken. But that is what you--that is what you 
used?
    Judge Gorsuch. Yes, both sides argued that the plain 
meaning supported their----
    Senator Franken. Yes, and you used it to come to your 
conclusion.
    Judge Gorsuch. But both sides did.
    Senator Franken. But the plain meaning rule has an 
exception. When using the plain meaning rule would create an 
absurd result, courts should depart from the plain meaning.
    It is absurd to say this company is in its rights to fire 
him because he made the choice of possibly dying from freezing 
to death or causing other people to die possibly by driving an 
unsafe vehicle. That is absurd.
    Now I had a career in identifying absurdity.
    [Laughter.]
    Senator Franken. And I know it when I see it, and it makes 
me--you know, it makes me question your judgment.
    You stopped by my office a few weeks ago. I asked you about 
Merrick Garland. I had read somewhere that after you accepted 
the nomination, it has been talked about, one of the first 
calls you placed was to Chief Judge Garland. And you said to 
me, ``I think the world of Merrick Garland.''
    And I asked you a couple times if you are bothered by the 
way the Senate treated Merrick Garland, who you clearly have a 
great deal of respect for? You said something to the effect of, 
``Senator, I try to stay away from politics.''
    Now you had been on the bench for 10 years. So that sounded 
fair to me, and I decided to leave well enough alone, and I 
moved on to another topic.
    But your relationship with politics came up against 
yesterday. My good colleague Senator Lee lamented the extent to 
which the confirmation process has become political and 
suggested that you and other nominees are not equipped to 
navigate that process because confirmation politics are, in his 
words, ``still a little foreign to you, are still quite 
unfamiliar to you.''
    But it turns out that is not really entirely accurate. 
After you were nominated, this Committee made a formal request 
for documents relating to your previous nomination and to your 
time at the Department of Justice. This is standard procedure. 
Those documents include emails back and forth between former 
Bush administration officials and you in 2004, back before you 
joined that administration.
    And the Neil Gorsuch in those emails seems to be very, very 
familiar with politics. The Neil Gorsuch in those emails was 
looking for a job. Here is a message you sent to Matt Schlapp, 
President Bush's political director. This was in November 2004, 
just after President Bush won re-election.
    ``I spent some time in Ohio working on the election.'' This 
is you. ``What a magnificent result for the country. For me 
personally, the experience was invigorating and a great deal of 
fun.''
    Now that does not sound like someone who steers clear of 
politics to me. You went on to write, ``While I have spent 
considerable time trying to help the cause on a volunteer basis 
in various roles, I have concluded that I would really like to 
be a full-time member of the team.''
    You attach your resume, which describes in detail your work 
in support of political campaigns and candidates. Basically, 
you had worked on Republican political campaigns since 1976. 
You worked for Reagan, Bush 1, Bush 2. You were cited for 
distinguished service to the United States Senate for work in 
support of President Bush's judicial nominees by the Senate 
Republican Conference, which suggests that even the political 
aspects of confirming judicial nominees is something that you 
are not unfamiliar with.
    Now when we met earlier, I asked you what you thought of 
the way Senate Republicans treated Merrick Garland, and rather 
than answer the question, you replied, ``I try to avoid 
politics.'' But here you are in 2004, pledging your allegiance 
to the cause and shopping around a resume, touting your work on 
political campaigns dating back to 1976.
    These messages establish that for a good deal of your prior 
career, you did not avoid politics. Quite the contrary, you 
were very politically active. So in light of that, I would like 
to ask my question again. Do you think Merrick Garland was 
treated fairly by the United States Senate?
    Judge Gorsuch. Senator, a couple of things in response to 
that, if I might? Going back, the absurdity doctrine argument 
was never presented to the Court, and it usually applies in 
cases where there is a scrivener's error, not when we just 
disagree with the policy of the statute. So I appreciate the 
opportunity to respond there.
    Senator Franken. When there is a scrivener there?
    Judge Gorsuch. Scrivener's error.
    Senator Franken. Error?
    Judge Gorsuch. Error, yes.
    Senator Franken. Okay, I am sorry.
    Judge Gorsuch. Not when we just disagree with the policy. 
With respect to campaigns----
    Senator Franken. Well, if I read my statutory 
interpretation from, let us see, this is from the Notre Dame 
Law School National Institute for Trial Advocacy, this is a 
pretty well-known exception to the plain meaning rule.
    Judge Gorsuch. Oh, yes.
    Senator Franken. And I think you can apply it without it--I 
mean, do you not think it is absurd that this man was put--
given that choice and then fired for it? Do you not think that 
was absurd?
    Judge Gorsuch. Senator, my heart goes out to him.
    Senator Franken. Okay, never mind.
    Judge Gorsuch. My heart goes out to him, but it is just not 
my job to write----
    Senator Franken. How do you think Merrick Garland was 
treated by the Republicans?
    Judge Gorsuch. And Senator, since I became a judge 10 years 
ago, I have a canon of ethics that precludes me from getting 
involved in any way, shape, or form in politics. They are the 
reason why judges do not clap at the State of the Union and why 
I cannot even attend a political caucus in my home State to 
register a vote in the equivalent of a primary.
    Senator Franken. Okay. But I do not think that this is--you 
have to state your political views. That is not what--this is 
about how a Supreme Court Justice who is nominated by the 
President of the United States, this is like in the 
Constitution. I think you are allowed to talk about what 
happened to the last guy who was nominated in your position.
    You are allowed to say something without being--without 
getting involved in politics. You can express an opinion on 
this.
    Judge Gorsuch. Senator, I appreciate the invitation, but I 
know the other side has their views of this, and you, your side 
has your views of it. That, by definition, is politics.
    Senator Franken. Okay, okay.
    Judge Gorsuch. And Senator, judges have to stay outside of 
politics. I think the world of Merrick Garland. I think he is 
an outstanding judge.
    Senator Franken. Okay, I understand.
    Judge Gorsuch. I have told you what I think about him.
    Senator Franken. I understand. Thank you. Thank you.
    I do not mean to cut you off, but you know, we have time. I 
think it is really important for us to understand how your 
political work and your political views might inform the views 
of the law, and I know--I do not hold it against you that you 
did political work. Lots of people did.
    Judge Gorsuch. 1976, I was walking the district with my 
mom.
    Senator Franken. Yes.
    Judge Gorsuch. When she was running for State house.
    Senator Franken. Looking again at the emails 5 or so months 
after your message to Mr. Schlapp you emailed Ken Mehlman. Mr. 
Mehlman was your law school roommate, and at the time you 
emailed him, he was the Chairman of the Republican National 
Committee. You had just interviewed for a job at the Department 
of Justice, and you wanted him to put in a good word. So he 
did.
    Mr. Mehlman emailed the White House, and he wrote, ``Neil 
is a wonderful guy, was my law school roommate, did the 72-hour 
effort in Ohio for us, and was part of Lawyers for Bush.'' Mr. 
Mehlman wrote, ``He is a true loyalist.''
    Now again, being politically active or a loyal Republican 
are not disqualifying characteristics for a Supreme Court 
nominee, not in my book anyway. Let us think back to the 2004 
election. Let us look at Ohio, where you volunteered.
    Ohio is one of 11 States in 2004 where Republicans working 
to support the re-election campaign also worked to put anti-gay 
marriage amendments on the ballot. These State constitutional 
amendments passed, all 11 of them. The text varied State by 
State, but generally, the amendments defined marriage as being 
between a man and a woman. The amendments sent a clear message 
to lesbian and gay couples that their unions were not equal in 
the eyes of the law.
    Now you were a campaign worker in Ohio. You were a member 
of the group Lawyers for Bush-Cheney. As a lawyer and as a 
student of the Constitution, how did you feel about the right 
to marry being put to a popular vote?
    Judge Gorsuch. Senator, I do not recall any involvement in 
that issue during that campaign. I remember going to Ohio----
    Senator Franken. Were you aware of that issue at all?
    Judge Gorsuch. Oh, certainly, I was aware of it.
    Senator Franken. And how did you feel about it?
    Judge Gorsuch. Well, Senator, my personal views? Any 
revelation of my personal views about this matter would 
indicate to people how I might rule as a judge, mistakenly, but 
it might. And I have to be concerned about that.
    Senator Franken. These discriminatory amendments were part 
of a deliberate effort to drive up the turnout, and we know 
that because--we know that because your friend Ken Mehlman said 
so. Mr. Mehlman was interviewed by The Atlantic in 2010 and 
said that the Bush campaign had ``been working with the 
Republican to make sure that anti-gay initiatives and referenda 
would appear on November ballots in 2004 and 2006 to help 
Republicans.''
    Now to be clear, there is nothing to suggest that you were 
involved in crafting that strategy. But at the time, this 
tactic received a lot of attention, including in Ohio, where 
you worked on the campaign. It has a profound impact on 
people's lives.
    But a lot has changed. Since 2004, Mr. Mehlman announced 
publicly that he is gay, for one. He also voiced regret about 
what happened. He apologized. He said, ``At a personal level, I 
wish I had spoken out against the effort. As I have been 
involved in the fight for marriage equality, one of the things 
I have learned is how many people were harmed by the campaigns 
in which I was involved. I apologize to them and tell them I am 
sorry.''
    That is a brave thing to say. It is hard to admit regret. 
Mr. Mehlman had a personal connection to the issue, to be sure. 
But our country has come a long way in a relatively short 
amount of time. A lot of folks have changed their view about 
marriage equality, Republicans and Democrats alike.
    In the meantime, the Supreme Court has settled this issue. 
Marriage equality is now the law of the land. So you should not 
have any problem answering this question. How have your views 
of marriage equality changed, if at all, since the 2004 
election?
    Judge Gorsuch. Senator, my personal views, if I were to 
begin speaking about my personal views on this subject, which 
every American has views on, would send a misleading signal to 
the American people that my----
    Senator Franken. It is settled law.
    Judge Gorsuch. It is absolutely settled law. There is 
ongoing litigation about its impact and its application right 
now, and I cannot begin to share my personal views without 
suggesting mistakenly to people----
    Senator Franken. Okay. Can I move on to something else 
then? Thank you.
    Judge Gorsuch. Well, if I might finish?
    Senator Franken. I understand. You have given a version of 
this answer before. So I understand. I understand.
    I would like to return to something I raised in my opening 
statement, and that is your view of administrative law. 
Standing before conservative activists gathered at CPAC, the 
Conservative Political Action Committee, President Trump's 
chief strategist, Steve Bannon, and his White House chief of 
staff, Reince Priebus, outlined the President's agenda.
    Two topics were featured prominently, deregulation and your 
nomination. Now I do not think that is a coincidence.
    Reince Priebus started by explaining why nominating you was 
so important for the President to do right out of the gate. He 
said, referring to your nomination, ``Number one, we are not 
talking about a change over a 4-year period. We are talking 
about a change of potentially 40 years of law, number one.''
    That is change of potentially 40 years of law. Change the 
law. You and your colleagues here have said the job of a judge 
is to follow the law, even if he dislikes the results. You have 
said that. Not change the law or change 40 years of the law.
    But that is what Reince Priebus said this is about. When 
the White House chief of staff was talking to his friends at 
CPAC, he says that Justice job, that your job is to change 40 
years of law. Yet my colleagues and you say it is to follow the 
laws as written. Well, it cannot be both. So which is it?
    Judge Gorsuch. Senator, it is to be a judge, to be fair, to 
follow the law. To apply it to the facts and circumstances of 
each case and to live out my judicial oath on whichever court I 
serve on, whether it is the Tenth Circuit, where I have served 
for the last 10 years----
    Senator Franken. Okay.
    Judge Gorsuch. And where my opinions have been unanimous 97 
percent of the time, Senator.
    Senator Franken. I know.
    Judge Gorsuch. I have been in the majority----
    Senator Franken. I understand, and again, you have given 
many times that answer. So if you will indulge me?
    Mr. Priebus went on to say your nomination was central to 
President Trump fulfilling his policy objectives. ``Neil 
Gorsuch represents the type of judge that has the vision of 
Donald Trump, and it,'' referring to your nomination, 
``fulfills the promise that he made to all of you,'' speaking 
to the conservative activists gathered at CPAC.
    What do you think that Mr. Priebus was talking about? Was 
he suggesting that, if confirmed, you would be positioned to 
shape the Court's decisions for the next 40 years, or was he 
suggesting you could reach back 40 years? Roe v. Wade turned 44 
this year, and President has promised to nominate judges who 
would overturn Roe.
    Chevron is 33 years old. I think this is a legitimate 
question. Was Mr. Priebus suggesting that you go back and 
change 40 years of settled law or have an effect on the law 
moving forward?
    Judge Gorsuch. Respectfully, Senator, Mr. Priebus does not 
speak for me, and I do not speak for him. I do not appreciate 
when people characterize me, as I am sure you do not appreciate 
it when people characterize you. I like to speak for myself.
    I am a judge. I am my own man.
    Senator Franken. Okay. I just want to just, you know, we 
have had some talk about this. I do not think we are crazy to 
think that the administration and Reince Priebus, I do not 
think he was lying. And does it not--are you comfortable with 
your nomination being described in such transactional terms?
    Judge Gorsuch. Senator, there is a lot about this process I 
am uncomfortable with, a lot. But I am not God. No one asked me 
to fix it. I am here as a witness, trying to faithfully answer 
your questions as best I can, consistent with the constraints I 
have as a sitting judge.
    Here to answer questions about my qualifications and my 
record.
    Senator Franken. I have it. Well, I find it unsettling that 
the administration is talking about--the chief of staff is 
talking about the Supreme Court that way. But I want to get 
back to the panel at CPAC.
    After Mr. Priebus discussed your nomination, Steve Bannon 
talked about the President's agenda. He described three 
priorities, and one of them was ``the deconstruction of the 
administrative state.'' Now here is what Mr. Bannon meant by 
that.
    He said that regulation was a problem from his perspective. 
``Every business leader we have had in is saying not just 
taxes, but it is also regulation.'' He said that if you look at 
the President's appointees, ``They were selected for a reason, 
and that is deconstruction. The way the progressive left runs 
is if they cannot get it passed, they are just going to put in 
some sort of regulation in an agency. That is all going to be 
deconstructed.''
    Taking Steve Bannon at his word, do you think only Cabinet 
appointees were selected to bring about this deconstruction, or 
do you think the White House also sees a role here for its 
judicial nominees?
    Judge Gorsuch. Senator, respectfully, I believe that is a 
question best directed to Mr. Bannon.
    Senator Franken. He is not here. I am just quoting him. 
That is all.
    I think the White House does see judges as a part of this 
deconstruction, and I think that they are seeing your 
nomination as an important step toward achieving this goal. You 
have shown a willingness to disregard agencies' interpretations 
of statutes. You did that in TransAm Trucking with a Department 
of Labor regulation, for example.
    You have done it in other cases as well, and in August, you 
wrote that concurrence to your own unanimous opinion in which 
you describe Chevron, the Supreme Court's landmark 
administrative law case, as ``permitting Executive 
bureaucracies to swallow huge amounts of core judicial and 
legislative power.'' You wrote, ``Maybe the time has come to 
face the behemoth.''
    Now generally speaking, as we have discussed, Chevron 
provides the courts should defer to an agency's interpretation 
of the Federal laws that it is tasked with administering. When 
Congress passes laws that require agencies to implement them, 
say, by issuing safety standards for children's toys or rules 
to ensure that pharmaceuticals or medicines are safe, those 
agencies turn to experts to develop those policies, experts 
like scientists at the FDA, for example.
    And I think that is a good thing. We want experts doing the 
work. What we Senators do not want to be doing is deciding how 
much lead can be in your water or what the distance in the 
slats are in a baby's crib. I do not trust Senator Coons to do 
that.
    [Laughter.]
    Senator Franken. Chevron provides that when agencies do 
that, courts should be wary of stepping in to overrule them 
without a good reason. This is--Scalia agreed with Chevron.
    But I am concerned that this administration sees common 
sense health and safety rules as a burden on big business, and 
I am concerned that they want to appoint pro-corporate judges 
who are willing to substitute their own judgment on these 
matters for those of experts. Do you believe that Chevron was 
wrongly decided?
    Judge Gorsuch. Senator, I am a Circuit Judge. I do not tell 
my bosses what to do. I do, when I see a problem, raise my hand 
and tell my bosses I see an issue here. And I did in that case 
not because of any big corporate interest, but because of what 
happened to Mr. Gutierrez, an undocumented immigrant to this 
country.
    And the whipsaw that he was placed in by a change in law 
affected by an administrative agency, a bureaucracy, overruling 
a judicial precedent and telling him he now had to wait not 10 
years out of the country, but 14, something like that.
    And Senator, that is part of my job to say these things 
when I see problems like that. It is a due process problem I 
saw, and no one, Senator, is suggesting that scientists should 
not get deference, or chemists or biologists. Section 706 of 
the APA is quite clear that on facts----
    Senator Franken. Well, you want to address this behemoth, 
and that suggests that the comments made by Mr. Priebus and Mr. 
Bannon know exactly what they--what you think about these 
issues. And I think some of my colleagues on the other side of 
the aisle do as well.
    This is a big deal. During the entire Fourteenth Congress, 
Chevron deference was mentioned only twice on the Senate floor. 
But between the announcement of your nomination on January 31st 
and last week, that decision was mentioned 30 times by 4 
different Senators. Each of those four Senators discussed the 
case while speaking in support of your nomination. Three of 
those Senators are Members of this Committee.
    So I know you are choosing your words very carefully, and I 
know you are trying not to signal how you might rule in certain 
cases, but I think some of the signals have already been sent.
    Thank you.
    Chairman Grassley. Senator Sasse.
    Senator Sasse. Thank you, Mr. Chairman. Judge, I--you 
mentioned that there are a number of things about this that 
have been disappointing to you in the process. I am 
disappointed in Senator Cruz partly because he stole a lot of 
my originalism plan of questioning, but also because he went to 
mutton busting.
    [Laughter.]
    Senator Sasse. I was convinced that I was the only guy that 
had mutton busting in today's pool. So, my wife also sent me a 
text a little bit ago and said, and I am sure she did not 
expect me to read it, but how in the world is Gorsuch able to 
go so many hours at a time without peeing.
    [Laughter.]
    Senator Sasse. I will not make you answer, but the SCOTUS 
bladder is something the whole country stands in awe of. You 
are over halfway through your 11 hours today, so 
congratulations.
    Judge, let us do biography for just a second. You are a 
father. Remind me of the ages of your children.
    Judge Gorsuch. Boy, I do not even know what to say now.
    [Laughter.]
    Judge Gorsuch. You really caught me off guard there, 
Senator Sasse.
    Senator Sasse. You are welcome.
    Judge Gorsuch. My daughters are 17 and 15.
    Senator Sasse. Okay. So, besides fishing, have they ever 
played sports?
    Judge Gorsuch. Oh, my goodness, yes.
    Senator Sasse. Have you ever gotten to a Little League game 
early, pulled the umpire aside in the parking lot, and asked 
him or her to commit in advance that they will decide the games 
for the underdog?
    Judge Gorsuch. No, but I think some of my buddies have.
    [Laughter.]
    Senator Sasse. Have you--have you ever asked a referee 
underneath the zebra stripes of their jersey to wear your kid's 
Little League jersey as the undershirt, the referees?
    Judge Gorsuch. No, it would not have helped any. My kids 
were pretty rotten at basketball.
    Senator Sasse. We are obviously not going to pursue this 
very far, but I do want to make sure that everybody at home 
knows a little bit of what has been happening in the room over 
the course of the last six or 7 hours, because some of my 
colleagues are asking a bunch of tough questions that are 
really important for you to have to answer. At the same time, 
there are a whole bunch of questions that have been asked today 
that are really asking you to take your legal career and your 
legal ethics, and set them aside, and play politician on TV 
today. And that really is not your job.
    And some of this questioning really has not been a fruitful 
use of our time. It is well meaning to talk about the outcome 
objectives of a whole bunch of these cases, but I would submit 
that it is dead wrong. I want to give you just a couple of the 
questions we have heard earlier today at different times.
    ``How can we have confidence that you will not be for the 
big guy?'' At another point, ``how can we know--how can we know 
that you feel for the little guy?'' This sounds noble, but it 
is fundamentally a corruption of what the judge's job is. To 
seek assurances from you like this is like seeking assurances 
from a referee before the game that they will pledge to a 
certain outcome before the tip off.
    If the law is wrong, and I am somebody who believes that 
lots of our laws are wrong and overreaching around here, the 
question should be directed back at us on this panel and on 
this dais why we do not fix the laws that are wrong. We would 
not be asking you as the judge to commit that when our laws are 
clunky, and bad, and in conflict, you will divine how to change 
the law on the fly. That is not the oath that you will take, 
that is not the Constitution that we have all taken an oath to 
and pledged to, and it is not what the American people want.
    So, frankly, I applaud you for your perseverance and 
patience with us as we have continually gone down a path of 
asking you to answer questions, many of which are fundamentally 
political questions, and that you should not be answering, and 
that we should not be asking. So, thank you for your endurance.
    I would like to go back to something that is a little more 
productive for the Committee, and, frankly, I think productive 
for the moms and dads at home. And I would like to talk a 
little bit more about the judge's robe. We both spoke about it 
yesterday, I would note, with no coordination. It turns out we 
both just read your stuff from the past. And the judge's black 
robe reminds us of the meaning of your job. It reminds the 
plaintiffs that stand before the court, it reminds the judges 
as he or she dresses in the morning, and it reminds our kids or 
it gives us an opportunity to teach our kids. And you have 
spoken eloquently about it in the past, but I think it is 
fitting for you to unpack it a little bit more in light of some 
of today's questioning.
    Earlier today you were implored to tell us a little bit 
more about what is in your heart. And I think that is 
fundamentally a confusing question for us to be asking of a 
judge except insofar as we would ask you, are you a man of your 
word, who, when you take an oath, in your heart are pledging to 
keep your word and to keep your oath. And I think we all know 
that the answer to that question is yes, and it is why you are 
going to be confirmed, because people believe you to be a good 
and fair-minded judge.
    But every American in a more fundamental way needs to know 
what is in the heart of legislators because we are supposed to 
speak for the hearts, and minds, and hopes, and dreams of 320 
million American people. We are supposed to cast a vision for 
the country, those things we want to conserve and preserve, and 
those things that we should argue about and change. We are the 
ones who are supposed to weigh the pros and cons of various 
legislative options that are available to us.
    Judges, on the other hand, are supposed to be following the 
law impartially. Your heart is supposed to be inclined neither 
toward the rich, nor toward the poor, nor toward Black nor 
White, nor people with big bank balances or small bank 
balances. But your heart is supposed to be your commitment to 
the law as you find it.
    So, let us engage in a little thought experiment. Thirty or 
40 years from now when you retire and hang up your robe, and 
you are out fishing or sitting on the front porch of your 
surely lovely home, and you look back over your career, how 
will you know if you were a good judge?
    Judge Gorsuch. Senator, that is a question I ask my kids 
every semester when I teach ethics, finish the semester with 
asking them to spend 5 minutes writing their obituary. They 
hate it. They think it is corny, and it might be a little 
corny. And then I ask them if they will volunteer to read some 
of them, and people want to be remembered for the kindnesses 
they showed other people by and large.
    And what I point out to them--what I try to point out is it 
is not how big your bank account balance is. Nobody ever puts 
that in their draft obituary, or that they billed the most 
hours, or that they won the most cases. It is how they treated 
other people along the way.
    And for me, it is the words I read yesterday from Increase 
Sumner's tombstone. And that means as a person I would like to 
be remembered as a good dad, a good husband, kind and mild in 
private life, dignified and firm in public life. And I have no 
illusions that I will be remembered for very long, none, if 
Byron White is nearly forgotten, as he is now as he said he 
would be. I have no illusions I will not last 5 minutes. That 
is as it should be.
    ``The great joy in life,'' Shaw said, ``is devoting 
yourself to a cause you deem mighty before you are thrown on 
the scrapheap.'' An independent judiciary in this country, I 
can carry that baton for as long as I can carry it, and I have 
no illusions I am going to last as long as you suggest. And 
that will be good enough for me.
    Senator Sasse. Well said. And would it be that more who 
taught legal ethics, and business ethics, and medical ethics, 
and theological ethics, would assign their students the 
obituary challenge. We might live less in the soundbite culture 
and more in a way that thinks about service, and duty, and 
calling. It is a great assignment.
    Neither Cory Gardner nor Michael Bennet have to fear that 
you are going to challenge them for a Senate seat from Colorado 
in the future?
    Judge Gorsuch. Senator, I admire them both, and I think it 
is a wonderful fact they were both here to introduce me, and 
that they follow a tradition, the West, where Senator Salazar 
and Senator Allard, Republican, Democrat, introduced me last 
time around. And, frankly, 10 Circuit nominations, thanks to--
he is not here at the moment--but Senator Hatch cares about the 
Tenth Circuit, Republican and Democrat, generally going very 
smoothly.
    And it shows. It shows that you all have picked--I do not 
know how it works. I do not know how this crazy process works, 
but the colleagues you have selected for me over the years are 
wonderful colleagues, wonderful people. And I have been richly 
blessed to spend 10 years with every one of them.
    Senator Sasse. So, when you distinguish between the 
rearview mirror of a Justice later or a judge later in life 
looking back, and the rearview mirror of a Senator, we have 
different callings. And so, I think, without putting words in 
your mouth, you are going to be able to say that you can be 
proud of your career, even if you failed to advance your policy 
preferences in this calling.
    But unpack that for the American people. Help them 
understand how the retrospective look of a Senator and her or 
his career is different than a judge's retrospective look.
    Judge Gorsuch. I suspect, but I do not know because I have 
not sat where you sit. I would not presume to be able to walk 
in your shoes. But I presume gingerly that you will look back 
on your career and say I accomplished this piece of legislation 
or that piece of legislation and changed the lives of the 
American people dramatically as a result.
    I was fortunate enough to serve as a page in this body many 
years ago. It is an experience every young person should have. 
It will give them a lifelong love of this body. It the greatest 
deliberative body in the world. I believe that even sitting 
here.
    A judge looking back, the most you can hope for is you have 
done fairness to each person who has come before you, decide 
their case on the facts and the law, and that you have just 
carried on the tradition of a neutral, impartial judiciary that 
each person can come to with some sense that they are going to 
receive a fair hearing for their disputes. That is what we do. 
We just resolve cases and controversies. And lawyers are 
supposed to be fierce advocates, and I was once a fierce 
advocate for my clients. But a judge is supposed to rule 
impartially, to listen courteously, and rule impartially.
    So, frankly, my legacy should look and will look a lot 
smaller than yours, and that is the way the design of the 
Constitution works.
    Senator Sasse. In an earlier line of question, you were 
asked about 2004, and the presidential election, and your 
participation in it. I just want to clarify, you were not a 
judge in 2004.
    Judge Gorsuch. Goodness no, Senator.
    Senator Sasse. Correct.
    Judge Gorsuch. I was a private attorney.
    Senator Sasse. And when you went on to the bench, what 
changed in your life?
    Judge Gorsuch. Justice Jackson says, ``A robe changes a man 
or it should.'' Now, I am sure you would add ``woman'' today, 
too. A psychological change comes over that person. He was the 
fiercest possible Advocate Attorney General for FDR, and he 
wrote a dissent, as we have talked about earlier, in Korematsu. 
He wrote the Steel Seizure concurrence. He was a brave man. 
That is a judge's judge, calling it like he sees it in each 
case as it comes, and writing clearly so that people can 
understand exactly what he is up to, and he is not hiding 
behind jargon, legalese, or four million footnotes.
    That is the best I can do on that.
    Senator Sasse. Senator Cruz earlier asked you a series of 
questions about originalism, and I appreciated your--I will 
probably paraphrase you inartfully. But you said you worry that 
the labels sometimes put us into boxes that eliminate the 
requirement or reduce the requirement we have to actually 
engage each other's ideas. So, I will not pin you down hard on 
the term ``originalism.'' But many have critiqued originalism, 
including in some statements yesterday and today here, as 
backward focused, or ``too rigid'' in adapting to our changing 
culture.
    Do you believe that originalism is just one judicial 
philosophy among many, or is it a description of what judges 
do?
    Judge Gorsuch. I am with Justice Kagan on this. I think it 
is what we all want to know. I do not know a judge who would 
not want to know what the original understanding is of a 
particular term in the Constitution or a statute. That is 
information that would be valuable to any judge and considered 
by a judge.
    Again, in Heller, for example, Second Amendment case, 
deeply thoughtful opinions by both sides on that question. It 
does not necessarily decide the case, but it provides us a 
language to talk to one another in which we are trying to seek 
something outside of ourselves, outside of our own personal 
beliefs, about what the Constitution or the statute at hand 
means.
    We are trying to do it in a way that is neutral and that we 
can say provides fair notice to those whose lives we are 
affecting, so that we are interpreting the law in a way that we 
can say they should have known. They were on notice. We are not 
putting a person in prison willy nilly based on our 
preferences. We are taking away their liberty, but we are 
preserving it in accordance with the Constitution as it was 
written.
    Senator Sasse. I would like to talk a little bit about 
cultural catechesis, or civics. As you and I have discussed in 
previous meetings, I am of the view that we have a crisis. We 
are not passing on the meaning of America to the next 
generation. Something like 40 percent of Americans under age 35 
tell pollsters that they think the First Amendment might be 
dangerous because you might use your freedom of speech to say 
something that would hurt somebody else's feelings.
    Actually, that is quite the point of America, right, that 
there are all sorts of things people might differ about and 
they might want to argue about. Our Founders came here, and 
they did not have the same views of heaven and hell and how you 
achieve salvation. And they came together, and they forged out 
of the many one polity where we have a shared framework for 
ordered liberty, where we protect each other's rights, even to 
be wrong about fundamental things, wrong in our own views as we 
wrestle with these things.
    But we debate big and important questions in Washington, 
but, more fundamentally, in Boulder, or in Fremont, or in 
Omaha, Nebraska. And you do it in the town square, and do it at 
the church or the synagogue, you do it in the bar. And you 
fight about questions, but fight free from violence, and so, we 
protect each other's rights to argue and to dissent.
    And we are not explaining that First Amendment to the next 
generation. And I believe that all three branches--the 
legislative, Executive, and judicial branches--are led by 
people who are taking an oath to a Constitution that is about 
limited government. It is about principled pluralism. It is 
about intentionally distinguished and divided powers. And I 
think all three branches have an obligation to do some of that 
teaching about civics.
    President Reagan, long before he was a Republican 
President, before he was a Republican Governor, when he was a 
Democratic labor union organizer, Ronald Reagan used to say, 
``In any republic, you are always only one generation away from 
the extinction of freedom.'' If we do not pass along the 
meaning of America to the next generation, it means the next 
generation of our rulers are not going to understand why we 
have this beautiful inheritance that we have in a 
constitutional system of limits.
    As a judge on the Tenth Circuit, and soon to be as a 
Justice on the Supreme Court, can you explain what you think 
your responsibilities and freedoms are to teach civics to the 
American people?
    Judge Gorsuch. Senator, as a judge on the Tenth Circuit, I 
have tried hard to do that, literally teaching class, speaking 
where I am invited when I am invited, going to law schools, 
talking to students, and visit the courthouse, and it has been 
a great privilege and a joy.
    I think here of Justice O'Connor--Sandra Day O'Connor--and 
when she retired she did an awful lot of this. She has done an 
amazing amount of work. And I do think that there is a need to 
remind people how to talk to one another, how we talk to one 
another, and more fundamentally about how brilliant the design 
of this Constitution is. Not perfect, but e pluribus unum. From 
many, one.
    And we are all not Republican judges, Democratic judges. We 
are judges, and I think we do have an opportunity, and that is 
one of the things I look forward to as a Justice. My little 
talks might be a little better attended on civics, and I hope 
to do that.
    Maybe that is a Western thing, I do not know, or a 
MidWestern thing, Senator. But I really believe in this 
country, and I am optimistic about its future. I see the young 
people. I teach them. I get law clerks that really care about 
this country, and they give me hope every day.
    Senator Coons and I share the distinction of being Truman 
Scholars, and we go through the selection process of picking 
the next crop every year. Harry Truman did not want a monument 
as a memorial here in Washington. Think about that, the 
humility of that. Instead, he wanted a living monument, a 
scholarship to young people who go on to do public service.
    Well, you got two of them here. And every year when I go do 
that selection process, I do not know about Senator Coons, but 
it is one of the best days of the year for me because I see 
young people full of enthusiasm for this country and anxious to 
make it better.
    I look forward to working, if I am so fortunate to be 
confirmed, on just this topic, Senator, with you, with Senator 
Coons, and anyone else.
    Senator Sasse. Talk a little bit about the role of writing 
in the life of a Justice. Justice Scalia was obviously a writer 
with a flourish. You have discussed having been tapped in the 
past to participate in speech writing. Talk about the purposes 
of both concurring dissents and traditional dissents, and what 
you think the objectives are at the appellate level in your 
opinions, and is there a distinction when you are on SCOTUS.
    Judge Gorsuch. When I sit down to write an opinion, people 
sometimes ask me who I am writing for. I am writing for myself. 
I am trying to convince myself that I have it right. And I go 
through a lot of drafts, and I sometimes, as my law clerks 
know, change tack as I am--I am drafting. I do not know how 
many drafts I have gone through on some opinions, 30? More.
    Senator Sasse. He actually said 130, but whatever.
    [Laughter.]
    Judge Gorsuch. Because I am trying to get it right, and I 
find I test ideas as I write. It is one thing to say to 
somebody else, oh, go write this up. It is another thing to 
have to sit down and write it yourself. And it exposes holes 
and gaps in your own thinking, causes you to question yourself, 
wonder whether you have it right.
    So for me, it is an exercise of getting it right, and 
persuading myself at the end of the day, and writing in a 
language that persuades me. A lot of gobbledygook, and us 
lawyers are guilty of a lot of gobbledygook, that does not 
persuade me. I want to know through a clear line. I want to be 
able to see my argument or my topic sentences.
    And maybe it is Sister Rose Margaret, I do not know, but I 
want to see the argument flow. I want to see how it fits 
together, and then I want it torn apart by my law clerks who 
tell me I am wrong. So, it is an iterative process because at 
the end of the day, that is what it is all about.
    And then it is about the test of my colleagues, and I take 
their comments very seriously. I believe in collegiality. I 
believe that two heads, three heads, nine heads are better than 
one.
    And so, I think a good judge cannot have too much pride of 
authorship. He has to accept criticism, constructive criticism, 
and try and incorporate or deal with that criticism. Maybe that 
is why my opinions have attracted relatively few dissents, I do 
not know, but I take collegiality very seriously.
    As to writing separate opinions, I do not do it very often, 
and when I do it, it is usually because I am just stuck. I 
might be wrong, but I am just stuck. Something does not seem 
right to me, and I have tried to discuss it with my colleagues, 
I have tried to work it out. I have bent as far as I can bend, 
but at the end of the day I have--I take the oath to follow the 
law where it leads me.
    And I try hard to reach a collegial consensus, but when I 
cannot, I write up what I can as respectfully as I can, and 
usually in as few words as I can, a dissent or a separate 
concurrence. Sometimes because it is back bound, but it is just 
where I am stuck. Sometimes it is because I see an issue that 
my bosses need to be aware of, like any good employee. Hey, 
boss, you might want to think about this one, it seems kind of 
tough to me. And I think that is part of the process of a good 
judge.
    Senator Sasse. I am a historian by background, and when I 
was writing my dissertation to your audience question, one of 
my advisors just kept pounding me saying, I do not know who you 
are writing for here, it seems scattered all over the place. 
And he finally persuaded me to put a picture of my aunt on the 
farm next to my computer, and she is smarter than I am, but she 
knows nothing about my topic. And he said, if you recognize 
that your audience should be smarter than you, but ignorant of 
the subject matter, you are finally going to find your voice.
    Judge Gorsuch. Yes.
    Senator Sasse. Is there something analogous in the writings 
of the Supreme Court where you are not just writing for other 
Justices, but you have an obligation to write for the American 
people?
    Judge Gorsuch. I think if you are sitting and writing your 
dissertation for yourself with a picture of your aunt, you are 
right on target, because I think if I am writing for myself and 
trying to persuade myself, then I figure everybody will be able 
to at least track what I did. Maybe not agree with every 
opinion, every single one of the 2,700 decisions I have issued, 
but they will understand why I have where I have. I was candid 
about it. I did not hide. I stood up. I was clear. I was 
honest. I was forthright, plain-spoken.
    And you can judge my opinions for better or worse on their 
merits. And I think that is what a good judge does is candor, 
the duty of candor.
    Senator Sasse. We finished voting a day early last week, 
and so a lot of us were back in our States traveling and doing 
town halls, and Rotary clubs, and schools. I ran into three 
different teachers who planned to use these hearings on C-SPAN 
to teach civics.
    I wonder if you could help those teachers explain, as one 
of them asked me, about why we have a Bill of Rights. To remind 
the American people, the Constitution is a negative document. 
It is not the Government giving us freedoms. It is us giving 
the Government a limited set of enumerated powers, and 
originally there was no Bill of Rights, and as a part of a 
compromise, we added one. Today most people when they think 
about our Constitution think of the Bill of Rights first.
    Why do we have a Bill of Rights, and what fundamental 
difference would it make if we did not have one?
    Judge Gorsuch. That is a big question. For us adults----
    Senator Sasse. The Chairman said I could have an extra 
hour, so take your time.
    [Laughter.]
    Judge Gorsuch. Yes, I have 4 minutes and 19 seconds on 
that. That is a big question for us adults who are where we 
are. It is a big question for my middle school- and high 
school-age kids.
    The Constitution as a negative document, the theory behind 
it, in short order, was to divide liberty--to divide power the 
better to protect liberty. That is the theory, that if you put 
all power in one set of hands, are going to get tyranny. And 
our Founders had too much evidence of that in their own time.
    It is kind of a hard-won inheritance, part Enlightenment 
theory, right, part on the battlefield. They saw what it was 
like to have power amalgamated in one set of hands, dangerous, 
so they divided it. They divided it three ways on our--in our 
Federal system. You, Article I, write the laws, and it is 
tough. It is supposed to be tough to protect liberty. We do not 
just have one house. We have two houses.
    And then, it has to be signed by the President, too. Really 
hard. Bicameralism and presentment is designed to make 
legislation difficult the better to protect liberty. The 
President's powers are to execute the laws, not make them, not 
adjudicate disputes.
    Our role is to decide cases and controversies between the 
people under law as it is, not as we would wish it to be. We 
are not legislators. We are judges. The legislative power is 
invested in this body.
    That is not all. Then we divide power in a way that was 
quite unique--well, unusual: Federalism. So, you can think of 
separation of powers as having a horizontal axis and a vertical 
axis so that the Federal Government has certain enumerated 
powers and authorities. And what the Federal Government does 
not enjoy, the States do as sovereigns.
    This country as well, we have Tribes which also bear 
sovereignty in our part of the world, and bear recognition as 
such. And I am glad to have the opportunity to recognize that 
fact here as a Westerner.
    So, we have the separation of powers between horizontally, 
vertically. And that was not thought enough to protect liberty. 
The drafters of the Constitution, many of them thought that 
would be more than sufficient, that, in fact, was the main way 
to preserve liberty.
    But our Founders were very suspicious and very jealous of 
their liberties, so they added the Bill of Rights, and they 
enumerated 10 of them, as you know, starting with freedom of 
speech, the freedom of religion, no establishment of religion, 
right to bear arms. The Third Amendment, which I am glad we do 
not litigate much. I wonder how many of the high school kids 
now watching know what the Third Amendment is about. Go look it 
up.
    [Laughter.]
    Senator Sasse. And get 20 bucks out of your pocket at the 
same time.
    Judge Gorsuch. So, that is what the Bill of Rights is 
about--it is ensuring not just these negative protections, but 
some positive, affirmative guarantees against governmental 
encroachment.
    Senator Sasse. Thank you. I want to ask a few more 
questions about the Bill of Rights, but I will save it for my 
next round since we are at 40 seconds remaining. Thank you, 
sir.
    Chairman Grassley. Thank you. Senator Coons.
    Senator Coons. Thank you. Chairman Grassley, I would like 
to ask unanimous consent to enter into the record a letter from 
19 different faith-based and secular organizations expressing 
concerns about Judge Gorsuch's rulings on the church and state 
and free exercise.
    Chairman Grassley. Without objection, it is entered.
    [The information appears as a submission for the record.]
    Senator Coons. Thank you. Good afternoon, Judge.
    Judge Gorsuch. Hi, Senator. Good to see you.
    Senator Coons. It has been a very long, and hopefully very 
informative and instructive day. And I will suggest----
    Chairman Grassley. I was supposed to announce something. We 
will not take this away from your time, but I want everybody to 
be aware that after you get done, Senator Coons, we are going 
to take a 10-minute break.
    Senator Coons. Thank you, Mr. Chairman. The Third 
Amendment, some would suggest, was rooted in the Delaware 
Constitution, so although obscure, it is still beloved by some 
in the first State.
    Let us have a conversation, if we could, about religious 
free exercise and about liberty interests. There is an enduring 
tension or contest in our history between individual liberty 
and religious free exercise, and the ability of government to 
enact and enforce neutral laws. And I want to better understand 
how you view the proper balance between these competing core 
values. And to that end, I found Hobby Lobby and your 
contribution to it concerning and interesting.
    The case centrally involves access to healthcare coverage, 
including contraception, for about 13,000 employees across 500 
stores of Hobby Lobby, and the religious views of the owners of 
that corporation. And you, Judge, joined the Tenth Circuit 
majority opinion holding that this for-profit business could, 
because of the business' religious beliefs, refuse to provide 
its employees with access to family planning.
    But you went even further than the majority, writing an 
additional concurring opinion emphasizing that the owners of 
Hobby Lobby, the Green family, were entitled to personally 
raise their religious objections, notwithstanding that they 
operated the business through trusts and corporations. In 
coming to that conclusion, you opened your opinion by writing, 
``All of us face the problem of complicity. All of us must 
answer for ourselves whether and to what degree we are willing 
to be involved in the wrongdoing of others.''
    Complicity is not a concept I have seen widely discussed in 
free exercise jurisprudence. Why did you choose to lead your 
opinion with this concept of complicity, and what does it mean 
as we are trying to assess free exercise reins?
    Judge Gorsuch. So, under the Religious Freedom--Senator, 
thank you. Interesting, good question. I mean, this is--this 
is--this is what it is all about. The Religious Freedom 
Restoration Act protects this exercise of sincerely held 
religious beliefs, and affords them the highest protection 
known in American law, strict scrutiny. That is a law that this 
Congress passed because it was not satisfied with the degree of 
protection that the Supreme Court was affording the exercise of 
religious liberty under the First Amendment under Smith.
    This Congress found Smith, written by Justice Scalia, to be 
insufficiently protective of the right to free exercise.
    Senator Coons. If you could, Judge, help me with your 
choice of the term----
    Judge Gorsuch. Yes.
    Senator Coons [continuing]. ``Complicity,'' which does not 
appear in that statute, and had not previously appeared in free 
exercise jurisprudence.
    Judge Gorsuch. Thank you for prodding me along. The point 
is, what is a sincerely held religious belief? The individuals 
there were devout Christians, and as they interpreted their 
religion, it was a violation, a sin, for them to participate in 
any way in signing papers even to allow the provision of 
certain contraceptive devices, those that they believed had the 
effect of destroying a fertilized egg.
    Senator Coons. Right.
    Judge Gorsuch. They were okay----
    Senator Coons. That is exactly--excuse me, Judge, but that 
is exactly why the question of your use of this term 
``complicity'' is so interesting to me----
    Judge Gorsuch. Yes.
    Senator Coons [continuing]. Is that it opens up a very 
broad, very attenuated, very remote connection between 
sincerely held religious beliefs by this devout family, through 
a trust, through a corporation, a for-profit profit 
corporation, to impact the choices and life decisions of 13,000 
people. It is a truly unprecedented decision. If I could just 
quote for a moment----
    Judge Gorsuch. Sure.
    Senator Coons [continuing]. What I suspect is familiar to 
you, the dissent of the Chief Judge in your Circuit, Briscoe. 
She said, ``This opinion was nothing short of a radical 
revision of First Amendment law as well as the law of 
corporations, wholly unsupported by the language of the free 
exercise clause or the Supreme Court's previous free exercise 
jurisprudence.'' She claimed--Judge Briscoe--that there was 
literally no support for the proposition that for-profit 
corporations enjoy free exercise rights in the Supreme Court's 
previous jurisprudence.
    And I am struck by the extent to which the use of the term 
``complicity'' and your description of a substantial burden on 
a sincerely held religious belief opens possibly floodgates for 
litigation on behalf of those who have sincerely held religious 
beliefs. As you mentioned, the issue here was access to family 
planning. There were more than 20 forms of contraception that 
could potentially be covered. There were only a handful--I 
think four--that the Greens objected to.
    Judge Gorsuch. Right.
    Senator Coons. How far does this new concept, this newly 
injected concept of complicity go?
    Judge Gorsuch. Senator, it is not a new concept at all, 
with respect, because in enacting RFRA, Congress revived some 
older free exercise case law----
    Senator Coons. That is right.
    Judge Gorsuch. Much of it written by Justice Brennan. 
Thomas would be a leading example involving, I believe it was a 
Jehovah's Witness.
    Senator Coons. Yes.
    Judge Gorsuch. Okay, who was okay in producing certain 
goods that could be used as armaments, but not others.
    Senator Coons. Right.
    Judge Gorsuch. Complicity in war making was a matter of 
faith that----
    Senator Coons. The key distinction--the key distinction, if 
I could, Your Honor, between Thomas and this was that in that 
case, here is an individual whose deeply held religious belief 
made him say I cannot make turrets for tanks.
    Judge Gorsuch. Right.
    Senator Coons. So, the question is uniformly applicable 
law, unemployment insurance, can he benefit? Fine. But it does 
not in any way implicate others' liberty interests.
    The core concern with the choice to recognize a very large 
multi-billion dollar, nationwide for-profit company, and to 
privilege the religious interests of its owners through the 
legal fiction of a for-profit corporation, as it impacts 13,000 
individuals. That was not the case in Thomas.
    Judge Gorsuch. Senator, respectfully I think we are mixing 
apples and oranges because the first consideration is whether 
we have a substantial burden on a sincerely held religious 
belief. The second is whether the Government has a compelling 
interest, narrowly tailored, to override it. And I think we are 
mixing apples and oranges because on the first one, complicity 
is very much in play, and it is the same in Thomas as it is 
with the Greens.
    How far does my religious faith, your religious faith 
permit us to engage in things that our religion teaches are 
wrong, sinful? That is a matter of religious faith. And, in 
fact, I do not recall anyone doubting or the Government 
disputing that the Greens' religious faith was sincerely held 
on that score.
    Senator Coons. That is right.
    Judge Gorsuch. So, I think it is a given. So, this 
complicity discussion I think, frankly, Senator, is a red 
herring, to mix my metaphors, because everyone accepted it.
    Senator Coons. We have apples, oranges, and red herrings. 
We have a full meal----
    [Laughter.]
    Judge Gorsuch. I know I am mixing--I know it is terrible. I 
would not want to write it down in an opinion. It is terrible.
    Senator Coons. Well, let me--let me take, if I could--let 
me take you to a number of things because several other 
Senators have referenced Hobby Lobby. One of the things that 
Judge Briscoe was saying that was sort of category-shattering 
or precedent-setting was the extension to a for-profit 
corporation, the recognition of a for-profit corporation that 
sells crafts and hobby materials as being a religious 
corporation. Previously only incorporated churches, or 
synagogues, or associations explicitly for--excuse me--
nonprofit religiously affiliated organizations have been 
recognized.
    In the interpretation of RFRA, you choose to define 
``person'' to include for-profit corporations. Help me with why 
you made that move.
    Judge Gorsuch. I would be delighted to, Senator, and thank 
you for the opportunity. I think I would point to a couple of 
things. First, RFRA is a statute, and it uses the term 
``person,'' and it does not define the term ``person.'' And 
when Congress does not offer us a specific definition, we go to 
the Dictionary Act, which Congress has passed for just these 
circumstances.
    And there it says persons include corporations. That is the 
law as Congress wrote it and if Congress wishes to change the 
law and say only natural persons enjoy the rights of RFRA, I am 
a judge. I follow the law. But the law as drafted does not 
distinguish between natural persons and corporations. It 
includes them both.
    And the Government, Senator, if I might just finish, 
conceded, as I recall--and my recollection may or may not be 
great on this, but as I recall conceded that nonprofit 
corporations can exercise religion.
    Senator Coons. That is right, and that is exactly why this 
was seen as such a departure. There was a long-settled 
expectation that religious free exercise rights adhere to 
individuals, living, breathing people, and to nonprofit 
corporations. It was a big leap for it to for the first time 
apply to for-profit corporations.
    And I appreciate that the opinion of the majority and your 
concurrence referenced the Dictionary Act, but the Dictionary 
Act actually says on its own terms that it applies unless the 
context indicates otherwise.
    Judge Gorsuch. Right.
    Senator Coons. And the reality is, as I think one of the 
dissents points out, all Congress was intending to do, as 
expressed by a number of Members of Congress, was to simply 
restore strict scrutiny, not to open up a whole new line of 
free exercise rights for for-profit corporations.
    So, I think the context clearly indicated otherwise. And to 
simply say all I did was pull a dictionary off the shelf, look 
it up, ``person'' can include corporations, we are done with 
the analysis, is in some ways tendentious, because the idea 
that a for-profit corporation could have religious free 
exercise rights was nowhere in the earlier case law that 
Congress explicitly intended to be the narrow purpose of RFRA.
    So, does Congress' intent when it passes a statute, its 
clearly stated intent, have any relevance to your 
interpretation, especially where something like the Dictionary 
Act actually urges you to look at the context?
    Judge Gorsuch. Senator, I offer you two thoughts on that. 
First, as I recall sitting here, and I have to go study my 
books, but the Supreme Court in an earlier First Amendment case 
did recognize a challenge by an Orthodox Jewish shopkeeper to 
Sunday closing laws.
    Senator Coons. That is right.
    Judge Gorsuch. That was a corporation, for-profit. So, 
respectfully, I am not sure it is accurate to say there is no 
precedent for it. Second, I would say to you the position you 
are advocating is a fine position, respectable position. It is 
a good position. It was adopted by precisely two Justices of 
the Supreme Court, and only two.
    Senator Coons. So, the question I want to ask you now is, 
at what point, given this newly adopted, fairly broad 
interpretive standard, when do we stop deferring to an 
employer's religious beliefs when they conflict with generally 
applicable laws of neutral meaning? When do we allow the right 
of one to implicate the others?
    I think it was Justice Holmes who was attributed to have 
said that ``your right to swing your arm stops at the end of my 
nose.'' And part of what I think made Hobby Lobby striking to 
so many was that the choices of 13,000 individuals about their 
method of family planning were overridden by the sincerely held 
religious beliefs of a very successful family.
    So, I am looking for how you find a limiting principle in 
this new field? What is the limiting principle now?
    Judge Gorsuch. Senator, respectfully, I do not believe that 
is accurate either because all the Court held was that the 
Government had to come up with another alternative to provide 
the contraceptive care it wished to provide. The Court 
acknowledged--the Supreme Court acknowledged that there was a 
compelling interest in providing the contraceptive care, and 
simply said that an accommodation could be reached that did not 
involve the Greens or require them to give up their sincerely 
held religious beliefs, much as had been done for churches----
    Senator Coons. That is right.
    Judge Gorsuch. And hospitals, and lots of other entities. 
And the Government could not explain why it could not 
accommodate other entities, like Hobby Lobby, as well or Little 
Sisters of the Poor.
    Senator Coons. But if I might just briefly, Judge, 
strikingly to me in the Tenth Circuit opinion in which you 
participated, you did not recognize as a compelling interest 
gender equity in providing health insurance to millions. The 
Supreme Court did. They balanced these equities differently. 
Why did you not think that was a compelling interest to provide 
access to healthcare for millions?
    Judge Gorsuch. Senator, I think it was just a matter of 
what had been--what the record was in that particular case 
before us.
    Senator Coons. That is also a striking point for me. This 
was a preliminary injunction.
    Judge Gorsuch. Correct.
    Senator Coons. It is a significant groundbreaking opinion 
where one of your colleagues, one of the other Tenth Circuit 
Judges, said we really should not be deciding something of this 
import on a PI. We ought to be remanding to develop the facts 
below. The facts were not really well explored. And the larger 
point I am trying to make is that I think this could lead to 
some very troubling applications.
    So, let us just take a minute and look at a few of the 
contours of what this, I think, precedent-setting decision 
might mean. So, let us imagine the Greens were from a different 
religious perspective, if they were Scientologists, for 
example, who reject the use of antidepressants, or Jehovah's 
Witnesses, who reject the use of blood transfusions, or 
Christian Scientists, who reject really modern medicine largely 
altogether. Could their sincerely held religious beliefs as 
Scientologists, or Jehovah's Witnesses, or Christian Scientists 
lead to the conclusion that 13,000 employees could reasonably 
be denied access to antidepressants, or to blood transfusions, 
or to healthcare whatsoever?
    Judge Gorsuch. No, Senator, not necessarily. It does not 
mean that at all. All it means is the Government under the law, 
as passed by this Congress with overwhelming bipartisan support 
at the time----
    Senator Coons. Well, the ACA was not passed with 
overwhelming bipartisan support.
    Judge Gorsuch. I am sorry; speaking of RFRA.
    Senator Coons. Right, the accommodation is in the ACA.
    Judge Gorsuch. Oh, and the ACA, you can override RFRA any 
time you want. Congress could say RFRA does not apply to the 
ACA. That is another alternative. You can abandon RFRA. You can 
say it does not apply to this particular statute. You can say 
it applies only to natural persons. You can say it does not 
apply to contraceptive care. Congress controls this decision, 
Senator.
    Senator Coons. That is right.
    Judge Gorsuch. It is your decision. It is not mine, with 
all respect. We are just trying to implement what you have 
asked us to do.
    Senator Coons. So----
    Judge Gorsuch. And, Senator, on your hypotheticals, okay?
    Senator Coons. Yes.
    Judge Gorsuch. Justice Brennan wrote these First Amendment 
cases that you are seeking to revive, I would remind you that, 
all right?
    Senator Coons. Yes.
    Judge Gorsuch. Justice Brennan, all right? And the fact of 
the matter is sometimes the Government can prove a compelling 
interest, and then it has the most narrowly tailored way to get 
there, and sometimes it cannot. And each case has to be taken 
on its facts in the particular context in which it arises.
    Senator Coons. Well then, help me--help me walk through, if 
you would, given we already know how you draw the compelling 
interest line in this particular instance of access to family 
planning or contraception. How else might you weigh these 
equities or draw these lines? If the Greens, for example, in 
Hobby Lobby knew that several of their employees would spend 
their paychecks on other things they might say were immoral, 
like gambling or prostitution. Could they refuse to endorse 
their paychecks?
    Judge Gorsuch. Senator, it would--it would go back--we 
would do the analysis.
    Senator Coons. Right.
    Judge Gorsuch. The same analysis. Do they have a sincerely 
held religious belief? Sometimes people do not. I have had 
claims, for example, of individuals----
    Senator Coons. But in this instance, would you not agree 
that their sense of the complicity that you referenced in your 
opinion would likely apply?
    Judge Gorsuch. It depends.
    Senator Coons. Even though it is very attenuated----
    Judge Gorsuch. Well, Senator----
    Senator Coons [continuing]. The choice of their employee to 
spend their money in a way they disapprove, is not that 
different from the choice of the employee to choose among two 
dozen forms of contraception, one of which they strongly 
disapprove?
    Judge Gorsuch. Senator, I think it depends on the facts of 
the case. So, for example, I have had a case where a number of 
people came before us and said we have a sincerely held 
religious belief that marijuana is God.
    Senator Coons. Okay.
    Judge Gorsuch. It turned out it was a drug distribution 
ring, all right?
    Senator Coons. Right.
    Judge Gorsuch. And what they really worshipped was the 
almighty dollar.
    Senator Coons. Many of us have teenagers at home watching.
    Judge Gorsuch. Well.
    [Laughter.]
    Judge Gorsuch. And they were really just trying to make a 
buck, okay? And the District Court found that was not a 
sincerely held religious belief. So, you can get off the train 
there. That is one place where you may get off the train in 
your hypothetical.
    You have another place to get off the train. It is 
substantial burden.
    Senator Coons. Right.
    Judge Gorsuch. Another place is compelling interest by the 
Government. Another place is narrowly tailoring. So, there are 
four steps in the process, and you have to go through all four 
of them as a good judge with the facts of each case as it 
comes. And, Senator, again, it is all statutory. You could 
abolish it tomorrow.
    Senator Coons. Well, let us take an example that I think 
was central to a lot of this analysis, United States v. Lee. It 
is an older case, 1982. It was a unanimous case. It is one 
where an Amish businessman declines to pay for Social Security 
taxes----
    Judge Gorsuch. Right.
    Senator Coons [continuing]. Not just for himself, but for a 
few of his employees. And the Court rejected his claim because 
the restriction on religious freedom, in their view 
unanimously, was essential to accomplish an overriding 
governmental interest. Is Lee still good law?
    Judge Gorsuch. I think Lee would be the sort of law you 
look at when you are applying RFRA, absolutely.
    Senator Coons. Because RFRA simply restored----
    Judge Gorsuch. Yes.
    Senator Coons [continuing]. The strict scrutiny standard 
that Lee was decided under.
    Judge Gorsuch. The Religious Freedom Restoration Act, 
exactly. So, that is a very good example, Senator, of where the 
Government was able to prove compelling interest in their own 
tailoring, yes.
    Senator Coons. Because the ability to have a Social 
Security scheme nationally that is sustainable is a compelling 
interest.
    Judge Gorsuch. Yes.
    Senator Coons. But a nationwide plan to provide access to 
healthcare is not.
    Judge Gorsuch. No, Senator. Again, I think we are mixing 
our apples and oranges because the Government in the ACA was 
spotted the compelling interest. The problem was the narrow 
tailoring. You could get there without forcing the Greens to do 
something their religion prohibited. So, it was not like the 
system of Social Security, which depends upon everyone's 
participation. That was the distinction the Supreme Court drew.
    Senator Coons. Let me just quote, if I could, Justice 
Scalia, who addressed this same issue in Employment Division v. 
Smith. And he said, ``it is precisely because we are a 
cosmopolitan Nation made up of people of every conceivable 
religious preference, and precisely because we value religious 
divergence, that we cannot afford the luxury of deeming 
presumptively invalid, as applied to the religious objector, 
every regulation of conduct that does not protect an interest 
of the highest order.''
    Now obviously, the law has changed in terms of the review 
standard, but do we because of Hobby Lobby now have to deem 
every law to be presumptively invalid if it offends any 
conceivable religious preference?
    Judge Gorsuch. Under the Religious Freedom Restoration Act, 
it is a four-part test effectively.
    Senator Coons. Right.
    Judge Gorsuch. All right? And for every challenge, you ask 
those questions. Is there a sincerely held religious belief? Is 
there a substantial burden on it? If check, check, then you go 
to the Government side of the ledger. Do they have a compelling 
interest, and is it narrowly tailored?
    And that is the law you have set forth, Senator, because 
this body did not like, frankly, Justice Scalia's decision in 
Smith. And if this court--sorry--if this--the old trial lawyer 
in me. Sorry, getting tired. If this Congress wishes to say 
Justice Scalia was right in Smith and we have changed our 
minds, that is entirely up to this Congress.
    Senator Coons. Well, I am going to move on to another line 
of questioning, but I just want to say that one of the 
challenges I face in a couple of different gates through the 
analysis as laid out was how you decided to interpret the 
underlying RFRA statute, how it was extended to for-profit 
corporations, how the balance was struck between what I think 
are the mediating decisions of thousands of individuals versus 
the free exercise of the Greens.
    You have talked about being a Westerner. You have, I think, 
entertained us with mutton busting, something I have not seen 
yet, and clearly I should.
    [Laughter.]
    Senator Coons. And I am--I am interested----
    Judge Gorsuch. I recommend it.
    Senator Coons. I am interested in your view of privacy and 
the autonomy of adults to make their decisions. It was, in 
fact, I think Justice Scalia who said there is not a genuine 
Westerner on the Court, and that California does not count.
    As I shared with you, some of my extended family was from 
the West, and I think of Westerners as steadfastly independent 
folks. Justice Douglas, a famously Western Justice, once said, 
``The right to be let alone is the beginning of all freedom.''
    So, in 2006, you authored a book, ``The Future of Assisted 
Suicide and Euthanasia,'' a topic of intense personal interest 
to many. And when reviewing your book, I was expecting you to 
conclude that people have the right to be let alone, because I 
think of that as an inherently Western trait, to make important 
and difficult personal decisions without the interference of 
government, but you did not. Instead, you expressed a belief in 
the inviolability of human life. What did you mean by that?
    Judge Gorsuch. Senator, respectfully, I am not sure I would 
agree with your characterization.
    Senator Coons. Of the book or of being a Westerner?
    Judge Gorsuch. Of the book. I agree with your 
characterization of being a Westerner. The book does conclude 
that Cruzan is absolutely correct, that there is a right to be 
left alone at the end of life. These are hard decisions.
    I do not pretend to have any perfect answers here. I was 
writing this book as my dissertation, trying to contribute to 
what I thought was a very hard question, and I still think a 
very hard question, one we all have had personal struggles 
with, Senator, as I know you have and I have. And this is a 
human problem. We are mortal. Cruzan held that people have a 
right to be left alone presumptively under the common law, 
presumptively constitutionally, to stop care, go home, die in 
your own bed, as a lot of my family Members have done.
    The question is whether you should also have an additional 
right to have someone kill you, involve doctors in killing. And 
there are good arguments on both sides of that ledger, as I 
explore in the book. And----
    Senator Coons. Well, if I--if I can, Judge, I would like to 
help walk through that exploration of what you--what you looked 
at in the book.
    Judge Gorsuch. Sure.
    Senator Coons. And I think the Cruzan decision is a very 
important one, because essentially the tension here is between 
whether there is a right for a conscious terminally ill adult 
to end their own life by refusing lifesaving hydration and 
nutrition, as the Supreme Court assumed in Cruzan, or with the 
help of a doctor. And a lot of this rests in whether there is a 
right to privacy.
    Do you believe the Constitution contains a right to 
privacy?
    Judge Gorsuch. Yes, Senator, I do. Privacy is in a variety 
of places in the Constitution. The first and most obvious 
place, back to the Bill of Rights, is the Fourth Amendment, the 
right to be free from unreasonable searches and seizures in 
your homes, papers, and effects. That is privacy, right?
    The Third Amendment, which I alluded to, but did not want 
to reveal.
    Senator Coons. Quartering of troops in homes.
    Judge Gorsuch. No quartering of troops. Stay out of my 
house with your troops. Now, happily we do not litigate that 
much, all right?
    The First Amendment, the right to free expression, which we 
have been talking about, the freedom of religious belief and 
expression, that requires a place of privacy. And the 
Fourteenth Amendment, Senator, over now about 80 or 90 years, 
the Supreme Court of the United States has held that the 
liberty prong of the due process clause protects privacy in a 
variety of ways having to do with child-rearing and family 
decisions, going back to Meyer, which involved parents who 
wished to have the freedom to teach their children German at a 
time it was unpopular in this country, and Pierce, the right of 
parents to send their children to a parochial school if they 
wish.
    So, Senator, yes, the Constitution definitely contains 
privacy rights.
    Senator Coons. One of the things that you say in your book 
unequivocally is that, and I think I quote, ``All human beings 
are intrinsically valuable, and the intentional taking of human 
life by private persons is always wrong.'' And I think that is 
a dividing line you draw between the facts in Cruzan and what 
has been proposed in or adopted in states like Oregon.
    Can you point to any principle of constitutional law that 
says that, or has that principle, as you enunciated it, ever 
been offered by the Supreme Court or recognized by the Supreme 
Court?
    Judge Gorsuch. Senator, I was speaking as a commentator 
before I became a judge, not expressing views as a judge, all 
right? My views as a commentator I am happy to talk about, 
though. I found this a very difficult question. The Supreme 
Court has held that this is an issue for the States to decide 
under Glucksberg and Quill, for the people to decide on the 
State level. I agree with those decisions. I say so in the 
book.
    My concern about legalization that I express in the book as 
a commentator has to do with the equal protection principles we 
have been talking about today, the equal justice under law 
principles. And I am concerned--in the book I expressed 
concerns as a commentator about what legalization might mean 
for the least amongst us, the most vulnerable, the disabled, 
the elderly who might be pressured into accepting an early 
death because it is a cheaper option than more expensive 
hospice care, things like that, that might cost more. And so, 
that was a concern I expressed.
    Senator, I do not pretend, though, to have the last word on 
that or to know the right answer. I was contributing as a 
commentator to what I thought was a very hard discussion.
    Senator Coons. It is a very, very hard discussion, as you 
said, something that has an enormous impact on the terminally 
ill and their families.
    Judge Gorsuch. Yes.
    Senator Coons. There was a case that I think was active at 
the time you were at the Department of Justice where the U.S. 
Attorney General was suing Oregon to block their Death with 
Dignity law that permits in that State physician-assisted 
suicide. And in the documents you produced to this Committee, 
you sent a message expressing hope that the Federal Government 
would win that particular case.
    Why did you want the Federal Government to win that case?
    Judge Gorsuch. Well, I was an Advocate for the Government 
at the time, Senator. That is my job, all right? When you 
represent the Government, you want the Government to win. When 
you represent somebody against the Government, you want the 
Government to lose. And as a judge, Senator, it is a very 
different mindset.
    Senator Coons. And when you are up for consideration for 
the Supreme Court, it is important to know what you view as 
settled precedent. So, let me in my last 2 minutes ask a 
question or two about that.
    Judge Gorsuch. Sure.
    Senator Coons. In the Glucksberg case, which is about 
physician-assisted suicide, Justice Stevens said in his 
concurrence that ``Avoiding intolerable pain and indignity of 
living one's final days incapacitated and in agony is certainly 
at the heart of the liberty to find one's own concept of 
existence,'' citing the Casey decision.
    What is your view of the application of Casey's mystery of 
human life language here?
    Judge Gorsuch. Senator, the Supreme Court in Glucksberg, 
the majority held that this issue is for the States to decide 
and the people to decide. The people of Oregon have made their 
decision to legalize it, for example. It was just legalized in 
November in my home State of Colorado. That is their right.
    Senator Coons. And how did you feel about that?
    Judge Gorsuch. Senator, my personal views have nothing to 
do with my job as a judge.
    Senator Coons. Let me ask one last question, if I might. 
There was a line in your book that reminded me a great deal of 
Justice Scalia. You said that ``a Libertarian principle 
legalizing physician-assisted suicide would require the 
Government inevitably to allow sadomasochist killings, mass 
suicide pacts, duels, the sale of one's own life, not to 
mention illicit drugs, prostitution, the sale of one's 
organs.''
    Help me understand, in closing, why finding a 
constitutional right to physician-assisted suicide would 
directly yield to this long list of other, perhaps more 
shocking, constitutional rights to prostitution, or drug use, 
or the sale of organs. Help me understand that leap.
    Judge Gorsuch. Senator, in each chapter I analyzed 
different potential arguments, one of which was this 
Libertarian argument. And applied faithfully to its end, it 
leads to where it leads, as some of the authors of the argument 
acknowledge.
    I am not making it up. There are other arguments, though, 
that one might deploy that I analyze as well. That is not the 
only available argument for legalization by any means.
    Senator Coons. Thank you, Judge. Thank you, Mr. Chairman.
    Chairman Grassley. We will recess for 10 minutes, so that 
would be approximately 5:40, and then it will be Senator Flake.
    [Recess.]
    Chairman Grassley. Before I call on Senator Flake, this is 
how I would like to go forth for the rest of the evening. We 
have a vote scheduled at 6:10. That will be about the time that 
Senator Flake will be finishing. I would like to have--Senator 
Blumenthal would be the next one up.
    I would hope, Senator Blumenthal, you could go vote at 6:10 
and be back here and take over, and I will operate within that.
    And then I would like to suggest that I have Senator Tillis 
to take over about 8 o'clock, so I can be in bed by 9 o'clock 
because I get up at 4 in the morning, and I want to be able to 
get a good night's sleep so I can run in the morning.
    And so you understand, Judge, that I am not--I hope you 
will understand why Tillis is taking over.
    Judge Gorsuch. I am a little envious, Mr. Chairman.
    [Laughter.]
    Chairman Grassley. Okay.
    Senator Flake.
    Senator Flake. Thank you, Mr. Chairman. Thank you.
    This is a long day. I know what it feels like. It reminds 
me of being at the end of the table--I have 10 brothers and 
sisters--and getting there and there are no more questions to 
ask, no more food left on the table either.
    But I appreciate your endurance here. And speaking of my--I 
have 10 siblings, and I have five children as well. I do not 
know about my colleagues, but that is how I get elected in 
Arizona. It helps, not so much for a judge, but for Senators, 
it does.
    And just like Ben's family, my family has been texting me 
throughout this process, asking me to ask questions that they 
would ask. I asked a few of them for suggestions, and my son, 
Dallin, a teenager, said, ask him if he would rather fight a 
hundred duck-sized horses or one horse-sized duck.
    [Laughter.]
    Senator Flake. I have never heard of it either. Apparently, 
it was a question on Reddit a while ago, but anyway, that is 
where it is going from here, I think.
    Judge Gorsuch. You can tell him I am very rarely at a loss 
for words.
    Senator Flake. Okay. All right.
    Judge Gorsuch. But you got me.
    Senator Flake. I will tell him. A teenager stumped you 
there.
    My brother Scott asked if you have ever worn gym shorts and 
a tank top under your robe.
    [Laughter.]
    Judge Gorsuch. Senator, on that one, we have what is called 
the Fifth Amendment, which is part of the Bill of Rights as 
well, and which, of course, protects the right not to self-
incriminate. So I might have to exercise my rights under the 
Fifth Amendment to that one.
    Senator Flake. That is a good answer.
    My mother asked a little more serious question, and this 
goes to how you spend your time, to let people know more about 
you. How do you like to get your hands dirty? You like to ski, 
but that is kind of a pedestrian sport.
    Judge Gorsuch. Wow, spoken like an Arizonan there, the 
Valley of the Sun.
    No, our family loves to ski together. That is one of our 
favorite activities. My daughters are ferocious double black 
diamond skiers. One of them is----
    Senator Flake. That is not pedestrian at all.
    Judge Gorsuch. One of them is right now doing some 
backcountry skiing out near Telluride, as we speak. So that is 
something we love to do as a family.
    Senator Flake. Where does your family vacation?
    Judge Gorsuch. Near Winter Park, Colorado. It is a resort 
owned by the City of Denver. And it is where I learned to ski 
as a kid. My parents would put me on a bus or the train. It was 
their idea of getting rid of me for the day on the weekend. And 
I would come back exhausted, which was good, too. They liked to 
run me ragged that way.
    Senator Flake. What is the largest trout you ever caught?
    Judge Gorsuch. Oh, now we are talking. I love to fish. And 
that is where I find a lot of solace. You cannot focus on the 
worries of the world when you are only worried about a trout. 
Everything else goes away, just disappears. You are in the most 
beautiful--trout--trout live in beautiful places.
    Senator Flake. They do.
    Judge Gorsuch. They are very picky, and they pick well.
    So during the summertime, fishing, hiking. I like to row. I 
like to run. Those are my activities.
    And I like to read. I like to read novels, good fiction. 
And if you want to learn how to write, you have to learn how to 
read.
    Senator Flake. That is great.
    Tell me about your civic involvement, outside of the 
courtroom. You mentioned the school board a while ago.
    Judge Gorsuch. Yes, boy, that I found taxing and loved 
every minute of it. But I have spent a lot of my free time 
teaching or working on the rules Committee. I have been in the 
rules process for the last 6 or 7 years now. The Chief Justice 
kindly appointed me to the standing Committee and then to the 
appellate rules Committee more recently, and trying to make the 
rules more sensible so that we can get litigation done more 
sensibly, cheaper, faster, for all people.
    It is a wonderful example of government working. People 
from a variety of walks of life, judges, lawyers, academics 
coming together and operating more or less by consensus. 
Imagine that.
    Senator Flake. I found that, and I think that typifies the 
West and small towns. I grew up in a town called Snowflake. I 
am a fifth-generation Arizonan. You are a fourth-generation 
Coloradan, I understand. That is how it works. People get 
along. They have to. And on a school board, there is no passing 
the buck there. You have to make decisions. Local government is 
like that.
    Jury duty, have you ever been called up?
    Judge Gorsuch. You know, I have. It was when I was at the 
Department of Justice, and I thought for sure----
    [Laughter.]
    Senator Franken. Sorry.
    Judge Gorsuch. Have you served on a jury?
    Senator Franken. No, I just thought it was very odd 
questions for this, but it is great. It is great.
    Judge Gorsuch. You know----
    Senator Flake. I thought it was pertinent. I wanted to 
know. Can a judge be called for jury duty?
    Senator Franken. I am sorry I laughed. It just caught me--
go ahead.
    Judge Gorsuch. Thank you.
    I actually think it is a very excellent question, because I 
think anyone who has served on a jury appreciates the important 
civic function that is involved. It is a way citizens actually 
interact with their government, right? In a very real way.
    Senator Flake. Were you disqualified or did----
    Judge Gorsuch. No, I thought for sure I would get kicked 
off. And I guess neither side thought I was the worst one, so I 
made it through. And I went to the bathroom when we were sent 
back. And I came out and I had been elected foreman, which I 
refused to serve as. I just did not think that was appropriate, 
and I did not want to have undue influence.
    But the Seventh Amendment and the right to a trial by jury, 
the only disagreement our Founders had over it was whether it 
was a bulwark of liberty or the very palladium of liberty.
    And as a trial lawyer, I had great faith in jurors, in the 
collective wisdom of 12 citizens to adjudicate a case fairly on 
the facts. In my time serving on a jury, I wondered, is it 
going to prove out my beliefs or am I going to come out more of 
a cynic? I came out more optimistic and a true believer in the 
jury system than ever. I really believe in the wisdom of 
juries.
    Senator Flake. Thanks.
    Senator Franken. That was a great question.
    Senator Flake. Thanks, Al. I appreciate it. It is the end 
of the day.
    You mentioned earlier your colleagues on the Tenth Circuit. 
Can you tell me about them? What do you admire about some of 
them? What have you learned from some of them?
    Judge Gorsuch. Oh, there are so many I admire. I admire 
them all. They all bring something to the table, men, women, 
from every kind of background.
    Senator Flake. Tell me how it works. Are you bunched up 
where these are Republican-appointed judges, these are 
Democrat-appointed judges? Do you notice that? Do you forget 
that? How is it?
    Judge Gorsuch. You know, the nicest gift I have gotten in 
the last few weeks, there have been so many prayers, so many 
well-wishers, so many kindnesses, but the best gift I have 
gotten was this enormous basket from my four most recent 
colleagues--I think it was four, whatever. It just happens to 
be my Obama-appointed colleagues sent me a gift basket, because 
they knew I was not eating very well, as I was marching around 
the Senate halls. They said I was looking a little gaunt.
    That is how we work in the Tenth Circuit. And I am sorry 
for outing them, but you touched my heart. Thank you.
    And that is how my colleagues are, all of them. I have 
served with judges appointed by President Johnson, President 
Nixon, President Carter, President Reagan, President Bush the 
first, Clinton, President Bush the second, and Obama, and we 
get along. And I think you are going to hear in a couple days 
from two former Chief Judges of the Tenth Circuit who have 
retired now. You are going to hear about how we operate in the 
Tenth Circuit.
    It is often reputed to be the most collegial Circuit in the 
country. Collegial not in some ordinary, pedestrian sense of we 
are just nice to one another, collegial in a real meaningful 
sense. We listen to one another, and we value and we respect 
different points of view, not just tolerate them.
    Senator Flake. Just for the record, the Tenth Circuit is 
seven active judges appointed by Democrats, five by 
Republicans, yet of the 2,700 cases for which you have sat, you 
filed dissents on just 36. Is that right, 1.3 percent? And of 
the 25 dissents that Judge Gorsuch has authored, more than 
half, 52 percent, were from majority opinions written by 
Republican appointees.
    And it has been said or implied that you act in a partisan 
way somehow, or that former work in the political arena before 
you became a judge--if that has somehow bled over into your 
judgeship, it certainly is not reflected in what the record 
shows.
    I think even more telling, as the Congressional Research 
Service shows, 97 percent of the majority opinions that you 
authored were for a unanimous court. As you mentioned, you work 
together. In over 98 percent of all cases in which you sat, you 
agreed with the majority result 99 percent of the time.
    That does not sound like an ideologue. That does not sound 
like someone far out of the mainstream. So when I hear that on 
television or whatnot, people say that this is a judge way out 
of the mainstream, it simply does not ring true with your 
record.
    Let me submit for the record a statement from a former law 
clerk. I think she was mentioned earlier. She said that soon 
after you took the bench on the Tenth Circuit, she said, 
quoting, ``He took all of his clerks and office staff, myself 
included, to visit several Federal prisons. He wanted to see 
for himself and he wanted all of us to understand the 
importance of applying justice in every case, for the lives of 
others depended on us doing the best job that we possibly 
could.''
    Can you tell me about that experience?
    Judge Gorsuch. Senator, Federal criminal law imposes very 
long sentences, and to be a judge complicit in adjudicating 
criminal cases, I thought I could not close my eyes to what the 
reality is, and I wanted to see it for myself firsthand my 
first year on the bench, so I did.
    Senator Flake. Can you tell me about the Tenth Circuit 
capital habeas project?
    Judge Gorsuch. Senator, I think it started one day after an 
argument when a few of us were concerned that the quality of 
representation of death row inmates in our Circuit was not what 
we would like it to be. And I do not want to take more credit 
than I am due here. Real people deserve credit, my colleagues, 
Judge Tymkovich, Judge Lucero, and a whole lot of our staff, 
Betsy Shumaker, David Tye, many, many others who put together, 
together with the wonderful judges in Oklahoma, some training 
sessions, recruited additional lawyers, provided training for 
those who are already in the system, sought and obtained more 
funds for Federal public defenders to assist. And a lot of 
people deserve more credit than I do.
    Senator Flake. Thank you.
    Let us talk about Western issues for a bit. We have talked 
about the importance of geographic diversity on the Court, and 
people say, well, what does that mean? Is there really a 
difference? Is there really a Western perspective that somebody 
can bring? Let me go through a few of the issues that you have 
encountered, and we will flesh that out.
    Let me introduce, for the record, a letter from one of 
Judge Gorsuch's former clerks. Also, let us do one from a 
Federal judge in Montana.
    But let me talk about for a second some of the policies 
that have come out. In one case, you rejected the idea that the 
dormant commerce clause prevents Colorado from requiring that 
20 percent of electricity would come from renewable sources. 
Now whether or not you agree with that policy, and there is a 
lot of disagreement around here about that--but we do not live 
in Colorado. You do. So its wisdom is not really our business.
    Would you agree that the principles of Federalism allow 
States to experiment with policies like environmental 
protection, in this sense?
    Judge Gorsuch. Senator, that was the holding of my court in 
that case. Colorado had passed by voter referendum a law that, 
as I recall, sitting here, indicated that 20 percent of energy 
in Colorado had to be from renewable sources by a certain date. 
That law was challenged by fossil fuel producers out of State, 
alleging that it violated what is called the dormant commerce 
clause under the Federal Constitution and case law interpreting 
it. And I did write for a unanimous panel that there was no 
constitutional violation, and the State was permitted to 
proceed with its experiment.
    Senator Flake. Is that indicative of the concept of 
laboratories of democracies that States have been described as?
    Judge Gorsuch. Consistent with that principle.
    Senator Flake. All right. Thank you.
    One complicated issue that we have in the West that you 
really do not get as much elsewhere is the split estate 
property rights. It is possible that I might own a parcel of 
land but somebody else might own the mineral rights, and still 
somebody else might own the water rights.
    Have you encountered that in your jurisprudence?
    Judge Gorsuch. It is very different than out here, and, 
yes, I have. Split estates, as you know, are a common feature 
in the West. And in part, at least, a byproduct of homesteading 
acts by this Congress, where, initially, as I recall, Congress 
gave homesteaders rights down to the center of the Earth, as is 
common out here. Then they found out, my gosh, there is some 
valuable stuff under there, and they started splitting the 
estates, so that homesteaders could do what they wanted to do 
on the surface estate, but that the Congress and the people 
could control some of the valuable mineral rights underneath. 
Very complicated stuff. And, yes, I have encountered those 
cases too.
    Senator Flake. Is that a perspective that you think would 
be useful on the Supreme Court?
    Judge Gorsuch. I think that is for this body to decide.
    Senator Flake. Thank you.
    Also, another aspect of living in the American West is that 
we share a lot of land with the Indian Tribes, and the 
prevalence of Tribes out West can complicate things in the 
legal sense, say deciding between municipalities or local or 
State government.
    What have you ruled on or have you dealt with in terms of 
the relationship between State and local government and the 
Tribes?
    Judge Gorsuch. Senator, I have had a number of Tribal 
cases, and Tribes are, as you know, sovereign nations. And our 
constitutional order affords this body considerable power in 
dealing with those sovereign nations by treaty and otherwise.
    And out West, there are all sorts of variations on that 
arrangement. There are classic reservations, as many people in 
the East conceive of them. There are also ancient pueblos that 
predate this country by many hundreds of years. Then there are 
allotments to individuals and groups. It depends where you are. 
That sounds like Oklahoma. Pueblo sounds like New Mexico. And 
then when I think reservations, I think of Utah and some places 
in Colorado and Wyoming. And there are variations all 
throughout the American West.
    Our history with Native Americans is not the prettiest 
history. And as a judge, you try very hard to administer the 
law fairly, without respect to persons, and equally. I would 
point you maybe to my cases involving the Ute Indian Tribe, 
where they have had a long time trying to control their Tribal 
lands, or Fletcher, involving the Osage Nation in Oklahoma and 
the right to an accounting of the property due them under 
agreements with the United States. I try to treat all persons 
who come before me fairly.
    Senator Flake. That is also a perspective that a Western 
Member can bring to the Supreme Court. That is my supposition. 
I know you will not say that, but I think that is useful.
    While the Chairman is here, let me ask for unanimous 
consent to enter into the record a letter from Alaska Senators 
on behalf of Indian Tribes.
    Chairman Grassley. Yes.
    Senator Flake. Also, one from a law school clerk, and also 
one from a judge in Montana.
    Chairman Grassley. Those documents, without objection, will 
be entered.
    [The information appears as a submission for the record.]
    Senator Flake. Thank you.
    Let us turn for a minute to separation of powers. You have 
written eloquently about Chevron deference and your concerns. I 
share those concerns. Chevron did not come out of nowhere. 
There were serious concerns in the 1980s with rogue judges 
making policy from the bench.
    Now the idea of agency deference was designed to restrain 
judicial overreach. I think that the pendulum has swung far too 
far in the other direction, and that the judiciary is 
insufficiently vigilant of Executive overreach.
    What are your thoughts on that?
    Judge Gorsuch. Senator, those are policy considerations. As 
a judge, my job is to look at the law. I would say I do not 
conceive of Chevron deference as a conservative or liberal 
issue. I do recall when Chevron was announced, many people 
thought it was a very conservative decision, because it does 
advantage whoever has their hands on the reins of the 
administrative state at the particular time. And in 1984, that 
was one party. Today, you know, it may be another party. The 
next day, it may be another party. So a good judge does not 
care who it advantages. A good judge looks at the law.
    Senator Flake. So setting the boundaries for where 
deference ought to be is the job of the legislature and not the 
judicial branch.
    Judge Gorsuch. Well, in the first instance, the 
Administrative Procedures Act is the statute that you would 
look at.
    Senator Flake. Right. Thank you.
    With regard to the Second Amendment, you have been asked 
about stare decisis and the role of precedent, and it is 
usually by those who talk about Roe v. Wade or decisions like 
that, but they rarely bring up that might also apply to Heller 
or other decisions like that.
    How do you see it, with regard to precedent?
    Judge Gorsuch. All precedent of the U.S. Supreme Court 
deserves the respect of precedent, which is quite a lot. It is 
the anchor of law. It is the starting place for a judge.
    And the Chairman kindly held up my overlong book, right? 
And that is the law of precedent, a very mainstream consensus 
view by a bunch of judges from across the country who got 
together and we wrote it down, and it is all in there. And 
Justice Breyer was kind enough to write a forward to it. And it 
articulates how a good judge goes about assessing the law of 
precedent in any case.
    Senator Flake. Thank you.
    Let me just close with religious liberty, religious 
freedom. I would not ask you your religion or how you practice 
your faith. If you can just talk, in general, about what the 
role of faith is--people of faith coming into the judiciary or 
on the courts, what role should it play? What role should it 
not play, in your view?
    Judge Gorsuch. Senator, one of the wonders of our 
constitutional order is the First Amendment and the right of 
free exercise. Not many countries in the world are as 
pluralistic when it comes to religion as this country. It is 
quite an experiment, really. Most nation-states are one 
culture, one people, one religion. We are founded on a very 
different idea that all voices are heard, that people of all 
faiths and no faiths are welcome, that we are tolerant.
    It was quite an experiment to launch 200 years ago. It is 
still an experiment today we are working on and learning to 
live with one another and mediate it.
    So the role of religion in our society is profound and 
always has been, and it is a pluralistic commitment we have in 
this country that, well, is very special in the world.
    Senator Flake. Well, thank you.
    Mr. Chairman, I will do something very unSenatorial. I have 
a couple minutes left, but I will yield back so people can go 
vote.
    Chairman Grassley. Okay.
    Senator Flake. Or is--he is not back.
    Chairman Grassley. I will stay. I think Senator Blumenthal 
will be here. I will stay here just a few minutes, so we will 
just stand in recess. I hope everybody will kind of stay close 
by.
    Senator Flake. Thank you, Mr. Chairman.
    [Recess.]
    Chairman Grassley. Senator Blumenthal. I will call on him, 
and, Senator Blumenthal, while I am gone, if you have anything 
that you want to put in the record, just ask your permission to 
do it, and you can do it.
    Senator Blumenthal. I thank you very much, Mr. Chairman. I 
have two sets of documents, and with your permission, I will 
enter them into the record.
    Chairman Grassley. Yes, okay.
    Senator Blumenthal. Thank you.
    [The information appears as submissions for the record].
    Chairman Grassley. I am going to go vote now.
    Judge Gorsuch. It is just us.
    Senator Blumenthal [presiding]. Good evening, Your Honor, 
and thank you for your patience and your perseverance with us.
    You will recall the conversation or visit we had in my 
office not that long ago, and you will, I am sure, recall that 
I quoted the first line in your concurrence in the case of 
Gutierrez-Brizuela. You remember that first line.
    Judge Gorsuch. Senator, I am sorry. I do not remember the 
first line, but----
    Senator Blumenthal. The line was, ``There is an elephant in 
the room with us today.''
    Judge Gorsuch. Oh, yes. Yes, yes.
    Senator Blumenthal. And cited before----
    Judge Gorsuch. Yes, yes.
    Senator Blumenthal. And do you recall what I said or who I 
said was the elephant in the room?
    Judge Gorsuch. I am sorry, Senator. I do not. I apologize 
sincerely. I do not remember.
    Senator Blumenthal. I will refresh your recollection. The 
initials are D.J.T.
    Judge Gorsuch. Okay.
    Senator Blumenthal. Donald Trump.
    Judge Gorsuch. Yes.
    Senator Blumenthal. He was the elephant in the room with us 
then. I think he is the elephant in the room with us now. And 
the reason is, as I said then, because of his attack on the 
judiciary. And make no mistake, I am not in any way attributing 
to you that attack, but you are familiar with the fact that he 
referred to the Article III judge who ruled against him in the 
travel ban case as a ``so-called judge'' in one of his tweets? 
Do you recall that tweet?
    Judge Gorsuch. I do.
    Senator Blumenthal. And do you recall his second tweet when 
he referred to the Court and said that they were to be ``given 
blame'' if an act of terrorism occurred because of striking 
down the travel ban? Do you recall that tweet?
    Judge Gorsuch. Yes, Senator.
    Senator Blumenthal. And during the campaign, a completely 
different Federal judge, born in this country, he said could 
not rule fairly on his case because the judge was ``a 
Mexican.'' Do you recall that?
    Judge Gorsuch. I do.
    Senator Blumenthal. What do you think the President meant 
when he used the words ``so-called judge''?
    Judge Gorsuch. Senator, I do not know what was in his mind. 
You would have to ask him.
    Senator Blumenthal. How would you feel if he called you a 
``so-called judge''?
    Judge Gorsuch. Senator, I care deeply about the 
independence of the judiciary. I cannot talk about specific 
cases or controversies that might come before me, and I cannot 
get involved in politics. But I can say a couple of things 
about that, as you know.
    The first is judges have to be tough. We get called lots of 
names all over the place. We have to accept criticism with some 
humility. It makes us stronger and better. I take it from my 
teenage daughters. I take it from litigants. This process, 
there has been plenty of criticism. That is fine.
    Thomas Jefferson did not much like Marbury v. Madison, and 
he did not mind saying so. Presidents have tried to pack the 
Court. That is part of our constitutional history. We have a 
First Amendment. People can speak their mind.
    But, Senator, I am sorry, I do not mean to interrupt, but I 
did want to add one other point, if I may.
    Senator Blumenthal. Please do.
    Judge Gorsuch. But, Senator, when you attack the integrity 
or honesty or independence of a judge, their motives, as we 
sometimes hear, Senator, I know the men and women of the 
Federal judiciary, a lot of them. I know how hard their job is, 
how much they often give up to do it, the difficult 
circumstances in which they do it. It is a lonely job, too. I 
am not asking for any crocodile tears or anything like that. I 
am just saying I know these people, and I know how decent they 
are. And when anyone criticizes the honesty or integrity, the 
motives of a Federal judge, well, I find that disheartening, I 
find that demoralizing, because I know the truth.
    Senator Blumenthal. Anyone, including the President of the 
United States?
    Judge Gorsuch. Anyone is anyone.
    Senator Blumenthal. Because no person is above the law, 
including the President of the United States.
    Judge Gorsuch. That is right, Senator.
    Senator Blumenthal. And is not that reference by the 
President to a ``so-called judge,'' is not his attack on the 
same judges who struck down that order as playing politics, is 
not that an attack on the judiciary, on its integrity?
    Judge Gorsuch. Senator, I cannot comment on specific cases, 
and I cannot get involved in politics. I have said what I think 
I ethically may in this area.
    Senator Blumenthal. Well, maybe you can share with the 
President what that wise old judge told you. Maybe you can 
quote it to us again.
    Judge Gorsuch. I think you are going to hear from him 
yourself on Thursday, and I am sure he will not mind, hesitate, 
or in any way have any question or fear about saying it to you 
himself. But I am happy to share it with you, too. The ultimate 
test of the rule of law is whether the Government can lose in 
its own courts and accept the judgments of those courts.
    Senator Blumenthal. And, in your view, was the President of 
the United States showing proper respect when he attacked the 
courts in that way? Was he accepting the rule of law?
    Judge Gorsuch. Senator, I have gone as far as I can go 
ethically, with the canons that restrict me, about speaking on 
cases. I cannot talk about specific cases, and I cannot get 
involved in politics. Respectfully, I believe I have gone as 
far as I am able to go.
    Senator Blumenthal. Well, I just want to make clear that I 
am looking for the same kind of expression of outrage that I 
felt as an officer of the court--and I am still an officer of 
the court--because of that attack, because as you well know--
and I cited it yesterday--Alexander Hamilton said the courts 
are the least dangerous branch because they have neither the 
power of the purse nor the sword. What they have is respect. 
When the President of the United States attacks the court, 
attacking you--because when he attacks your brethren, he 
attacks you, the bedrock of our democracy, you as a member of 
the Tenth Circuit Court of Appeals, as a so-called judge, he 
undermines the bedrock of our democracy, which is respect for 
the courts. Courts do not have armies. They do not have police 
forces. All they have is the respect and credibility. And you 
made reference earlier to judges having to take the barbs and 
insults. My guess is that if a litigant before your court--and 
the President of the United States was a litigant in that 
case--used that language, you might well entertain a motion for 
contempt of court.
    Judge Gorsuch. I appreciate the opportunity to talk about 
my record because I can talk about that, Senator. My record is 
when there is a judge who is accused of perhaps using language 
that might bear on a man's ethnicity, arguably, in the course 
of sentencing, a panel of my court on which I sat replaced him. 
My record is that when an undocumented alien--immigrant, sorry, 
is not properly represented and there is a history of the 
lawyer failing his clients in that area, sent him, referred him 
for dismissal from our bar.
    Senator Blumenthal. Because you believe that respect for 
the courts is important.
    Judge Gorsuch. Senator, the independence and integrity of 
the judiciary is in my bones.
    Senator Blumenthal. Well, I am going to return to this 
topic, maybe not in this round but later, because as you well 
know also, although judges may be attacked, they really have no 
way to defend themselves. And we know that as officers of the 
court, as advocates, and that is why I feel so deeply that not 
only we but the Department of Justice should have been more 
vigorous in coming to the defense of those judges, even though 
the Department of Justice was the loser in that case, because 
more is at stake here than the President's immigrant policies 
or the travel ban. It is the respect and integrity for the 
courts.
    There is another reason that Donald Trump is the elephant 
in the room, and that is because he established a litmus test, 
or actually a set of litmus tests, one of them being that his 
nominee--and I do not know whether you saw the debate, the 
third presidential debate, where he promised, and I am quoting, 
about overturning Roe v. Wade, ``That will happen 
automatically, in my opinion, because I am putting pro-life 
Justices on the Court.''
    Are you familiar with that statement?
    Judge Gorsuch. I am, Senator.
    Senator Blumenthal. Are you familiar with other occasions 
when he promised that he would appoint someone who would 
overturn Roe v. Wade? For example, November 13, 2017, in an 
interview with Lesley Stahl on ``60 Minutes,'' ``I am pro-life. 
The judges will be pro-life.''
    On June 28, 2015, an interview on CNN with Jake Tapper, ``I 
am pro-life.'' He was then asked would that be a litmus test. 
``It is. It is.''
    There are others, but what I am asking you is, are you 
aware of that litmus test?
    Judge Gorsuch. Senator, I cannot say I am aware of each of 
those statements, but I am definitely aware that there was 
discussion of litmus tests by lots of people during the 
election process, yes.
    Senator Blumenthal. Well, these discussions are by the 
President of the United States----
    Judge Gorsuch. Yes.
    Senator Blumenthal [continuing]. Who has nominated you for 
this position.
    Judge Gorsuch. Very aware of it, Senator.
    Senator Blumenthal. And he interviewed you.
    Judge Gorsuch. He did.
    Senator Blumenthal. And you have testified here that there 
was no mention of Roe v. Wade.
    Judge Gorsuch. Senator, what I have testified to is that 
there was no request for me to commit on any case or 
controversy or anything that might come before me----
    Senator Blumenthal. Was there any mention of Roe v. Wade?
    Judge Gorsuch. There was, briefly.
    Senator Blumenthal. And what did he say and what did you 
say?
    Judge Gorsuch. Senator, the President recounted to me, 
among other things, how the campaign went in Colorado. He knew 
I was from Colorado, and he was disappointed he had lost 
Colorado. And he said something like if he had had a little 
more time, he thinks he might have won it. And then he said 
that one of the topics that came up during the course of the 
campaign was abortion and that it was very divisive and split 
people evenly, he found. And then he moved on to other topics.
    Senator Blumenthal. Did he mention Roe v. Wade by name?
    Judge Gorsuch. I do not think so, not to my recollection, 
just that abortion was very divisive. And then he moved on to 
other topics of interest to him.
    Senator Blumenthal. Like what?
    Judge Gorsuch. Senator, the next topic I remember--and this 
is just my recollection--is he expressed concern that our 
country's nuclear armaments are old.
    Senator Blumenthal. Has anyone in interviews with you--and 
you mentioned one conversation with Steve Bannon. I understand 
you also met with other advisers. Has anyone else ever 
mentioned Roe v. Wade?
    Judge Gorsuch. No, Senator. That is it.
    Senator Blumenthal. Never a mention of that case or of 
abortion in any of your conversations with any of the 
President's advisers?
    Judge Gorsuch. Not to my recollection, no.
    Senator Blumenthal. And what about with officials of the 
Heritage Foundation who may have discussed the Supreme Court 
with you?
    Judge Gorsuch. To my knowledge, Senator, from the time of 
the election to the time of my nomination, I have not spoken to 
anyone that I know of from Heritage. Maybe I shook someone's 
hand, but I have not had any substantive conversations that I 
am aware of that anyone has alerted me to that they are from 
the Heritage Foundation.
    Senator Blumenthal. Well, let me go to a case that I think 
bears on perhaps the President's and his advisers' perception 
of your views on Roe v. Wade and on this issue of abortion. I 
do not know whether you recall the case of Planned Parenthood 
Association of Utah v. Herbert.
    Judge Gorsuch. I do.
    Senator Blumenthal. In that case, as you know, the Governor 
of Utah directed all of his State agencies to end funding for 
the local Planned Parenthood affiliate after a deceptive and 
false set of videos was released. And Planned Parenthood of 
Utah went to Federal court. They sought a temporary injunction. 
They won. They lost at the District Court, which denied their 
request, and then on your court, a three-judge panel reversed 
the District Court and granted the injunction, stopping the 
State government from terminating the funding. That restored 
the funding for Planned Parenthood.
    Judge Gorsuch. Temporarily, as a preliminary matter. That 
is my recollection, yes.
    Senator Blumenthal. As a preliminary matter, the panel of 
the Tenth Circuit restored the funding.
    Judge Gorsuch. Issued a preliminary injunction or a TRO; 
probably a preliminary injunction.
    Senator Blumenthal. Correct. Preliminary injunction is 
correct. Were you on that panel?
    Judge Gorsuch. No. No, Senator, I was not.
    Senator Blumenthal. Okay. And any of the parties 
subsequently have the right to ask for a rehearing, do they 
not?
    Judge Gorsuch. They do.
    Senator Blumenthal. Is there a time limit?
    Judge Gorsuch. For the parties there is a time limit 
prescribed by rule. It is also possible for the court, what we 
call ``sua sponte,'' or on its own, to seek rehearing, and 
there is no time limit prescribed by rule for that.
    Senator Blumenthal. So the time limit for the parties is 2 
weeks, correct?
    Judge Gorsuch. That sounds right, Senator. I would not 
swear to it, but I trust you.
    Senator Blumenthal. Well, I would never presume to know the 
rules----
    Judge Gorsuch. I always check the rules on that sort of 
thing because I always think I know, and it is 10 days or 14 
days, so I always look.
    Senator Blumenthal. I am sure you do. Well, 2 weeks passed, 
and none of the parties requested a rehearing, correct?
    Judge Gorsuch. That is right. That is right.
    Senator Blumenthal. But one of the judges did.
    Judge Gorsuch. That is right.
    Senator Blumenthal. That judge was you.
    Judge Gorsuch. Senator, that is internal deliberative 
process that would not normally be revealed, but I have no 
problem acknowledging that.
    Senator Blumenthal. That you asked for the rehearing?
    Judge Gorsuch. I did.
    Senator Blumenthal. The parties actually were fine with the 
result. They settled the case. They were off about their 
business. And you asked for the rehearing, correct?
    Judge Gorsuch. No, Senator. That is not correct.
    Senator Blumenthal. Well, correct me.
    Judge Gorsuch. A preliminary injunction, the Court of 
Appeals, the panel has indicated, should issue, subject to--
this court has to enter it, I believe. I do not think our court 
entered it directly. As I recall, the parties either reached 
some sort of agreement with respect to preliminary relief or 
the court entered it. I do not recall which. But the case 
proceeded and may still be proceeding for all I know.
    Senator Blumenthal. But one way or the other, none of the 
parties asked for any further proceedings. Only you did.
    Judge Gorsuch. That is right.
    Senator Blumenthal. And did the court decide to grant an en 
banc hearing?
    Judge Gorsuch. Very narrowly voted against it, Senator. It 
was a close vote.
    Senator Blumenthal. And you dissented.
    Judge Gorsuch. I did.
    Senator Blumenthal. Now, you know Rule 35 says, and I am 
quoting, ``an en banc hearing is not favored and ordinarily 
will not be ordered.''
    Judge Gorsuch. Oh, of course. It is an extraordinary thing. 
We probably hear between zero and three en bancs a year over 
the course of my time. Do not hold me to that, but it is 
somewhere in that range, usually.
    Senator Blumenthal. Out of your 10-plus years, 11 years on 
the court, how many times have you asked, you yourself, sua 
sponte, asked for a rehearing in a case where you were not even 
on the panel?
    Judge Gorsuch. Oh, I have done it, Senator.
    Senator Blumenthal. How often?
    Judge Gorsuch. I cannot tell you how many times, sitting 
here. I just cannot. But I can tell you I have done it. And I 
can tell you, Senator, that about one out of every five en 
bancs, about 20 percent of en bancs in our court are sua 
sponte. It is not unusual.
    Senator Blumenthal. By this time the funding was going to 
Planned Parenthood, correct?
    Judge Gorsuch. I do not know. I do not know.
    Senator Blumenthal. Well, it is a matter of, I believe, 
public record that it was, in fact, restored. And the parties 
never asked for that en banc hearing.
    Let me ask you, what was the exceptional importance of this 
case that prompted you to seek a rehearing en banc?
    Judge Gorsuch. I appreciate the opportunity to answer that 
question, Senator. En banc rehearings happen sua sponte with 
regularity in our court, as I say, maybe 20 percent, estimate, 
of the cases that we have heard during my time have been sua 
sponte. It is acknowledged in the Committee reports to the 
rules. ``Wright and Miller,'' the Bible on civil procedure that 
every young lawyer lives with, acknowledges the regularity and 
the propriety of the sua sponte en banc. So just to put that 
aside. I just do not see any----
    Senator Blumenthal. I am asking you about your reasons. 
And, by the way, I know you do not have a number, but maybe you 
can supply it, because I am willing to bet that number is a 
tiny, minute fraction of the 2,700 cases.
    Judge Gorsuch. Of course.
    Senator Blumenthal. And even of all of the cases where you 
have dissented.
    Judge Gorsuch. Of course. I would be very reluctant to 
reveal internal deliberative processes any further, Senator, of 
a court, and I do not think you want us to. But I have gone 
pretty darn far here, and I would be happy to consider any 
reasonable request that we can talk about that.
    Senator Blumenthal. By the way, the judge who dissented 
from the panel opinion was Judge Bacharach, correct?
    Judge Gorsuch. Yes.
    Senator Blumenthal. He voted against the rehearing en banc, 
did he not?
    Judge Gorsuch. He wrote a special concurrence saying that 
he thought the panel decision was gravely wrong.
    Senator Blumenthal. But there was no exceptional reason for 
rehearing en banc.
    Judge Gorsuch. He decided not to vote for en banc. That is 
correct. But he thought the panel opinion was gravely wrong.
    Senator Blumenthal. I am going to----
    Judge Gorsuch. And, Senator, if you want me to explain why 
I sought en banc and the reasons, I would be delighted to do 
so.
    Senator Blumenthal. Well, I am going to give you the 
opportunity to do it.
    Judge Gorsuch. I appreciate it.
    Senator Blumenthal. And I apologize for interrupting, and 
you will understand our time is limited, and that is why I am 
sort of pressing to move on.
    Judge Gorsuch. I understand, but an implication of 
impropriety, anything like that, Senator, I would appreciate 
the chance.
    Senator Blumenthal. Absolutely.
    Judge Gorsuch. Okay.
    Senator Blumenthal. I am not even asking for extra time, 
Mr. Chairman. Please proceed.
    Judge Gorsuch. Senator, it is all about standards of review 
for me. In that case, the parties agreed on the law. There was 
no dispute of law. In that case everyone agreed that if the 
Governor has discontinued funding because he opposed lawful 
abortions, that would be unconstitutional and wrong and would 
have to be stricken by the Court. That was uncontested.
    It was also uncontested that if the Governor discontinued 
funding because of his reaction to videos that you are well 
aware of involving alleged unlawful action--alleged--then his 
conduct was lawful and constitutional. The law was agreed by 
everyone. The only question was: What was the Governor's 
intention? That is it. And the District Court made a factual 
finding that the Governor's intentions were what he said they 
were, that he acted in response to the videos. That was his 
testimony. That was the District Court's finding. And in a very 
unusual, I thought, step, our court overturned the factual 
finding of a District Court and did so on the basis of a 
putative admission from the Governor's brief as if the lawyers 
for the Governor would concede away their case.
    I read the brief. It did not concede away the case. And it 
seems to me very important, Senator, that we abide our 
standards of review and we do not pick and choose the areas of 
law to start abandoning our standards of review. And a standard 
of review for clear error, for factual findings is what I wrote 
about. And I do not care if the case is about abortion or 
widgets or anything else. When a jury or a District Judge makes 
a factual finding, that deserves our respect under a clear 
error standard of review. And as you point out, Judge 
Bacharach, while he did not think that it rose to the level of 
en banc review, he thought the panel was clearly wrong. And he 
happens to be, as you know, just happens to be a Democratically 
appointed judge, because we are judges first. And, Senator, 
there were four judges who wanted en banc in that case. That is 
a large number in our Circuit. There is nothing unusual or 
untoward about that case at all. It is what we do as judges.
    Senator Blumenthal. Do you recall the date of your dissent?
    Judge Gorsuch. I do not, Senator.
    Senator Blumenthal. Would it surprise you to know that it 
was--well, the case was pending in July 2016, your dissent was 
sometime in that time period at the height of the presidential 
campaign.
    Judge Gorsuch. I would have said it was in the summer, 
Senator, yes. I would say I have also, Senator, revived 
partially a lawsuit brought by Planned Parenthood in another 
case. I take the parties as I find them, and I take the facts 
and laws that come to me. And I do not choose when they come to 
me or how they come to me.
    Senator Blumenthal. I understand.
    Judge Gorsuch. And any other implication would be 
erroneous.
    Senator Blumenthal. Let me ask you, we talked about 
precedent, and precedent is important as law, correct?
    Judge Gorsuch. Yes.
    Senator Blumenthal. And people rely on it. That is one of 
the key criteria that you have established for sustaining 
precedent, and I am not even sure that the term has been used 
here, but stare decisis, which is an important principle of 
following well-established and accepted law.
    Let me ask you, did you agree--or, I am sorry, do you agree 
with the result in Brown v. Board of Education?
    Judge Gorsuch. Senator, Brown v. Board of Education 
corrected an erroneous decision, a badly erroneous decision, 
and vindicated a dissent by the first Justice Harlan in Plessy 
v. Ferguson, where he correctly identified that separate to 
advantage one race can never be equal.
    Senator Blumenthal. And do you agree with the result?
    Judge Gorsuch. In Plessy, no. Absolutely not.
    Senator Blumenthal. No. Do you agree with the result in 
Brown v. Board?
    Judge Gorsuch. Brown v. Board of Education, Senator, was a 
correct application of the law of precedent, and----
    Senator Blumenthal. So you agree with it?
    Judge Gorsuch. Senator, it is a correct application of the 
law of precedent.
    Senator Blumenthal. By the way, when Chief Justice Roberts 
testified before this Committee and he was asked by Senator 
Kennedy, ``Do you agree with the Court's conclusion?''--meaning 
in Brown--``that the segregation of children in public schools 
solely on the basis of race is unconstitutional,'' Judge 
Roberts answered, unequivocally, ``I do.'' Would you agree with 
Judge Roberts?
    Judge Gorsuch. Senator, there is no daylight here.
    Senator Blumenthal. Okay.
    Judge Gorsuch. Justice Marshall--sorry, Justice Harlan got 
the original meaning of the Equal Protection Clause right the 
first time, and the Court recognized that belatedly. It is one 
of the great stains on the Supreme Court's history that it took 
it so long to get to that decision.
    Senator Blumenthal. Do you agree with the Court's outcome, 
the result, in Griswold v. Connecticut and Eisenstadt v. Baird? 
And you know that they struck down the ban on contraception. I 
believe it has been discussed earlier. Do you agree with the 
result in those cases?
    Judge Gorsuch. So Griswold, Senator, as you know, held that 
the Fourteenth Amendment Due Process Liberty Clause provided a 
right to married couples to the use of contraceptive devices in 
the privacy of their own home. And then Eisenstadt extended 
that to single persons.
    Senator Blumenthal. Right.
    Judge Gorsuch. Senator, those are precedents of the U.S. 
Supreme Court. They have been settled for 50 years, nearly, in 
the case of Griswold. There are reliance interests that are 
obvious. They have been reaffirmed many times. I do not see a 
realistic possibility that a State would pass a law attempting 
to undo that or that a court of the United States would take 
such a challenge seriously.
    Senator Blumenthal. I have a very simple question for you. 
Do you agree with the result?
    Judge Gorsuch. Senator, I will give you the same answer.
    Senator Blumenthal. Again, I just want to tell you what 
Justice Alito said in response to that question. He said very 
simply, talking about Eisenstadt, ``I do agree with the result 
in Eisenstadt.''
    Judge Gorsuch. It was an application of equal protection 
principles, and----
    Senator Blumenthal. Well, I know what it was. I am asking 
you for a direct, clear, unequivocal answer.
    Judge Gorsuch. And, Senator, I am trying to give it to you. 
And as I recall, Justice Alito said the same thing, which is 
that there is an equal protection argument. Once you have 
Griswold in place, then it follows as a matter of equal 
protection that the same--what was true for married couples is 
true for single persons, and that was an application of settled 
equal protection principles.
    Senator Blumenthal. I want to tell you what Chief Justice 
Roberts said when he was asked the same question about 
Griswold. He said, ``I agree with the Griswold Court's 
conclusion that marital privacy extends to contraception and 
availability of that.''
    My time is about to expire. I just want to say I hope that 
when we resume questioning, perhaps you can give me somewhat 
more direct and unequivocal answers in the same way that 
Justices Roberts and Alito and Kennedy did to the same 
questions.
    Thank you, Mr. Chairman.
    Senator Tillis [presiding]. The Senator from Idaho.
    Senator Crapo. Thank you, Mr. Chairman. And, Judge Gorsuch, 
first of all, I want to thank you for preparing yourself for 
this opportunity and for this service to the United States. You 
have acquitted yourself very well today. In fact, I am very 
impressed with your knowledge of the cases and your ability to 
understand and articulate your positions on the issues.
    I have a couple of tough questions for you first. Is it 
true that you have been endorsed by John Elway?
    [Laughter.]
    Judge Gorsuch. You know, Senator, a couple of things have 
made my day recently, and hearing that was definitely one of 
them. You know, in Colorado, I mean, where I come from, that is 
big stuff.
    Senator Crapo. Well, it is. And, you know, some of us 
Westerners who do not have a pro team in our State kind of 
agree with that as well.
    Judge Gorsuch. Senator, I will tell you, what meant as much 
to me, though, was an article I saw not too long ago someone 
put in front of me from the Albuquerque Journal, and it quoted 
two lawyers who appear in front of me all the time. One is a 
civil rights attorney, the other represents indigent criminal 
defendants routinely in my court. They win some; they lose 
some. And they both went out of their way to say, ``He is a 
fair judge.'' And you know what? The compliment of the people 
who work with me day in and day out, who win some and who lose 
some, that means the world to me.
    Senator Crapo. That is very impressive, and at the end of 
my opportunity to ask questions here, I am going to submit a 
statement for the record that has been submitted by another one 
of your associates and friends who endorses the way you have 
conducted yourself on the bench. It is good to have good 
friends who will stand up for you.
    Another tough question. I appreciated the discussion that 
Senator Flake and you had about fishing. This is going to test 
your true abilities as a fisherman. Would you tell me where 
your favorite fishing stream is?
    [Laughter.]
    Senator Crapo. And do not say, ``No Tell'em Creek.''
    Judge Gorsuch. Do I have to answer this question, Mr. 
Chairman?
    [Laughter.]
    Senator Crapo. No, you do not have to answer it. At least 
not publicly.
    Judge Gorsuch. I would be happy to share with you privately 
my views on this subject.
    Senator Crapo. We will talk.
    Judge Gorsuch. My experience is, though, that once the word 
gets out, then it is not my favorite spot anymore.
    Senator Crapo. Okay. You have just proven yourself as a 
fisherman.
    I also wanted to just tell you I appreciated the 
conversation you had with one of my other colleagues here about 
your law clerks. I, too, am a law clerk. I do not know that you 
knew, probably, the judge I worked for, Judge James M. Carter 
on the Ninth Circuit. He passed away in 1979. He was appointed 
by Harry Truman to be a District Judge in Southern California 
and then by Lyndon Johnson to be a Circuit Court Judge on the 
Ninth Circuit. And I had the experience as his law clerk that 
you described your experience to be and those who serve as your 
law clerks, and I just wanted to tell you, you connected with 
me on that. I truly appreciated that bit of just learning more 
of your human side in that context.
    You know, this is also a point in this hearing that pretty 
much everything has been said but not everybody hasten an 
opportunity to ask you to say it, and I apologize if some of 
the things are repetitive. But some issues keep coming up, and 
I want to get back into some of the core issues and just give 
you an opportunity to restate the case. And a couple of those 
are pretty obvious. In fact, our Chairman started out with this 
first issue, and that is, what is the role of a judge? I have 
before me here the statutory oath that we give to judges. I 
will just read part of it. It is ``to administer justice 
without respect to persons, and do equal right to the poor and 
to the rich.'' And it also says to ``faithfully and impartially 
discharge and perform all the duties incumbent upon [the judge] 
under the Constitution and laws of the United States.'' That is 
some pretty high-minded language.
    What is your opinion of the role of a Justice on the 
Supreme Court?
    Judge Gorsuch. Senator, it is the same thing. It does not 
change. It is a more public role. There may be more civic 
education involved, or at least an opportunity somebody might 
listen to you a little bit more. And Justice O'Connor again 
comes to mind here.
    But the job does not change, and the law is the law. It is 
what we do day in and day out. And the discussions about the 
judiciary I think often miss the fact that judges agree 
overwhelmingly on the disposition of cases. A tiny percentage 
of the cases go to the Supreme Court of the United States, 70, 
80 cases a year, a fraction of a fraction of a percent. And 
even then--even then--the Justices of the U.S. Supreme Court 
are unanimous in their decisions 40 percent of the time.
    Now, think about that. You have not just three judges who 
have to agree, as on the Court of Appeals, generally speaking, 
but nine. Nine Justices who are appointed by five different 
Presidents right now. And people say the world has changed, but 
in some ways it has not because that 40 percent number has been 
remarkably steady since the Second World War. That is a pretty 
incredible thing when you think about it.
    Senator Crapo. It is.
    Judge Gorsuch. That is a testament to our rule of law. It 
is human, it is imperfect, but it is sure better than anything 
else anybody has ever devised.
    Senator Crapo. Well, that commitment to interpreting and 
applying the law honestly, fairly, and impartially is critical. 
It is what we need in Supreme Court Justices, and, again, I 
appreciate your answer on that question.
    Now, again, I apologize that this is a repetitive question, 
and, in fact, you were just asked it in another way just now, 
but it is one that keeps coming up and which I expect is going 
to be a discussion point for the rest of this process, and that 
is the litmus test issue.
    You have already said it, but I am going to ask you to say 
it again. Did anyone in the nomination process, the President 
included, require of you a commitment for any kind of a litmus 
test as to how you would rule on any issue or in any case 
whatsoever?
    Judge Gorsuch. No, Senator. And if they had, I would have 
walked out of the room, period.
    Senator Crapo. So to put it another way, if you had to, you 
would--if the requirements of the law were that you had to rule 
against the President of the United States in a case, you would 
do so?
    Judge Gorsuch. Senator, if that is where the law and the 
facts lead me, do it without hesitation. It is--I have done it. 
I have done it many times without respect to who is in charge. 
I rule for the Government sometimes. I rule for the accused, 
for the prisoner, for the immigrant, or the student, for the 
employee, whomever it is, based on the law and the facts of the 
particular case at hand. And I believe respectfully my record 
demonstrates that.
    Senator Crapo. I think it does, too. And there has been 
some questioning here today about--this is my characterization 
of it, but I think it is pretty clear--a desire to get you to 
get involved in the politics of the court as though there is an 
appropriate role for a judge to be a politician or to be 
involved in politics.
    I remember in our meeting in my office that you were quite 
emphatic about the fact that you would not let your politics 
get into your job as a judge or a Justice. Could you comment on 
that?
    Judge Gorsuch. Senator, it really comes from my experience 
as a lawyer, and General Katyal put it better than I could. But 
the fact of the matter is I represented plaintiffs, I 
represented defendants. I represented the big guy, I 
represented the little guy, however you want to call it. And in 
each and every case, all I wanted was a judge who did not 
decide the case based on his personal beliefs, her personal 
religion, his politics, what she had for breakfast. I just 
wanted someone to come in and look at the law and look at the 
facts, study it as hard as they could, and make as neutral and 
dispassionate a judgment as they could. That is what I wanted, 
a human judge, somebody who was a person. It helped if they 
were kind, but I would take a curmudgeon. There were some 
curmudgeons. A fair curmudgeon any day of the week I would 
take.
    Senator Crapo. Yes.
    Judge Gorsuch. I wanted a fair judge. And I resolved to 
myself that I would remember, so long as I was on the bench, I 
would remember what it was like to be in the well, what it was 
like to have to make the arguments, because I tell you what, 
asking the questions is a lot easier than having the answers. I 
sleep a lot better the night before argument as a judge than I 
did the night before argument as a lawyer. And so I resolved I 
wanted to be the kind of judge that I wanted when I was a 
lawyer.
    Senator Crapo. Well, thank you. Now, let us move on to the 
question of precedent. Could you generally--again, I realize 
this is repetitive. Again, tell us your view of precedent, 
particularly as a Supreme Court Justice, if you are to be 
confirmed, what you believe the proper role of precedent is.
    Judge Gorsuch. Senator, precedent is the starting point for 
any good judge. Precedent is our history, our shared history, 
our patrimony; the wisdom of the ages, if you want to think of 
it that way. And it would be foolish of any judge to come in 
and think that he or she knows better than everybody who has 
come before them. It would be an act of hubris.
    So the starting point and the great anchor of the law, as 
Francis Bacon called it, is precedent. As Hamilton said, 
judges, because we are life tenured, need to be bound down by 
strict rules and precedents. And I take that obligation 
seriously.
    Senator Crapo. So that people can know what to expect out 
of the law.
    Judge Gorsuch. Reliance is a huge part of it.
    Senator Crapo. Now, it does turn out, particularly at the 
level of the Supreme Court, that there are times when precedent 
is revisited. Could you tell us when it is appropriate, how 
does a person, particularly a Supreme Court Justice, how should 
a Supreme Court Justice approach that question?
    Judge Gorsuch. The same way a Circuit Judge approaches a 
question with Circuit precedent. We do the same thing. Nothing 
changes. It is the same set of principles.
    Senator Crapo. So what process do you go through to make 
the decision that you should revisit precedent?
    Judge Gorsuch. Start with a presumption in favor of 
history, and that people who came before you were just as smart 
or maybe even smarter than you are. When you put on the robe, 
you lose the ego. You look at the reliance interests that have 
formed around the precedent. You look at how long it has been 
around. You look to see whether it has been reaffirmed. You 
look at the quality of the initial decision. You look at the 
doctrine and whether it has been built up around it or whether 
it has eroded away. You look at workability. Those are some of 
the factors a good judge looks at when deciding any challenge 
to a precedent.
    Senator Crapo. And I assume it is not a decision reached 
lightly.
    Judge Gorsuch. Senator, no decision should be reached 
lightly as a judge.
    Senator Crapo. Well said.
    I want to move on now to one that you have been asked a 
little bit about today but not a lot, and that is the Tenth 
Amendment to the Constitution, which says, ``The powers not 
delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States 
respectively''--and I think some people stop there--``or to the 
people.''
    This is the issue of Federalism. I have a few specific 
questions, but could you just discuss with me in general your 
feelings about that amendment and what it means in our American 
jurisprudence?
    Judge Gorsuch. Well, Senator, it is part of the Bill of 
Rights, like all of the rest of the Bill of Rights, and it was 
thought important to add as part of the first 10 Amendments to 
the Constitution as a package. And the thought was to emphasize 
and make very clear that the Federal Government is a government 
of enumerated powers, not a plenary government with 
unenumerated, unlimited power, and that there was reserved to 
the people and to the States abundant rights.
    Senator Crapo. I agree with that. A lot of my constituents 
and, frankly, a lot of people that I talk to around the country 
believe that has pretty much been eroded in the sense that the 
place where there is authority reserved to the States is a very 
small place today. Because of certain Supreme Court rulings, 
because of certain doctrines related to the Commerce Clause and 
others, it is felt that the place in which the Federal 
Government is free to assert its authority, even to the point 
of superseding State authority, is so large now that the Tenth 
Amendment has lost much of its meaning.
    Could you comment on that?
    Judge Gorsuch. Well, Senator, Tenth Amendment cases do come 
before the Court and related Commerce Clause challenges that 
are kind of an analog here. So I have to be careful.
    Senator Crapo. Understood.
    Judge Gorsuch. But I would point you to the New York case, 
Justice O'Connor again, pointing out that there are limits to 
how far the Congress and the Federal Government may go to 
commandeer State governments. And then, of course, there is the 
Chief Justice's opinion in the ACA case with regard to Medicaid 
expansion and the limits of the Commerce Clause power there. So 
there are a couple of decisions that are out there that you are 
aware of that discuss this issue.
    Senator Crapo. I think that the discussions that have been 
had today about the Chevron case get into this arena. Earlier, 
when you were asked questions about it, you indicated that in 
your--and, again, I realize you may not be able to go very far 
in this answer, but I would like to give you an opportunity to 
explain it as much as you can. I believe in the decision that 
you wrote, you said the elephant in the room was the question 
of deference to Executive agency actions. That is a rough 
paraphrasing of what you were discussing. And I believe you 
said that there were due process, equal protection, and 
separation of powers issues related to that.
    Could you expand on that a little bit?
    Judge Gorsuch. Well, Senator, I would be happy to, of 
course. In that case, again, it involved an undocumented 
immigrant, and the question was whether an agency could 
overturn judicial precedent retroactively so that this man who 
had relied on our precedent essentially had the legal rug 
pulled out from underneath him. And it seemed to me that raised 
a variety of questions.
    First, it meant now that he had to wait not 10 years 
outside of the country but perhaps 13 or 14 because they wanted 
to retroactively overturn judicial precedent. And I asked in 
terms of fair notice, advance notice, due process, how is a 
person, the least amongst us, anyone, supposed to organize 
their affairs, rely on the law, precedent, if it can be 
overturned by an agency willy nilly?
    What are the equal protection implications if the person 
who declares the law is now a political branch rather than the 
judicial branch, where selective picking and choosing of 
winners and losers can be had in the application of the law? I 
am worried about that.
    I worry about the separation of power. How is it that an 
agency can overturn a judicial precedent effectively without 
the concurrence of Congress? Congress, of course, has the power 
to write statutes. The last time I checked, that is the 
legislative power, though, and to overturn judicial precedents 
on statutory on interpretation, that is this body's role.
    So those were some of the things I worried about, and I 
worried about just the plain old statutory text, too, of the 
APA in which Congress is assigned the task, of course, of fact-
finding to the agencies and told us, again, to provide a highly 
deferential standard of review to the agencies, the chemists, 
the biologists, the scientists; but said when it comes to 
interpreting the law that the courts are supposed to do that. 
So those were some of the questions that I found difficult in 
that case.
    Senator Crapo. Well, I appreciate the perspective that you 
have. Again, still talking about Federalism and the Tenth 
Amendment, you are familiar with the dormant Commerce Clause 
concept?
    Judge Gorsuch. Yes.
    Senator Crapo. Could you describe what that means to you?
    Judge Gorsuch. Well, the Commerce Clause appears in Article 
I. Article I affords this body and the House of Representatives 
the power to legislate interstate commerce, among many other 
things. That is the Commerce Clause, the non-sleeping, the non-
dormant Commerce Clause.
    Senator Crapo. Right.
    Judge Gorsuch. But we have this sleeping thing over here, 
and it is the product of judicial interpretation that suggests 
that sometimes even when Congress has not exercised its powers 
under the Commerce Clause, States infringe Congress' authority 
by stepping into the regulation of interstate commerce 
themselves in a way that, though Congress has not itself 
proscribed, would still offend congressional authority. That is 
the doctrine.
    Senator Crapo. Correct.
    Judge Gorsuch. Okay.
    Senator Crapo. So that is how I understand it as well, and 
I realize that you may not be able to go much further in 
discussing your feelings about that doctrine. But if you can, I 
welcome you to.
    Judge Gorsuch. Well, Senator, I have tried to make clear 
today that my feelings, respectfully, on any of these topics 
are things I try to leave behind, and I try to take the facts 
and the law and the precedent before me very seriously. I come 
here with no agenda but one, no promises but one: to be as good 
and faithful a judge as I know how to be. That is it. And I 
cannot promise or agree or pledge anything more than that to 
this Congress. I just cannot, not as a good judge, not as 
someone who has to look litigants in the eye and tell them I am 
a fair and impartial judge of their case, not to someone who 
respects the separation of powers. So that is where I come from 
on that.
    Senator Crapo. Thank you very much, and I respect that. 
And, frankly, America is very fortunate to have someone who 
strongly holds to that perspective nominated to this critically 
important position.
    I just want to clear up one other thing, and then there are 
a few issues I just wanted you to also discuss a little bit 
further with me.
    Back to the Hobby Lobby case, I just wanted to give you an 
opportunity to clear one thing up, at least for me. Maybe 
everybody else understood this very clearly. That case went to 
the Supreme Court and was resolved in a 5-4 decision. But if I 
understand the rulings correctly, of the four judges who 
dissented, only two of them felt that the issue relating to a 
for-profit corporation was dispositive. Did I get that right? 
Or objected to that part of the ruling, is that correct?
    Judge Gorsuch. That is right. Yes, two dissenters did not 
feel the need to reach that issue.
    Senator Crapo. I just wanted to be sure that was----
    Judge Gorsuch. That is right.
    Senator Crapo [continuing]. Made clear in the record.
    In the time I have left, which is about 8 minutes, I would 
just like to ask you about several of the things that I believe 
you have written about. The first is the Seventh Amendment 
right to trial. I understand that you have written about that. 
Is that correct?
    Judge Gorsuch. I have, Senator.
    Senator Crapo. What are your thoughts about that?
    Judge Gorsuch. Senator, I believe in juries. I liked trying 
cases to juries. I liked being on a jury. I think it is a part 
of our civic engagement that is really valuable. People feel 
connected to their Government. Hamilton and Madison, I think it 
was--I cannot remember which--in the Federalist Papers debated, 
you know, is it a bulwark of liberty or is it the very 
palladium of liberty? That is what they thought of the Seventh 
Amendment. And I think it is just so difficult for litigants to 
get to a jury now. And we spend so much time in preliminary 
discovery, what we call discovery, motions practice. Lawyers 
become poets of the nastygram. They can write interrogatories 
in iambic pentameter. But there just are not that many jury 
trials anymore. And I am not sure that is a good thing.
    Senator Crapo. Does this relate to your writings also about 
or your concerns about access to justice?
    Judge Gorsuch. Yes, Senator. Yes.
    Senator Crapo. Can you expand on that a little bit?
    Judge Gorsuch. Well, when it becomes so expensive and takes 
so long to get to a jury, to get to a trial, some people do not 
bring good claims. A lot of people are left not bringing good 
claims to court. That is a problem on the one side of the 
``v.'' and I saw that as a lawyer. And on the other side of the 
``v.'' defendants, sometimes you feel like you have to settle, 
not because the case has merit but because the cost and the 
delay to the client are so significant in getting to a decision 
that you cannot afford to do it. You have to get on.
    And as I indicated earlier, the American College of Trial 
Lawyers--and both represent both plaintiffs and defendants--
have indicated both these problems are real in our system and 
need to be addressed.
    Senator Crapo. Thank you. The last issue I will ask you 
about is your thoughts, which you have already referenced 
somewhat, on overcriminalization in the law. Could you 
basically just reiterate that for us?
    Judge Gorsuch. Yes, Senator. As I indicated earlier, I 
think the number is something like 5,000 Federal criminal 
statutes on the books today and hundreds of thousands in the 
Federal Register, and that 8-point font, I need to bring out my 
reading glasses for when I pull open the Federal Register. And, 
you know, I have a hard time reading it. And I have a hard time 
imagining the American people can read it, to be honest with 
you.
    And Madison warned about a world in which law, written law, 
is lacking, and he also warned about a world in which we would 
have too much written law, a paper blizzard, so much so that 
the prosecutor can choose his charges with impunity and the 
people do not have notice really what is expected of them.
    So I think both of those things on both ends of the 
spectrum are a concern, and Aristotle was right there, too. We 
are looking for a golden mean.
    Senator Crapo. Well, and I think earlier today you also 
referenced--maybe you meant to in these comments--the 
regulatory explosion of criminal penalties. Is that a part of 
this as well?
    Judge Gorsuch. I would say it has been part of--I do not 
know about an explosion, but it is just a fact of life that has 
been with us for a while and growing.
    Senator Crapo. I will not ask you to comment on this, but I 
think it is an explosion, and not just on the criminal side, in 
the civil side as well, just the regulatory growth that we have 
seen in our Government recently. This is not an issue for you, 
at least to discuss with me today, but I think we have a lot of 
difficulty simply because of the complexity that we are 
creating in our legal system. And many of those difficulties 
will need to be resolved at the policy level. I understand 
that.
    Judge Gorsuch, again, I just want to thank you for being 
willing to step up and do this service. It was notable to me, I 
think you said earlier, that Justice White only spent about 90 
minutes in his hearing. Is that correct?
    Judge Gorsuch. That is what I am told.
    Senator Crapo. Remarkable. Thank you again.
    Judge Gorsuch. Enviable.
    [Laughter.]
    Judge Gorsuch. No, this has been a great pleasure, a great 
honor to be here with you, Senator, and with all of your 
colleagues.
    Senator Crapo. Well, we understand what you and your family 
and friends are going through. We know the commitment that you 
have made simply to agree to be nominated and move forward 
through this process, and I want to thank you for doing that as 
well. I truly do appreciate it. Thank you very much.
    Before I yield my time, I would like to ask unanimous 
consent first to enter a letter into the record from the 
president of Colorado Farm Bureau endorsing Judge Gorsuch; 
second, a letter from Todd Seelman, managing partner at the 
Denver office of--I will probably mispronounced this--Lewis, 
Brisbois, Bisgaard, and Smith in support of Judge Gorsuch's 
nomination; another letter from the Lincoln's Inn Society of 
Harvard Law School, which is a number of people who know you 
from this group and who have commented on your humility, 
thoughtfulness, and intellect, which we have seen today; and 
then, finally, an article from a Colorado District Court Judge, 
John Kane, in which he rebuts basically the notion that there 
is any kind of ideological bias in your record, and I think 
says very positive things about Judge Gorsuch.
    I would ask unanimous consent to put these documents into 
the record.
    Senator Tillis. Without objection, the documents will be 
entered into the record.
    Senator Crapo. Thank you very much.
    [The information appears as submissions for the record.]
    Senator Tillis. The Senator from Hawaii.
    Senator Hirono. Thank you, Mr. Chairman.
    The end is nearing for today, Judge Gorsuch. We have sat 
here for close to 10 hours now, and you have not told us your 
understanding of cases already decided by the Supreme Court, 
except to say that they are law and precedent. You have not 
told us your view of cases currently before the Court, and you 
will not tell us your view on issues that might someday be 
presented to the Court.
    In fact, you have provided us less in the way of answers 
about how you would approach cases than previous nominees to 
the Supreme Court. So how should we divine what you would bring 
to the Supreme Court in terms of your judicial philosophy? By 
looking at your judicial record, by looking at your writings?
    I see a pattern that is very much on a par with the Roberts 
court's steady march toward protecting corporate interests over 
individual rights. That is not protecting the rights of the 
minority, as you told me in our meeting, which is the purpose 
of Article III. So I hope that in answering my questions, you 
can provide some reassurances that you will be a judge or 
Justice for all Americans.
    You had an extended discussion today with Senator Franken 
about your dissent in the TransAm Trucking case. I want to talk 
to you about another case, Longhorn Service Company v. Perez, 
in which you overruled an agency decision about worker safety. 
You were in the majority in a 2-1 decision--could have gone the 
other way if you had gone that way--that overturned a sanction 
against a company based on a strained distinction between a 
floor hole and a floor opening.
    The dissenting judge, a President George W. Bush appointee, 
described this distinction as nonsense and said the distinction 
between a floor hole and a floor opening did not matter in this 
case because the company was in violation of an OSHA standard 
either way.
    Why did you believe it was appropriate to rely on a 
strained distinction between floor hole and floor opening, at 
odds with the law's intent and purpose to protect worker 
safety?
    Judge Gorsuch. Senator, I appreciate the opportunity to 
address that. As I think you have indicated, I was not the 
author of that opinion. I did not write it. One of my 
colleagues wrote that opinion. Another one of my colleagues 
dissented. You are quite right about that.
    I do not have a dog in the hunt when it comes to holes and 
openings in floors. But apparently, OSHA does. OSHA 
distinguishes between floor holes and floor openings when it 
comes to----
    Senator Hirono. Excuse me.
    Judge Gorsuch. Spaces----
    Senator Hirono. Excuse me, Judge. That case held that you 
overruled the agency decision.
    Judge Gorsuch. Yes.
    Senator Hirono. Which did not make a distinction.
    Judge Gorsuch. With respect, Senator, OSHA regulations do 
make a distinction between, as I recall, it has been a while--
--
    Senator Hirono. Not in this case, sir.
    Judge Gorsuch. Well, Senator, there are different 
regulations for floor openings and floor holes in--I think this 
is an oil and gas rig or maybe a fracking rig. And what you 
have to do in terms of remediation, cover or a handrail. There 
are different consequences whether it is a hole or an opening, 
as I recall.
    And the party there, nobody was injured, but they got a 
fine for not doing maybe covering it up, I do not recall, 
whatever the agency wanted them to do. And the question was 
whether they had been provided notice they were being charged 
with whether it was a hole versus an opening.
    And Senator, all I was trying to do there, I agreed with my 
colleague who wrote the majority opinion that OSHA charged what 
it charged it had to prove and that it cannot change the charge 
in the middle of the proceedings, as I recall.
    Senator Hirono. Well, the dissent indicated that this 
distinction was nonsense, and therefore, they----
    Judge Gorsuch. Well, that might be true.
    Senator Hirono. Yes.
    Judge Gorsuch. I mean, I do not know. As they say, I do not 
have a dog in that hunt. I am just trying to apply the OSHA 
regulation.
    Senator Hirono. If I can go on? So that law, though, was 
for the purpose of worker safety. And I think you responded to 
one of the questions from my colleagues that you do look to the 
purpose of the law and that is what judges should effect. So 
the purpose of that law was worker safety. So I am really not 
understanding why you went with the majority in making that 
kind of distinction.
    Let me move on. Earlier, you had an extensive discussion, 
as I mentioned, with Senator Franken about TransAm Trucking and 
whether you understood the impossible choice your decision 
would have given to the driver in that case, Alphonse Maddin. 
And if your decision had been the majority, which it was not, 
it would have made a driver like Mr. Maddin choose between 
endangering his own life and health or keeping his job.
    I am hoping that you will share more about your approach to 
cases like TransAm Trucking. Your dissent dismissed the 
argument that the law should be interpreted in light of its 
purpose of protecting public health and safety, saying that 
those goals were too ephemeral and generic. Did the purposes of 
this law to protect an employee from being fired for acting in 
response to safety concerns play any role in your decision?
    Judge Gorsuch. Senator, I appreciate the opportunity to 
talk about this again. The statute there protected individuals 
who refused to operate a motor vehicle, and at least as I saw 
it--and this is just one judge, how I saw one case in 10 
years--and I saw that the individual drove away. He operated 
the motor vehicle. So I did not see how he could claim 
protection of a statute that hinges on a refusal to operate.
    I am relieved to know that he was able--that he was fine 
and was able to meet up with his employer 15 minutes or so 
later, as I remember the record. But my heart goes out to him, 
and I said that in the opinion that he was put in a rotten 
position. And I go home at night with cases where sometimes the 
law requires results that I personally would not prefer.
    Senator Hirono. I think that you could possibly have 
interpreted the definition or the requirement that he actually 
refused to drive the vehicle. He refused to drive the vehicle 
with the attached trailer. But you could have held, I would 
think, that he refused to drive the vehicle in an unsafe way.
    So, I mean, the way I look at this decision, and you were 
not in the majority, is that if judges are going to work this 
hard to strain the text of a law to undermine the purpose, 
which was for the safety and that a driver who made a decision 
based on that would not be fired, I think that makes it pretty 
tough for any laws that Congress passes or will pass to really 
be effective in protecting American workers.
    I would like to turn to Citizens United. In this case, the 
Court adopted a narrow view that only quid pro quo corruption 
counts regarding campaign contributions and that appearance of 
corruption, basically, which had also been a concern, is out 
the window. This has unquestionably changed the landscape of 
our elections, unleashing a flood of corporate money and 
campaigns.
    If corporations are able to spend unfettered money on 
American elections, what is there to stop a foreign company 
from funneling money into our elections through its American 
subsidiary? For example, what limits would prevent a Russian 
oligarch from financing a billion-dollar independent 
expenditure operation through an American middleman?
    Judge Gorsuch. Well, Senator, I appreciate the opportunity 
to answer that. If I might, though, I would just point to my 
record on employment cases. There are plenty of cases where I 
have ruled for the employee and not the employer. We can pick 
one and talk about one, but there are many, many where I have 
ruled for the employee, even overturning the District Court 
when the District Court ruled for the employer. Lots of them, 
and I would be happy to talk about any of them.
    Senator Hirono. Well, I am not.
    Judge Gorsuch. But if we want to----
    Senator Hirono. I am not asking about the others. So let 
us----
    Judge Gorsuch. I understand. I understand that.
    Senator Hirono. Can you respond to my question about 
Citizens United and unfettered foreign money that can come into 
our campaigns?
    Judge Gorsuch. Senator, I would say that there is lots of 
room for congressional regulation here and that, in fact, the 
Supreme Court has made clear that foreign money in particular 
is an area where Congress has substantial authority available 
to it.
    I would say this----
    Senator Hirono. Are you saying--I would just like a 
clarification. Then you are saying that Citizens United leaves 
open for Congress to prohibit foreign money in our elections? 
Is that not already happening?
    Judge Gorsuch. Senator, I would say there is ample room in 
the area of campaign finance for further legislation, all sorts 
of room where the Court's made clear, remains. It struck down 
one law. That does not mean that every law will be stricken. It 
does not mean that Congress has no role. It means the Congress 
passed one law that, based on one record, the Supreme Court 
found to violate the First Amendment.
    Senator Hirono. So since, since there is so much concern 
about foreign money and foreign governments attempting to 
interfere or really, no, interfere with our elections and if 
Congress were to pass a law that prohibited foreign 
contributions through middlemen or any other way, you would 
sustain that law?
    Judge Gorsuch. Senator, I am not making any promises to 
anyone about how I would rule. I understand people would like 
me to make promises, but I just--that is not what a good judge 
does. It is not fair to the parties. I do not prejudge cases. 
That would be a violation of separation of powers, in my view. 
It would be the end of the independent judiciary.
    Senator, what I would promise you to do is to look 
carefully at the record with deference to the fact-finder, to 
look at the briefs, to go through the whole judicial process 
and carefully consider all the arguments made by both sides, as 
a good judge does.
    Senator Hirono. Thank you. You have articulated that many 
times.
    The sheer volume of speech bought by corporate money drowns 
out the voices of everyday Americans on important issues. I am 
concerned with influence-peddling in politics, such as from 
billion-dollar donors like the Mercers or Philip Anschutz.
    Judge Gorsuch, given that you volunteered on numerous 
Republican political campaigns dating back to the 1970s, were 
you ever concerned with the flood of unfettered money in our 
elections and campaigns?
    Judge Gorsuch. Senator, the first campaign I worked on I 
was about 9 years old. It was my mom's. She was running for the 
State house, and I think it was, again, her idea of daycare 
that I would walk with her.
    [Laughter.]
    Senator Hirono. So just--I am sorry. You know, I have only 
18 minutes left. And had you ever been concerned? Because 
certainly you worked on political campaigns when you were 
beyond 9 years old.
    Judge Gorsuch. I did.
    Senator Hirono. Was there ever a time when you were 
concerned about unfettered money in our political campaigns?
    Judge Gorsuch. Senator, I have lots of concerns as a person 
and as a citizen. But I am now a judge, and my personal views 
have nothing to do with how I rule on cases.
    Senator Hirono. Thank you.
    Judge Gorsuch. It is a discipline that a judge learns and 
exercises and, hopefully, improves upon over time. And I am 
steadfast about that, Senator. It means--it means the world to 
me as a lawyer and as a judge who cares about an independent 
judiciary. It comes from a place deep in my bones.
    Senator Hirono. Thank you. I would like to move on.
    Judge Gorsuch. Of course.
    Senator Hirono. I listened to your conversation with 
Senator Coons about the Hobby Lobby case, and it is a decision 
that you joined in the Tenth Circuit and was supported by the 
Roberts Court. And in that case, you decided that a corporation 
with 23,000 employees has rights to the exercise of religious--
of religion protected by the Religious Freedom Restoration Act 
and that it could use those rights to deny the thousands of 
women that it employed access to certain kinds of health 
coverage.
    There was a notable dissent in the Supreme Court's Hobby 
Lobby decision by Justice Ginsburg, joined by the two other 
women on the Supreme Court. And Justice Ginsburg wrote, ``The 
exception sought by Hobby Lobby and Conestoga would deny 
legions of women who do not hold their employees' beliefs 
access to contraceptive coverage.''
    How much did you consider the significant need of the 
23,000 Hobby Lobby employees, of which a significant number of 
them were women working paycheck to paycheck, for access to 
healthcare that they would now be denied?
    Judge Gorsuch. Senator, I appreciate that question. The 
answer is I considered it very closely, very carefully. So did 
the Supreme Court of the United States, which affirmed our 
court. And as you know, the Religious Freedom Restoration Act 
goes above and beyond the First Amendment in protecting 
religious liberties.
    It is a judgment made by this Congress that it is free to 
amend at any time if it wishes. It can eliminate corporations 
from coverage. It can eliminate the strict scrutiny that is 
required. And it can eliminate the act at any time.
    But Senator, I gave every aspect of that case very close 
consideration. That was an en banc decision by our court.
    Senator Hirono. You did write a concurring opinion on that?
    Judge Gorsuch. I did.
    Senator Hirono. And I think your concurrent opinion could 
even be deemed an expansion of the plaintiff's rights in that 
case. So in your view, the corporation did make claims about 
contraception based on religious beliefs, which are directly 
contravened by scientific research.
    And by accepting as facts these religious beliefs and 
probing no further in agreeing that the corporation could deny 
coverage, the Hobby Lobby decision leaves us in a tough spot. 
So are there any limits, and if so, what are those limits, on 
what a corporation may claim as a belief in justifying its 
denial of healthcare for its employees?
    Judge Gorsuch. Senator, the sincerity of the belief, I 
believe, was undisputed by the Government, at least in our 
court. So I just do not think that was at issue.
    Are there limits to how far the statute goes? Yes, there 
are. The Government may force someone to forego and accept a 
substantial burden on their sincerely held religious belief if 
it can prove a compelling interest, which the Supreme Court 
accepted in this case, and can also show that it is the most 
narrowly tailored way to achieve that compelling interest.
    It is strict scrutiny. It is the highest standard known to 
law. And the problem in that case again, as the Supreme Court 
and my court saw it, was that the Government had managed to 
find a way to achieve its compelling interest in providing 
coverage to women in many other cases without requiring any 
compromise----
    Senator Hirono. So I realize that the compelling State 
interest was conceded to the Government, but my question really 
relates to the first part of the test, which is the sincerely 
held belief.
    Judge Gorsuch. Yes.
    Senator Hirono. And while that may not have been at issue 
in this case, even though if you were to look at their 
sincerely held beliefs, then there was evidence that some of 
their beliefs were scientifically not valid. So my question is 
really how--would you go behind the sincerely held belief to 
determine whether there is really a basis for this belief?
    Judge Gorsuch. You are asking me whether I would, as a 
judge, decide that someone's sincerely held religious belief is 
wrong?
    Senator Hirono. Well, based on scientific evidence or some 
other factual evidence.
    Judge Gorsuch. So that I, as a judge--I just want to make 
sure I understand the question that I would say that the belief 
is scientifically invalid and, therefore, not protected by the 
statute? Is that the question?
    Senator Hirono. Well, therefore, could not be a sincerely 
held belief.
    Judge Gorsuch. Oh, sometimes a court will hold that a 
belief is not sincerely held. That is true. That does happen. I 
have had a case involving just that scenario, and it involved a 
group of drug distributors who claimed they worshipped 
marijuana.
    Senator Hirono. Yes. I was here when you responded to that.
    Judge Gorsuch. Okay. All right. Okay.
    Senator Hirono. And you know, I hate to be rude, but I am 
down to less than 12 minutes. So if you do not mind, sir, I 
would like to go on to another area.
    In 1942, an ordinary American took an extraordinary stand. 
His name was Fred Korematsu, who boldly opposed the forced 
internment of Japanese Americans during World War II. After 
being convicted for failing to report for relocation, Mr. 
Korematsu took his case all the way to the Supreme Court, and 
the high court ruled against him. It took 39 years before a 
California judge overturned Mr. Korematsu's conviction in 
another proceeding, but the Supreme Court never overruled 
Korematsu.
    So Korematsu has joined the short list of the most 
regrettable decisions in the Court's history. And even though 
most American citizens of Japanese ancestry were loyal, the 
Court in Korematsu found that the Government's curfew and 
internment program was constitutionally acceptable because some 
unknown faction or fraction of that group posed a special 
statistical risk of disloyalty and danger.
    Today, if the Court were to assess special restrictions on 
U.S. citizens of Iranian, Yemeni, Somalian, Syrian, Libyan, and 
Sudanese ancestry, do you believe Korematsu would be applicable 
precedent for the Court to consider?
    Judge Gorsuch. No. And let me compliment Neal Katyal. When 
he was Acting Solicitor General of the United States, he 
confessed error by the Government in that case. That was an 
admirable move.
    Senator Hirono. Thank you for that ``yes'' and ``no'' 
answer. I appreciate that.
    Going on to Hamdan, during a time as a senior official in 
the Bush Justice Department, you appeared to play a significant 
role in developing and promoting the arguments in Hamdan v. 
Rumsfeld, including the argument that the President himself had 
the power to set up military tribunals to try Guantanamo 
detainees without key human rights and other protections in the 
Geneva Convention and the Uniform Code of Military Justice.
    Judge Derrick Watson, a Hawaii Federal District Court 
Judge, recently issued a stay of significant portions of 
President Trump's second Executive order banning nationals from 
six predominantly Muslim countries. And without commenting on 
the current case, do you believe that there are Executive 
orders that are outside the scope of appropriate judicial 
review to determine if a President has overstepped his 
constitutional authority?
    Judge Gorsuch. Senator, to me, one of the beautiful things 
about our system of justice is that any person can file a 
lawsuit about anything against anyone at any time. Any person 
has access to our courts of justice on any subject, and a 
judge, a neutral and fair judge will hear it.
    I think that is a remarkable thing. It does not happen 
everywhere in the world.
    Senator Hirono. Is your answer that there is no Executive 
order that would not be judicially reviewable?
    Judge Gorsuch. Well, Senator, a lawsuit can be filed on it. 
What a court will do with it is a matter of judicial process, 
and we would have to go through assessing what the claim is, 
what the defenses are, take evidence, hear the arguments, make 
a decision.
    Senator Hirono. I understand. The court could say it is a 
political issue and not take it.
    Senior White House adviser Stephen Miller, who has been 
described as the architect of the Muslim ban, recently 
criticized the actions of Federal courts in staying the initial 
travel ban on national TV. Mr. Miller said that Donald Trump's 
national security decisions, ``will not be questioned.''
    I take it that you do not agree with Mr. Miller that there 
are areas like national security where the President's 
decisions ``will not be questioned'' even by a court, even by 
the Supreme Court. I take it you do not agree with that?
    Judge Gorsuch. Senator, I give you the same answer that the 
beauty of our system, and I do not want to eat up your time, 
but the beauty of our system is that anybody can bring a 
complaint to court and have an opportunity to be heard under 
the laws of our land. That is a remarkable thing when you think 
about it.
    Senator Hirono. The person who nominated you, Judge 
Gorsuch, does not have much respect for judges or courts. As a 
candidate for President and now, even as President, he has 
belittled and berated judges who do not rubberstamp his views.
    He attacked Judge Curiel, his family's heritage and his 
fairness, while he was presiding over the Trump University 
fraud case. He sought to bully Judge Robart, who decided the 
first case challenging the constitutionality of his anti-Muslim 
travel ban. He sought to intimidate the Ninth Circuit and, more 
recently, has belittled Judge Watson in Hawaii for ruling in 
the second round of travel ban cases.
    These attacks are unfair because the judges cannot respond. 
Moreover, they provoke Donald Trump's supporters. Some reacted 
by declaring a boycott of Hawaii. All this because the 
distinguished Federal judge in Hawaii gave weight to Donald 
Trump's own words about what he intended his travel ban to do.
    So I would like to give you a chance to comment and either 
defend President Trump's statements on judges or condemn them. 
And there was a moment early in your nomination when you were 
reported to comment to Senators that the President's anti-
judicial comments were ``demoralizing and disheartening.'' But 
then you went silent, even as President Trump escalated his 
attacks.
    I would like to give you an opportunity to set the record 
straight. What is your view of President Trump's comments on 
judges?
    Judge Gorsuch. Senator, I just discussed this with Senator 
Blumenthal a moment ago, and I am happy to repeat myself.
    Senator Hirono. Please.
    Judge Gorsuch. I cannot talk about specific cases. That 
would be improper. And I cannot get involved in politics. That 
would be another violation of my judicial obligations. So I 
have to be careful. I have to speak in general terms. I am not 
talking about any case or controversy.
    And I am talking about the independence of our judiciary. 
Judges have to be tough. We take slings and arrows under bright 
lights. It is part of the job. And we take them from all sides, 
all day long, every day.
    Our job is to make decisions, hard decisions sometimes. 
Sometimes that people do not like. In fact, our job usually 
makes--I am sorry, Senator. I do not mean--it looks like you 
wanted to say something?
    Senator Hirono. Yes. So Donald Trump's comments about the 
judiciary, while he may have focused on specific judges, 
indicate basically that he does not seem to respect the three 
branches of government as you do. So taken as a general 
proposition, if a President were to basically not give much 
credence or respect for the three branches of government, would 
you object to that President's comments?
    Judge Gorsuch. Senator, I can talk about my record as a 
judge. I have tried to uphold the dignity of the judicial 
office in the cases and controversies brought before me. When 
people--when judges have acted in ways that do not bring repute 
on the judicial office for making comments that are arguably 
improper, I have been on panels where we have replaced a judge 
who has done that.
    When lawyers fail to fulfill their obligations, I have 
commented, when appropriate, in cases and controversies 
properly before me. I have, in fact, even sent a lawyer to 
referral to the bar.
    Senator, I have worked to try and provide representation to 
individuals when I have seen pro se handwritten complaints that 
seem to me to have merit. I have appointed lawyers in those 
cases. That is my record as a judge, and I can assure you I am 
nobody's rubberstamp.
    Senator Hirono. So when you were speaking about certain 
comments being disheartening and demoralizing, you were merely 
speaking broadly?
    Judge Gorsuch. I do not think I was merely speaking 
broadly, Senator, with all due respect.
    Senator Hirono. You were speaking broadly.
    Judge Gorsuch. Senator, I am speaking about anyone.
    Senator Hirono. You were speaking broadly.
    Judge Gorsuch. Okay.
    Senator Hirono. So Sean Spicer just tweeted regarding your 
comments on Trump's attacks on judges, which you said were 
disheartening and demoralizing, and Sean Spicer just said you 
were speaking broadly.
    Let us move on. In your 2006 book on the future of assisted 
suicide, you argued that Casey should be read more as a 
decision based merely on respect for precedent rather than 
based on the recognition of constitutional protections for 
``personal autonomy''--and that is in quotes, ``personal 
autonomy''--or for ``intimate or personal''--again in quotes--
decisions.
    So you wrote that in your book, but since that time, well, 
in fact, before that time, in Casey, the Court relied on the 
protection for intimate and personal choices to decide many 
non-abortion cases, such as the--I always have a hard time 
pronouncing this, the Obergefell----
    Judge Gorsuch. Obergefell.
    Senator Hirono. You know which case I am talking about.
    Judge Gorsuch. I do, Senator. Yes, of course.
    Senator Hirono. Thank you. Which recognized the right to 
marriage equality.
    Has the Court's continued application of this right for 
personal and intimate choices changed your view that the 
Constitution does provide protections for intimate and personal 
decisions?
    Judge Gorsuch. Senator, I have never expressed personal 
views as a judge on this subject, and that is because my 
personal views do not matter. Obergefell is a precedent of the 
U.S. Supreme Court. It entitles persons to engage in single-sex 
marriage. That is a right that the Supreme Court has 
recognized. It is a precedent of the U.S. Supreme Court, 
entitled all the deference due a precedent of the U.S. Supreme 
Court, and that is quite a lot.
    Senator Hirono. So in your view, the Constitution does 
provide protections for intimate and personal decisions, and we 
shall see how far that constitutional protected right goes in 
other decisions.
    So, basically, what you wrote in your book is your personal 
opinion, and we can pretty much forget about it. Not to be rude 
to you.
    Judge Gorsuch. Senator, no, no. Not at all. I am not sure I 
tracked the question, though. I think it is me, not you.
    Senator Hirono. Well, okay. Let us move on.
    During the presidential campaign, Donald Trump laid out his 
litmus test--and I only have 43, 42 seconds--for nominating a 
Justice. And he did say that he would want someone who is going 
to overturn Roe v. Wade and that gun rights would be protected, 
making it pretty tough for Congress to pass what I would call 
sensible gun legislation, and that, basically, the religious 
rights of entities such as Hobby Lobby would be protected.
    So I said in my opening that it is--you know, I would 
assume that you comported with the President's litmus test. 
Otherwise, you would not be here. And do you think that you 
have provided us with any particular information that would 
cause us to believe, aside from your statement that you will be 
fair, that you do not meet these litmus tests?
    Judge Gorsuch. Senator----
    Senator Hirono. And because I have run out of time, you can 
provide that information to our Committee.
    Judge Gorsuch. May I respond, Mr. Chairman?
    Senator Tillis. Yes.
    Judge Gorsuch. Senator, I have been here for 2 days. I will 
be here for a third. I hope I have given you some picture of my 
credentials, my experience, my track record as a judge. I hope 
I have given you some sense, too, that I have rejected litmus 
tests since the day I was a lawyer in print for judges.
    I hope I have given you some view into the way I think 
about the independent judiciary, about the sort of judges I 
admire, about the things that I think are important in our 
separation of powers.
    I hope I have given you some sense of my track record. 
Ninety-seven percent of the time, unanimous decisions. Ninety-
nine percent of the time in the majority. Been reversed maybe 
once by the U.S. Supreme Court, that is arguable, in 10 years.
    I hope I have given you some picture of who I am and my 
record. No one else speaks for me, and I do not speak for 
anyone else, Senator. I really appreciate the chance to have 
this conversation with you.
    Senator Hirono. Thank you. We will see you tomorrow also.
    Judge Gorsuch. Thank you.
    Senator Hirono. Thank you, Mr. Chairman.
    Senator Tillis. Judge, we are going to give you the option 
of a 10-minute break. But instead of saying time certain of, 
well, it would be 7:57 p.m., as soon as you get back, we will 
get started. And we will go to rodeo rules. So we will make 
sure that we do not go over 8 seconds. In the West, you would 
at least understand that.
    So we will adjourn. We will start no later than 7:57 p.m.
    Judge Gorsuch. Thank you, Senator. I appreciate it.
    Senator Tillis. Or not adjourn. Recess.
    [Recess.]
    Senator Tillis. I call the Committee back to order.
    Judge Gorsuch. No, I am fine, thank you.
    Senator Tillis. Judge, my first very important question, 
please pronounce your last name.
    [Laughter.]
    Judge Gorsuch. I have answered to a lot of things, Senator. 
``Gorsuch'' is how I say it, but----
    Senator Tillis. The reason I ask that question is we had 
probably four or five cheat sheets up here with different 
phonetics. So, that is ``Gor-such, right?''
    Judge Gorsuch. That is how I would say it, but----
    Senator Tillis. For the press, it is ``Gor-such.'' For 
everybody in the audience, it is ``Gor-such.'' And I give my 
staff credit for actually getting it right, but I had a crisis 
of confidence when I saw the other cheat sheets.
    [Laughter.]
    Senator Tillis. I want to thank you for being here. And, 
Judge, I want to tell you, I grew up in the Southeast and I 
love skiing. It just never occurred to me to do it when the 
water was frozen.
    [Laughter.]
    Judge Gorsuch. Well, we will forgive you that.
    Senator Tillis. But I love the fact that you are an 
outdoorsman because it means you love our environment, you love 
being outdoors, and you want to leave a good healthy 
environment for your children and everybody's children.
    Senator Franken said that he had a career in identifying 
absurdity. I felt like I joined one when I joined the U.S. 
Senate.
    [Laughter.]
    Senator Tillis. And I am going to talk a little bit about 
that today.
    Yesterday I was saying I wanted to have you talk more and 
me less. I am not sure if I can live up to that promise because 
I want to go through a number of things. I am a numbers guy. I 
like the fact that you have repeated the numbers in your track 
record on the bench. Best I can tell, if I double the number of 
cases that people have made an issue with you. That is .003 of 
your cases, three-tenths of, what is that, one-thousandth of 
your cases are in question here.
    And I am going to go back to those because they are fairly 
limited, but before I do let me talk about another piece of 
absurdity. The absurdity would be talking about how President 
Trump set some sort of a litmus test and not recognizing that 
candidate Clinton told a town hall audience, ``I have a bunch 
of litmus tests. We have to preserve marriage equality, and we 
have to make sure Roe v. Wade stays in place.'' That sounds 
like a litmus test. I would not have used that comment by a 
candidate if we were going with a President Clinton nomination. 
I do not understand why it is relevant here. It is not you. We 
are here to talk about you and your qualifications.
    Another absurdity that I think we will see over the next 
couple of days is the absurdity of people saying that you are 
sidestepping the questions about cases that may come before 
you. I actually think you are following a code of conduct. You 
are following the Code of Conduct for United States Judges. You 
are following the American Bar Association Model Code of 
Judicial Conduct, Rule 2.10(a) and (b). I appreciate you 
respecting and living what you say, and that is the rule of law 
and code of conduct of judges.
    Now, I want to get into some specific cases, and I guess I 
will start with freedom of speech.
    Judge Gorsuch, I am going to read some of my notes because 
I want to make sure I get my points right. I want to also 
apologize again because I may do a little bit of talking, but I 
do believe the First Amendment states, ``Congress shall make no 
law respecting an establishment of religion or prohibiting the 
free exercise thereof, or abridging the freedom of speech, or 
of the press, or the right of the people peaceably to assemble, 
and to petition the Government for a redress of grievances.'' I 
think the first few words mean something very significant, and 
I think that you do, too.
    Now, clearly this amendment is not meant to limit the 
ability of the Federal Government to curtail free speech. Do 
you agree that the Founders intended this amendment to be a 
check on the Federal Government?
    Judge Gorsuch. Senator, that is what it is.
    Senator Tillis. Is it fair to say the Framers, when they 
were crafting this First Amendment, were concerned especially 
about political speech as opposed to, say, activity like exotic 
dancing or other speeches or activities that people argue are 
covered by the First Amendment?
    Judge Gorsuch. The Supreme Court has held that political 
speech is the core of the First Amendment.
    Senator Tillis. So, it is fair to say the Supreme Court has 
routinely held that political speech, especially during a 
campaign for public office, is at the core of the First 
Amendment.
    Judge Gorsuch. It has.
    Senator Tillis. A lot has been said today about money in 
politics and a landmark case called Citizens United. Citizens 
United is a very popular punching bag for some of my colleagues 
across the aisle. You spent a lot of time talking about this 
with Senator Whitehouse earlier today.
    If you listen to them on the subject, you would think this 
decision resulted in the ability for a corporation to pump 
hundreds of millions of dollars directly to political 
candidates. The facts of the case get wrapped around buzz words 
like ``dark money.'' However, I want to use some time today to 
walk through the facts of this case.
    First, at its very baseline, this case was a challenge 
brought to a Federal statute. The Federal Government through 
Congress passed a statute aimed at limiting certain speech, and 
it was Congress' activities in regards to speech that the 
Framers were concerned about. In fact, the statute prohibited 
entities, such as corporations, including non-profits and labor 
unions, from using their general treasury to fund any 
advertisement that used the candidate's name within 30 days of 
a primary or 60 days of a general election, including to 
promote a movie, as well as many express advocacy 
communications.
    This case had nothing to do with direct contributions and 
spending coordinated with specific campaigns and candidates. In 
other words, this case is not about corporations making direct 
campaign contributions at all. Citizens United was about an 
entity's ability to speak independently of any candidate or 
campaign.
    Judge Gorsuch, do you remember what behavior was in 
question or, in other words, what the Citizens United wanted to 
advertise?
    Judge Gorsuch. Well, as you say, Senator, there was a movie 
involved.
    Senator Tillis. The organization wanted to broadcast the 
film or to advertise the film before a 2008 Democratic primary. 
The Federal Government went into court and said a nonprofit 
could not produce or advertise a movie highly critical of a 
candidate. Judge Gorsuch, are you familiar with the oral 
arguments of the case?
    Judge Gorsuch. I remember listening to them on tape at one 
point, but it has been a while, Senator.
    Senator Tillis. Well, during the initial oral argument for 
the case, the Government was asked whether or not the same law 
could prevent a company from publishing a book that was the 
functional equivalent of expressed advocacy. Specifically, 
Chief Justice Roberts asked, ``If it is a 500-page book, and at 
the end it says so vote for X, the Government could ban that?'' 
The response from the Deputy Solicitor General who was 
defending the statute, stated, ``We could prohibit the 
publication of the book.''
    In the oral arguments, Justice Souter stated, ``To point 
out how far your argument would go, what if a labor union paid 
an author to write a book advocating for the election of A and 
defeat B, and after the manuscript was prepared, they went to a 
commercial publisher, and they go to Random House, and Random 
House says, yes, we will publish that. We are talking about how 
far the constitutional ban would go, and we are talking about 
books.'' The Deputy Solicitor General said, ``The labor unions' 
conduct would be prohibited.'' He goes on to say, ``I think it 
would be constitutional to forbid the labor union to do that.''
    I want everybody here to know and everybody who is 
listening to realize the consequences of this position. The 
Government at one point defended the statute by saying it could 
prevent the publication of a book by a corporation like Random 
House if the book advocated for or against a candidate.
    That is not the end of the story. The Supreme Court ordered 
re-argument. Then the Solicitor General, Kagan, slightly 
retreated from the Government's position. Then Solicitor 
General Kagan said that while the law could apply to a book, 
the Government had not applied it in the past. But when asked 
again by Chief Justice Roberts about a pamphlet, she responded, 
``I think a pamphlet would be different. A pamphlet is classic 
electioneering.''
    Again, I want everybody listening to realize what we are 
talking about here when we talk about Citizens United. They 
argue that there was constitutional authority to actually 
prevent the publishing of a pamphlet opposing a candidate if 
produced by a nonprofit organization. We as a country have a 
long history of people being able to criticize the Government, 
which includes specific offices in Government. Sometimes this 
was done anonymously because disclosing the speakers' identity 
had serious implications, whether it was the American 
Revolution, the Jim Crow South, or today. Therefore, we must be 
cautious in giving the Federal Government, including the 
executive branch, power to limit or penalize for political 
speech.
    Judge Gorsuch, you may not be able to see that. Do you 
recognize this book?
    Judge Gorsuch. I cannot see it. I am sorry.
    Senator Tillis. We got this from the Library of Congress. 
It is a collection of some of Thomas Paine's writings, 
including, ``Common Sense,'' and political writings. In this 
pamphlet, he urged the American colonies to declare 
independence and sever ties with the British monarchy. What 
some of my colleagues from the other side have attempted to do 
is tie you to a court case which you had nothing to do with. 
They painted a picture of this case as support for big money in 
politics where big corporations win and the voter loses.
    In reality, the facts of this case were much different. The 
Federal Government argued it could stop a movie because it 
contained political speech. Then it argued it could ban a book 
because it contained such speech. Then it argued it could ban a 
pamphlet because it contained such speech. That is the Citizens 
United case. I find it curious my friends are so concerned 
about Executive power and not concerned about the Federal 
Government arguing its authority to prevent production of 
movies, books, and pamphlets. It is foundational to our 
democracy.
    So, as I stated previously, they are attempting to link you 
to Citizens United, and continue a narrative that I think is 
absurd, that as a judge you will support big money and 
corporations and never side with the little guy. The facts 
dispute that. The number of cases you have heard dispute that.
    Now, I want to close out here with a little bit of 
discussion about your political positions or your past being 
instructive to the decision by some as to whether or not they 
should support your confirmation. Let us talk a little bit 
about now Justice Kagan on Citizens United as the Solicitor 
General.
    The reason that this came to my attention today was earlier 
when people were asking about the role that you played when you 
were working as an attorney on behalf of the Government. So, 
who was your client?
    Judge Gorsuch. The United States.
    Senator Tillis. So, let me go back to when Justice Kagan 
was Solicitor General. When she was nominated, she was a lawyer 
at the Department of Justice. In fact, she was the Solicitor 
General. As we have talked about, she argued with Citizens 
United. Now, she pressed the argument that the Government had 
the authority to prevent the publication not only of movies, 
but other forms of political speech, like a pamphelt.
    She accounted for her arguments as Solicitor General this 
way, her quote, ``I have tried very hard to take the cases and 
to make the decisions that are in the interest of my client, 
which is the U.S. Government.'' My guess is, that is what you 
were doing when you were in a different role representing the 
U.S. Government. I think that what she did was advocate for her 
client. You would do the same. Whether or not I would have 
voted for her, we will never know because I was not here.
    But I also want to bring up one thing. Another Member 
brought up an email sent to you in 2004 where you noted that 
you had volunteered on a political campaign. Well, once again 
you may recall that Justice Kagan also had quite a political 
career before she became judge. After she was nominated to the 
Supreme Court, after reviewing her emails from the Clinton 
White House, the AP published a report saying that as a White 
House aide, she had a flair of political tactics and often had 
to place political considerations before political views. And 
the LA Times reported, ``She worked in the research department 
defending [Democratic candidates] from political attacks and 
conducting research on the opposition.''
    I do not think there is much more to say about it either 
except to say this. In spite of her position to argue that 
things like pamphlets and movies could actually be, well, 
banned, in spite of her political activities that seem to have 
reached to a far greater level than your own, when she came 
before this Senate, Republicans joined with Democrats, and 
through unanimous consent did not force cloture. They moved on 
to the vote. And quite honestly, Republicans were in a position 
to delay confirmation.
    On Kagan and on Sotomayor, Republicans respected the 
President's authority to appoint a Supreme Court Justice, and 
Republicans did the right thing by moving forward and allowing 
the confirmation. So, I think that we have a moral high ground 
here that my colleagues on the other side of the aisle should 
take note of.
    Now, I want to get to other stuff.
    Judge Gorsuch, I want you to go back briefly. I have 15 
minutes, and I am going to go really quickly. This will be a 
lightning round.
    The ethics class. I am going to go back to absurdity. I 
appreciate that Senator Franken mentioned what he did because 
it is a perfect theme for my line of questions. There is going 
to be a lot of it spun in the press, and I want to see if maybe 
a few people will actually listen to the answers to these 
questions.
    It had to do with the letters that came from the class that 
you teach on ethics. Can you tell me again briefly about the 
course curriculum?
    Judge Gorsuch. I can try, Senator. I am very heartened by 
the fact that scores and scores of my former students have 
written this Committee on my behalf.
    Senator Tillis. And I am going to seek unanimous consent to 
put some letters of support into the record.
    [The information appears as submissions for the record.]
    Judge Gorsuch. And over the last 7 or 8 years, I have used 
the same textbook. You can take a look at the teaching manual 
and you will see exactly what we discussed.
    Senator Tillis. So, it was not an arbitrary comment. It was 
not something that was done in this one segment. It was 
something that was a part of a well-thought-out curriculum, and 
it started a discussion that I have letters that without 
objection I would like to submit to the record, that suggest 
the same. But it was not something--it was not arbitrary. It 
was not off the cuff. It was something that was a part of a 
curriculum that had existed for how long?
    Judge Gorsuch. Seven or 8 years, Senator.
    Senator Tillis. Okay. I would like to seek unanimous 
consent that I can put forth a series of documents from former 
students speaking specifically to the letter that you were 
informed of the day before yesterday, and other students that 
were in your class that saw the facts differently, and some 
other documents that I think will be good reference for the 
other Members to review. Without objection.
    [The information appears as submissions for the record.]
    Senator Tillis. Okay. Now, I want to move into a couple of 
things that I really want to get to in the TransAm Trucking 
case. First off, you have given me hope that I could actually 
understand legal opinions. Yours are well-written. One of them 
was your dissent on TransAm Trucking.
    You are not here to have a heart. You are here to interpret 
and apply the law, and I appreciate that about you because I 
suspect you have a really big heart. But I thought it 
interesting.
    I highlighted several parts in your dissent. One was when 
they suggested that he should drag the trailor instead of 
keeping it there or leaving it there. Your parenthetical 
comment, ``That was an illegal and maybe sarcastically offered 
option.'' So, you did not consider that a viable option. There 
are going to be people here that say that you were okay with 
that. That is wrong. It is absurd. And then the other one was, 
he could sit and wait for the truck to arrive, and you 
parenthetically said, ``A legal, if unpleasant, option.''
    You went on to say in your dissent, ``It might be fair to 
ask whether the TransAm decision was a wise or kind one, but it 
is not our job to answer questions like that. Our only task is 
to decide whether the decision was an illegal one.'' And then 
you go on to say that, ``There is simply no law anyone has 
pointed giving employees the right to operate vehicles in a way 
the employers forbid.''
    I think that if you go back and people read these dissents, 
it is hard for me to imagine that you arrived at this through 
any other conclusion but for the fact that Congress had not 
explicitly provided you the authority that you thought you 
needed or the reference point that you thought you needed to 
judge otherwise. And my guess is when you rode home that night, 
you wished that they probably had.,
    Now, I also thought what was interesting in your dissent 
was you kind of gave some suggestions to maybe how things 
should have been done differently or how we should have done 
our job better, so that maybe you would have been in a position 
to come up with a different judgment. But that is our job. You 
told Senator Whitehouse, ``It is not my job to do your job.'' 
That was one of your best quotes of the hearing today.
    And you are absolutely right. It is our job is to make 
value judgments. It is our jobs to get votes, and our jobs to 
answer to the American people every time we get elected or go 
to a campaign every 2 years or 6 years. So, I, for one, think 
that you came up with a well-reasoned dissent in TransAm 
Trucking.
    Now, I want to move to one that I just want to make sure I 
have time to get to because it is one where, you know, quite 
honestly, I would have completely loved for you to go the other 
way, but you did the right thing. And it is purely by 
coincidence, and it really is, I am wearing an autism pin today 
because I am a big advocate for autism research and Autism 
Speaks. I do not have any personal family experience with it, 
but it is something to me that is very important.
    In Thompson R2-J School District v. Luke P., you all came 
up with a decision that was contrary to what I would like to do 
for parents and families who have children with autism, who are 
in the public school system and not getting the results that 
they would hope to get. And in this case, again, I think you 
have the IDEA absolutely right.
    There is no way that you could have reached that far to 
support what clearly had to be--in this case it was an appeal--
that would have been sympathetic to Luke P. and his parents. 
You made the right decision.
    You know what I did in North Carolina? I changed the law. I 
did my job. You made it very clear that the IDEA did not do it, 
so as Speaker of the House, we went in there and we said that 
if a parent, after spending a year in public school, did not 
think that their child was getting what they needed, then we 
would actually allow them to go to a private school and have 
money follow them so they can do it. So, by doing my job, we 
have a few hundred kids now who are getting the education that 
they need in a private school setting.
    Thank you for forcing me to do my job. It preceeded my time 
as Speaker of the House, but we knew we had run into problems 
there, and we solved the problem. Thank you for making us do 
our jobs.
    And then finally, the case--I want to go back to quickly to 
make sure I have my notes right. One thing I like about you is 
sometimes your decisions seem to make everybody mad, which 
probably means it is a pretty good decision. So, I think 
sometimes maybe you even exceed the 50 percent rule.
    [Laughter.]
    Senator Tillis. Like the case----
    Judge Gorsuch. My daughters would agree with you.
    Senator Tillis. Like the case in Riddle v. Hickenlooper. 
You recognized that a minority political party was being 
treated unfairly as a result of actions that were taken--I do 
not know if there were Democrats or Republicans in control when 
they passed that. But that was a classic example where you 
obeyed the law.
    The other thing that was interesting about that case is you 
actually provided some food for thought on how maybe they could 
solve that problem that would be constitutionally sound, and I 
have found that in other examples. I love the fact that you do 
not believe that judges, after they have heard the argument, 
should go back and create new arguments to arrive at a 
decision.
    In your dissents and in your opinions, you basically say 
you all should have done that, not a bunch of judges in a room 
when they are deliberating. So, I think you were giving them 
food for thought.
    That is extraordinary that you would do that kind of work. 
That is why you are going to make a great Justice on the 
Supreme Court, and that is why I fully support you. And I will 
call out absurdity every time I hear it this week and next 
week.
    I will ask my colleagues to do what Republicans did before 
I have here: respect the President's right to seat somebody on 
the Supreme Court. They do not have to vote, for you, but you 
deserve an up or down vote. I have voted for cloture on a 
nominee, an Attorney General that I did not vote for. But I 
respect this institution and this process enough to let it go 
forward.
    So, I am going to work very hard to support you. I am not 
an attorney, but I did stay at a Holiday Inn Express a few 
weeks ago. Outside of watching ``Law and Order'' every once in 
a while when I get home late and unwind, I do not practice law. 
But I can tell based on what I have heard today you are a man 
of extraordinary patience.
    Yesterday, I mentioned that I thought your at-rest heart 
rate was about four. I saw it spike up 50 percent maybe to five 
or six today.
    [Laughter.]
    Senator Tillis. I will leave you with this. Peyton Manning, 
who I love, he went to University of Tennessee, and then he 
tarnished his career by going on to the Broncos and beating the 
Panthers in the Super Bowl.
    Judge Gorsuch. Oh.
    [Laughter.]
    Judge Gorsuch. Oh.
    Senator Tillis. But let me tell you something--I love 
Peyton Manning. In fact, I have a quote on the walls in my 
office that I make my staff look at every day, and it says, 
``Pressure is just something you feel when you don't know what 
you're doing.'' You clearly know what you are doing. You have 
not exhibited one iota of pressure. That is what is going to 
make you a great Justice.
    The respect that you have shown when disrespectful 
questions were lobbed your way was remarkable, and I appreciate 
you being here. I appreciate your patience, and I am going to 
yield back the rest of my time.
    But I will say that the break after 7 tonight also does not 
replace date night, so you owe your patient wife a good dinner 
after all this is done. But thank you, and I yield back the 
rest of my time.
    The Senator from Louisiana.
    Judge Gorsuch. Senator, thank you.
    Senator Tillis. Yes, and by the way, you did not get to 
talk much, but I promise tomorrow you will get to talk a lot.
    [Laughter.]
    Judge Gorsuch. I have heard myself speak more today than I 
am accustomed to.
    Senator Tillis. The Senator from Louisiana.
    Senator Kennedy. How you doing, Judge?
    Judge Gorsuch. I am great. How about yourself?
    Senator Kennedy. You are that close to being done. That 
close.
    I think you have done pretty well today, and I just want to 
go on record as saying this is--this is an important 
nomination, and I appreciate all the questions asked today, 
even the ones I disagree with. I did not know what to expect. I 
mean, this thing could have turned into ``The Gong Show'' real 
easily. It did not, and I appreciate that.
    I want to ask you a couple of questions, some things that 
maybe we did not get to talk about much. First, why have you 
recused yourself in almost a thousand cases?
    Judge Gorsuch. Well, Senator, in the Tenth Circuit, we have 
procedures, and one of the procedures is we make a list of all 
potential recusal possibilities. And for me it was significant 
because I had been in the Government in a position where we 
oversaw a number of different litigating units. That causes a 
fair amount of recusal right there.
    And, Senator, I was blessed with an active and robust 
practice, and partners who went on to do much better without me 
than they did with me, and they had a lot of clients. And it 
was my view as a Circuit Judge that I did not want to cause an 
unnecessary recusal problem later. Sometimes after a court 
decides a case, a recusal issue pops up. Judges miss things. We 
are human. It happens.
    The problem when that happens, of course, is then you have 
to get a new judge in and start everything all over again. That 
is a cost to the system that is not insignificant to your 
colleagues and taxing on them. And it also raises questions, of 
course, to the parties who have to start all that over, and it 
cost them money and time. And I did not want to create that 
kind of problem for the litigants and for my colleagues.
    And so, I set up a process consistent with the practice of 
my colleagues. I talked to my colleagues about how they do it, 
and tried to conform with the practices of the Tenth Circuit as 
best I could. And as you know, most of the recusals were not 
really--I mean, ``recusal'' is not even the right word. They 
are screened out----
    Senator Kennedy. Right.
    Judge Gorsuch. By the clerk's office before they ever get 
to me. We are on a wheel.
    Senator Kennedy. Right.
    Judge Gorsuch. And so, I just get the next one on the 
wheel. Everybody gets the same workload.
    Senator Kennedy. Right.
    Judge Gorsuch. It does not affect our workload, but it does 
affect confidence in the judiciary and----
    Senator Kennedy. The recusal rules are different for the 
U.S. Supreme Court as I appreciate it.
    Judge Gorsuch. Yes, Senator.
    Senator Kennedy. Okay. I want to ask you about the 
relationship between the United States Constitution and a State 
constitution and the interaction. And let me get specific so 
you will know what I am talking about.
    I think this is well-settled law. A DWI, we call DWI in 
Louisiana. Some States call it DUI, but a DWI roadblock. I 
think it is well-settled in a number of cases in the U.S. 
Supreme Court that says a DWI roadblock, so long as you use 
neutral criteria, is perfectly permissible under the Fourth 
Amendment. If I say anything wrong, stop me. It is clearly a 
seizure, but as long as you have neutral criteria.
    Do you remember why the Supreme Court made that decision?
    Judge Gorsuch. I am sure you are going to tell me, Senator.
    Senator Kennedy. Well, if you--if you do not know, I will--
my understanding is that the Constitution only protects against 
unreasonable searches and seizures.
    Judge Gorsuch. Right.
    Senator Kennedy. And the Court balanced the public interest 
versus the extent of the privacy violation. But let us 
suppose--so that is well-settled law. You can--under the 
Federal Constitution, you can have a DWI roadblock.
    Let us suppose the Supreme Court of Massachusetts--I wish--
I wish Attorney Franken was here, said, you know, we appreciate 
that, and we appreciate that is a Federal law, but we have a 
Fourth Amendment in the Massachusetts Constitution, and we want 
to go further, and we want to outlaw roadblocks. We want to 
give more protection. We do not want to take away protection 
that our citizens have under the United States Constitution, 
protection from Government. We want to give them more 
protection from Government, and no roadblocks period.
    Do you think that is permissible?
    Judge Gorsuch. Senator, generally speaking, decisions based 
on independent and adequate State grounds are permissible. The 
primary precedent in this area is Michigan v. Long, a decision 
by Justice O'Connor. The State has to make clear that it is 
deciding on independent and adequate State grounds and not 
resting on the U.S. Constitution. If there is some ambiguity, 
we may as Federal judges consider it to be a decision based on 
Federal law. But a State is free to add to the liberties of the 
people, generally speaking.
    Senator Kennedy. Yes. Well, what if the adequate and 
independent State grounds are not clear? What do you do?
    Judge Gorsuch. Well, that is Michigan v. Long, and there is 
a precedent, and there is a test for it. And, again, if it 
looks like it could have been on the--on Federal--the decision 
could have been made on Federal grounds, then the Federal court 
will examine it on that basis. If the State court makes clear 
that it is independent and adequate State grounds, why then 
State law controls.
    Senator Kennedy. Do you think it makes sense--I mean, is 
not the law complicated enough? Do we really need 50 rules for 
DWI roadblocks?
    Judge Gorsuch. Well, Senator, we have this thing called 
federalism.
    Senator Kennedy. I have heard of it.
    Judge Gorsuch. Yes, I figured you might. And it is part of 
our separation of powers, and it is part of how we preserve 
liberty, right? We diffuse power to protect liberty, and 
Federalism is a key part of it.
    Senator Kennedy. Okay. I have not read all your cases, but 
I have not seen many where you dealt with substantive due 
process or equal protection, so I want to talk about that for a 
few minutes.
    If you have a case where you do not have a fundamental 
right or a fundamental liberty, and you do not have a suspect 
classification, so you are not going to use strict scrutiny. 
You are going to be--you are going to use the rational basis 
test, which means you are going to uphold the statute if the 
legislature has a rational reason that is connected to a 
legitimate goal.
    How far do you go? How closely do you think Federal judges 
should examine what the legislature does? Is it a rational 
reason? Is it any reason? Is it--do you make up the reason for 
them? Have you ever heard of rational basis with bite?
    Judge Gorsuch. I have, Senator. And before we get to that, 
I think it is important to acknowledge there is also 
intermediate scrutiny.
    Senator Kennedy. That is true.
    Judge Gorsuch. And, for example, many gender cases.
    Senator Kennedy. For gender, but I am talking about just 
plain old variety, no gender, no race, no kind of special 
heightened scrutiny, just rational basis.
    Judge Gorsuch. The Supreme Court has indicated what you are 
describing as rational basis with bite. But sometimes if there 
is a discriminatory animus present, even though there might be 
a legitimate rational basis one could conjure for the rule, 
that might fail strict scrutiny, Senator.
    Senator Kennedy. Yes. What does the rational basis test 
mean to you?
    Judge Gorsuch. Well, generally speaking, usually speaking, 
it means that if there is any rational reason that one can 
conjure for the rule, it stands out of deference to the 
legislative process.
    Senator Kennedy. Does it have to be a good reason?
    Judge Gorsuch. It has to be a rational reason, not one that 
I find personally persuasive, but one that someone could find 
persuasive.
    Senator Kennedy. Okay.
    Judge Gorsuch. That is out of deference to the lawmaking 
process of this body, Senator.
    Senator Kennedy. Understand. I want to ask you about the 
TransAm case. It has been talked about a lot. You dissented. 
Pretty tough facts. Your dissent probably, I guess, made you 
about as popular as cholera.
    Judge Gorsuch. It seems so.
    Senator Kennedy. But as I understand it, you just looked at 
the statute, and what--tell me what you, what the statute said 
again?
    Judge Gorsuch. It said that an employee who refuses to 
operate a motor vehicle has certain legal protections from 
firing.
    Senator Kennedy. But he did not refuse. He operated.
    Judge Gorsuch. That is what I thought the facts suggested, 
Senator.
    Senator Kennedy. Yes. Well, I thought about that case when 
I was reading a case of yours that I commented on yesterday, 
A.M. v. Holmes, another case. Pretty recent, last year. And as 
I--as I appreciate it, the majority opinion was kind of tough 
to get through. It was, like, 95 or a hundred pages. But 13-
year-old kid, seventh grader, he is fake burping in class.
    Judge Gorsuch. He is.
    Senator Kennedy. And he is pretty good at it.
    Judge Gorsuch. He is very good at it apparently.
    Senator Kennedy. He disrupts the whole class.
    Judge Gorsuch. He does.
    Senator Kennedy. So, the teacher takes him out, sits him 
down in the hall, calls the assistant principal. She calls the 
police officer, I guess, assigned to the school. They take him 
to the principal's office, and the police officer arrests him, 
and the kid's mom sues. I think it was a 1983 action if I 
recall.
    Judge Gorsuch. That is right.
    Senator Kennedy. His mom sues, and the majority held 
qualified immunity.
    And so, this is the way you described the case. ``If a 
seventh grader starts trading fake burps for laughs in gym 
class, what is a teacher to do, order extra laps, detention, a 
trip to the principal's office? Maybe. But then again, maybe 
that is too old school. Maybe today you call a police officer. 
And maybe today the officer decides that instead of just 
escorting the now compliant 13-year-old to the principal's 
office, an arrest would be a better idea. So, out come the 
handcuffs and off goes the child to juvenile detention. My 
colleagues,'' the majority, ``suggest the law permits exactly 
this option, and they offer 94 pages explaining why they think 
that is so. Respectfully, I remain unpersuaded.''
    But it is your last paragraph in that opinion that made me 
think of TransAm. You went on to explain why you interpreted 
the statute to be contrary to the majority opinion. But this is 
how you wrapped it up: ``Often enough the law can be a ass--a 
idiot,'' quoting Dickens in Oliver Twist,--``and there is 
little we judges can do about it, for it is, or should be, 
emphatically our job to apply, not rewrite, the law enacted 
acted by the people's representatives. Indeed, a judge who 
likes every result he reaches is very likely a bad judge, 
reaching for results he prefers rather than those the law 
compels. So, it is I admire my colleagues today, for no doubt 
they reach a result they dislike, but believe the law demands. 
And in that, I see the best of our profession and much do 
admire. It is only that in this particular case, I do not 
believe the law happens to be quite as much of a ass as they 
do, and I respectfully dissent.''
    Is that what happened in TransAm?
    Judge Gorsuch. That is who I am, Senator.
    Senator Kennedy. Can you tell me something that you think 
is a good idea, but you think is unconstitutional?
    Judge Gorsuch. Oh, Senator----
    [Laughter.]
    Judge Gorsuch. It has been a long day.
    Senator Kennedy. I know.
    [Laughter.]
    Senator Kennedy. And you are this close to ``CSI Miami,'' 
okay?
    Judge Gorsuch. No. No, no, no.
    [Laughter.]
    Judge Gorsuch. Senator, I have loved every minute I have 
spent with you and with all of your colleagues. I am sure I 
could conjure something.
    Senator Kennedy. Well, think about it tonight.
    Judge Gorsuch. But, Senator, I would not opine on it if I 
could. It is just not my job. It is just not--my job--as you 
just read it, that is how I see my job. And I respect my 
colleagues who see it differently because they did. They wrote 
a 94-page opinion in that case, a thoughtful one.
    Senator Kennedy. Yes, I read it.
    Judge Gorsuch. And I respect them deeply, and the same 
thing in TransAm. Sometimes the law is what it is. They see 
it--I am sorry, Senator.
    Senator Kennedy. No, you go ahead.
    Judge Gorsuch. No. We just do the best we can, day in and 
day out, in cases like these, and nobody hears about it. And it 
is the quiet, quiet work of judges trying to get it right.
    Senator Kennedy. And that is why I enjoy your opinions, 
aside from the fact they are well-written. You kind of play 
outside the pocket. I mean, you adhere to the written word, 
which is what I want to ask you about next.
    It is clear you do not like labels, okay? You would not 
call yourself an originalist.
    Judge Gorsuch. Senator, I am happy to embrace that. I do 
not reject it. I just am concerned about the level of our 
discourse in this society today when we are often quick to 
dismiss one another--Republican, Democrat, whatever.
    Senator Kennedy. That is fair enough.
    Judge Gorsuch. Whatever.
    Senator Kennedy. That is fair enough.
    Judge Gorsuch. That is not the world I care to inhabit. I 
care to inhabit the respectful engagement of ideas with every 
person who comes before me. I do believe the original 
understanding of a text is very important to a judge, and I do 
believe any good judge wants to know that information, and I 
do.
    Senator Kennedy. Yes, and I believe the phrase you use is 
``the original public understanding of the Constitution.''
    Judge Gorsuch. Yes, Senator.
    Senator Kennedy. What does that mean?
    Judge Gorsuch. It means I am not looking for hidden 
intentions, trying to get inside, respectfully, your head. I am 
looking for the words you use. I am trying to understand what 
they mean, what a reasonable person at that time would have 
understood they mean, because that is the fixed meaning I can 
latch onto and say I am enforcing that, not my will.
    Senator Kennedy. Is it the meaning of the--of the Drafters 
in 17, what, 87----
    Judge Gorsuch. No.
    Senator Kennedy [continuing]. Or is it the meaning of the 
legislators who approved the Constitution, or is it the meaning 
of--the general meaning of the people? What if they did not 
contemplate it?
    Judge Gorsuch. Senator, they do not contemplate a lot of 
things that arise. Equal protection of the law, unreasonable 
search and seizure, these are broad terms, but we can give them 
content by looking to what the original understanding at the 
time was, all right? What a reasonable person would have 
understood them to mean, the fish case in the statutory 
construction scenario.
    What would a reasonable reader understand that to mean? And 
it serves a couple of important functions. First, it does not 
necessarily decide cases. It does not determine outcomes, and 
no one is looking to go back to horses and buggies.
    Senator Kennedy. I know that.
    Judge Gorsuch. Right. What it does do is give us a way to 
communicate with one another that is neutral, that we are 
aiming at something outside ourselves as a basis for decision. 
That is part of the separation of powers. Not legislating, 
judging.
    Senator Kennedy. I get that.
    Judge Gorsuch. Second, it is a due process concern.
    Senator Kennedy. I get it.
    Judge Gorsuch. It is a fair notice concern. I can charge--I 
am putting people in prison for long periods of time as a 
judge. I am complicit in that. And I want to do it on the basis 
that I know that person had fair notice of the laws that are 
applicable to him or her. That is important to me, and with all 
judges.
    Senator Kennedy. I do not mean to cut you off.
    Judge Gorsuch. Oh, I am sorry.
    Senator Kennedy. I just have to be mindful of the clock.
    Judge Gorsuch. I am sorry.
    Senator Kennedy. What is a penumbra?
    Judge Gorsuch. It means not just the thing itself, but what 
surrounds it.
    Senator Kennedy. What is a legal penumbra?
    Judge Gorsuch. Senator, that is a phrase that has been used 
in opinions by the Court.
    Senator Kennedy. Do you believe there are unenumerated 
rights in our Constitution?
    Judge Gorsuch. Senator, the Supreme Court interprets the 
Constitution, and that is a legitimate function of the U.S. 
Supreme Court. And in interpreting the Constitution, it 
necessarily declares in this case or that case. It sets a 
precedent as it interprets.
    I come back to the GPS case because I think it is a 
wonderful example, or Heller. That is another example. You can 
pick all sorts of examples where the Court is interpreting a 
textual right in the Constitution or a statute.
    Senator Kennedy. Let me ask you about euthanasia. I did not 
read your whole book.
    Judge Gorsuch. I do not think many people have, Senator.
    Senator Kennedy. But I read enough about it, and I read a 
little bit of it. I believe you are an Episcopalian?
    Judge Gorsuch. I attend an Episcopal church in Boulder with 
my family, Senator.
    Senator Kennedy. I am a Methodist. I was a Presbyterian. 
When Becky and I got married, she was Methodist, and I was 
Presbyterian. We compromised, and I became a Methodist.
    [Laughter.]
    Judge Gorsuch. That is the way it works.
    Senator Kennedy. But as I understand your thesis about 
euthanasia, which you oppose, it is not really based on 
religious teachings. It is based on secular, moral thinking. 
Tell me about that. Euthanasia, I mean, from one perspective, 
you know, if we have the right to control our bodies, if we 
have autonomy privacy and disclosure privacy and all that, you 
know, this idea of self-determination. But you believe it can 
lead to something worse. Is that your thesis?
    Judge Gorsuch. Well, Senator, this was in my capacity as a 
commentator before I became a judge.
    Senator Kennedy. Sure.
    Judge Gorsuch. And as a student.
    Senator Kennedy. Right.
    Judge Gorsuch. And when I was fortunate enough to get a 
scholarship to study law and a doctorate, and I know you have 
spent some time thinking about similar things in a similar 
place, it struck me as an important and unresolved legal issue 
that deserved some thinking and a contribution, where I could 
study and maybe add something to the discussion. Not that I 
have any great insights or perfect answers in this area. It is 
hard.
    Senator Kennedy. I do not think anybody does.
    Judge Gorsuch. It is hard. I agree. I agree with that, 
Senator. And there I expressed the belief that--a conclusion as 
a commentator that the right to refuse treatment recognized in 
Cruzan by the U.S. Supreme Court was appropriate. People should 
be allowed to refuse treatment, go home, die in the arms of 
their family rather than being poked and prodded.
    At the same time, I agree with the Supreme Court as well 
that the right of--question of assisted suicide is primarily a 
State responsibility. And that is where in Glucksberg and Quill 
the Supreme Court has left the issue. Then the question 
becomes, what do you do? It is a question we all have to face. 
Do you legalize it or do you not? It is a hard question.
    Senator Kennedy. If you legalize it, it cheapens life, 
doesn't it?
    Judge Gorsuch. Senator, what I worry about is the least 
amongst us in those circumstances.
    Senator Kennedy. The unprotected.
    Judge Gorsuch. My concern is that when you have a cheap 
option and an expensive option, people who cannot afford the 
expensive option, they are the ones who tend to get hurt--the 
disabled, the elderly, the weak, minorities.
    Senator Kennedy. Yes.
    Judge Gorsuch. So, those are my concerts. I might be right, 
and I might be wrong. History will tell. And if I am right, 
great, and if I am wrong, yelling and screaming about it will 
not make many better at it. It will not make right. It was a 
contribution, part of a debate, part of a discussion. And I 
hope it was a respectful and useful contribution that at least 
one Senator has read, and otherwise, and up until about a month 
ago, I think primarily occupied a very dusty bookshelf 
somewhere in a law library.
    Senator Kennedy. Do you prefer wet flies or dry?
    Judge Gorsuch. Dry.
    Senator Kennedy. Dry. I do, too.
    [Laughter.]
    Judge Gorsuch. Happy to express my view on that.
    Senator Kennedy. Do you use--do you use a floating line or 
a sinking line?
    Judge Gorsuch. Well, with a dry fly, a floating line.
    Senator Kennedy. You have to use the dry, but you do not 
use wet flies with a sinking line to go after those trout?
    Judge Gorsuch. Well, I have been known to cheat once in a 
while, and a bead head might go on as a drop or underneath my 
dry.
    Senator Kennedy. Did you know President Obama at Harvard?
    Judge Gorsuch. Senator, I knew him, but not well. It is a 
big school.
    Senator Kennedy. Yes. Was he one of those, like, front row 
guys that was always raising his hand, or did he kind of stay 
in the back row like I did and avoid eye contact with the 
professor so you would not get called on? You do not have to 
answer that.
    [Laughter.]
    Judge Gorsuch. We were in different sections, Senator.
    Senator Kennedy. Okay. All right. I just want to ask you 
one last one. It is about legislative intent. You have--I have 
read where you have said that trying to discern legislative 
intent is a ``notoriously doubtful business,'' and I agree with 
that. I mean, legislators and Congress people have a multitude 
of reasons for voting as they do. But that does not make it--
the search for legislative intent and looking at the 
legislative history, it may not be dispositive, but that does 
not make it useless.
    I mean, would you not love to have a verbatim transcript of 
everything that was said at the, what was, 1787 Convention, 
1789?
    Judge Gorsuch. Senator, I respect very much what this body 
does. I hope my career, my body of work reflects my respect for 
this institution. As a judge, I have to look at what is 
presented to me, and I look at everything that is presented to 
me. Everything that is presented to me. I read everything that 
is presented to me. And I have used legislative history from 
time to time, as you have seen, and I know you have read a 
whole lot of my stuff.
    I do worry when I am putting someone in prison, for 
example, or taking--involved in a ruling involving their 
liberty in particular, about charging them with knowledge of 
what happens in a Committee room, or a statement that might be 
presented only on the floor by one individual rather than by 
the law, that has suffered through the process of compromise, 
bicameralism in both houses, and presentment and signature by 
the President, and it goes in the law books.
    Hidden law can be a problem. I worry a little bit about 
that, particularly in the criminal context, Senator. It is a 
matter, again, of due process and fair notice. So, those are 
the considerations that a judge, I think, always considers: 
what is fair in terms of due process and fair notice, at the 
same time being respectful of this institution and the hard 
work you do for the American people.
    Senator Kennedy. I do not know if you are a drinking man, 
but you may want to have a cocktail tonight and just kind of 
relax. I am done. Just do not drink vodka. Stay away from vodka 
for a while.
    [Laughter.]
    Judge Gorsuch. Senator, I am going to hit the hay.
    [Laughter.]
    Judge Gorsuch. Thank you very much.
    Senator Kennedy. You have never been to Russia, have you? I 
meant to ask that----
    [Laughter.]
    Senator Kennedy. Strike that. Strike that question.
    Judge Gorsuch. I have never been to Russia.
    [Laughter.]
    Senator Kennedy. Thank you, Judge. Thank you, Mr. Chairman.
    Judge Gorsuch. Thank you, Senator. Thank you.
    Senator Kennedy. Let us go home.
    Senator Tillis. Thank you, Senator Kennedy. Judge, you are 
done for the day. We want to extend thanks to you and to the 
fellow Members who played it out.
    We will start a series of 20-minute rounds tomorrow, and I 
for one will be here for every bit of it because you have 
taught us a lot today, and I think the American people should 
be very proud that we have somebody like you that is coming 
before this body and headed for the Supreme Court.
    We are going to recess tonight and convene again at 9:30 
a.m. tomorrow morning. Until such time, we stand in recess.
    [Whereupon, at 8:54 p.m., the Committee was recessed.]
    [Additional material submitted for the record for Day 2 
follows Day 4 of the hearing.]



                          CONTINUATION OF THE



                      CONFIRMATION HEARING ON THE



                   NOMINATION OF HON. NEIL M. GORSUCH



                   TO BE AN ASSOCIATE JUSTICE OF THE



                   SUPREME COURT OF THE UNITED STATES

                              ----------                              


                       WEDNESDAY, MARCH 22, 2017

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:37 a.m., in 
Room SH-216, Hart Senate Office Building, Hon. Charles E. 
Grassley, Chairman of the Committee, presiding.
    Present: Senators Grassley, Hatch, Graham, Cornyn, Lee, 
Cruz, Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy, 
Durbin, Whitehouse, Klobuchar, Franken, Coons, Blumenthal, and 
Hirono.

         OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Chairman Grassley. Good morning, Judge, and I know you 
slept well.
    [Laughter.]
    Senator Feinstein. He did not answer that.
    Judge Gorsuch. Is that a question?
    Chairman Grassley. Welcome back. And of course, we have, as 
a Committee, I do not know that we have recognized your wife, 
Louise. But she is back and very patient, sitting there.
    You mentioned yesterday that the confirmation hearing of 
your mentor, Justice Byron White, lasted all of 90 minutes. 
Yesterday's hearing was a bit longer, and I am sure that you 
needed your rest, and I am glad you had it.
    I was impressed yesterday both with your poise and your 
thoughtfulness throughout the long day. I came away with, I 
think, a greater admiration for you and particularly how 
seriously you take your duty to give each litigant who enters 
your courtroom a fair shake, as well as for your commitment of 
judicial independence. And I have had an opportunity to comment 
to various journalists or TV people or radio people, and I have 
stressed your statements about independence.
    Before I start my question, I want Committee Members, those 
of us up here and the ones that are not here, to understand 
that I am prepared to stay as long as we need to so that 
everyone ask all their questions of the nominee today so that 
we can move on to other people that want to testify in regard 
to this nominee. So I hope that we can move things along, and 
we will not have to stay a long time, but I am willing to do 
that. And then tomorrow, we will have that schedule.
    I want also the Committee Members as well as the nominee to 
know that when we finish the questions, we will move to the 
regular Committee room of the Judiciary Committee. That is just 
down the hall, Dirksen 226, for a closed session, as we have 
done with every Supreme Court nominee I think since Senator 
Biden was Chairman of the Committee, as I recall.
    Now I would like to go to my questions, and as I said 
yesterday, they will be 20 minutes long. Let us visit about 
judicial independence. Yesterday, I predicted that you would 
get asked a lot of questions that it would not be right for you 
to answer. And unfortunately, I was right, and you got those 
questions from many people, maybe even people on both sides of 
the aisle.
    A lot of these questions concerned issues that might one 
day come before you as a Justice. And as you very clearly 
explained, it would compromise your independence if you pre-
committed to how you would rule on future cases. It would also 
be unfair to the future litigants, and you made that very 
clear.
    And of course, there is nothing new about all this because 
we have quoted the Ginsburg standard, after Judge--Justice 
Ginsburg said during her confirmation hearing, and it has 
probably been repeated several times, but I do not know that we 
can repeat it too many times.
    ``A judge sworn to decide impartially can offer no 
forecasts, no hints, for what--for that would show not only 
disregard for the specifics of a particular case, it would 
display a disdain for the entire judicial process.''
    Senators know a nominee cannot answer questions, but of 
course, those questions get answered anyway. And I would 
probably want to confess the 13 before you, I probably have 
asked some of those inappropriate questions.
    You were also asked many questions about how you would 
decide past Supreme Court cases, but you cannot answer those 
either. As Justice Kagan told us, ``I have pretty consistently 
said that I do not want to grade or give a thumbs up or a 
thumbs down on particular Supreme Court cases.''
    At the time, the former Chairman said, ``I certainly do not 
want you to have to lay out a test here in the abstract, which 
might determine what your vote or your test would be in a case 
you have yet to see.'' So you, the present nominee, deserve no 
less, and that applies to easy cases just as well as it might 
apply to hard cases.
    In any event, we do not need to dwell on hypotheticals. You 
have a 10-year record on the Tenth Circuit. You have written 
over 770 opinions, or at least been involved with that many, 
and heard probably a little less than 3,000, but getting close 
to that number. So without talking about hypotheticals, there 
is plenty that we can talk about.
    So I am going to start by Thompson School District v. Luke 
P. Luke P. was an autistic student. His parents sued their 
local Colorado school district so that it would pay Luke's 
tuition at a private residential school. The statute at issue 
dealt with the Individuals with Disabilities Education Act. We 
call that IDEA for short.
    You held that the district did not have to pay under this 
statute because all the experts who examined Luke found that he 
was progressing in his public school.
    Judge, where did you get that standard?
    Judge Gorsuch. Mr. Chairman, the standard under IDEA, or, 
as you said, the Individuals with Disabilities Education Act, 
the standard that you have articulated is the standard set by 
the Supreme Court in a case called Rowley, and there are 
additional precedents in the Tenth Circuit interpreting and 
developing that standard. And so in that case, Mr. Chairman, 
the panel was applying settled Circuit law and Supreme Court 
law.
    The statute, as you know, balances two very important 
interests. The interests of children and their families with 
disability to ensure the child receives appropriate education. 
On the other hand, it also balances the interests of school 
districts, for whom these cases can be very expensive and 
challenging.
    And that balance is a policy judgment as to how that is 
made. That is made by this body, and then as interpreted by the 
Supreme Court in Rowley. Those are the standards we apply, the 
policy choices of this Congress as interpreted by the U.S. 
Supreme Court.
    Chairman Grassley. And you did not have any discretion to 
disregard that precedent of either the Supreme Court or the 
Tenth Circuit?
    Judge Gorsuch. No, Mr. Chairman.
    Chairman Grassley. And I think you had a Judge Briscoe, a 
Clinton appointee, was on the panel. And it is my understanding 
she joined your opinion in full, and so the Luke P. opinion was 
unanimous?
    Judge Gorsuch. It was, Mr. Chairman.
    Chairman Grassley. Congress could, of course, as you said, 
amend IDEA, and States could create standards of their own, as 
Senator Tillis worked to do when he was in the North Carolina 
legislature. He is not here, but I think he would--that is my 
understanding of what he worked on.
    Judge Gorsuch. That is my understanding, too, Mr. Chairman. 
And of course, I have had other cases involving IDEA where the 
parents and the child prevailed based on the existing law--The 
School of the Deaf and Blind case, the Jefferson County case. 
So it just depends upon the facts and the law in each 
particular case.
    Chairman Grassley. Yes. Well, I think you just pointed out 
my last point that there is plenty of evidence that you rule as 
you see the law requires you to rule. Sometimes it comes out 
against the little guy and sometimes very much in favor of the 
little guy.
    Judge Gorsuch. That is right, Mr. Chairman.
    Chairman Grassley. Okay. Because you take an oath to 
administer justice without respect to person and do equal right 
to both the poor and the rich. Your tenure on the Tenth Circuit 
I think is a proud testament to the seriousness with which you 
understand the role of a judge, and you have ruled in favor of 
students bringing IDEA claims in other cases as well.
    I want to go on to something that Senator Klobuchar brought 
up, but probably something I was working on maybe before she 
even got to the United States Senate, and this is cameras in 
the courtroom. And I made a point when I appeared before the 
Judicial Council last week and Justice Thomas introduced me, I 
said, ``Remember, today I did not bring up about cameras in the 
courtroom.'' He says, ``We are getting off to a good start.''
    [Laughter.]
    Chairman Grassley. Because obviously he does not agree with 
me on this point.
    She asked for your opinion on having cameras in the Supreme 
Court, Senator Klobuchar did, and you said that you had not 
given the subject a great deal of thought. I want you to know 
that I believe that public access to our court system is an 
important issue, and having cameras in the courtroom is one way 
to improve public access.
    Now I know this is not a very popular subject with some of 
the Justices on the Supreme Court, as I just hinted. And in 
fact, as Senator Klobuchar mentioned yesterday, Justice Souter 
once famously quipped that the television cameras would have to 
``come roll over my dead body for that to happen.'' And he is 
not on the Court now. So that is one less person in opposition.
    [Laughter.]
    Chairman Grassley. I can respect that opinion, but quite 
frankly, it just happens to be wrong from my point of view. 
When Mr. Katyal introduced you on Monday, I was glad to hear 
him say that he wished the Court would televise its proceedings 
so that all Americans could see what goes on there.
    That is a view shared by a number of my colleagues on this 
Committee. We believe that allowing cameras in the Federal 
courthouse would open the courts to the public and bring about 
better understanding of the Court and its important work. You 
may be aware that for a number of years, I have sponsored bills 
called Sunshine in the courtroom Act, which give judges the 
discretion to allow media coverage of Federal court 
proceedings.
    Given your discussion with Senator Klobuchar yesterday on 
the issues, I am not going to ask for your opinion to have 
cameras in the courtroom, but I would very much appreciate 
this. If you would think about the issue, I would appreciate it 
if you keep an open mind as you move forward in this process.
    And I guess if I could ask you to have that open mind, that 
is all I would ask you to do at this point.
    Judge Gorsuch. You have it. I am sure--I have gotten to 
know some of these guys pretty well over the last few weeks. 
Some nice folks.
    Chairman Grassley. I want to bring up the part that 
legislative history will bring up, and I think I am going to 
refer to some cases. I do not know whether they are the same 
cases I have read, but I know you have a different, maybe a 
little different point of view on legislative history, and I 
would like to know what that is.
    But I also remember my first discussions with Justice 
Scalia, like when he came around to my office, as you came 
around to my office, I asked him about it, and he said it 
should not play any role whatsoever. And I think I have seen 
him totally committed to that point of view. During the 29 
years that he was on the Supreme Court, he did not lead me 
astray in my office, and he kept a pretty consistent point of 
view.
    So it deals with the weight that judges should give when 
interpreting statute. You have been a judge for over 10 years 
so you have had time to think about the role of legislative 
history in cases that have come before you. In fact, there is 
one in particular that I would like to discuss, one that 
Senator Feinstein talked about a little bit in her opening 
statements, U.S. v. Games-Perez, I believe it is pronounced.
    The defendant in that case was appealing his conviction 
under a Federal felony in possession statute, which provided 
that defendants must knowingly violate the law against felons 
possessing guns.
    The legal question before your court was whether the 
defendant must know both that he was a felon and that he was in 
possession of a firearm or whether the Government had to prove 
only that the defendant knew that he was in possession of a 
firearm.
    Now at the defendant's original plea hearing, the trial 
judge told him, ``You will leave this courtroom not convicted 
of a felony and instead granted the privilege of a deferred 
judgment.'' So there was a real question about whether the 
defendant actually knew that he was a felon.
    You upheld his conviction because the Tenth Circuit 
precedent required you to do so. Tenth Circuit precedent said 
that the word ``knowingly'' applied only to possessing a 
firearm, but not being a felon. Although you were required to 
follow precedent and you did, you wrote a separate concurrence 
to highlight that the precedent should be revisited.
    You wrote, ``Our duty to follow precedent sometimes 
requires us to make mistakes. Unfortunately, this is that sort 
of case.'' You went on to write, ``It makes no sense to read 
the word `knowingly' as so modest that it might blush in the 
face of the very first element only to regain its composure and 
reappear at a second,'' end of your quote.
    So you were somewhat critical of the Tenth Circuit 
precedent because of its reliance on legislative history. You 
wrote that legislative history can be misleading because it is 
``stocked with ample artillery for everyone. The fight is hard 
fought. Each inch of the historical terrain is heavily 
contested, but in the end, almost no ground is taken by either 
side.''
    You touched on this a little bit yesterday, but I would 
like to ask you when it is appropriate to look to legislative 
history to interpret statutes? Are there some circumstances 
when it is more appropriate than others, and what are the 
dangers?
    And I guess 30 years ago, I told Scalia that history was 
very important. I am not sure I agree with that today, knowing 
the importance of us writing clear statutes. But I thought we 
did not always write very clear statutes, and I thought you 
ought to go back in and look at what we think about it.
    But what are the circumstances when it is more important 
than others, and what are the dangers?
    Judge Gorsuch. There is a lot to unpack there, Mr. 
Chairman. Let me begin by saying I respect all the work that 
this body does, and a good judge takes seriously everything you 
do and reads everything put before him or her. You do not close 
your mind to any argument. You put on the robe, you open your 
mind.
    But I think that case illustrates some issues along the 
lines of what you would asked me to discuss. So the statute 
there says, and simplifying, that it is a crime to knowingly be 
a felon in possession of a gun.
    And our precedent, on the basis of an interpretation about 
legislative history, and the legislative history was very long 
in that case, extremely long. The statute goes back, I think, 
to the 1940s and has been revised many, many times. So one can 
read a lot of history in that statute, and it can be argued 
both ways. There is good history both sides cited us.
    On the basis of its reading of that history, our court took 
the view that the Government need only prove that the defendant 
is a felon who is knowingly in possession of a gun, and that 
was the jury instruction given in that case.
    The defendant said, well, hold on a second. The word 
``knowingly'' is here. ``Knowingly a felon in possession.'' How 
does the word ``knowingly'' leap over the word ``felon'' and 
only touch down at the word ``in possession''? It defied a bit 
of grammatical gravity, the defendant argued.
    And as a matter of plain meaning, I had to agree with him. 
I did not understand how just reading the words, the plain 
words on the statutory page, a reasonable person could 
understand that mens rea element, the ``knowingly,'' the mental 
element, to only apply to the second act in the statute, to the 
possession of the gun, as opposed to the knowing felon status.
    And the defendant had at least a colorable argument that he 
did not know he was a felon in that case because the sentencing 
judge told him he was not a felon, as you pointed out, Mr. 
Chairman. The sentencing judge I think several times, as I 
recall the record, and it has been a while since I have looked 
at it, said more than once to him, if you complete your 
deferred sentence, you'll have no felony conviction on your 
record.
    So I thought this was a case where the Government had to 
square its corners. And before you could put a man in prison--I 
think for 5 years in that case. It may have been longer. Felony 
possession statutes have rather long sentences attached to 
them. But the Government should be forced to prove each and 
every element that the plain language of the statute imposed 
upon it.
    And that resort to legislative history to put a man in 
prison on the basis of legislative history rather than the 
plain language struck me as a due process, a fair notice 
problem to that individual.
    So that was why I wrote the concurrence. I followed our 
precedent. It was a precedent of the court. I have an 
obligation to do it, but I also felt I had an obligation to 
point out the mistake.
    Chairman Grassley. You may have just said this, but I want 
to emphasize. So I would like to know what intersection you 
understand there is between notice of the law, legislative 
history, and original meaning of the legal text?
    Judge Gorsuch. Yes. And I did touch on it, and I think 
notice is the key to the rule of law, that the people can 
understand what is expected of them. That the law is 
sufficiently clear that before they are put in prison for 5 or 
10 or 20 years, and that is what Federal sentencing statutes 
require of judges in many, many cases, that were not putting 
them in prison on the basis of some secret law, some hidden, 
unexpressed intentions or intentions that are very hard to find 
in the fine print of some book that is not available widely, 
but on the basis of what is in the statutory books that we are 
all charged with knowing.
    Chairman Grassley. Can I sum up what you just said? If I am 
wrong, tell me. But you are basically saying the law means what 
it says it means. Is that right?
    Judge Gorsuch. That is a good starting point, right? That 
the plain text of the statute is usually a pretty good starting 
point, and reading it as you would expect a reasonable citizen 
to do so, you know, not a--not a--not a pointy-headed judge.
    Chairman Grassley. I have only got 35 seconds left. So for 
the benefit of my Members, I am starting out on something 
before my time is up. So I do not 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, and sometimes the 
Supreme Court gets it wrong, from my point of view.
    There is lots of times, and Senator Leahy has been very 
good in helping me do this, we have had to rewrite the statute 
to get back to what I thought we made very clear in 1986, but 
according to the courts, we did not make very clear. I co-
authored this amendment to going way back to an 1860 law that 
the Congress obliterated because of World War II because they 
did not think defense contractors should be sued in those 
instances under qui tam.
    So we brought it back and even went beyond what it was in 
the 1860s to empower qui tam relators or whistleblowers to help 
the Government identify and prosecute fraud on the taxpayers. 
The False Claims Act is the most effective antitrust 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 Justice Department when we first 
passed this did not like it because if a relator came to them 
or a whistleblower came to them, and they said like that was 
like saying they were not doing their job. We had a District 
Judge in the late 1980s, I think, told some prosecutor for the 
Justice Department that was trying to argue that a relator 
should not have a certain amount of money. He said, ``Do you 
realize you would not even have a case if this whistleblower 
had not brought it to your attention?''
    And I think we are over that now, but you know, the Defense 
Department and the pharmaceuticals over the last 30 years have 
tried to gut this legislation. Even 4 years ago, the Chamber of 
Commerce wanted to do something to it that would have really 
done injustice to the good that it has done. So that is 
something, you know, that I think that is working. We ought to 
keep it there.
    As you know, in most cases, a 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 do not know whether you are familiar with it. If you are, 
I guess I am calling it to your attention so you can understand 
that is pretty important from my point of view. You are 
familiar with it?
    Judge Gorsuch. I am, Senator.
    Chairman Grassley. You nodded your head.
    Judge Gorsuch. Mr. Chairman, I am well familiar with your 
views on qui tam cases. I have had a couple in my Circuit, and 
I know they have served----
    Chairman Grassley. Well, did you rule in my favor?
    [Laughter.]
    Chairman Grassley. No, no. You ruled in favor of somebody 
that was before you.
    Judge Gorsuch. That one--that one--the one I have in mind, 
the little guy won that one. Yes, Mr. Chairman.
    Chairman Grassley. Okay. So I hope you know how important 
this rule has been for the protection of the Treasury against 
fraud, and I am certainly very passionate about this issue. So 
I think if the False Claims comes up, I hope sometime you will 
remember, whether I am alive or dead, that Senator Grassley is 
interested in this.
    [Laughter.]
    Chairman Grassley. Senator Feinstein.
    Senator Feinstein. Thank you. Thanks very much.
    Mr. Chairman, I would like to put three letters of 
opposition in the record, if I may, with your concurrence?
    Chairman Grassley. Yes.
    Senator Feinstein. Thank you very much.
    Chairman Grassley. Sure. And is that all of them, or you 
got a couple others?
    Senator Feinstein. Yes, they are all here.
    Chairman Grassley. Okay. Without objection, whatever 
Senator Feinstein has that she wants in the record, without 
objection, it will be done.
    [The information appears as a submission for the record.]
    Senator Feinstein. Thanks very much.
    I am not a lawyer, but as I read the case, this man was a 
felon in possession of a gun with the serial number struck off, 
in concert with another man who had a weapon that I believe was 
used in the situation. So he was a felon with a gun, and his 
probation instructed him that he was not to carry that weapon. 
So I have very strong feelings about that, and I just wanted to 
say that.
    I do not think you have to respond, but what I would really 
like to talk to you about----
    Judge Gorsuch. Senator, may I?
    Senator Feinstein. Sure. Absolutely.
    Judge Gorsuch. I do not mean to eat up your time or 
anything, but this is exactly the sort of thing I think I have 
been trying to convey to Members of the Committee, which is it 
is my job to decide these cases without respect to persons.
    There is the little guy, right there. He is a criminal 
defendant. He is unsympathetic. I completely understand 
everything you are saying about him. That was all true.
    The question still, does the Government have to prove what 
the law requires of the Government or anybody, the big guy? 
There is no bigger guy than the Federal Government.
    Senator Feinstein. I understand.
    Judge Gorsuch. And so I am just trying to follow the plain 
words of the law, ``knowingly be a felon in possession,'' and 
the convicting judge told him that he was not a felon. And I 
follow precedent in that case, Senator. The man is in prison 
because of--because of precedent. But I do wonder----
    Senator Feinstein. I do accept that is your view.
    Judge Gorsuch. Okay.
    Senator Feinstein. And I would like to move on.
    Judge Gorsuch. Of course.
    Senator Feinstein. It is not my view.
    Judge Gorsuch. I understand.
    Senator Feinstein. He was a felon.
    Judge Gorsuch. Yes, he was.
    Senator Feinstein. So let me go on. I sent some documents 
down--not down to you, but over to you yesterday.
    Judge Gorsuch. Yes, yes.
    Senator Feinstein. And I would like to ask you about one of 
them, and this is the one that has to do about torture. It is 
labeled at the bottom ``DOJ NMG0143890.'' And I can send it 
down to you again if you want? I do have notes in this----
    Judge Gorsuch. No, I have got it right here. I have got it 
right here. Yes.
    Senator Feinstein. Okay. There is 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 1905, and it asked specific questions 
about the indictment of Jose Padilla, who was indicted on 
November 22, 2005. So the notes must have been on or after 
November 22, 2005.
    Take a look at your handwritten notes on page 2. 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 handwritten note says ``yes.''
    My question is what information did you have that the Bush 
administration's aggressive interrogation techniques were 
effective?
    Judge Gorsuch. And Senator, I am working on 12 years of 
passage of time here. So my memory is what it is, and it is not 
great on this. But my recollection----
    Senator Feinstein. But you are very young.
    Judge Gorsuch. Well----
    [Laughter.]
    Senator Leahy. Accept it.
    Judge Gorsuch. I will take it. Thank you. I am not sure my 
wife entirely agrees with you anymore, Senator. But thank you, 
that is kind.
    My recollection of 12 years ago is 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.
    Senator Feinstein. You actually answered the question.
    Judge Gorsuch. Yes, and I think----
    Senator Feinstein. So you had no personal information?
    Judge Gorsuch. Oh, no.
    Senator Feinstein. That you took the position of your 
client?
    Judge Gorsuch. Yes.
    Senator Feinstein. And that, because I know a lot about 
what happened----
    Judge Gorsuch. I know you do.
    Senator Feinstein [continuing]. 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 8 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, we are not qualified 
to do what they did. And I think terrible things happened.
    It is a closed chapter, but it should never again happen. 
This is America, and it is not what we stand for.
    So let me move on to something that does trouble me about 
originalism, 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.
    Judge Gorsuch. Uh-oh.
    Senator Feinstein. And I want to present it to you, and 
here it is. You are a self-professed originalist in your 
approach to constitutional interpretation. For example, you 
wrote----``Judges should instead strive, if humanly and so 
imperfectly, to apply 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 
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 Fourteenth 
Amendment in 1868?
    Judge Gorsuch. Senator, first of all, a good judge starts 
with precedent and does not reinvent the wheel. So to the 
extent there are decisions on those topics, and there are, a 
good judge respects precedent. That is the first point.
    Second point I would make is it would be a mistake to 
suggest that 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 a 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 
Fourteenth Amendment were racists, because they were, or 
sexist, because they were. The law they drafted promises equal 
protection of the laws to all persons. That is what they wrote.
    And those--the original meaning of those words, John 
Marshall Harlan captured them in his dissent in Plessy. An 
equal protection of laws does not mean separate in advancing 
one particular race or gender. It means equal.
    And as I said yesterday, I think that guarantee, equal 
protection of the laws guarantee, the Fourteenth Amendment, 
that it took a Civil War for this country to win is maybe the 
most radical guarantee in all of the Constitution and it may be 
in all of human history. It is a fantastic thing, and that is 
why it is chiseled in Vermont marble above the entrance to the 
Supreme Court of the United States.
    Senator Feinstein. I understand that, but here is 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.
    Judge Gorsuch. I do.
    Senator Feinstein. I am one of three daughters, and I know 
what life was like. I have heard of young women killing 
themselves. I have 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 who 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 have 
had a woman as President perhaps--life changes. And the 
originalism that the days when the Constitution was written 
project to me do not bring somebody forward, they bring them 
backward in terms of rights that women did not have. They were 
not looked at as equal.
    As a matter of fact, we could not 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 3 years to 
give it more time, and they could not get the number of States 
to approve it.
    So if one looks at 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 to a lesser fate 
because the law is interpreted in a backward sense. Does that 
make sense to you?
    Judge Gorsuch. Senator, I understand your concern, and I 
share it. I come from a family of strong women. My two teenage 
daughters, you are right. I want every opportunity for them 
that a young man has.
    I have a strong wife. Anyone who knows her knows that. My 
mother----
    Senator Feinstein. But you are pivotal in this.
    Judge Gorsuch. And Senator, I am daunted sitting here under 
the lights at the prospect of what is to come, if I am so 
fortunate to be confirmed, and I am 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 are trying to interpret the law faithfully, taking 
principles that are enduring and a Constitution that was meant 
to last ages and apply it and interpret it to the 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 will see, for example, in Kyllo, the search of a home with 
a heat-seeking device. The Court looked back to find out would 
that be considered an unreasonable search? The technology did 
not exist, of course. But would something like that have been 
considered an unreasonable search at the time of the Fourth 
Amendment's adoption?
    And found it is essentially equivalent to a Peeping Tom, 
and of course, that would have been considered an unreasonable 
search by the Government. And so a heat-seeking device, thermal 
imaging, is also a search of a home. That is how we use neutral 
principles, the law, to apply it to current realities, not to 
drag us back to a past, but to move forward together as judges 
applying the law neutrally.
    Senator Feinstein. Here is the problem. I have been through 
this before. This is my--well, I have 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 has happened is every 
Republican-appointed judge has gone back and is a ``no'' vote. 
So how does--how does one look at you, and we have talked about 
precedent, for the life of me, I really do not know when you 
are there what you are going to do with it.
    And it is so--and as you say, this is not text. This is 
real life. And young women take everything from granted today, 
and all of that could be struck out with one decision.
    Judge Gorsuch. Senator, all I can do is I cannot promise 
you how I would 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.
    Senator Feinstein. No, I do not expect you to.
    Judge Gorsuch. I know you do not, and I am 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 have 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--12 judges appointed by Presidents from both 
sides, with a foreword by Justice Breyer.
    And I did not expect anyone to ever read it. I think a few 
people have read it now, probably not--still not that many. But 
that is 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 is the commitment I can make to you. I cannot 
promise you more, and I cannot guarantee you any less.
    Senator 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 is a virtue. I do not 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 is 
why we press and press and press.
    It is very hard because you mention that you--the number of 
cases you sat on, and the percent that was unanimous I think 
was 97 percent, you said. And so we realize that these are few 
cases on which the distinction is made, and it is 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 6 years. And so I saw the inside of this whole issue, 
and that is one of the reasons why I feel so strongly.
    Particularly, let me ask you another area. Assisted 
suicide.
    Judge Gorsuch. Sure.
    Senator 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 passed an End of Life Options Act that 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 am dying.''
    You know, my father was a professor of surgery, now trying 
to save him. So there are times you cannot, and the suffering 
becomes so pronounced--I just went through this with a close 
friend--that this is real, and it is 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.
    Judge Gorsuch. And Senator, this is something I can speak 
about because I have written about it, and I am 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 would have to tell you, as a judge, put that aside, and 
we talked about that. But I will talk to you about what I wrote 
in the book because I think it is fair.
    What I wrote in the book was I agree with the Supreme Court 
in the Cruzan decision that refusing treatment--your father, we 
have all been through it with family. My heart goes out to you. 
It does. And I have been there with my dad and others. And at 
some point, you want to be left alone. Enough with the poking 
and the prodding. I want to go home and die in my own bed in 
the arms of my family.
    And the Supreme Court recognized in Cruzan that is 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.
    Senator Feinstein. Supposing you cannot handle the pain, 
and you know that it is irreconcilable?
    Judge Gorsuch. And Senator, the position I took in 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.
    And I have been there. I have been there.
    Senator Feinstein. Thank you. Thank you, Mr. Chairman. 
Sorry.
    Chairman Grassley. Senator--no, no apology.
    Senator Feinstein. Thank you.
    Chairman Grassley. Senator Hatch, because Senator Graham 
has to go to a hearing or a Committee meeting, has accommodated 
Senator Hatch--or Senator Graham. So go ahead, Senator Graham.
    Senator Graham. Thank you, Mr. Chairman.
    Let us see if I can sort of get my head around where we are 
at here because I am not so sure I have been playing the same 
game as everybody else. I might have to reevaluate what game I 
need to be playing in the future.
    It is important to know where you stand before I can vote 
yes. I think that is true for a Republican nominee, but not so 
much for a Democrat.
    Let me tell you what Senator Leahy said. I certainly do not 
want you to have to lay out a test here in the abstract, which 
might determine what your vote--or your test would be in a case 
you have yet to see that may well come before the Supreme 
Court.
    Now that is the standard when there is a Democratic 
nominee. Now when there is a Republican nominee, you have got 
to tell these Senators that you will not get in the way of 
their agenda. I am not asking you to tell me whether or not you 
agree with my agenda. I am asking you whether or not you will 
fairly hear the cases before you because to do anything else 
would be unfair to you.
    The life issue is very real. There are a lot of Americans 
who believe that life begins at conception. There are a lot of 
Americans who believe that Roe v. Wade was a grab of power from 
legislative people, but it is the law of the land. It will be 
given due weight if somebody challenges it.
    Do you agree with me it is the law of the land that in 
late-term abortions, they have been limited through 
congressional action and approved by the Supreme Court?
    Judge Gorsuch. In certain circumstances, yes.
    Senator Graham. In certain circumstances, the Congress 
overwhelmingly voted to limit abortions in the last trimester, 
and the Supreme Court said in those circumstances you have the 
authority to do that. Is that the state of the law?
    Judge Gorsuch. That is part of the state of the law, 
Senator.
    Senator Graham. And I would imagine this issue will be 
revisited as long as people have differences. There will be a 
lot of issues coming before the Court because Americans do not 
agree on some of the more emotional topics like when life 
begins, and what is the role of the legislative body? What is 
the role of the Court? When do you have a soul, if you have 
one? And what is the right to be conferred by unelected judges 
versus people who have to answer to the public?
    So all I am saying, if we are going to vote against a 
nominee because they will not tell us things that we want to 
hear about issues important to us, then the whole nominating 
process has become a joke. And what has happened over time is 
that somehow, some way, we have gone from Scalia, the 
originalist, getting 98 votes; Ginsburg, the bastion of 
liberalism on the Court, well qualified, getting 96 votes.
    What has happened? Did the Constitution change? I do not 
think so. I think politics has changed. I think it has changed 
in a fashion that we should all be ashamed of as Senators, and 
I think we are doing great damage to the judiciary by 
politicizing every judicial nomination. ``If you do not agree 
with my basis view of the world, I cannot vote for you.''
    This is what Greg Craig, the former White House counsel in 
the Obama administration, said about Elena Kagan. ``She is a 
progressive in the mold of Obama himself.'' So Reince Priebus 
said that Trump picked a good guy. Well, Greg Craig, the former 
White House counsel, said that Obama picked in Elena Kagan ``a 
progressive in the mold of Obama himself.''
    I did not vote for President Obama, but he won in spite of 
my opposition. I do believe, as President of the United States, 
he had a right to pick somebody from the progressive wing of 
the law. I expected him to do so, and he did. Twice. I knew 
full well what I was getting, and I hope you understand that 
you are getting one of the most qualified conservative judges 
in the country.
    Senator Feinstein said her goal was to find out if you are 
a reasonable, mainstream conservative. I would tell you, 
Senator Feinstein, without any hesitation, this man is as 
mainstream as you will get. If you do not believe me, listen to 
the people who know him the best, 2,700 cases and being 
reversed once.
    The bottom line here is we are taking the nomination 
process to a place it was never intended to go by the Framers 
of the Constitution, and Alexander Hamilton would be rolling 
over in his grave to believe that the United States Senate has 
now gotten to the level of where ``I cannot vote for you if you 
will not tell me about cases important to me and you do not 
share my philosophy.''
    That means advise and consent is not really advise and 
consent. It means that we are the President and we are the 
judge, and if you would not rule like us, you cannot be on the 
Court. And if you come from a philosophy that we reject as a 
party, then you cannot be a judge. That will be bad for the 
country.
    Now let us talk a little bit about Griswold. You said that 
Griswold was a case decided by the Supreme Court that does 
what?
    Judge Gorsuch. Senator, it guarantees married couples the 
privacy in their own home to use contraceptives.
    Senator Graham. Is it a longstanding precedent of the 
Supreme Court?
    Judge Gorsuch. It is, Senator.
    Senator Graham. What weight would you give that?
    Judge Gorsuch. Well, Senator, under the law of precedent, 
you look at the age. This one's over 50 years. You look at the 
reliance interests, which are obvious and substantial. You look 
at whether it has been reaffirmed, which it has many times. And 
Senator, as I said yesterday, I just cannot imagine a State 
attempting to pass a law like that.
    Senator Graham. Well, let us say they did.
    Judge Gorsuch. And I cannot imagine the Supreme Court of 
the United States taking that claim seriously.
    Senator Graham. Let us say they did, and I am with you on 
both. Would you listen to the people who made the argument to 
make the argument?
    Judge Gorsuch. Senator, you listen to every person who 
comes to court.
    Senator Graham. So to overturn Griswold, you have got to 
get a case in controversy, right?
    Judge Gorsuch. Right.
    Senator Graham. That means somebody somewhere has got to 
convince, I do not know, some State or some body somewhere to 
outlaw contraception in the marital relationship. That would be 
a case in controversy.
    Judge Gorsuch. Well, you would have to have to have a State 
that would pass a law like that.
    Senator Graham. Or what about a city council?
    Judge Gorsuch. Or whatever. And then you would have to have 
somebody try and enforce it.
    Senator Graham. Right. Then it would maybe get to you. And 
if that day ever comes, you would listen to what the other side 
had to say, then you would decide. Is that fair enough?
    Judge Gorsuch. You would apply the precedent of the U.S. 
Supreme Court, and if they were trying to overturn the 
precedent, you go through the factors and you consider them.
    Senator Graham. So you are not here to tell us what you 
like or do not like in the law. You tell us about the process 
of how the law works?
    Judge Gorsuch. That is right, Senator.
    Senator Graham. And you are here as a human being, cannot 
imagine some legislative body, particularly at the State level, 
outlawing contraception. You just do not see that as a real 
threat right now?
    Judge Gorsuch. I do not see it as a real threat today, 
Senator.
    Senator Graham. Originalism. Are you an originalist?
    Judge Gorsuch. Senator, as we spoke of yesterday, I am 
happy to be called that. I do worry about the use of labels in 
our civic discussion to sometimes ignore the underlying ideas. 
As if originalism belonged to a party, it does not. As if it 
belonged to an ideological wing, it does not.
    Senator Graham. Well, here is what I would say about 
originalism. Whether you like it or not, is it bound by the 
law?
    Judge Gorsuch. Of course it is. It is the whole point of 
how you interpret the law.
    Senator Graham. Now to those who believe that the 
Constitution is a living, breathing document that can speak to 
you and nobody else, that bothers me. But there are people on 
the Supreme Court who have the view that the Constitution is a 
living, breathing document related to the times in which we 
live in. That seems to open the door that I can get the 
outcomes I want, not so much bound by the words or the history.
    The bottom line is there are different ways of looking at 
the role of being a judge. Do you--do you believe that your way 
of looking at being a judge has stood the test of time?
    Judge Gorsuch. I do.
    Senator Graham. Do you believe over the last 10 years your 
way of looking at being a judge has received respect from 
people who disagree with you?
    Judge Gorsuch. I think you are going to hear from some of 
them tomorrow.
    Senator Graham. Do you believe that the American Bar 
Association has looked at your way of being a judge and found 
you well qualified?
    Judge Gorsuch. I am very honored by their assessment.
    Senator Graham. You have decided over 2,700 cases. Is that 
right?
    Judge Gorsuch. That is right.
    Senator Graham. Been overturned once maybe?
    Judge Gorsuch. Maybe.
    [Laughter.]
    Senator Graham. Okay. I am going to say once.
    Judge Gorsuch. Well----
    Senator Graham. And you are just going to have to live with 
it.
    Judge Gorsuch. Well----
    [Laughter.]
    Senator Graham. And accept it. The bottom line is----
    Judge Gorsuch. Maybe.
    Senator Graham. Let us say it is once. I would say that the 
way you judge has been viewed by people above you as being 
acceptable almost all the time but once.
    Now to my friends on the other side, what more can you ask 
for? What are you looking for? Are you looking for somebody 
that will make your political life easy? Well, he is not the 
guy.
    Because he is not going to make your political life easy 
because he was appointed by the guy that you were all against 
and I did not vote for. I have not voted for a President who 
won in 12 years.
    [Laughter.]
    Senator Graham. So I am probably not the one to give you 
legal advice--I mean political advice. But I have voted for 
nominees of those who did win in the time that I have been 
here.
    I intend to vote for you for the same reasons that I 
articulated for Sotomayor and Kagan in terms of your 
qualifications. I intend to vote for you because I think you 
represent a conservative's view of how to be a judge. I am 
excited about that.
    I think President Trump, with all of his problems and all 
of his mistakes, chose wisely when it came to this man. And I 
want to congratulate the President, and I want to say this. 
That when you rejected some of the statements that President 
Trump made toward judges as being, what were your words----
    Judge Gorsuch. Senator, I spoke of when anyone.
    Senator Graham. Anyone. Which would include President 
Trump.
    Judge Gorsuch. Anyone.
    Senator Graham. Okay.
    Judge Gorsuch. Criticizes the honesty, the integrity, the 
decency of Federal judges and what they do or attacks their 
motives in how they come about arriving at their decisions, I 
know those people. I know how hard they work and how decent 
they are. I find that disheartening and demoralizing. That is 
what I have said.
    I am not saying we are immune from attack from decisions. I 
am not saying that we shouldn't have thick skin. My hide is 
pretty thick, and I know that the hides of Federal judges have 
to be.
    Senator Graham. Well, I just want to associate myself with 
what you said about what President Trump said. That I thought 
it was really out of bounds. You are the most powerful man in 
the world, and judges work in quiet dark corners. They have no 
political machine. They have no PAC. They cannot go out and do 
news conferences.
    Of the three branches of the Government, they are the most 
vulnerable. So I stand firmly with you and firmly with anybody. 
My friends on the other side say that President Trump was 
really out of bounds. But here is what I wish some of you all 
would do.
    Here is what Nancy Pelosi said. ``If you breathe air, drink 
water, eat food, take medicine, or in any other way interact 
with the courts, this is a very bad decision.'' That means 
picking you. I have not heard one person on that side say that 
is out of bounds. That is political garbage.
    To my good friend Ron Wyden, ``No Senator who believes that 
individual rights are reserved to the people and not to 
Government can support this nomination.'' Elizabeth Warren, 
``Let us not mince words. The nomination of Judge Gorsuch is a 
huge gift to the giant corporations and wealthy individuals who 
have stolen a Supreme Court seat in order to make sure that the 
justice system works for them.''
    It is okay to criticize Trump, but apparently it is okay 
for you to slander this man, and none of you say a damned thing 
about it. I do not think it is okay. I do not like what is 
going on here, and I do not like where the Senate is heading. 
But there is nothing I can do about it other than be myself.
    So, Judge, I just want to say I think you are qualified. I 
think the answers that you cannot give us come from the fact 
that you understand that if you gave those answers, you would 
compromise your ability to fairly decide cases that may come 
before you in the future. And that when a Democrat says that, 
they are just being a good judge. When you say that, ``Oh, I 
cannot vote for you.'' What a double standard.
    Thank you.
    Chairman Grassley. Senator Leahy.
    Senator Leahy. Mr. Chairman, while the Senator from South 
Carolina is still in the room, he began his statement quoting 
me and saying, of course, and went on to say that a President 
should be able to show his own philosophy in his nominations. 
And he pointed out the President Obama, as he said, nominated 
two Supreme Court Justices.
    I think the record should show President Obama nominated 
three Supreme Court Justices, one of whom was Merrick Garland, 
a person whose philosophy has been praised by both Republicans 
and Democrats. And it was the Republican Party that ignored the 
Constitution, did not allow him to have a vote, did not allow 
him to come before this body, did not uphold their advise and 
consent oath--their advise and consent.
    So, I just--I just wanted the record corrected. It was not 
two nominees. It was three. The third one was not heard because 
for the first time in the history of the United States, the 
Senate refused to hold a hearing, refused to have a vote.
    Now, Senator Feinstein talked about the dark days before 
Roe v. Wade. I have some experience with that. We had two cases 
in Vermont, Leahy v. Beecham and Leahy v. Bartlett. I will tell 
you very briefly about it.
    Leahy v. Beecham was a case that, in effect, I brought a 
declaratory judgment before Roe v. Wade before the Vermont 
Supreme Court. I organized that case so that the Vermont 
Supreme Court, a very conservative court, could rule on the 
constitutionality of our anti-abortion statute in Vermont. They 
came out with a decision, basically what Roe v. Wade did, this 
conservative five-Member Vermont Supreme Court in Leahy v. 
Beecham.
    Leahy v. Bartlett was a case where I prosecuted somebody 
procuring abortions, and these are the doctors that I want to 
go back to. I have a call from the police at 3 in the morning. 
I was the State's attorney at the time. I went to the emergency 
room at our local hospital. A young co-ed nearly died from 
bleeding from a botched abortion. At that time it was illegal.
    We found out that the person who had procured it, he had 
done this with a number of people. He would then--he would then 
blackmail them for either sex or money. And when I brought it 
to trial, we found the person doing the abortion was from 
Montreal. They said they would go to trial figuring she would 
never appear to--for the case. She was there. Two Royal 
Canadian Mounties escorted her.
    And I pointed out to the defense attorney the evidence 
would show she was trained to do these abortions working for 
the SS in Auschwitz so she could abort the women prisoners that 
they had impregnated so that they could keep on using those 
women that way before they put them in the gas chambers. He 
looked at the names of the people who would be the potential 
jurors. They sought a plea. Now, on another--that is why I 
applaud the senior Senator from California for raising the 
issue she did.
    Yesterday I asked about your connections to billionaire 
super donor Philip Anschutz. His role is a very extensive role 
in lobbying the White House to get you on the Tenth Circuit. 
And once on the court, you said you recused yourself from cases 
involving him, and I commend you for that. You did the right 
thing.
    But you wrote in your Senate questionnaire that you 
currently follow a recusal standard broader than what is 
required by the Supreme Court, and if you--if confirmed, you 
would follow the weaker Supreme Court standard. Does that mean 
if confirmed you would no longer recuse yourself from cases 
involving Mr. Anschutz?
    Judge Gorsuch. Senator, what it means is I will, if I am 
fortunate enough to be confirmed, go through the same process I 
did when I became a judge on the Tenth Circuit, and which I 
committed to do at that time, which was look at the applicable 
law, look at the facts. I had a law clerk--I do not know if he 
is somewhere around here.
    Senator Leahy. Well, no, but let me--let me get back to 
this. You found--you found the facts were such that you recused 
yourself----
    Judge Gorsuch. Yes.
    Senator Leahy [continuing]. With Mr. Anschutz when you were 
on the----
    Judge Gorsuch. Yes.
    Senator Leahy [continuing]. Court of Appeals.
    Judge Gorsuch. Yes.
    Senator Leahy. If he had a case before the U.S. Supreme 
Court, would not the facts be the same?
    Judge Gorsuch. He is a former client, and I treated him as 
I treated my former clients, large and small. And, Senator, I 
would have to look at the recusal standards that are applicable 
to Supreme Court Justices.
    Senator Leahy. Well, the Federal recusal standards apply to 
both Supreme Court Justices and other judges.
    Judge Gorsuch. Yes.
    Senator Leahy. But the only difference is, of course, the 
Supreme Court, whether they recuse themselves or not, that is 
not reviewable.
    But would you--again, you found enough reason to recuse 
yourself on the Circuit, and I applaud you for that. Would not 
those same reasons apply to the Supreme Court?
    Judge Gorsuch. And, Senator, I would just have to study the 
law and the practice of the Court just as I did when I came on 
the Tenth Circuit, and I commit to you the same process and the 
same integrity of the process. You look at the law, you look at 
the practice of your colleagues, you consult with your 
colleagues. That is what I did. I had a law clerk prepare an 
extensive memorandum for me in which he analyzed all of the 
relevant precedents, the practices of my colleagues, and the 
facts.
    Senator Leahy. Well, I would note the--okay. The Federal 
standard, as far as studying the law, it is the same law for 
the Court of Appeals and the Supreme Court, with one exception. 
The Supreme Court is not reviewable.
    Now, I asked you yesterday whether there was any 
circumstance in which the President has the power to authorize 
torture or surveillance in violation of laws passed by 
Congress. You answered, and I thought correctly, no man is 
above the law. Now, I am sure President Bush and his lawyers 
believed he was operating within the law when he authorized 
torture and warrantless surveillance, but they still thought 
they could violate a statute if they were exercising their 
Article II power.
    Is there any circumstance where a President could ignore a 
statute passed by Congress, signed into law, and still 
authorize torture or warrantless surveillance? If you had a 
statute against torture and warrantless surveillance, is there 
any circumstance in which a President could ignore that 
statute?
    Judge Gorsuch. Well, Senator, I do not want to deal with a 
case that might come before me, and those are the sorts of 
things that come before me. But I can speak generally, and I am 
happy to.
    Senator Leahy. Go ahead.
    Judge Gorsuch. Presidents make all sorts of arguments about 
inherent authority. They do, and that is why we have courts to 
decide. Presidents of both parties have made arguments, for 
instance, about the War Powers Act, both parties. And the 
Congress has taken a different position on that matter, for 
example, with both parties.
    And the fact is we have courts to decide these cases for a 
reason, to resolve these disputes. And I would approach it as a 
judge through the lens of the Youngstown analysis----
    Senator Leahy. Okay. Have you thought of a case where a 
court has said a President could ignore a law that was on the 
books?
    Judge Gorsuch. Senator, sitting here----
    Senator Leahy. Just think of one offhand.
    Judge Gorsuch. I cannot think of one off hand, Senator.
    Senator Leahy. Thank you. Neither can I.
    Judge Gorsuch. Yes.
    Senator Leahy. Now, the architect of President Trump's 
Muslim ban has declared that there is no such thing as judicial 
supremacy, and the powers of the President to protect our 
country ``are very substantial and will not be questioned.'' It 
was felt that he was signaling that the President could ignore 
judicial orders.
    Any President, do they have to comply with a court order, 
assuming--I mean obviously they could appeal one. But assuming 
it has been upheld, do they have to--do they have to comply 
with it?
    Judge Gorsuch. That is the rule of law in this country, 
Senator Leahy. And Presidents for a long time have said all 
sorts of things like that. President Jefferson said things like 
that.
    Senator Leahy. Well, we are not--he was----
    Judge Gorsuch. President Jackson----
    Senator Leahy. He was slightly before my time.
    [Laughter.]
    Voice. Just slightly.
    Judge Gorsuch. But Presidents say these things, right, 
Congress says things, and then judges decide. And that is the 
way our system works. And, Senator, all I can commit to you, 
again, is I am a judge now. I take that seriously, and you had 
better believe I expect judicial decrees to be obeyed.
    As I said yesterday, a wise old judge, who you are going to 
hear from tomorrow, one of my heroes says that ``The real test 
of the rule of law is where a government''--government--``can 
lose in its own courts and accept those judgments.''
    Senator Leahy. Well, I believe in the rule of law, too. 
That is why I have stayed on this Committee for decades. When I 
took my oath before the Vermont Supreme Court when I was sworn 
into the Bar, I took it very seriously. I did with our Second 
Circuit Court of Appeals and our Federal courts. And when I was 
sworn into the U.S. Supreme Court Bar, I took that very 
seriously. I believe that ultimately we are a country of laws, 
and we should follow them.
    Now, speaking of which, yesterday we discussed the 
relevance of what our Framers meant in the Constitution, and 
many feel they wanted to prevent a President from being 
corrupted by foreign governments. Obviously, I am referring to 
the emoluments cause. What is the purpose of the emoluments 
clause?
    Judge Gorsuch. The emoluments clause, Senator, is not a 
clause that had attracted a lot of attention until recently, 
but----
    Senator Leahy. Well, but Governor Randolph in the 1787 
Constitutional Convention pointed it out.
    [Laughter.]
    Senator Leahy. I mean, if you want to go back to Jefferson, 
I will go back to Randolph.
    Judge Gorsuch. I am with you. And among other things, it 
prohibits Members of the Government of this country from taking 
emoluments, gifts from foreign agents. And the question is, 
what exactly does that mean, and that is a subject on which 
there is ongoing litigation right now, Senator, I believe, 
certainly threatened litigation, impending litigation. And I 
have to be very careful about expressing any views.
    Senator Leahy. Well, what Randolph said, it was done in 
order to exclude corruption and foreign influence, to prohibit 
anyone in office from receiving or holding any emoluments in 
foreign states. Now, you are hesitant to discuss it. You would 
not be hesitant to discuss the Fourth Amendment or the Fifth 
Amendment, would you?
    Judge Gorsuch. Well, I am hesitant to discuss any part of 
the Constitution to the extent we are talking about a case that 
is likely to come before a court, pending or impending. And I 
do think that the emoluments clause has sat in a rather dusty 
corner for a long time until recent headlines, and I know that 
there are cases that are at least impending in that area.
    I would be happy to try and talk about things that are not 
likely to come before me, but I cannot----
    Senator Leahy. Well, let me ask you this. Then what does 
the Constitution say a President must do if he or she receives 
a foreign emolument?
    Judge Gorsuch. Well, Senator, that is a--that is a good 
question. I do not believe it has been fully resolved.
    Senator Leahy. Well, I think it is kind of easy. The clause 
prohibits receipt of any emolument without the consent of the 
Congress.
    Judge Gorsuch. Right.
    Senator Leahy. Now, you are a judge. As I said yesterday, I 
am a lawyer from a small town in Vermont. But if it says they 
cannot receive any emolument without the consent of the 
Congress, is the answer not pretty simple what a President must 
do if he or she receives a foreign emolument? They have to get 
the consent of the Congress.
    Judge Gorsuch. Sure. I thought you were asking what would 
be the remedy if they violated it.
    Senator Leahy. Oh no, I am asking what they have to do.
    Judge Gorsuch. You are absolutely correct. Of course, 
Senator.
    Senator Leahy. I appreciate that.
    Judge Gorsuch. Well, no, you have read the----
    [Laughter.]
    Senator Leahy. I understand your concern, and I appreciate 
it as a judge----
    Judge Gorsuch. I know you do.
    Senator Leahy [continuing]. Answering questions about any 
pending litigation. But you have been very hesitant to even 
talk about various Supreme Court precedents. I know that Chief 
Justice Roberts, when he was before us, he said he agreed with 
Griswold and Brown. Justice Alito said he agreed with Hamdan 
and Eisenstadt. So, we have had Justices nominated by 
Republican Presidents who have been willing to discuss past 
precedent. I was just kind of hoping you would be as 
transparent as these prior nominees were.
    During the campaign, President Trump promised to appoint 
judges very much in the mode of Justice Scalia. Now, he had 
every right to say what he wanted. He could have picked 
anybody. The Vice President said you two are cut from the same 
cloth. But Justice Scalia was a friend of mine. He was an 
intelligent, influential jurist. I voted for him, in case 
people wonder, and not just because we both have Italian 
ancestry.
    But his interpretation of the protections afforded by the 
Constitution left our most vulnerable communities out. Do you 
agree with Justice Scalia's characterization of the Voting 
Rights Act as a perpetuation of racial entitlement?
    Judge Gorsuch. Senator, the Voting Rights Act was passed by 
this body during the civil rights era in order to protect civil 
rights.
    Senator Leahy. Well, it was also updated just a few years 
ago during President George W. Bush's tenure.
    Judge Gorsuch. In 2006 it was reauthorized with the support 
of the President, that is right. And that is true, and it is 
designed to protect the civil rights of Americans.
    Senator Leahy. But do you agree with Justice Scalia's 
characterization of it as a perpetuation of racial entitlement?
    Judge Gorsuch. Senator, I do not speak for Justice Scalia. 
I speak for myself.
    Senator Leahy. Okay. So, with that, others who--you know, 
there was a lot of people who--in the Administration described 
who have described you are. One of the reasons we have these 
hearings is so the American people and this Committee can 
determine better who you are. And that is why I have not--I 
made it very clear I will be here at the hearing and make that 
determination, because I was concerned----
    I know that Steve Bannon was a strong advocate for your 
selection. And with all due regard to Mr. Bannon, he is well 
known for giving a platform to extremists, and misogynists, and 
racists. At the CPAC conference a few weeks ago, both Mr. 
Bannon and Reince Priebus praised your nomination. And I would 
ask consent that a report of that be included in the record.
    Chairman Grassley. Without objection, your article will be 
entered.
    [The information appears in the appears as a submission for 
the record.]
    Senator Leahy. And Mr. Priebus said you have the vision of 
Donald Trump, and by nominating you, Donald Trump was talking 
about a change in potentially 40 years of law, suggesting you 
are coming in here as a Trojan horse. What vision do you share 
with President Trump?
    Judge Gorsuch. Senator, I mean no disrespect to any other 
person in saying they do not speak for me, and I do not speak 
for them, you know. I have great admiration for Justice Scalia, 
as we have talked about. I have admiration for every Member of 
this Committee, and for the President of the United States, and 
for the Vice President of the United States. But, respectfully, 
none of you speaks for me. I speak for me.
    I am a judge. I am independent. I make up my own mind.
    Senator Leahy. Well, the reason I asked, Mr. Bannon, Mr. 
Priebus, and the President had closed-door interviews with you, 
and in these things, including this material I just put in the 
record, they promised their donors a nominee that would bring a 
pro-corporate, socially conservative agenda to the Court. Are 
you saying they are speaking for themselves, not for you?
    Judge Gorsuch. I am.
    Senator Leahy. Thank you. In your view, in the Constitution 
it speaks about high crimes and misdemeanors. What kind of 
conduct does that include?
    Judge Gorsuch. Well, Senator----
    Senator Leahy. We have talked about the Founders. They put 
that in, so----
    Judge Gorsuch. I think, you know, classically we have 
talked about felonies that have been typically what this body 
has impeached individuals for. There have been a variety of 
cases involving sadly Federal judges, as well as Presidents, as 
well as a Justice attempt. And usually it has been more along 
the high crimes rather than the misdemeanors.
    Senator Leahy. We would--I would assume that you would not 
think of a misdemeanor in the sense that we have like traffic 
violations, going through a stop sign or something like that. 
That is a misdemeanor. But would you accept that is probably 
not what is meant in the high crimes and misdemeanors?
    Judge Gorsuch. I would not want to issue an opinion on that 
without the full judicial process, Senator.
    Senator Leahy. All righty.
    Judge Gorsuch. I do not know. I know misdemeanors in 1789 
looked a lot different than misdemeanors today. We have a lot 
more criminal law today and a lot more misdemeanors today than 
we did back then. I can say that.
    Senator Leahy. I am going to start--I am going to start 
driving more carefully. Thank you, Mr. Chairman.
    [Laughter.]
    Chairman Grassley. Senator Hatch.
    Senator Hatch. Judge, I have only been around here 40 
years, and I have seen an awful lot of great people in the law 
come before this Committee. And I have not seen anybody any 
better than you. I am very--I am very proud of--go ahead.
    Chairman Grassley. Can you talk louder?
    Senator Feinstein. You have to--the mic is not carrying 
you.
    Senator Hatch. I am very proud of you and the service that 
you are giving to our country. There is no question that any 
fair observer would say how lucky we are to have you nominated 
by whomever to be a Justice on the Supreme Court of the United 
States of America.
    I held the highest rating an attorney could have when I was 
a partner in a Pittsburgh law firm. In Utah, I held the 
Martindale-Hubbell AB rating. These are ratings, as you know, 
given by your peers without your knowledge. And I have to say 
that I have been around here 40 years, and I have seen all 
kinds of judges come before this Committee, and there have been 
a number of great ones. And you, sir, are one of the great 
ones, and I am proud of you.
    But I knew that before you came here to testify, but now 
that you are testifying, it even reinforces that opinion in my 
mind. And why anybody in this body would vote against you, I 
will never understand. Admittedly, you are of a different 
political persuasion perhaps than some of my friends on the 
other side, but I have supported people who are totally 
different from my political beliefs. And all I can say is that, 
you know--and I have refused to support some people, too.
    But, my gosh, you know, let me just go into this. I am 
troubled by the suggestion that skepticism of Chevron, the 
Chevron case somehow means that one is somehow reflexively 
opposed to regulation. In my mind, such a charge is completely 
unfounded. After all it is important to remember that the 
Chevron deference first flourished as a reaction against 
liberal judges overturning the articles of the--or the actions 
of the Reagan Administration.
    And many of my colleagues on the other side of the aisle 
have now suddenly rediscovered the importance of the 
Constitution's limits on Executive power, something they were 
conspicuously silent about when President Obama was in office, 
but are now quite enthusiastic about that now that a Republican 
is in the White House. And I find it surprising that they do 
not appreciate how Chevron impedes an independent judiciary's 
ability to hold the executive branch accountable to the law.
    Now, Judge Gorsuch, do you think your writings reflect a 
kneejerk attitude against common sense regulations?
    Judge Gorsuch. No, Senator.
    Senator Hatch. I do not either, even if you did not like 
those regulations. Is that fair?
    Judge Gorsuch. Senator, I have enforced all manner of 
regulation that is lawful without respect to my personal point 
of view.
    Senator Hatch. And sometimes you do not like some of them.
    Judge Gorsuch. Senator, whether I did or did not is not 
material.
    Senator Hatch. Well, I kind of would like to hear, though, 
even so. That is okay.
    In addressing the Chevron issue, many are invoking the 
importance of relying on scientific expertise. But despite how 
some are mischaracterizing the issue, Chevron deference is not 
the same thing as respecting the judgments of experts on 
technical matters, but rather about how to handle questions of 
law, questions on which judges themselves are experts. Nor does 
the issue of judicial deference call into question how much 
authority Congress can or should give agencies and their 
experts to write regulations.
    Now, Judge Gorsuch, would you mind explaining the 
difference between all of these issues for those who may not be 
experts in administrative law?
    Judge Gorsuch. I would be happy to, Senator.
    Senator Hatch. Okay.
    Judge Gorsuch. Section 706 of the Administrative Procedures 
Act says basically two things, and I am paraphrasing. It says 
the courts are supposed to defer to the factual findings of 
agencies. So, to the extent you are talking about expert 
biologists, chemists, whatever manner of regulatory expertise 
we are talking about there, the courts are to defer to that and 
to take that seriously. And we do, just as we would, say, the 
factual finding of a jury or a District Court Judge that comes 
to us with a presumption of correctness. Clear error standard 
of review, very hard to meet.
    Section 706, however, also goes on to say that when it 
comes to questions of the law, the courts are to interpret the 
law. Despite that command from this body, the courts have 
created a doctrine that says that if there is any ambiguity in 
the law, the agency gets to make the decision about what the 
law means.
    And I have questions about that doctrine. I have raised 
questions about whether that is compatible with the plain 
language of Section 706 and the instruction of this body. And I 
have raised some questions that arise in a case that I actually 
had to deal with and how it would impact people, real people, 
if agencies can change the meaning of the law back and forth 
every 4 years, depending upon the outcome of an election.
    For example, what happens when some individual--I am not 
worried about large corporations here honestly, Senator Hatch. 
They have got armies of lawyers, lobbyists. They can predict 
which way the wind is drifting in the agency. Sometimes they 
can capture the agency. I am worried about the ordinary 
American, and sometimes even the non-American.
    The case happened to involve an undocumented immigrant. 
That is the case I actually dealt with, and there he faced two 
competing statutes. One said he could rely on and seek 
permission to remain in the country from the Attorney General 
and get immediate discretionary relief. The other statute said 
he had to wait out of the country 10 years.
    Our court interpreted the law as Section 706 says we are 
supposed to, and said the first statute controls because there 
was an apparent conflict between the two, and said he could 
rely on the opportunity to seek immediate discretionary relief. 
He did in reliance on that judicial precedent.
    Then the agency comes in years later and says we are wrong. 
Chevron. Sprinkle Chevron on it. We have to overturn our 
decision, and he has to leave the country, and wait not just 10 
years now, but 13 or 14, or whatever it was. And to me, that 
raises questions not only about the consistency with Section 
706 and the instructions that Congress has given us, but due 
process and fair notice.
    If the law can change so easily, not through bicameralism 
and presentment to the President--bicameralism in this body, 
passage of both houses, presentment to the President--the order 
specified for law making in the Constitution. If the law can 
change so easily as that, where is the due process to the 
individual, the person who does not have an army of lawyers? 
How is he supposed to figure that out?
    What about the equal protection problems when you allow an 
agency to pick and choose unfavored targets for changes in law? 
They do not have to go through bicameralism and presentment. 
They can pick their targets with more or less impunity, the 
least amongst us, the most vulnerable, the little guy, if you 
will, the person without the lobbyists.
    And then, what about the separation of powers? I thought 
that judges were supposed to say what the law is. I thought 
that is what Justice Marshall said. And I thought the point of 
having judges decide the law is because you want someone who is 
neutral and independent to say what the law means, someone who 
does not have a dog in the hunt.
    So, those were the questions I raised in that case. I did 
it as a Circuit Judge because part of my job as a Circuit Judge 
is to identify problems that I see for my bosses.
    So, Senator Hatch, that is a long-winded answer, and I am 
sorry for it, but I hope it is helpful.
    Senator Hatch. I liked it. I liked it. I think, again, 
perfect illustration of why you should be on the U.S. Supreme 
Court. And while they may sound like legal technicalities, I 
think it is incredibly important that we distinguish questions 
of law, questions of fact, and questions of the wisdom and 
constitutionality of agency authority, which I think are being 
confused and conflated to suggest that reining in Chevron 
somehow represents an attack on the role of experts in 
developing sensible safeguards that keep us healthy and safe. 
So, I appreciate purchase your comments.
    In previous exchanges, a number of my colleagues have 
brought up your work on some of the very difficult issues that 
you have dealt with while you were a lawyer in the Justice 
Department. And while I appreciated your answer, I wondered if 
I could describe the responsibilities--if you could describe 
the responsibilities of a government lawyer just a bit more.
    In particular, I would like to hear you briefly spell out 
your understanding of the difference between policymaker and 
advocate as well as a distinction between how a lawyer might be 
called upon to give a different type of evaluation of the law 
as an executive branch lawyer and as a judge or Justice. I just 
do not want you to get unfairly tagged with the legal and 
policy views of an Administration that you personally might not 
share. So, I would like you to take some time and explain that.
    Judge Gorsuch. Senator, as lawyers we play different roles 
in different places in our lives, and depending upon who our 
client is at the time. As a private lawyer, I represented 
plaintiffs and I represented defendants. I represented large 
corporations. I represented individuals in class actions and 
pension funds--public employee pension funds, CalPERS, for 
example. I represented hospitals, doctors, victims, defendants.
    So, where you stand as a lawyer changes. You are someone's 
voice. You are your client's voice. So, that is in private 
practice what a lawyer does consistent with the rules of ethics 
and the law of the land as best they can. And often those are 
hard things because your client's interests always butt up 
against another person's.
    And sometimes I ask whether our rules of ethics are all 
that great. One of our rules of ethics, when talking about the 
zeal a lawyer should exhibit, says that a lawyer does not have 
to engage in offensive tactics. Well, how is that for a 
professional promise? We do not have to engage in offensive 
tactics. I do not know. Only a lawyer could love that.
    At any rate, moving to government practice, there are 
policymakers who are the clients. The President of the United 
States, the Attorney General, the Cabinet officials, they are 
the policymakers. The role I served in was in a litigation 
capacity supervising cases and controversies, civil lawsuits 
involving the United States as my client. I was in the role of 
an advocate in those cases.
    As a judge, you put that aside. You put aside all the stuff 
you did as plaintiff or defendant in private practice, all the 
stuff you did as a government lawyer, and you only have one 
client now, the law. You wake up every day, and you just try 
and get it right as best you can.
    And Justice Jackson is who comes to mind here to me. He 
was--he was one of the finest and fiercest advocates of his 
day, and one of the fiercest advocates of Executive power when 
he was Attorney General of the United States during the New 
Deal for Franklin Delano Roosevelt. When he became a judge, he 
also became one of the fiercest critics of Executive power as a 
judge, because he knew the difference in the roles that we 
serve. And he said, ``A robe changes a man or should.''
    And I believe that, and I have seen it. I have seen so many 
fine lawyers go on to be very fine judges and put aside their 
personal points of view, or their clients' perspectives, or 
which side of the V they served on, or what sort of client they 
served, and become neutral, fair judges. At least that is what 
I have aspired to be for the last 10 years.
    Senator Hatch. Well, and I think you have accomplished 
that, too. Judge, yesterday, Senator Sasse spoke to you about 
the need to teach civics to our fellow citizens, and especially 
to the younger generation. And I hope that this hearing is 
contributing to that because perhaps the most prominent theme 
this week has been the separation of powers. Now, you said 
yesterday, and I agree, that the separation of powers is 
critically important, but seems to have gotten lost today.
    Now, Judge, judges do not exist and work in a vacuum doing 
whatever they want to do. They exist and work as part of a 
system of government, and, therefore, must do what they are 
supposed to do. The role of judges in that system is by design, 
and that design has a purpose described in the Constitution's 
preamble as including securing the blessings of liberty. Our 
liberty requires that each separated branch of government stick 
to--stick to its job.
    That is why I think one of the most important things you 
said yesterday was this: ``It is not my job to do your job.'' I 
thought that was pretty neat for you to say that. So, let me 
ask you to expand on that simple statement, if you would.
    Judge Gorsuch. Senator, we all have roles to play. When we 
choose to take up a role in our Government, we all have a 
particular place in it, and we have to respect the boundaries 
of it. And it is my job to respect in part the boundaries of 
this branch, and not engage in the temptation to legislate 
through the cloak of a judicial robe. Judges would make very 
poor legislators.
    Senator Hatch. Well, sometimes legislators make very poor 
legislators, too.
    [Laughter.]
    Senator Hatch. I have seen a few.
    Judge Gorsuch. I respectfully disagree, Senator.
    [Laughter.]
    Judge Gorsuch. I have great, great respect for this body, 
and I know----
    Senator Hatch. I did not say all.
    [Laughter.]
    Judge Gorsuch. I know in our civic culture today there is a 
great pessimism about our Government. I do not share that. I 
think this body still works, and I think it is important and 
vital that it work, because it is the people's voice. It is 
people's representatives. It is where lawmaking is supposed to 
occur. And for you to do your job, it is important that I do 
not do your job. It is important that I do my job and let you 
do yours.
    If judges became legislators, we would be bad at it, and we 
would absolve you from your responsibilities. You could wash 
your hands of it. It sounds like some might want to do that. I 
do not know. You are smiling. But, respectfully, I am poorly 
equipped. I am not--I am not a representative of the people. I 
am not answerable to the people, and I do not have the 
expertise of your wonderful staffs are sitting behind you.
    My job is to decide cases, and I really--I am okay at that 
on a good day, right? I am never going to be good at your job, 
and I need to respect that. And I need--it is also very 
important for legislators to respect that we do what we do, and 
that we do not run campaigns, and we do not make promises about 
how we rule in cases and controversies that come before us. 
That is part of the mutual respect for the separation of 
powers.
    Senator Hatch. Well, you have cited Justice Robert Jackson 
several times. In fact, he once occupied the seat to which you 
have been nominated. In 1953, he lamented what he considered a 
widely held belief that the supreme--that the Supreme Court, 
``no longer respects impersonal rules of law, but is guided by 
personal impressions which from time to time may be shared by a 
majority of Justices.''
    One recent poll showed that three-quarters of Americans 
believe that Supreme Court decisions are influenced by the 
Justices' personal political views. Is this not what we are 
really talking about, and what the approach called originalism 
is really all about? Should judges not base their decisions on 
impersonal rules of law rather than their own personal 
impressions?
    Judge Gorsuch. Senator, I am here to testify to you that is 
not how I see our judicial system operate.
    Senator Hatch. Yes.
    Judge Gorsuch. We resolve hundreds of thousands of cases 
every year in the Federal system, almost all of them, as I say 
in the Tenth Circuit, for example, unanimously. It is a 
remarkable thing that even when we get to the Court of Appeals, 
only 5 percent of all cases get so far as my court, and even 
then, of those over the last 10 years, we have been unanimous 
97 percent of the time in the cases I have participated in.
    That is a wonder. That is an amazing accomplishment. That 
is the rule of law in this country. And too few people know how 
it actually works, and if they did, they would be heartened.
    Senator Hatch. Thank you Judge. I appreciate your comments.
    Chairman Grassley. Just as soon as I make four 
announcements, we are going to take a 5-minute break.
    First of all, I want to enter into the record a Washington 
Post op-ed by two former Chief Judges of the Tenth Circuit, 
Judges Tacha and Henry, entitled ``Gorsuch is the Kind of Judge 
Our Framers Envisioned.''
    Without objection, that will be entered in the record.
    [The information appears as a submission for the record.]
    Chairman Grassley. Second, my plan is to, in consultation 
with Senator Feinstein, to take a break around 12:30, whoever 
is just ready to start about that time or just finishes around 
12:30, and it will be a half hour. And then, I would like to 
have any Member who wants a third round to let us know ahead of 
time so we can kind of plan what we are doing after we get done 
with this second round we have. I hope there is not too many 
that want to do that, but if they do we want to be respectful 
of everybody to ask all the questions that they can before we 
finish tonight.
    And then now, Judge, we are going to take a five-minute 
break, but because I was late in announcing this, Senator 
Durbin has come back from another Committee meeting, and he is 
the next one up. So, I want to have it just be 4 minutes and 59 
seconds.
    Judge Gorsuch. Yes, sir.
    Chairman Grassley. Recess.
    [Recess.]
    Chairman Grassley. Senator Durbin, it is your turn now.
    Senator Durbin. Mr. Chairman, I ask consent to enter into 
the record seven articles relative to this hearing.
    Chairman Grassley. Without objection, your articles will be 
entered in the record.
    [The information appears as a submission for the record.]
    Senator Durbin. Thank you.
    Judge Gorsuch, I sat here yesterday for hours, not nearly 
as many hours as you sat here, until I reached the point where 
I could finish your sentences and complete your answers before 
you.
    My Republican colleagues assumed the well-known courtroom 
strategy of never asking a question that could hurt their 
witness, and made every effort to humanize you so that we know 
your love of fly fishing and rodeos and family. I know that 
Senatorial assignment. I have been there myself.
    So the Democrats on the Committee pressed you for answers 
to harder questions and tried to peel back your professional 
and carefully guarded persona so that we might understand 
whether there is any chance there is a beating heart and an 
independent streak in Donald Trump's most important decision of 
his nascent presidency.
    We were given this public hearing to develop an insight 
into what it was that made your record so attractive to the 
Federalist Society, to the Heritage Foundation, and to 
President Trump.
    You fended off most questions of substance, so we turned to 
your written opinions. I am sure the press and public are 
puzzled out there why we spent so much time talking about a 
truck driver named Alphonse Maddin, who was fired and 
blackballed from ever driving again because he was faced with 
what Senator Franken correctly called an absurd choice of 
freezing to death or endangering the lives of innocent 
motorists by driving a disabled truck on the interstate.
    Many of us still cannot understand how seven judges could 
look at those facts and the law in the case and only one, Judge 
Neil Gorsuch, come down on the side of the trucking company 
that fired him.
    Now we have another question that has been raised, and it 
relates to the Individuals with Disabilities Education Act. It 
is a landmark law. It mandates access to public education for 
students with disabilities.
    The National Education Association took a close look at 
your record in these IDEA cases. They found that in eight of 
the 10 cases to come before you, you ruled against students 
with disabilities.
    Furthermore, in one of the two cases in which you sided 
with the student plaintiff, you wrote a concurring opinion 
``expressing your personal belief that IDEA provides only 
limited rights to students with disabilities.''
    That pattern is troubling. Your opinion in Thompson R2-J 
School District v. Luke P., in this case, a school district 
appealed the District Court's ruling that the district failed 
to provide a severely autistic child with the educational 
services guaranteed to him under IDEA.
    The court ordered the school district to reimburse the cost 
of a private residential school placement for the child. The 
District Court relied on the expert testimony of autism 
specialists, psychologists, and occupational therapists to 
reach that conclusion.
    They reached the conclusion: ``The nature of Luke's 
problems required a residential placement,'' and ``that the 
reinforcement and consistency Luke needed to make educational 
progress could not be achieved in a regular school setting at 
that time.''
    You reversed this District Court ruling, and in doing so, 
you rejected not only the judgment of the Federal District 
Court but also the judgment of a hearing officer and the 
Colorado State administrative law judge. You asserted that, 
``The assistance that IDEA mandates is limited in scope'' and 
that it only requires ``the creation of an individualized 
program reasonably calculated to enable the student to make 
some progress toward the goals within that program.''
    You also said, directly from your opinion, ``From this 
direction, we have concluded that the educational benefit 
mandated by IDEA must merely be 'more than de minimis.' ''
    This morning, the Supreme Court ruled on that standard that 
you established in the case. Here is what they said in the case 
of Endrew F. v. Douglas County School District, a unanimous 
decision by the Supreme Court written by the Chief Justice, 
``When all is said and done, a student offered an educational 
program providing `merely more than de minimis' progress from 
year to year can hardly be said to have been offered an 
education at all. For children with disabilities, receiving 
instruction that aims so low would be tantamount to sitting 
idly . . . awaiting the time when they were old enough to drop 
out.''
    The court went on to say, ``The IDEA demands more. It 
requires an educational program reasonably calculated to enable 
a child to make progress appropriate in light of the child's 
circumstances.''
    It is a powerful decision. It is a unanimous decision. It 
was written by the Chief Justice of the Court. It is an issue 
which we need to face in America with the incidence of autism 
and children with severe disabilities.
    Why, why in your early decision, did you want to lower the 
bar so low to ``merely more than de minimis'' as a standard for 
public education to meet this Federal requirement under the 
law?
    Judge Gorsuch. Senator, I really appreciate the opportunity 
to respond to that, because I just saw the opinion. It was 
handed to me as I was headed to the bathroom a moment ago. I 
guess it was just handed down.
    Let us start with the Luke P. case and work forward from 
there.
    Luke P. was a unanimous decision by my court. It included 
on the panel of three judges an appointee who happened to be 
appointed by a Democrat President. There was no dispute in my 
court about the applicable law, and there was not because we 
were bound by Circuit precedent, a case called Urban v. 
Jefferson County, 1996, that said that the appropriate standard 
was de minimis. The educational standard had to be more than de 
minimis.
    That is the law of my Circuit, Senator. And I have been 
asked an awful lot about whether I abide precedent and whether 
I always like the results that I reach. Here is a case for you.
    Senator Durbin. But I might----
    Judge Gorsuch. Senator, if I might finish----
    Senator Durbin. Sure. Of course.
    Judge Gorsuch. I would appreciate the opportunity to finish 
this.
    If anyone is suggesting that I like a result where an 
autistic child happens to lose, it is a heartbreaking 
accusation to me, heartbreaking.
    But the fact of the matter is, I was bound by Circuit 
precedent and so was the panel of my court and had been bound 
for about 20--well, 10 years by the standard in Urban v. 
Jefferson County.
    Now, Senator, there are other cases where, again, 
unanimously, my court had ruled for children with disabilities 
under this law. The School of Deaf and Blind, another Jefferson 
County case, are examples where I joined, participated, or 
wrote in IDEA cases for the family under our binding standard.
    I understand today that the Supreme Court has indicated 
that the Urban standard is incorrect. That is fine. I will 
follow the law.
    Now, sometimes--I think it was Justice Jackson who said 
just because I made a mistake unknowingly yesterday does not 
mean I should make a mistake knowingly today. I would invoke 
him here.
    I was wrong, Senator. I was wrong because I was bound by 
Circuit precedent, and I am sorry.
    Senator Durbin. I want----
    Judge Gorsuch. I am going to try to apply the law, and I 
can tell you that we were doing it unanimously in all of those 
cases.
    And the Supreme Court is our boss, and we respect their 
last word. They are final.
    Senator Durbin. Judge, in 8 out of 10 cases that came 
before you, you ruled against the students with disabilities. 
And the difference----
    Judge Gorsuch. I am sure they were unanimous panels, 
Senator, if you look.
    Senator Durbin. And the difference in this case--the 
difference in this case is about a word. We know that words are 
important, and they can make a critical difference in a 
person's life. You can ask Alphonse Maddin that question.
    The word that you inserted into the Circuit standard when 
it came to these cases was ``merely''--``merely.'' I would say 
most people reading that would say you have pushed the de 
minimis statute even further down the standard pole. And it was 
that word, ``merely more than de minimis,'' that was 
specifically overruled by the Supreme Court.
    So my question to you is, if you wanted to just stick with 
Tenth Circuit precedent, you felt your hands were tied, why 
would you add the word ``merely'' to modify that?
    Judge Gorsuch. Senator, all I can say is what I have said 
to you before, which is a unanimous panel of the Tenth Circuit 
following 10-year-old Circuit precedent, including a Democrat 
colleague--I do not view my colleagues as Democrats or 
Republicans--followed our Circuit precedent.
    And these cases have been decided unanimously, I think all 
of them, if I had to guess, that you are pointing at.
    And to suggest that I have some animus against children, 
Senator, would be mistaken.
    Senator Durbin. Judge, please. I am not suggesting that. 
You were----
    Judge Gorsuch. I am glad to hear it.
    Senator Durbin. What I am basically saying to you is I can 
only look at your court opinions, the words you write, because, 
like many nominees, you are careful in your testimony before 
us, and we have to look at your words and try to look into your 
heart with these words.
    And when I look at that word ``merely,'' it troubles me. Do 
I believe you love your family and love children? Of course you 
do.
    But when it comes to applying the law to a truck driver 
blackballed for life from driving a truck, when it comes to 
applying the law when it comes to a family--I cannot imagine 
the pain they are going through with an autistic child--I want 
to try to understand what Neil Gorsuch's heart is leading him 
to.
    You told us time and again: No place for my heart here. 
This is all about the facts. This is all about the law.
    I do not buy that. I do not think that the decisions of 
courts are so robotic, so programmatic, that all you need to do 
is look at the facts and look at the law and there is an 
obvious conclusion. If that were the case, there would never be 
a dissent.
    Judge Gorsuch. Senator, there was no dissent in that case.
    Senator Durbin. Well, in other cases, there have been 
dissents, and you have written them. And the point I am making 
to you, like the case with TransAm, is were looking for an 
insight into your values and your judgment, and it is hard in 
this kind of hearing to get close to it.
    Let me take you to an issue I raised yesterday about your 
mentor and supervisor at Oxford, Professor Finnis, who, as I 
understand it, helped you write your doctoral--or at least 
moderated the--I have never gone through this experience--the 
writing of your doctoral thesis, which led to the publication 
of a book on euthanasia.
    Is that correct?
    Judge Gorsuch. Senator, he was my dissertation supervisor. 
He wrote none of my book. And I have written none of his work.
    Senator Durbin. Would you say he gave you kind support 
through draft after draft?
    Judge Gorsuch. Absolutely.
    Senator Durbin. That is exactly what you said.
    Judge Gorsuch. As every good dissertation supervisor would 
do.
    Senator Durbin. So I guess what I am driving at is this. 
There is a statement which you made in that book, which has 
been often quoted, and I want to make sure that I quote it 
accurately here today.
    Give me just a moment to make sure I find it. It relates to 
the taking of life. I am sorry, I am having difficulty finding 
it on this page.
    And I quote, ``The intentional taking of human life by 
private persons is always wrong.''
    That was a statement that you included in your book, 
correct?
    Judge Gorsuch. I believe so.
    Senator Durbin. I believe so, too.
    How could you square that statement with legal abortion?
    Judge Gorsuch. Senator, as the book explains, the Supreme 
Court of the United States has held in Roe v. Wade that a fetus 
is not a person for purposes of the Fourteenth Amendment, and 
the book explains that.
    Senator Durbin. Do you accept that?
    Judge Gorsuch. That is the law of the land. I accept the 
law of the land, Senator, yes.
    Senator Durbin. I think that is an important element to 
bring in this, because when you were questioned by Senator 
Coons about this whole area and asked why you would express an 
opinion, you said: I was not a judge at the time. I was a 
commentator.
    So that is another brief opening of a narrow door here to 
an insight into what you are thinking, and I wanted to have 
some clarity on the record when it came to that.
    Judge Gorsuch. Sure.
    Senator Durbin. Thank you for that clarification.
    Let me ask you about the Sixth Amendment. In 1961, Clarence 
Earl Gideon, accused of stealing money from a poolroom cash 
register in Panama City Florida, asked for a lawyer. His 
request was denied. He represented himself and was sentenced to 
5 years in prison for petty larceny.
    He took his case to the Supreme Court, which held 
unanimously that the Sixth Amendment entitled Clarence Gideon 
to a lawyer. In 1963, the retrial took place, and then, 
represented by counsel, Mr. Gideon was found not guilty.
    Judge Gorsuch, do you agree that the Sixth Amendment right 
to counsel is fundamental?
    Judge Gorsuch. As recognized by the U.S. Supreme Court in 
Gideon v. Wainwright, Senator, yes.
    Senator Durbin. Have you ever written an opinion finding 
that a defendant's Sixth Amendment right to effective 
assistance of counsel was violated?
    Judge Gorsuch. Oh, I am sure I have, Senator.
    Senator Durbin. You have authored 52 opinions that discuss 
the Sixth Amendment generally, according to the Stanford Law 
Review. In none of these did you find that an attorney provided 
ineffective assistance of counsel in violation of the Sixth 
Amendment.
    Further, according to the Stanford Law Review article, you 
have dissented four times in a Sixth Amendment context, each 
time with reasoning that favored the Government.
    I am concerned whether you appreciate the importance of 
this fundamental right. Let us take the 2009 case, Williams v. 
Jones.
    Mr. Williams was offered a plea agreement of 10 years. His 
lawyer threatened to quit if he accepted the agreement. He 
advised Mr. Williams, if you took a deal and pled guilty, that 
would be perjury.
    That was clearly a false statement by his lawyer. Mr. 
Williams relied on that misinformation from his lawyer. He lost 
at trial and was sentenced to life in prison without 
possibility of parole.
    When Mr. Williams' case came to the Tenth Circuit, you were 
the lone dissent. Your colleagues, Judges Kelly and McConnell, 
both Republican appointees, disagreed with you. And then, in 
2012, the Supreme Court disagreed with you too.
    In Lafler v. Cooper, Justice Kennedy wrote the opinion 
holding that, prejudice can exist, ``if loss of the plea 
opportunity led to a trial resulting in a conviction on more 
serious charges or the imposition of a more severe sentence.''
    The Supreme Court noted that 97 percent of Federal 
convictions, 94 percent of State convictions, end in guilty 
pleas. So the accused, even before a trial, must have the 
competent guidance of an attorney in deciding whether to take a 
plea deal.
    In light of Lafler v. Cooper, please tell me what you feel 
about your lone dissent in Williams v. Jones.
    Judge Gorsuch. I would be happy to.
    So, Senator, under the Sixth Amendment Strickland test, 
before you reverse a conviction or a plea deal, you have to 
find two things. First, you find whether there is ineffective 
assistance. But that is only part of the equation because the 
Supreme Court, Justice O'Connor, said we do not reverse where 
there is no prejudice. So you have to show prejudice as well, 
ineffective assistance plus prejudice, before reversal occurs.
    So oftentimes, you will have cases where there was 
ineffective assistance. But at the end of the day, you cannot 
say there was a harm or a foul.
    Now, that is a counterfactual hypothetical that you have to 
ask yourself, and it is a hard question.
    Senator Durbin. Did you feel there was ineffective 
assistance in the Williams v. Jones case?
    Judge Gorsuch. In Williams v. Jones, the question was one 
of prejudice, in my mind, as I recall.
    Senator Durbin. You said there were two tests. I asked you 
about the first one. Did you feel that this defendant had 
ineffective legal assistance?
    Judge Gorsuch. I do not recall what I said on that subject. 
What I do recall saying is, whether there was or was not 
ineffective assistance with respect to providing the plea deal, 
communicating it to the client, the gentleman had a fair trial, 
and he had what everybody admitted was a full and fair trial. 
And----
    Senator Durbin. But that was not the point of the case, not 
in that case or in Lafler. And the facts on ineffective 
assistance are clear.
    His lawyer threatened to quit if the defendant accepted the 
plea agreement and advised his client that, if he took a deal 
and pled guilty, that would be perjury. That was false.
    That is, in my mind, prima facie ineffective assistance.
    Was there a prejudice? Oh, I think there was. A choice 
between a plea deal of 10 years or life in prison?
    Judge Gorsuch. And, Senator, the question was whether there 
is prejudice in light of a fair trial that took place, and that 
was the question that the court had to consider.
    I accepted--I think I accepted that there was deficient 
performance or ineffective assistance. And the question was one 
of prejudice.
    And the Sixth Amendment is about a fair and free trial for 
all individuals. And this gentleman, by everyone's admission, 
had one. He admitted he had a fair trial.
    Senator Durbin. But that is not the point.
    Judge Gorsuch. And so----
    Senator Durbin. The point is----
    Judge Gorsuch. Well, that was question.
    Senator Durbin [continuing]. That he was misled by the 
incompetence of his counsel to turn down a 10-year plea deal, 
misled, led to trial, which might have been fair on its face, 
and a life sentence at the end of the day.
    And the Supreme Court clearly--you were the lone dissenter 
in that case at the Circuit level.
    Judge Gorsuch. Yes.
    Senator Durbin. The Supreme Court clearly decided that you 
were wrong, with Justice Kennedy's opinion that I read.
    Judge Gorsuch. It was a 5-to-4 decision by the U.S. Supreme 
Court----
    Senator Durbin. And the point----
    Judge Gorsuch. A closely divided decision. And you are 
absolutely correct that Justice Kennedy wrote for the majority 
and said that, in the context of a plea deal, even if there is 
a fair trial, prejudice will be presumed on the basis of a plea 
that might have been accepted, could have been accepted, that 
could have averted a fair trial.
    And that is the standard, Senator. And since the Supreme 
Court has announced it, I have faithfully applied it.
    Senator Durbin. Thank you.
    Thank you, Mr. Chairman.
    Chairman Grassley. Now Senator Cornyn.
    Senator Cornyn. How are you doing, Judge?
    Judge Gorsuch. I am doing fine. Thank you. Great.
    Senator Cornyn. I think you are. I think you are. It has 
been an endurance test, I know. But I think you are doing fine.
    Let me just join the Chairman, Senator Grassley, in saying 
that I hope you really will take a look at cameras in the 
courtroom.
    You know, a camera like this one, hidden behind a facade 
with just a lens protruding that does not move around the room 
and just reflects what is happening before the court, I think 
would serve a similar educational role, would be enlightening 
to a lot of schoolkids and adults and others as to how our 
judiciary actually functions. And I think they may find out how 
boring some of the cases are, if you are interpreting the 
Internal Revenue Code or something like that. But I think just 
as I hope people have been enlightened and educated by this 
hearing, at least some of it, I think there is a lot that 
people would learn and benefit from in terms of the role that 
the judiciary plays in our Government.
    And so I would just ask you to--and you have already 
committed to doing this--keep an open mind and take a look at 
that. I think there are plenty of examples of State Supreme 
Courts, for example--I can think of one, in particular, that 
has a fixed camera there that people do not play to, people 
just do not even know is there, that would be very helpful to 
our general awareness of, again, the role that the Supreme 
Court plays.
    So, enough about that.
    So you participated in 2,700 or so decisions?
    Judge Gorsuch. Yes, Senator. More than that.
    Senator Cornyn. And how many cases have you been asked 
about here?
    Judge Gorsuch. A few.
    Senator Cornyn. That is my impression as well. I can think 
of maybe less than five. Of the decisions that you have 
rendered as a Federal judge over the last 10 years, we are 
talking about less than five cases.
    And that strikes me--I am not criticizing, necessarily, but 
it strikes me as a little bit of cherry-picking when it comes 
to your overall record.
    And I think you had a discussion with Senator Graham about 
what the appellate courts have said--or, excuse me, the Supreme 
Court said about your work, and it is pretty darn good. I think 
you all were quibbling about whether there was one reversal or 
none, but I will leave that alone.
    Let me ask about the case that Senator Durbin was inquiring 
about, just handed down from the U.S. Supreme Court, apparently 
this morning.
    You have not had a chance to read that yet, have you?
    Judge Gorsuch. It was handed to me on the way to the 
bathroom.
    Senator Cornyn. You have not had a chance to read it. So, 
neither have we. Neither have we. And so I look forward to 
reading that. I am sure you do as well.
    But in the case that Senator Durbin asked you about that 
you actually did render a judgment and write an opinion on 
involving a student with disabilities, that was appealed to the 
Supreme Court of the United States, was it not?
    Judge Gorsuch. I do not recall. You----
    Senator Cornyn. Well, we checked it out. It was, and they 
denied certiorari. And it takes four judges, does it not, on 
the Supreme Court to grant a writ of certiorari?
    Judge Gorsuch. That is right.
    Senator Cornyn. And so, apparently, there were not four 
judges that thought that case merited review by the Supreme 
Court of the United States.
    My point is, if people are going to cherry-pick, and I is 
speaking generally now, not necessarily just this hearing, if 
people are going to try to cherry-pick a judge's decisions, and 
to characterize them as caring or not caring about children 
with autism or whatever the sympathetic plaintiff would be--
and, of course, they deserve our care and sympathy, as a 
general matter.
    But if somebody is going to try to characterize your entire 
judicial career based on the decisions in these handful of 
cases when the Supreme Court of the United States has found no 
fault with them and has basically deferred to the judgment of 
the Tenth Circuit and your decision, it strikes me that this is 
kind of an indictment of the whole Federal judicial system. If 
you can go in and cherry-pick individual cases and talk about 
how sympathetic the plaintiff is, you are basically saying: 
Well, I do not believe that the trial was fair. I do not 
believe the appellate review by the Circuit Court was fair. And 
I do not believe that the review by the U.S. Supreme Court is 
fair.
    And that strikes me as a radical, radical view. And I am 
not asking you a question. I am making a statement.
    Well, the other thing is, it completely ignores Congress' 
role. I bet you can answer this question. If Congress had 
decided to change the standard in the case that Senator Durbin 
talked about in the intervening time period, would you have 
followed that new congressionally declared standard?
    Judge Gorsuch. Of course, Senator. Absolutely. That is my 
job, to follow the law that you pass as best we can, to the 
best of our abilities, consistent with our own Circuit 
precedent interpreting law.
    Senator Cornyn. This is what makes my head explode, that, 
somehow, we want to blame judges for our failures as Members of 
the legislature. If we see something we think is an injustice 
or is wrong, it is within our authority to change it as elected 
representatives of the American people. Assuming we can get it 
passed both Houses and signed by a President, we can change it.
    So to me, it seems entirely unfair to suggest it is your 
fault because we did not act in a way that one or more of my 
colleagues might feel would be more just and more fair and more 
appropriate.
    Let me ask you a little bit--well, first, let me clear up 
one thing, if I can. Hopefully, I will clear it up, not make it 
more confused.
    Senator Feinstein--who I admire and respect, and she knows 
that is true--made, I think, a suggestion that, somehow, based 
on an originalist orientation, that you would say that the 
Fourteenth Amendment to the United States Constitution somehow 
applied to men but not to women.
    Do you remember that question? Maybe I butchered that a 
little bit.
    Judge Gorsuch. I am not sure that was quite her question, 
in fairness, and I do not she think she implied that, and I 
certainly would not.
    Senator Cornyn. Well, let me just ask you. You do believe 
the Fourteenth Amendment applies to all persons, right?
    Judge Gorsuch. Of course, by its very terms, its express 
terms.
    Senator Cornyn. So any suggestion that it applied to some 
but not all persons, you would disagree or reject that?
    Judge Gorsuch. The Supreme Court of the United States has 
made that very clear.
    Senator Cornyn. Let me ask you about another topic that was 
a favorite of Justice Scalia, one that I came to respect, 
personally.
    Now, when you are a practicing lawyer, or even when you are 
a judge, people talk about legislative history as if it is 
somehow a mystical and magical thing that will provide the 
answers to all questions. But Justice Scalia was pretty much 
critical of the use of legislative history, or I should say the 
misuse of legislative history, where statutes were ambiguous.
    As a matter of fact, my able staff has pointed out one 
story that he apparently invoked in a 1993 case. You may be 
familiar with this. He said the use of legislative history is 
the equivalent of entering a crowded cocktail party and looking 
over the heads of your guests for your friends.
    So when judges use legislative history basically to find a 
way to confirm maybe even their own bias, or to confirm their 
outcome in a case, I think Justice Scalia was telling us that 
is dangerous territory and you ought to enter it with caution. 
So I would like to have you comment on it.
    But also, there was a dissent he wrote in another famous 
case, Hamdan v. Rumsfeld, where he said about the use of 
legislative history to justify the Court's opinion, he said, 
``The question,'' talking about the question in the case, ``was 
divisive, and floor statements made on both sides were 
undoubtedly opportunistic and crafted solely for use in the 
briefs in this very litigation.''
    He went on to say, ``The handful of floor statements that 
the Court treats as authoritative do not `reflec[t] any general 
agreement.' They reflect the now-common tactic--which the Court 
once again rewards--of pursuing through floor-speech ipse dixit 
what could not be achieved through the constitutionally 
prescribed method of putting language into a bill that a 
majority of both Houses vote for and the President signs.''
    Before you respond, Judge, I just want to mention one other 
anecdote. Since I have been here in the Senate, I have actually 
been on the floor of the United States Senate where we vote to 
pass legislation, and then a Senator comes out and says: And 
now, for some legislative history.
    I was shocked. But with the loose way that courts sometime 
treat legislative history, that, as Justice Scalia said, can 
reward bad behavior on the part of the legislature.
    So would you now offer us your views on the appropriate use 
of legislative history and how judges should review legislation 
passed by Congress where there is some perceived ambiguity?
    Judge Gorsuch. I would be very happy to, Senator.
    Excuse me.
    I would start by saying that a good judge entertains all 
arguments from all comers. So you read the briefs as presented 
to you. You do not tell people what they can and cannot argue, 
generally speaking. There are more and less persuasive 
arguments to be made, but people get to make their arguments.
    I believe in trial lawyers, for example, getting to try 
their cases, and appellate lawyers getting to argue their 
arguments and leaving them space and the courtesy and room to 
do that.
    So I do not believe it is my job to tell people how to 
argue their own cases. It is presumptuous of a judge.
    I would say that it is well-known, and I think 
appropriately so, that the law that governs is what this body 
passes, in connection with the House of Representatives and 
signed by the President.
    That is the law. That is all that is the law, nothing more 
and nothing less. And everything else stitched around it is not 
law. And it may or may not have persuasive value in 
interpreting and understanding the law, but it is not law.
    The Founders in the Constitution prescribed a process for 
making law, and they made it hard. They made it really hard. 
That was the part of separation of powers they really believed 
in. They did not want lawmaking to be easy because they wanted 
to preserve the liberty of the people. So they divided the 
lawmaking authority between two bodies, and they required the 
signature of the President or a legislative override. Tough 
process. Not the case in every country in the world or even in 
every State.
    So that is what law is. And there are some due process 
considerations in this area, fair notice considerations in this 
area, that I take seriously. That we charge people with notice 
of the law--generally speaking, ignorance of the law is no 
excuse.
    We assume that it is reasonable for the people to be on 
notice of all 5,000 Federal criminal laws that this body has 
passed. Is it also reasonable to expect them to know all the 
floor statements that have been issued about the law, 
everything that might have been entered into the record but not 
discussed by unanimous consent?
    Is that reasonable? Is that fair notice? Is that due 
process?
    And these are not idle considerations, because, more often 
than not, we are talking about a criminal statute, and we are 
talking about whether someone goes to prison, Federal prison, 
for a long time.
    And I have concerns about relying on things that are not 
law and charging people with notice of things that are not law 
as a basis for putting them in Federal prison. That is the 
concern.
    So I hope I have addressed your question, Senator.
    Senator Cornyn. Well, you have. And Senators and Members of 
the House of Representatives do not vote on documents. For 
example, the documents that have been admitted here by 
unanimous consent that nobody has talked about or perhaps even 
read, or the floor statements, those are not things that have 
achieved the consensus, the hard-fought consensus that you 
talked about legislation having to achieve, and a presidential 
signature.
    So I appreciate your speaking to that.
    Just a few other cats and dogs here that I want to go over 
with you.
    The day you were nominated, you spoke about judges looking 
backward, not forward, in interpreting the law. Now, I think 
some people have taken that in a negative sense. They view the 
word ``backward'' as somehow pejorative.
    Those who view history as an inevitable path forward of 
social progress may incorrectly hear that to mean your approach 
will not support their goals.
    Can you explain what you mean by looking backward and not 
forward? Can you explain why your approach to the law is not 
hostile to social progress?
    Judge Gorsuch. ``Backward'' does not mean backward, 
Senator. The role of the judge is to say what the law is, the 
great Chief Justice Marshall declared in Marbury v. Madison. 
Our job is to say what the law is.
    So, for example, in a criminal case, when we are 
interpreting a statute and whether it permits a man or woman to 
be sent to prison, we are charging with knowledge of the law as 
it was at the time he or she committed his alleged crime. We 
are saying this is what the law is. This is what it means. This 
is what it meant at the time you committed a crime.
    That is backward-looking. That is what I mean by backward-
looking.
    We resolve cases and controversies over things that 
happened in the past, disputes from the past, a crime 
committed, a breach of contract, a business dispute, a 
landlord-tenant problem, whatever it may be, it is a case or 
controversy that, by the time it gets to the Court, is in the 
past. We are asking what the law was at the time that the 
events in question took place.
    That is our job, and we are saying what the law was, what 
it is.
    Senator Cornyn. Is that another distinction between the 
role of a judge and a legislator?
    Judge Gorsuch. Yes. We look backward, in the sense, in the 
sense of looking to historic facts in the cases and 
controversies between the people that have arisen, and saying 
what the law at that time was, and what they can reasonably be 
charged with notice of.
    Your job as legislators, eh, you are not concerned with 
history. You are concerned with the future. You are concerned 
with writing new laws of general applicability that govern our 
society and our social coordination problems going forward.
    Senator Cornyn. Thank you.
    Judge, there are some Members of this body who have 
suggested that you are hiding your judicial philosophy. That 
was a claim we heard repeated by at least one Member of this 
Committee yesterday.
    But to me, I do not know what they have been listening to 
and what they have been paying attention to. If that is their 
conclusion, I do not think they have been paying attention to 
the proceedings here over the last day and a half or your 
testimony.
    Over the last 3 days, we have heard a description of your 
legal philosophy and the reasoning behind it time and time 
again. You discussed, for example, precedents with Senator 
Feinstein. We heard you discuss the history and legal test of 
the Religious Freedom Restoration Act with Senator Coons. You 
and I discussed the importance of faithful adherence to the 
Constitution and statutes passed by Congress, and you talked 
about this with Senator Klobuchar as well.
    Yesterday, we heard 12 hours of discussion of your decade 
of judging, your judicial philosophy, which you described in 
almost, roughly, well, 2,700 cases, hundreds of which were in 
published opinions, some not.
    So if somebody has arrived at the conclusion that you have 
been hiding your legal philosophy during your time before this 
Committee, do you think that is an accurate assessment?
    Judge Gorsuch. I would hope no one would reach that 
conclusion, Senator.
    Senator Cornyn. I think no reasonable person would reach 
that conclusion, based upon what we have all had an opportunity 
to see and hear this last day and a half.
    Thank you.
    Judge Gorsuch. Thank you.
    Chairman Grassley. I think it has worked out just right for 
Senator Whitehouse to go ahead, and then we will adjourn for 
recess for one half hour.
    Senator Feinstein. Mr. Chairman.
    Chairman Grassley. Yes.
    Senator Feinstein. May I ask unanimous consent to make part 
of the record an interview with Justice Scalia entitled, ``The 
Originalist,'' in January 2011?
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Feinstein. Thank you.
    Chairman Grassley. Senator Whitehouse.
    Senator Whitehouse. Thank you very much, Chairman.
    Judge Gorsuch, the state of play after our conversation 
yesterday, as I recall it, is that you would not say that 
anonymous billionaire dark money is a bad thing in our 
democracy, and you would not call on the dark money behind the 
$10 million political campaign for your nomination to reveal 
itself.
    Now, if I am wrong in that recollection, I just wanted to 
give you a moment to either amend or correct my recollection of 
those two points yesterday.
    Judge Gorsuch. Thank you, Senator.
    I believe what I said yesterday is that Congress is the 
primary organ for lawmaking in our legal order, and that 
Congress has ample authority and opportunity to pass campaign-
finance regulation, including disclosure laws, that Buckley v. 
Valeo expressly recognizes the power of Congress, especially in 
the area of disclosure----
    Senator Whitehouse. And what I was asking you, just to be 
clear and to the point, is whether you saw disclosure as an 
affirmative value in the same way, for instance, that you see 
reliance interests for corporations on the law as an 
affirmative value.
    Judge Gorsuch. And, Senator, you are mistaken. I never said 
reliance interests for corporations.
    Senator Whitehouse. Reliance interests for parties.
    Judge Gorsuch. That is what I said, Senator, and that is 
because that is the law. In the law of precedent, we look to 
reliance interests.
    And when it comes to the First Amendment----
    Senator Whitehouse. There is no statute that says reliance 
interests. That is judge-made law. That is law precedent.
    Judge Gorsuch. That is the law precedent, yes.
    Senator Whitehouse. Because judges follow important 
principles.
    Judge Gorsuch. Precedents, Senator. We follow precedent.
    Senator Whitehouse. Which are grounded often in principles. 
There is more to the law than just what Congress declares, is 
there not? There is the entire devolution of the Constitution 
into all of the doctrines that the Supreme Court has parsed it 
into over the years. That is done without Congress, is it not?
    Judge Gorsuch. And one of the precedents of the U.S. 
Supreme Court--if you want to call it a principle, I am not 
going to argue with you--in Buckley v. Valeo had to do with 
disclosure.
    And the Supreme Court expressly recognized that, under the 
First Amendment, Congress and the States, who have actually 
been busy in this area, as you know, legislating, have the 
power to pass laws requiring disclosure, up to a point. There 
comes a point--there is a point that the Supreme Court has also 
recognized in NAACP where disclosure can be used as a club.
    Senator Whitehouse. So let us talk about NAACP for a 
minute, because twice you reverted to that yesterday.
    NAACP v. Alabama is the case you have in mind when you say 
that, I believe, correct?
    Judge Gorsuch. Yes.
    Senator Whitehouse. And it suggests, when you raise that in 
the context of a conversation about dark money, that you find 
an equivalence between billionaires meddling secretly in our 
democracy behind a screen of front groups that they have thrown 
up to obscure their hands and families in the Jim Crow South 
whose homes and churches were being bombed, whose sons were 
being lynched by White mobs in, essentially, mass racist 
murders across the South but particularly in Alabama, in that 
State, and where the disclosure of their Membership in the 
NAACP would have put them immediately into harm's way.
    Now, presumably, that is not what you meant.
    Judge Gorsuch. Senator----
    Senator Whitehouse. Let me give you a chance to clarify 
that you do not see those two things as equivalent.
    Judge Gorsuch. Senator, I never said any such thing, and I 
would not, and I have not.
    Senator Whitehouse. Well, when you cite the NAACP case, it 
is hard not to revert to its facts, which were----
    Judge Gorsuch. Yes, exactly.
    Senator Whitehouse [continuing]. Which were those.
    Judge Gorsuch. Very important facts.
    Senator Whitehouse. Yes.
    Judge Gorsuch. Every case, every precedent, is built around 
its facts. That is absolutely right.
    Senator Whitehouse. So that may not have much application 
to the case of billionaires secretly meddling in American 
democracy behind front groups, correct?
    Judge Gorsuch. Senator, if I might?
    Senator Whitehouse. Please.
    Judge Gorsuch. We were talking about disclosure 
requirements, as I recall.
    Senator Whitehouse. And that is where secretly meddling 
comes in. That is why I used that phrase.
    Judge Gorsuch. I believe we were talking about disclosure 
requirements and First Amendment doctrine, and I indicated that 
Buckley v. Valeo has given this Congress, if it chooses, the 
opportunity to pass laws in this area expressly. And all I 
acknowledged is that there does come a point at which one has 
to worry at the other end of the spectrum under existing 
Supreme Court precedent, and that is the NAACP principle.
    And, Senator, that is it. That is all I have said.
    Senator Whitehouse. Great.
    Judge Gorsuch. I have not--I have not----
    Senator Whitehouse. I wanted to make that----
    Judge Gorsuch. And to read anything else into that----
    Senator Whitehouse. I wanted to make that clear.
    Judge Gorsuch. Would be a mistake.
    Senator Whitehouse. I think there is a very significant 
difference in the facts.
    Judge Gorsuch. Of course there is.
    Senator Whitehouse. Very good.
    So let me go back into our history a little bit.
    In 1816, Thomas Jefferson expressed concern about, and I 
will quote him here, ``monied corporations which dare already 
to challenge our Government to a trial of strength.'' And a 
little bit more than around a century later, Teddy Roosevelt 
warned, and I will quote Teddy Roosevelt, ``that unless the 
great corporations are controlled by the Government, they will 
themselves completely control the Government.''
    Should the Supreme Court in its decisions keep in mind 
Thomas Jefferson's and Teddy Roosevelt's warnings about what 
can happen when massive economic powers jump the fence to 
become massive political powers?
    Judge Gorsuch. Well, Senator, as you know, corporate 
speech, when it comes to the First Amendment, does not receive 
the same protections as individual speech. There is a 
difference in the doctrine there. So that is an example, 
perhaps, of an instantiation in law of some of the concerns you 
are expressing.
    Another instantiation example to me is antitrust law, the 
Sherman Act passed by this body and interpreted by the Supreme 
Court over many years now, trust-busting-era stuff. And it does 
try to keep competition as an important value in our legal 
system.
    Senator Whitehouse. So let me elaborate a little bit on 
that point, because you have said that before in your decisions 
in the antitrust realm, that competition is an important value 
that judges should bear in mind as they are interpreting 
antitrust law and antitrust precedent.
    And I agree with you. I think it absolutely is. I think you 
also said that innovation is another such value, and I agree 
with you on that, too.
    My concern is that this Supreme Court right now, at least 
the Republican-appointed majority recently, particularly the 
Citizens United group, seems to not admit the possibility that 
the similar kinds of concentration of power that destroy 
competition and innovation in the economic market can also take 
place in the political marketplace and can destroy competition 
and innovation in the political marketplace.
    Do you see that principle, that there could be a point 
where political power is so concentrated that it, in effect, is 
crushing the opposition rather than allowing free competition 
as a potentiality that the Court should bear in mind as it 
makes its decisions?
    Judge Gorsuch. Senator, here I think of Buckley again and 
its recognition that corruption and the appearance of 
corruption are legitimate interests that Congress can pursue in 
legislation. And that is an example of, I think, the principle 
you are talking about, which Citizens United also speaks of.
    It says there the record before it did not satisfy the 
Court that Congress' legislation in that particular case had 
established a case of corruption. I understand you disagree 
with that, but it did recognize that corruption and its 
appearance remains an area where Congress may legislate in the 
future.
    Senator Whitehouse. So let us go to that point, because 
they did say that no amount of corporate spending--none, there 
is no limit on the amount of corporate spending in politics 
that could lead to either corruption or the appearance of 
corruption. To me, that is fanciful in the extreme.
    And they got to that point with three--well, I would say 
they did fact-finding, which they are not supposed to do, but I 
do not want to quarrel over that point with you here, because 
that is not the point of my question. So let us say what they 
did was they made some presumptions.
    One presumption that they made was that all this corporate 
political spending they unleashed was going to be independent 
of candidates. That was presumption one.
    Presumption two was that it was all going to be 
transparent. ExxonMobil was going to put up the ad saying, ``We 
hate Whitehouse because he is fighting us on climate change, 
and you should be with us,'' and everybody would know who the 
players were.
    The third is that the back-and-forth that this would 
produce would not affect confidence in government.
    Now, I think that the facts, reality as it has developed 
since the Citizens United decision, completely bely all three 
of those points. All of the major candidates for--at least most 
of the major candidates in the last presidential election had 
what they called affiliated super-PACs.
    I mean, what does ``affiliated'' mean? It does not mean 
independent. So clearly, I mean, just on that alone, it does 
not even pass the dictionary test. Clearly, there is no 
independence.
    As to transparency, this whole dark money problem belies 
their assumption of transparency.
    And public confidence has crashed in government since that 
decision, for, among other reasons, I think, when you are 
sitting there looking at the TV and an ad comes on that says 
vote for Senator Snooks or vote against Senator Snooks, and 
this ad is brought to you by Americans for Puppies and 
Prosperity, and everybody looks around and they know perfectly 
damn well there is no such real thing as Americans for Puppies 
and Prosperity. There is no real corporation running that. 
There is no real person running that. It is a screen. It is a 
front. It is a shell for the real actors behind it.
    I think that is very damaging to Americans' confidence in 
their government on both sides of the aisle, which I think is 
one of the reasons why all three of the major commentators on 
the Supreme Court have basically described them in the modern 
age now as instruments of the Republican Party.
    And I think it also is why the majority of Americans 
looking at the Supreme Court think they will not get a fair 
shake there against a corporation. In fact, 36 percent, more 
than a third, think that the Court will be much more favorable 
to a corporation than to a person.
    So the question here for you is, would you be willing, if 
you came to the conclusion that the independence presumption or 
the transparency presumption or the confidence presumption of 
Citizens United were, in fact, wrong, to reconsider that case?
    Judge Gorsuch. Senator, what I--I have a couple reactions 
to that, if I might.
    Senator Whitehouse. But do not lose the answer to my 
question in your----
    Judge Gorsuch. No, I am going to start--I am going to start 
with that, but there is one other observation I want to make--
--
    Senator Whitehouse. Sure. Help yourself.
    Judge Gorsuch. Beyond it, if I might.
    Okay. Thank you.
    I want to promise you what I promise every litigant, and I 
hear a litigant before me, asking for an overturning of a 
precedent. That is what I hear. And I hear arguments for that. 
And arguments for overturning precedent include changed 
circumstances, and that is what I am hearing. That is the kind 
of nature of argument that I am hearing.
    That is something a judge takes seriously, of course, 
always. And any litigant can come to court and argue anything. 
That is the beauty of our system. I will follow the law of 
judicial precedent in this area and every other area put to me.
    I will make no promise for the result in any case. That is 
not what judges do. We listen to the cases put to us.
    Senator Whitehouse. And for the record, it is not what I 
want you to do.
    Judge Gorsuch. I understand.
    Senator Whitehouse. What I want you to do----
    Judge Gorsuch. And I am telling----
    Senator Whitehouse [continuing]. Is tell me that if the 
proper decision is that this was so wrongly decided it should 
be reversed, you would be willing to go there on proper 
judicial decisionmaking.
    Judge Gorsuch. I will follow the law of judicial precedent 
in this and every other area, Senator, is my promise to you.
    The other thing I would say that I would like to say is--
two other things.
    One is, there is room for--for not just further litigation, 
Senator, but for legislation in all of these areas. If there 
are changed circumstances that Congress observes, it is free 
not just to bring a lawsuit but pass a bill----
    Senator Whitehouse. Here is the problem----
    Judge Gorsuch. In any of these areas. And finally, 
Senator----
    Senator Whitehouse. Here----
    Judge Gorsuch. May I just finish?
    Senator Whitehouse. You finish, but then let me come back 
to that.
    Judge Gorsuch. Of course. Of course.
    The last thing I want to say is I am distressed to hear you 
think that judges or the Supreme Court is an organ of a party. 
That, to me, is just--I know you feel that way, and that 
distresses me.
    Senator Whitehouse. It distresses me too.
    Judge Gorsuch. And I just do not----
    Senator Whitehouse. Quite a lot.
    Judge Gorsuch. And I just do not see judging that way, and 
I do not see our rule of law that way. I do not see Republican 
judges, and I do not see Democrat judges. I see judges.
    Senator Whitehouse. Well----
    Judge Gorsuch. And, Senator, I think the rule of law in 
this country works, and it works so well that to speak like 
that diminishes what we have.
    And it is, for me, a failure to appreciate the beauty of 
our system, that we resolve hundreds of thousands of cases a 
year almost always unanimously as judges; that the disputes are 
limited to a fraction of a fraction of a fraction of a percent; 
and that once we resolve them, through the dispute process of 
litigation where we have precedent, that settles that problem 
and we can move on to the next one.
    Senator Whitehouse. Well----
    Judge Gorsuch. It is a miraculous system, really.
    Senator Whitehouse. In my time that remains, which is 
getting briefer and briefer, let me make two points.
    One, on the Tenth Circuit, I do not believe you hardly ever 
have party-line decisions made by your court. We looked. I 
count only two in the entire time you have been on the court.
    Judge Gorsuch. I really appreciate you pointing that out.
    Senator Whitehouse. So it is a very different----
    Judge Gorsuch. Thank you.
    Senator Whitehouse. It is a very different world where you 
are. When you get to the Supreme Court, now we have these 5-to-
4 decisions that I pointed out, and it is 6-to-0 one party over 
the other party's interests at the polls. It is 16-to-0 
corporate interests versus human interests in litigation.
    There is a point where it becomes reasonable to discern a 
pattern, and I see a pattern, and it distresses me.
    Now the point that I wanted to get back to--I have 2 
minutes left--was your question about Congress can do this. 
Congress can rewrite these laws. Congress can demand 
disclosure.
    Here is the problem. In the same way that a small 
competitor can be crushed by a dominant business in the 
economic market, once you let certain political interests 
achieve the kind of dominance that Citizens United has let them 
get, they can start to exert disproportionate control over 
Congress, and now Congress cannot do that any longer because 
there is no longer a fair playing field.
    If the Court can rebuild a fair and competitive playing 
field, then maybe we can do something about it.
    But to say to Congress that you should solve this while at 
the same time the Court has put Congress in a position where it 
cannot solve it because the unlimited power and the secret 
money of these interests is such a powerful and pernicious 
effect, is something that I would like you to at least be 
thinking about as a point, if you get to that Court.
    I hope you will take that sincerely. You are quite expert 
at antitrust law. You understand that principle in the 
economics sphere. I urge you to consider that Citizens United 
has caused that to happen in the political sphere.
    And with that, my time has expired.
    Chairman Grassley. Do you have anything you want to say?
    Judge Gorsuch. I would like to, if I might, just briefly, 
Senator.
    Chairman Grassley. You can proceed.
    Judge Gorsuch. Just to cheer you up a bit, I hope, about 
the judicial process, I think that you are right, that there 
are some 5-4 decisions. There are. But what that overlooks, I 
think, Senator, are some facts that I shared, I hope, with the 
American people yesterday, that even at the Supreme Court, 
where they take the 70 or 80 hardest cases every year, where 
Circuit Judges disagreed--and even then, only about 5 percent 
of cases get to me; that is what we are talking about, a 
fraction of a fraction of 1 percent of the cases--that they are 
unanimous with nine Justices appointed by five different 
Presidents 40 percent of the time. It is a remarkable thing.
    Senator Whitehouse. Look, I understand----
    Judge Gorsuch. We should be proud of it. We should be proud 
of it.
    Senator Whitehouse [continuing]. And I get it. But what we 
have as a right is to have the Supreme Court make a fair 
decision in every case----
    Judge Gorsuch. I agree.
    Senator Whitehouse. Not just 99 percent of them but all of 
them. And I think these 5-to-4 decisions are a problem.
    You said earlier that sometimes--I think I am quoting you 
correctly--sometimes big corporations can capture an agency. 
That is a well-known principle of administrative law and of 
economics. Just let us be sure that our Supreme Court does not 
get to be one of those agencies that is captured on any 
subject.
    Judge Gorsuch. Nobody will capture me.
    Senator Whitehouse. I hope not.
    Chairman Grassley. We will recess now until----
    Senator Feinstein. That is a good line to recess on.
    Chairman Grassley [continuing]. Until 1 minute after 1.
    [Recess.]
    Chairman Grassley. Thank you. Senator Lee.
    Senator Lee. Thank you, Mr. Chairman. Thank you, Judge.
    I want to begin by making a broad point, a point that 
relates to some of the discussions we have had so far in this 
hearing. A number of my colleagues in recent weeks have 
expressed concern, understandably, with maintaining the 
reputation of the Federal judiciary. There is a good reason 
that we do this. We, in fact, are the Judiciary Committee. It 
is our job, among other things, to exercise a degree of 
oversight over the Federal judiciary, make sure it is working 
well, to make sure that the laws and the personnel that we have 
in place are up to the task of deciding cases and controversies 
in the Federal court system.
    I will be the first to acknowledge I do not love every 
outcome in every case that comes before the Federal judiciary. 
In some cases, decisions made in Federal courts are frustrating 
to me. In some cases, I disagree with them, sometimes strongly. 
And yet as a lawyer, as a citizen, as one who is interested in 
these sorts of things, I can say with confidence that I would 
stack the Federal judiciary up against any system of its kind 
anywhere in the world. And I can say with absolute confidence 
this is the best there is. It is imperfect because human beings 
by their nature are imperfect. But it is really, really good. 
It is one of the reasons why it is important for us to defend 
the integrity of the Federal judiciary, even while sometimes 
disagreeing with the outcome of a particular case.
    It is one of the reasons why many of my colleagues, along 
with many Americans, expressed concern when the President of 
the United States referred to a judge who issued a ruling he 
did not like as a ``so-called judge.'' It was understandable 
why some people were concerned about that. It is not a 
statement I would make, in part because I think it is important 
to uphold the Federal judiciary as a system that is good, 
notwithstanding its imperfections.
    And yet I find it interesting, ironic, and quite troubling 
that many of the same people who were the first and the loudest 
to complain about what the President of the United States said 
in referring to a ``so-called judge'' have been some of the 
first to denigrate the Federal judiciary. I do not just mean 
criticizing a particular decision or a particular judicial 
philosophy. I mean referring to the Supreme Court of the United 
States as an ``organ of the Republican Party.'' This is wrong. 
This is not the kind of statement that should ever flow from 
the mouth of a United States Senator, from a Member of the 
Judiciary Committee, from a citizen who loves this country and 
wants to make sure that our Federal judiciary remains an 
institution that is revered and respected, although its 
decisions might from time to time be less than perfect. There 
is no good reason to make a comment like this.
    Now, I also find it interesting that in the first 2 days of 
this hearing alone, we have seen the independence of Judge 
Gorsuch attacked no fewer than 27 times. We have seen the 
independence of the Supreme Court of the United States and of 
the Federal judiciary called into question no fewer than 17 
times. Those are stats from the first 2 days alone. Those 
statistics do not reflect statements made today. One could 
argue that those statistics may well have doubled by today. 
They have certainly increased substantially, and I find that 
troubling. I certainly find that is something that we ought not 
be aspiring to. What we ought to be aspiring to is talking 
about how we can improve the Federal judiciary, talking about 
the highest ideals of our system.
    That does not mean we all have to express agreement with 
this nominee or any opinions that this nominee may have written 
or even this nominee's judicial philosophy. But it does, I 
think, mean that we ought to identify disagreement as 
disagreement, genuine disagreement when we see it, rather than 
impugning the character of individual jurists or the 
credibility of the Federal judiciary as a whole.
    I think the American people have been asked time and time 
again to settle for this, and I do not think it is time for 
them to settle. I think it is time for them to expect more. I 
think it is time for the American people and for the United 
States Senate to expect more of us, of this Committee, of this 
body when we speak of the Federal judiciary. And that means not 
referring to it as an organ of the Republican Party, the 
Democratic Party, or any other political enterprise, or 
anything else, for that matter. We have an independent Federal 
judiciary, and it needs to be respected as such.
    A lot of this conversation is somewhat ironic in the sense 
that a lot of the criticism against the Federal judiciary is 
perhaps, I wonder, a bit misguided. It is true that we should 
all be concerned about the excessive accumulation of power in 
the hands of the few. There was no concern that weighed more 
heavily upon the founding generation, upon the Founding Fathers 
as they convened in Philadelphia in that hot, fateful summer of 
1787. They were concerned about what would happen if too much 
power were accumulated in the hands of the few, and so they put 
together a system that was designed to diffuse that power, to 
spread it out, to make sure that no one person and no one group 
of people could accumulate too much power.
    What we have seen over recent decades is power 
reaccumulating. One way of putting it is that power has been 
taken away from the American people in two steps: first, as it 
has been moved from the American people at the State and local 
level to Washington; within Washington as it has been handed 
over, in many instances voluntarily relinquished, by the 
people's elected lawmakers to unelected, unaccountable 
bureaucrats.
    In some instances, it is effectively handed over to the 
judiciary, although this is a little bit less common, but we 
have seen that in some instances as in some of the statutory 
frameworks that we have discussed today, where Congress will 
come up with an impossibly broad, non-judicially manageable 
statutory standard, and then we just expect the courts to 
figure it out, complaining about it when we do not like the 
results.
    In any event, this power has been taken away from the 
people in these two steps, from the people to Washington, from 
the people's elected representatives in Washington whose job it 
is to make law, whose only job it is to make law, over to those 
who are unelected and unaccountable.
    It is, I believe, no coincidence that during exactly that 
same time period, the last 70 or 80 years, I would say--and, by 
the way, I would add to that this has been done under the 
leadership of both political parties. It has been done under 
Congresses, Senates, and White Houses of every conceivable 
partisan combination. During that same time period, you have 
seen not only the accumulation of power, but also the 
accumulation of wealth.
    It is, I believe, no coincidence that currently, as we sit 
here today, six of our Nation's ten wealthiest counties are now 
suburbs of Washington, DC. This is notwithstanding the fact 
that it is not a banking hub. It is not an area that 
manufactures anything. It is not a technological innovation 
hub. It is not the home of any vast store of natural resources. 
No. The money is here because the power is here, concentrated 
in the hands of just a few elites.
    So in that respect, this should come as no surprise that 
there are people who spend an extraordinary amount of money 
trying to make sure that they can get access to that power--
that power that controls as much of the economy as it does and 
as much of the lives and livelihoods as it does; that there are 
people willing, whether they are rich or poor or somewhere in 
between, to invest a whole lot of money in trying to influence 
Government. So I wonder. Why is it that we are so slow to ask 
the question? Why do we allow this much power to be accumulated 
in Government? Why do we allow this much of our Government to 
be based in Washington rather than with the people? And why 
within Washington do we allow so much of that power to be 
accumulated in the hands of the few within the administrative, 
regulatory state?
    This has a whole lot to do with why we have seen the rise 
of super PACs, with why we have seen the rise of billionaires, 
millionaires, poor people, rich people, getting behind 
political causes of one sort or another, this, of course, 
giving disproportionate advantage to those who have a lot of 
money to influence Government. There are people on the left and 
on the right devoting a whole lot of time and a whole lot of 
resources, a whole lot of influential capital to doing just 
that. That should be concerning. That is, I believe, a symptom 
of the true underlying malady, which is that we have allowed 
too much power to accumulate right here.
    So as long as we are asking the question of are not these 
super PACs dangerous--which I think few Americans would quibble 
with that. I think few Americans would say, ``Yes, I love super 
PACs. I think they are the best thing ever.'' I do not think 
many Americans would say, ``Yes, we ought to have that much 
power that can be wielded by the rich and powerful or by 
political interests.'' I do not think many Americans would 
disagree with that. But we ought to ask ourselves why is it 
that they have such an incentive to do this. Why do they want 
to spend so much of their money doing this? What is it they 
have to gain? And have we made it too easy for too many of them 
to gain too much simply by trying to influence Government?
    But in that discussion, I hope we will never lose sight of 
the fact that we do have a treasure in the Federal judiciary, a 
treasure that should never be diminished as an organ of any 
political party or any interest. The rule of law is a cultural 
norm that is not easy to establish and, once established, needs 
to be maintained. I hope we can do that.
    Judge Gorsuch, I would like to talk to you about some of 
the issues that have been raised with you. You have had some 
Members of this Committee asking you to opine on specific legal 
issues, on specific cases or types of cases, and some have even 
expressed frustration about the fact that you have not said 
more in response to their questions.
    I would like to ask you a few questions about that and 
about the issues that could come along with that, and I find it 
significant and worth mentioning here that in a recent op-ed 
published in the Washington Post, two of your former 
colleagues, Judge Tacha and Judge Henry, both of whom I believe 
are here--I think I saw them earlier today. As a lawyer who has 
argued before each of them many times, sometimes winning, 
sometimes losing, I was glad to see them here.
    Judge Gorsuch. Yes.
    Senator Lee. But they issued this opinion--this op-ed about 
the issue of judicial independence. I assume you saw the op-ed, 
or maybe you were aware of it.
    Judge Gorsuch. I am aware of it.
    Senator Lee. But they wrote, among other things, as 
follows, and I want to quote this. They said: ``Detailed 
discussions during the confirmation process on issues that 
might come before a judge are not proper; in fact, they would 
in all likelihood require recusals from the cases discussed. 
Litmus tests are not acceptable.''
    So Judges Tacha and Henry, both of whom have served as 
Chief Judges on the Tenth Circuit, make an important point. If 
you were to rule--if you were to make a commitment today as to 
how you might rule on a certain issue, on a particular type of 
case, and if that issue were subsequently to come before the 
Supreme Court of the United States, and if by then you have 
been confirmed as an Associate Justice of the Supreme Court of 
the United States, isn't it possible, in fact, isn't it likely 
that a litigant could file a motion for your recusal in that 
case?
    Judge Gorsuch. Yes, Senator, and I really want to thank 
Judge Tacha and Judge Henry, both of whom are retired from the 
bench, for having gone out of their way to write that article 
together and to come to Washington. And I think you are going 
to hear from them tomorrow. One happens to be a Republican-
appointed judge; the other happens to be a Democrat-appointed 
judge. And, again, I do not buy into those labels. They are 
judges. And they both led the Tenth Circuit, and they are 
people I admire greatly and esteem personally.
    And so you are absolutely right. I would face the 
possibility of a recusal motion, and I would have to face the 
litigant in front of me, who would say, quite reasonably, look 
me in the eyes and say, ``How can you be fair in my case when 
you have already opined on its contents in front of the United 
States Senate?'' And to be honest with you, Senator, I do not 
know how I would look them in the eye. And whether that means I 
am on the Supreme Court of the United States, if fortunate 
enough to be confirmed, or I go home to Colorado and those 
cases come before me, I am still faced with the same 
predicament, yes.
    Senator Lee. And if such a motion were to come forward, it 
is not exactly the kind of circumstance in which you would say, 
well, that would be frivolous. It is not necessarily an act of 
paranoid fantasy to say such a motion for recusal could be 
filed.
    Judge Gorsuch. No, Senator, which is why we have a judicial 
canon that prohibits me from opining on cases that might be 
pending or impending. And, Senator, there is a second reason 
that I think is vitally important, too, and it goes beyond the 
parties. It goes to the integrity of the judiciary itself. If 
persons coming to this table, this rather lonely table in this 
rather big room, have to make promises or hints or previews or 
nudges and gestures about how they are going to rule in cases, 
then I do not know where we are as an independent judiciary.
    It is like a campaign promise for office, it seems to me. 
And you know what? It has not happened so far. The precedent in 
this area is strong, and I admire it. I have looked back. I am 
no expert. I have not read every jot and note. But Justice 
Ginsburg, Justice O'Connor, Justice Souter, Justice Scalia, all 
of them declined to offer hints and previews. And, Senator, I 
am not going to be the first judge to come to this table and 
break that tradition and compromise the integrity of the 
independent judiciary.
    Senator Lee. So that tradition, while strong, like any 
chain could be damaged, could be undone by its weakest link.
    Judge Gorsuch. That is right.
    Senator Lee. And you do not want to be that link.
    Judge Gorsuch. I am not going to be that link, whatever 
happens to me.
    Senator Lee. And if, in fact, answering questions that you 
should not answer could trigger a motion for your recusal, and 
if a motion for recusal that might be filed as a result of your 
answering such a question, would not necessarily be frivolous, 
might end up having to be granted, that could create additional 
opportunities for mischief in that people could deliberately 
plant questions, directly position questions, demanding that 
you answer them as a condition of your moving forward in this 
Committee, questions themselves that could result in your non-
participation in a particular case, thus opening this process 
up for manipulating that process and undermining the integrity 
of them both. Would that be an accurate characterization, or 
would I be crazy to suggest that?
    Judge Gorsuch. Senator, I should hope that is never any 
person's motive.
    Senator Lee. And I am not suggesting that it is any 
person's motive in this case. What I am saying is that if we 
weaken that link, that could easily become the motive given 
what we know would likely be the outcomes.
    Judge Gorsuch. That would be, I think, a poor day for the 
United States courts.
    Senator Lee. One of my colleagues criticized your opinion 
in Longhorn Service Company v. Perez, so I went back and looked 
at that case. Here is what happened, in essence. Longhorn, the 
company involved in the case, prepares wells for fracking by 
lowering a metal platform over the well, inserting piping 
through the platform, and pumping contaminants into the well.
    OSHA came to inspect the well and cited the company for a 
couple of reasons. The company ended up challenging OSHA, and 
the company prevailed on one of its claims and it lost on one 
of the other claims.
    I think it is significant that when the accusation is being 
made that this somehow reflects a determination on your part or 
a bias on your part to favor the big guy and rule against the 
little guy, that is misguided. It is wrong in this case for two 
independent reasons.
    First and foremost, there is no bigger big guy than the 
Federal Government. There is no stronger Goliath than this 
Government. That is not to suggest that its intentions are 
malicious. It is only to suggest that this is a formidable foe. 
I do not think it would ever be fair to say that someone 
litigating against the Federal Government is anything other 
than the little guy, especially whereas here it is not as if 
the business were a giant corporation known by all people.
    Second, there were two claims at issue in this case. Only 
one of them was one upon which the business entity prevailed.
    I see my time has expired, and as I would always do before 
your court, I will stop talking once my time has expired. Thank 
you, Judge.
    Judge Gorsuch. Thank you, Senator.
    Chairman Grassley. Thank you, Senator Lee.
    Now, Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. Good 
day again, Judge. I really had promised I was going to start 
with antitrust, but the real world has intervened again, as it 
does very often. And so I am going to lead off asking about the 
case that was decided today by the Supreme Court.
    Let me start by saying I care a lot about this issue of 
kids with disabilities. When my daughter was born, she could 
not swallow, and for a year and a half she was fed by a tube. 
She ended up not having a long-term disability, but it made me 
really understand, because I have to know a lot of these 
parents through this time, what they go through every single 
day. And while I can wear my politics on my sleeve about where 
I am on this issue, I know that you are a judge and must make 
decisions. And our job here--and I have tried to stay away from 
making these political statements. I have tried to stay away 
from asking how you are going to decide a certain case in my 
questions yesterday. But we have to figure out what your 
philosophy is, and so that is why we keep going into such 
excruciating detail, as you know, about these decisions that 
you have made in the past.
    So what happened this morning was that the Supreme Court 
unanimously rejected, in an opinion by Justice Roberts, the 
standard that you used to evaluate how much help kids with 
disabilities get in school. It was not your case, but it was a 
standard that was like the standard that you used. And nine 
Justices disagreed with you. Justice Roberts' opinion says, 
``When all is said and done, a student offered an educational 
program providing merely providing `merely more than de 
minimis' progress from year to year can hardly be said to have 
been offered an education at all.''
    Now, ironically, he actually called out the language that 
you used in that Tenth Circuit case, and he said, ``Whatever 
else can be said about it, this standard is markedly more 
demanding than the `merely more than de minimis' test applied 
by the Tenth Circuit.''
    So I want to start where Senator Durbin left off in his 
initial question, and you said that you decided Thompson R2-J 
School District v. Luke P. the way you did because you were 
affirming precedent in Urban County v. Jefferson County School 
District, which is, of course, a case in your Circuit, and you 
said so you were bound by it.
    So over our brief lunch break, I looked at it, and I am 
just not sure that is true, and maybe we just have a different 
interpretation. I know this is going to sound nerdy to people 
that are not lawyers, but this is our job today, and a holding 
of courts is precedent. It is part of a court's opinion that is 
later binding on courts. But a holding is different than dicta, 
and when I look at this case that you--and you wrote the 
decision yourself and, yes, some other judges joined you, but 
you wrote it. And I looked back at the case you relied on, and 
it actually mentions this de minimis standard. But it is just 
in a paragraph along with some other standards. It is a Third 
Circuit case that uses this de minimis standard, and the actual 
Tenth Circuit case uses a broader standard. And so in the end, 
even this section of the case is not used--that case is not 
used to decide it. It says we do not reach the issue.
    So for me, this case that you said was binding on you, it 
is just dicta in the case. It is not a holding. And so to me, 
you actually were the first in this case that you wrote to come 
up with this standard, and then you actually made it--which I 
will get to in a second. You added the word ``merely.'' But why 
do not we just start with do not you see this as more dicta 
than as a holding?
    Judge Gorsuch. Senator, I would have to go back and look at 
it carefully, but, no, I would not agree with that. My 
recollection is that the Tenth Circuit precedent was very 
clear, that ``some'' meant more than ``de minimis.'' ``Some 
meaningful educational benefit'' in Rowley was a Supreme Court 
precedent and that our court had interpreted that to mean more 
than de minimis, and that a number of Circuits had come to the 
same conclusion.
    The Supreme Court did not take this case just for fun. It 
took it because there was a Circuit split on this issue. And 
the Tenth Circuit was with the Third Circuit, and I believe 
there are probably some others. I would have to go back and 
look at it. You have it before you.
    Senator Klobuchar. There were some other Circuits.
    Judge Gorsuch. Yes, so that is what happened. That is what 
the Supreme Court does, is when Circuit Judges disagree in the 
rare cases, and this is----
    Senator Klobuchar. Yes, and I do understand that. But what 
I am saying is through----
    Judge Gorsuch. And to suggest that we were in any way out 
of the mainstream or that I was doing anything unusual there 
would be mistaken because it is the standard used by many 
Circuits up until, I guess, today.
    Senator Klobuchar. Okay, but it was a 9-0 decision against 
the standard.
    Judge Gorsuch. Of course, which----
    Senator Klobuchar. So to me, that does seem out of the 
mainstream, and also----
    Judge Gorsuch. It is just wonderfully reaffirming to me, 
Senator, that, again, even in cases where Circuit Judges 
disagree--and here is one where there was a Circuit split. And 
as you point out, it sounds like a lot of Circuits on both 
sides of the issue, and a technical issue and maybe a little 
nerdy, as you say. But that is what we judges do. We are trying 
to follow the precedent as best we can. Sometimes we get 
disagreements. And then the Supreme Court, exercising 
collegiality, comes together and resolves it.
    Senator Klobuchar. Okay.
    Judge Gorsuch. That is how our system is exactly supposed 
to work.
    Senator Klobuchar. I understand. But let us go back to this 
again. So my position is that this was not necessarily binding, 
this case that you cited. But then beyond that, the Third 
Circuit case that was not binding, that you cited, that says it 
must be more than de minimis, you went a step forward, and this 
is what Senator Durbin was getting at. You added the word 
``merely.''
    So you said it is ``merely more than de minimis.'' So I was 
trying to figure this out at lunch, and I figured out that if 
you had a gas tank and it said it has to be on more than empty, 
that could mean it could be any way up to full. It is a broad 
range of the kind of how full your gas tank would have to be.
    But you added this word ``merely,'' so you said the 
standard is that it has to be merely more than de minimis or, 
in a gas tank, merely more than empty. That implies something 
entirely different. That creates a ceiling to me more than a 
floor in its language. It is a ceiling because it says, well, 
the standard is it has to be merely more than de minimis as 
opposed to more than de minimis. And so that is something else 
where I think you actually took something that was not 
necessarily a precedent, you added the word ``merely'' to make 
it even more narrow, and so it is not a surprise to me then 
that the Supreme Court 9-0 rejected that language. Any response 
on that?
    Judge Gorsuch. I disagree.
    Senator Klobuchar. Okay. And then the next question I have 
is that in some of these other cases we talked about yesterday, 
you did a separate concurrence. So even if you are right and I 
am wrong, and you were somehow bound by a Third Circuit case 
when you wrote that opinion, maybe you could have written a 
concurring opinion like you did in Chevron, you wrote in the 
Gutierrez case, you wrote a concurring opinion to your own 
opinion expressing a view that was different than the one that 
was binding on you. So you could do it in this case as well. So 
why pick the Gutierrez case or Riddle v. Hickenlooper to do a 
concurring opinion and not a case like this one that is really 
about the kind of services that a child with autism is going to 
get?
    Judge Gorsuch. Senator, I have written cases for families 
in IDEA cases, Individuals with Disabilities Education Act. I 
have written decisions against the families in these cases. And 
in each case, Senator, it has been based on my assessment of 
the facts and the law. And the opinions I have issued or not 
issued have been based on my assessment of the facts and the 
law, not any personal animus, not any wrong motive, Senator. I 
can assure you of that. And any suggestion otherwise would be 
mistaken.
    And, Senator, all of these opinions in the Tenth Circuit 
that we are talking about have been unanimous, every one of 
them, including this one. And, Senator, to suggest that it is 
somehow out of the mainstream, I would respectfully ask you to 
look at who joined the opinion, and you will find one of my 
colleagues who happened to be appointed by a Democrat joined 
that opinion. And you will see other opinions where I have 
joined Republicans and Democrat-appointed judges ruling for the 
family.
    And so, Senator, all I can say is I was trying faithfully, 
to the best of my ability, to follow Supreme Court precedent in 
Rowley, the Tenth Circuit opinion, as I understood it in Urban, 
and a number of other Circuits had interpreted Rowley in the 
same way. And my colleagues, subsequently after me, interpreted 
it in the same way. This decision that was under review was by 
another separate panel of the court, the one that just went to 
the Supreme Court. My colleagues in a separate panel, made up, 
I believe, again, of Republican and Democrat-appointed----
    Senator Klobuchar. Okay, but the difference for me and all 
of us up here today is they are not up for the job of the 
highest court of the land, and in this case you wrote the 
opinion, and you told us that earlier opinion was binding 
precedent. And I am not certain that it was because the words 
were from a different Circuit. And so, you know, I guess we 
will disagree on this, but I am----
    Judge Gorsuch. Well, I am happy to explain that----
    Senator Klobuchar [continuing]. Not questioning--I am--this 
is something where I am actually trying to get at your judicial 
philosophy. I have no other way to do it except to look at 
these opinions.
    And I want to move on here because I brought up the Chevron 
case before, and then I also found out that in 2015 you sought 
to revive the non-delegation doctrine, which restricts the 
amount of discretion Congress may choose to delegate to Federal 
agencies. You did this in a dissent, but it was something that 
has not been used since the 1930s. It was used twice in the 
1930s. And, again, it seems to me like in certain things--and 
what it does, basically, is says that Congress cannot delegate 
its legislative powers to agencies, and I think there is a 
reason other courts have not used it.
    But it feels to me like you pick certain types of cases 
where you are kind of reaching really broad and going back to 
doctrines from the 1930s, and then you do not do that for other 
kinds of cases that certain people in America would care about. 
So I am trying to figure out why you pick certain cases to 
write concurring opinions on and to be more broad, and then 
other cases where you really stick to the text. And that is 
what I would like you to answer.
    Judge Gorsuch. I always try to stick to the text, Senator, 
with respect. And in this case, again, I was following a Tenth 
Circuit precedent that was 10 years old at the time, and 
sometimes the Tenth Circuit will often adopt standards from 
other Circuits that it finds persuasive. And it may have in 
that case, you say, adopted it from the Third Circuit. I do not 
have it in front of me, but I believe you. And often my 
colleagues will adopt--and I will, too--standards by other 
Circuits. Rather than reinvent the wheel, we will say we agree 
with another Circuit.
    And that is how law is decided in cases. It is part of 
precedent. It is the respect due a persuasive opinion by a 
colleague, a thoughtful colleague. And every one of these 
judges in every one of these cases does their level best, and 
Circuit splits arrive only because judges are doing their level 
best to interpret the law. And in this case, there were, as you 
point out, several Circuits, it sounds like, on both sides of 
this question, an honest interpretation effort of the statute 
before us in light of Supreme Court precedent.
    Senator Klobuchar. And so do you want to comment at all on 
the non-delegation doctrine?
    Judge Gorsuch. I would be happy to. The case that you are 
referring to involved the Sex Offender Registry and 
Notification Act, and, Senator, why I chose to write there was 
the same reason Justice Ginsburg and Justice Scalia wrote in 
the area, because in that case the law as enacted sent to the 
Attorney General essentially the discretion to write a law. And 
the legislative power is invested in this body, not in the 
Attorney General, a particularly odd place to delegate 
legislative authority, not just to some agency with expertise 
like with biologists or chemists, but to the chief law 
enforcement officer, and to send to the chief law enforcement 
officer the opportunity to write a criminal law. Justice 
Ginsburg and Justice Scalia, again, people think they do not 
agree. Well, they often do, and here is an example.
    Senator Klobuchar. But is there a way to get there without 
pulling out this doctrine that has not been used since the 
1930s?
    Judge Gorsuch. Well, Senator, it is a point they made in an 
opinion, and I had a subsequent case raising that question, and 
I thought it was important to address.
    Senator Klobuchar. Okay. I wanted to just go back on one 
point. We had a long discussion yesterday about originalism, 
and I think you and I agreed that ``he'' can mean ``she'' in 
the text of Article II of our Constitution, meaning we can have 
a woman President. I was just using that as an example that not 
everything in the text is exactly as it should be or will be 
construed. We agreed that Congress' authorization of the Navy 
and Army also provided for the authorization of the Air Force.
    But then we got to that United States v. Virginia, and you 
say you can also get to the outcome of Justice Ginsburg's 
majority opinion in that case, where the Virginia Military 
Institute's male-only admission policy was found to violate the 
Equal Protection Clause of the Fourteenth Amendment, and so you 
get there through radical original meaning.
    And what I thought was interesting there compared to the 
other two examples was that Justice Ginsburg's majority opinion 
had nothing to do with original public meaning, and the cases 
she relied on to get to that also had nothing to do with 
original public meaning.
    And so when you have to decide cases that deal with social 
changes that the general public could never have anticipated 
back when the Constitution was written, are not you just 
relying on the intervening decisions of non-originalist judges 
to get there? So when you said, well, yes, that is fine, it is 
precedent, it is Justice Ginsburg's opinion, that is because 
Justice Ginsburg was a non-originalist in how she interpreted; 
and then you in turn rely on her opinion to get to the point 
that it is okay and a normal outcome. So I am trying to get at, 
because----
    Judge Gorsuch. I am not sure I track the question.
    Senator Klobuchar. Sure. The question is that it is 
selective originalism. Sometimes you use originalism at its 
core, and then sometimes to get to an outcome that is more 
normal, you do not use originalism. You could not in that case 
of Virginia Military Institute, but you rely on non-originalist 
judges to get to the outcome.
    Judge Gorsuch. I think I understand the question. I think 
the answer is precedent. A judge always starts where he or she 
finds themselves. We do not live in a vacuum. I am not writing 
on a blank slate as a judge. I am not, you know, a philosopher 
king. I am a judge of cases. That is my job. And so you take 
the precedent at hand. And, Senator, that is a very important 
thing to me.
    Senator Klobuchar. Isn't another way to look at it--I went 
to the University of Chicago Law School, and Judge Posner 
taught there for years, and I know you disagree with his 
account. He is a Republican-appointed judge. And he said that 
it was naive to think that judges believe only in the legal 
technicalities of their argument, especially when you get--he 
did not say this, I am adding this part, especially when you 
get to the highest court of the land. The truth is, he says, 
that they consult their own moral convictions to produce the 
best results for society. And you do not agree with that, but I 
am just trying to get at when you get to this highest court of 
the land where--by the way, I said it was a 9-0 decision. It 
was an 8-0 decision because there are only eight Justices 
there, in my earlier question of you. When you get to that 
highest court of the land, it seems to me that Posner is being 
honest, that people do consult. They try to apply the law, but 
when you are at that last court in the land deciding things, 
oftentimes they are grounding their decisions in where they are 
morally about what these outcomes are going to be. Is there any 
merit to that at all?
    Judge Gorsuch. Senator, I can just say that has not been my 
experience. I have been doing this a long time, and I respect 
Judge Posner greatly, as I know you do. And I respect you 
greatly, and your view. I can just speak to my view. Maybe I am 
just more optimistic. You can call me naive if you want. But my 
experience watching Justice White, Justice Kennedy, all of the 
Justices of the Supreme Court who have been mentioned here 
today, every one of them I believe is doing his or her level 
best to apply the law based on the facts and circumstances.
    There is realm for some disagreement. There is not a single 
right answer to every case. I will concede you that. But that 
does not mean just because there is not a single foreordained 
answer from God in every legal dispute that judges are not 
trying to look at the legal materials and only the legal 
materials and trying to make sense of the legal materials, and 
that alone, and leaving the rest of the stuff aside.
    That has been my experience of good judges. They leave 
their moral convictions, their views about social utility, 
whatever it is, whatever they ate for breakfast, over there. 
They take the briefs, they take the law, they take the facts, 
they take the Constitution, they take the precedents, they take 
the original understanding, and they try to make sense of it as 
a judge does. And that is just not how a politician thinks, 
respectfully. It is not how a citizen thinks about ordering my 
daily affairs.
    Senator Klobuchar. Okay. So you----
    Judge Gorsuch. But a judge--I am sorry.
    Senator Klobuchar. Yes, and you and I actually share that 
view. It is just that is not--these decisions that Senator 
Whitehouse has outlined, other things that have been happening, 
it does not feel that way. And I have respected Republican-
appointed judges and Democrat-appointed judges. We have had 
judges that actually will not make decisions, in my county 
days, on the Mondays after a Viking game because they thought 
it would affect them too much with the outcome.
    Judge Gorsuch. Exactly.
    Senator Klobuchar. All right. But----
    Judge Gorsuch. That is what I am talking.
    Senator Klobuchar. But, but, but the point is--that is why 
I brought it up. But the point is that this just does not seem 
to be happening lately with these decisions, like Citizens 
United and the Court that you want to serve on. And so I am a 
fixer. I like to fix things, and one of the ways I can fix that 
is by making sure that we put judges on there that are going to 
view themselves as true, fair jurists and not legislators 
making change.
    And the second thing is about some of these things I 
brought up earlier, and I will just end with that. Cameras in 
the courtroom, thank you, Senator Grassley, for your 
leadership. But the second is the ethics rules, and I just 
wanted to take 30 seconds here.
    Yesterday, when you and I talked about it, you said you did 
not know how different they are between the regular Federal 
judiciary and the Supreme Court. Actually, the Code of Conduct 
for United States judges adopted in 1973 applies to every 
Federal judge other than the Justices of the Supreme Court, and 
that includes reporting, of course, trips and gifts and things 
of value. And so I do ask you, as you look at ways, if you are 
confirmed, if you look at ways to bring back, I think, some 
trust. We are struggling with that, obviously, right now in the 
Congress. But one of these ways is to be as transparent as 
possible, and that means to me cameras in the courtroom, and it 
also means having the ethics rule apply to the Supreme Court. 
And I have a lot of respect for and enjoy the Justices there 
now, but I think that would be a very positive move.
    Thank you.
    Chairman Grassley. Senator Cruz.
    Senator Cruz. Thank you, Mr. Chairman. And congratulations, 
Judge Gorsuch, on making it through Day 2 of the gauntlet and 
continuing to do so with flying colors.
    I want to go back to a topic that Senator Lee addressed a 
few minutes ago, which is we have heard over the past several 
days a number of my Democratic colleagues in Congress bemoan 
and condemn ``vicious and reckless and personal attacks against 
judges,'' what they have called a ``unprecedented attack 
against the credibility and independence of the judiciary.'' 
And so if I understand their argument correctly, it is 
completely inappropriate, it is an absolute abuse of power to 
criticize, to malign, to attack judges.
    Now, if that is their argument, Mr. Gorsuch, I have got a 
question for you. What position do you currently hold?
    Judge Gorsuch. I am a judge on the Tenth Circuit Court of 
Appeals.
    Senator Cruz. And if the Senate were not to confirm you to 
the Supreme Court, what position would you continue to hold 
then?
    Judge Gorsuch. The one I happily enjoy now.
    Senator Cruz. So if you are and will continue to be a 
Federal Judge on the Court of Appeals, it is interesting to 
assess how my Democratic colleagues have fared under their own 
test that it is inappropriate, that it is offensive to somehow 
malign a Federal judge. Former Speaker Nancy Pelosi said on 
national television, Judge Gorsuch is ``hostile to women's 
rights and holds radical views far outside the mainstream of 
American legal thought.'' She continued, ``What saddens me the 
most as a mom and a grandmother is his hostility toward 
children in school, children with autism.'' She additionally 
went on to say, ``If you breathe air, drink water, eat food, 
take medicine, or in any other way interact with the courts, if 
you care about that for your children, he is not your guy.''
    It is interesting given the Democrats are complaining about 
people criticizing Federal judges.
    Senator Whitehouse on Monday said, ``Tellingly, big special 
interests and their front groups are spending millions of 
dollars in a dark money campaign to push your confirmation. 
They obviously think you will be worth their money.''
    That also somehow falls short of the Democrats' complaints 
about criticism directed at the judiciary.
    Indeed, Senator Hirono on Monday said, ``You consistently 
choose corporations and powerful interests over people, 
ideology over common sense, and, indeed, the purpose of the 
law.''
    Senator Durbin: ``In case after case, you either dismissed 
or rejected efforts by workers and families to recognize their 
rights and defend their freedoms.''
    Senator Franken: ``But if the past is prologue, then I fear 
that confirming you would guarantee more of the same from the 
Roberts' Court, decisions that continue to favor powerful 
corporate interests over the rights of average Americans.''
    Tom Perez, the DNC Chairman: ``Gorsuch on the Supreme Court 
is intolerable. Judge Gorsuch would discriminate against a 
majority of Americans from the Bench.'' The Chairman of the 
Democratic Party charging that a judge would discriminate.
    These are serious attacks. Many of them impugn your 
integrity directly. And yet this is a confirmation hearing. The 
Founders understood a confirmation hearing would be in the 
political arena. My colleagues, the Democrats, have a right to 
engage in whatever attacks they choose. But it is a little rich 
for them to be maligning a sitting Federal judge and at the 
same time giving speeches about how unacceptable it is for 
anyone to criticize a Federal judge. You cannot have both at 
the same time.
    Now, I am not going to ask you to respond to any of these 
attacks. I actually think these attacks speak for themselves. 
But I will ask you this: As a judge today, and as, I believe, a 
Justice in short order, will you pledge to be faithful to the 
law and the Constitution and neither favor nor disfavor any 
litigant based on who they are?
    Judge Gorsuch. I guarantee you no more, and I promise you 
no less.
    Senator Cruz. That is precisely what we should expect of 
judges.
    Let us turn to a different topic. The last couple of days 
we have heard a lot of discussion about originalism, 
textualism, and the Constitution. And some of my colleagues 
have suggested that understanding the Constitution as having a 
fixed and original meaning somehow prevents the Constitution 
from changing to meet changed circumstances.
    Judge Gorsuch, did the Founding Fathers, in all of their 
wisdom and foresight, did they anticipate that the Constitution 
might need updating? And did they provide any mechanism to 
update the Constitution should new challenges arrive?
    Judge Gorsuch. Yes, Senator Cruz, they did.
    Senator Cruz. And what was the mechanism that the Founding 
Fathers created?
    Judge Gorsuch. There is a process for amending the 
Constitution.
    Senator Cruz. And has that process been employed?
    Judge Gorsuch. It has, Senator, from time to time.
    Senator Cruz. And it has worked quite well, I would note.
    Now, I understand that there has been some discussion today 
about the Supreme Court's decision in Endrew F. v. Douglas 
County School District. This morning, the Supreme Court issued 
the opinion that abrogates Judge Gorsuch's opinion in the Luke 
P. case. Endrew F. originated in the Tenth Circuit, but you did 
not sit on the original panel.
    Judge Gorsuch. No, Senator, I did not.
    Senator Cruz. And as I understand it, Tenth Circuit 
precedent from 1996 and drawn from the Supreme Court's own 
opinion in Board of Education v. Rowley in 1982 held that a 
school district is compliant with IDEA so long as the student 
is ``making more than de minimis'' progress in school.
    My Democratic colleagues have repeatedly demanded over the 
last 3 days that Judge Gorsuch follow precedent, and indeed, I 
will commend them for highlighting this case as yet another 
example of Judge Gorsuch doing exactly that: following 
precedent--following precedent in the Tenth Circuit that itself 
was following precedent from the U.S. Supreme Court.
    Judge Gorsuch, as a Judge of the Tenth Circuit, were you 
bound to follow Tenth Circuit precedent?
    Judge Gorsuch. Yes, Senator.
    Senator Cruz. And if the Supreme Court changes the 
precedent, are you then bound to follow the new precedent?
    Judge Gorsuch. Yes, Senator. That is how it works.
    Senator Cruz. That is precisely how it works. And in this 
instance, the fact that you followed precedent faithfully 
should give comfort to Senators on both sides of the aisle that 
you will continue to do so as a Supreme Court Justice.
    I would now like to introduce several items into the 
record. I want to start with a letter from Supreme Court 
practitioners. I would like to enter into the record a letter 
from a group of attorneys who, combined, have argued over 500 
cases before the U.S. Supreme Court. They include lawyers who 
clerked for Ruth Bader Ginsburg and Stephen Breyer, and the 
signatories unanimously support Judge Gorsuch's nomination. 
These accomplished attorneys called Judge Gorsuch fair-minded, 
dedicated, smart, and unfailingly polite. And they tell us that 
they would be pleased to appear before him.
    They conclude by saying he has ``an unusual combination of 
character, dedication, and intellect that would make him an 
asset to our Nation's highest court.''
    I would like to enter this letter into the record.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Cruz. I would like to also enter into the record an 
article from Evan Young, a former law clerk to Justice Scalia. 
Mr. Young writes that Justice Scalia ``did not want to rule the 
American people by imposing even his most cherished personal 
beliefs on us.'' He wanted the American people to rule 
themselves, something that he could facilitate by being a 
relentlessly principled judge, telling us what the law 
required, and then letting the country make its own choices.
    Based on his record, Judge Gorsuch exhibits that same 
judicial humility. He understands that he should never confuse 
the law's commands for his own ideas of what the law should 
command.
    I would like to enter this article into the record as well.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Cruz. I would also like to enter into the record an 
essay from Michael McConnell, a former colleague of Judge 
Gorsuch on the Tenth Circuit and a very well respected legal 
thinker across the country and, indeed, across the globe, who 
writes that ``the President could not have made a finer 
appointment to fill Justice Scalia's seat.'' What I found 
especially enlightening was the way Michael McConnell not only 
addresses the intellectual seriousness of Judge Gorsuch's 
jurisprudence, but also testifies personally to the strength of 
his character.
    Judge McConnell writes that Judge Gorsuch was ``a man 
defined by his gracious personality, someone who always treats 
everyone with respect. He actively engages with lawyers, 
listens carefully to their position, and reflects fair-mindedly 
on what was said.'' Judge McConnell concludes by nothing that, 
ultimately, Judge Gorsuch is ``the kind of Justice Americans of 
all political stripes should hope for.''
    I would like to enter this essay into the record as well.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Cruz. In addition, I would like to enter into the 
record an article from the Wall Street Journal that describes 
Judge Gorsuch's strong defense of religious freedom for 
everyone. The article quotes Judge Gorsuch's legal reasoning in 
a Religious Freedom Restoration Act case where he explained 
that, ``The act does not just apply to protect popular 
religious beliefs. It does perhaps its more important work in 
protecting unpopular religious beliefs, vindicating this 
Nation's long-held aspiration to serve as a refuge of religious 
tolerance.''
    I would like to enter this article into the record as well.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Cruz. And one final entry. I would like to enter 
into the record a letter from Scott Barker, a long-time 
Colorado Democrat and a practicing attorney in Denver. He urges 
the confirmation of Judge Gorsuch, saying that he has 
``performed admirably as a Tenth Circuit appellate judge,'' and 
that ``you would have to look long and hard for someone in the 
Colorado Bar who would say a disparaging word about Judge 
Gorsuch.''
    I would like to enter this letter into the record as well.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Cruz. And with that, Mr. Chairman, I yield my time.
    Chairman Grassley. Senator Franken.
    Senator Franken. Thank you. I will take the 7 extra minutes 
of Senator Cruz's time.
    [Laughter.]
    Senator Franken. Judge, hi. During our courtesy visit, I 
asked you if you had read the New York Times investigative 
series on the pervasive use of forced arbitration. You had not 
but you said you would. Were you able to do so?
    Judge Gorsuch. I was. I managed to fit it in, Senator.
    Senator Franken. Thank you. Thank you so much.
    Judge Gorsuch. No, it was----
    Senator Franken. I said you do not have to read this, and 
you said, no, I will, I promise. And you did, so thank you.
    I do not think that most Americans realize that when they 
sign up for a credit card or cable service or sign an 
employment agreement or fill out their parent's nursing home 
resident agreement that they are also signing away their 
constitutional right to go to court.
    The New York Times series, while shocking, illustrated 
something that I have been saying for quite a long time. Forced 
arbitration clauses, which are buried in the fine print of 
contracts that we sign every day, restrict Americans' access to 
justice by stripping consumers and workers of their legal 
rights and insulating corporations from accountability.
    Businesses across the Nation use these clauses to force 
individuals into a privatized justice system where the 
corporation can write the rules. Everything can be done in 
secret without public rulings. Discovery can be limited, making 
it hard for consumers to get the evidence they need to prove 
their case, and there is no meaningful judicial review, so 
there is not much a consumer or employee can do if the 
arbitrator gets it wrong. It is simply unfair.
    Now, there seems to be no question about how arbitration 
clauses came to permeate nearly every aspect of our lives. In a 
series of decisions, including Rent-A-Center, Concepcion, and 
Italian Colors, the Roberts Court effectively reshaped the 
Federal Arbitration Act into a permission slip for corporations 
to opt out of the civil justice system.
    And in the years since, we have seen business after 
business use arbitration clauses to avoid accountability for 
their wrongdoing even under the most egregious of 
circumstances. A few years ago, my staff heard the story of a 
71-year-old man at a nursing home who died from, quote, 
``profound dehydration,'' and whose family was forced into 
arbitration to resolve their wrongful-death claim.
    Last year, we learned that Wells Fargo customers who had 
had fraudulent accounts opened in their name and without their 
consent were forced into arbitration because the bank 
successfully argued that the clause in their real accounts also 
applied to their fake accounts.
    Very recently, Fox News tried to force its former anchor 
Gretchen Carlson into arbitration when she sued her boss Roger 
Ailes for sexual harassment. Fox News also tried to use the 
arbitration clause in her employment contract to prevent her 
and other victims of his abuse from speaking to anyone about 
what had happened to them.
    Companies have also learned to pair forced arbitration 
agreements with class-action bans to shutter the courtroom 
doors to groups of individuals with small claims. And once 
blocked from going to court as a class, most people drop their 
claims because it does not make financial sense to go it alone.
    Now, this way of doing business is profoundly unfair and 
unjust. It is anathema to our system of civil justice and does 
not even scratch the surface of the many stories that the New 
York Times series revealed.
    Judge Gorsuch, what was your reaction to the series? Were 
you shocked? Because I have worked on this issue for 8 years 
now and even I was shocked.
    Judge Gorsuch. Senator, it made me think about a little bit 
of history. It used to be back at common law that arbitration 
was disfavored because it was thought that everyone should go 
to trial. Trials were the norm, Seventh Amendment and all that. 
And then in about I think in 1925 Congress passed a law----
    Senator Franken. Twenty-four.
    Judge Gorsuch. Called the Federal Arbitration Act.
    Senator Franken. Twenty-four.
    Judge Gorsuch. Twenty-four, okay. All right.
    Senator Franken. Very, very close.
    Judge Gorsuch. All right.
    Senator Franken. It is as close as you can get without 
being right.
    [Laughter.]
    Judge Gorsuch. I try.
    Senator Franken. Very good. Very good.
    Judge Gorsuch. And it made me think of that. It made me 
think, well, gosh, it does not have to be this way. The Federal 
Arbitration Act, what it did was to favor arbitration. Congress 
expressed a preference that people should arbitrate their 
disputes. They made a judgment, policy judgment in favor of 
arbitration because it is quicker, cheaper, easier for people.
    Senator Franken. But that was really conceived in 1924 as 
two equal parties, business to business.
    Judge Gorsuch. Yes.
    Senator Franken. And what I am going to--and I am going to 
continue on here because, I mean--unless you want to----
    Judge Gorsuch. Well, I was not quite finished, but if you--
it is----
    Senator Franken. Well, no, no----
    Judge Gorsuch. Your time. I do not----
    Senator Franken [continuing]. Finish. It is my time, but if 
you can do it short, why do you not finish your thoughts?
    Judge Gorsuch. I will do the best I can.
    Senator Franken. Okay. Thanks.
    Judge Gorsuch. If Congress thinks that the courts are not 
applying the Federal Arbitration Act as it wishes or if it 
wishes to revise or eliminate the Federal Arbitration Act, I 
mean, 1924 is a long time ago and----
    Senator Franken. Well, my feeling is is that the Court, 
through these 5-4 decisions, the Roberts Court has changed what 
the intention of the law was back in 1924. But I am going to 
continue.
    In our courtesy visit you emphasized the threshold question 
that you say the Federal Arbitration Act requires in the 
opinion you authored in Howard v. Ferrellgas. You discuss how, 
when dealing with arbitration clauses, courts must first 
determine whether an agreement to arbitrate between two parties 
actually exist. And you go on to detail the analysis of the 
contract formation principles that must happen in order to make 
that determination. I think I understand what is required in 
that threshold question, but in order to fully grasp how you 
approach the issue of forced arbitration going forward, I want 
to move on to the next step in the analysis.
    So assuming the parties did in fact form a contract, I want 
to know whether there are any circumstances under which you 
believe that the mandatory arbitration clause should not be 
enforced. In other words, let us talk about the practical 
outcomes that arise when courts enforce these clauses and 
whether in your view any of them make clauses so unfair that 
you would deem then unenforceable.
    I will give you an example of how forced arbitration 
affected a Minnesota soldier who was deployed at Camp Anaconda 
in Iraq. Now, I know Camp Anaconda. I visited it four times on 
USO tours. I would go there, I would tell a few jokes, and then 
leave very quickly. See, Camp Anaconda has a nickname. The 
soldiers there called it Mortaritaville because it had been 
hit--it was hit so often by enemy fire. And in fact, the first 
soldier I ever met in Walter Reed had both legs--lost both of 
his legs to a mortar at Camp Anaconda.
    Well, one soldier who was deployed in Anaconda, Minnesota 
soldier, learned while he was there that his house had been 
foreclosed upon and sold in clear violation of a law we wrote, 
that Congress wrote, the ServiceMember's Civil Relief Act, 
which protects serviceMembers from civil actions while on 
active duty. The mortgage lender had falsified paperwork 
stating under oath that the soldier was not in military 
service. So the house went into foreclosure and was sold at an 
auction for a third of its assessed value. Can you guess who 
bought it? You can, right.
    Judge Gorsuch. I can. You have shared this with me before, 
so I actually know who bought it.
    Senator Franken. Oh, okay. Well, then----
    Judge Gorsuch. That is okay.
    Senator Franken [continuing]. It is not fair. The bank.
    Judge Gorsuch. The bank, right. Yes.
    Senator Franken. The Bank.
    Judge Gorsuch. Right.
    Senator Franken. It turns out there were over 80 other 
foreclosures taking place against servicemembers by the same 
lender. So the soldier tried to file a class-action suit on 
behalf of his fellow servicemembers. Unfortunately, a mandatory 
arbitration clause, which the soldier did not even realize was 
buried in his mortgage documents, also included a ban on class-
action suits. So his case was not only forced out of court and 
into arbitration, but he had to go it alone.
    Now, fortunately, the Minnesota soldier had a lawyer 
willing to take on his individual claim even though it is--
often that is not cost-effective for the lawyer. They 
eventually settled on terms that are confidential. As a result, 
we have no real way of knowing how many other servicemembers' 
rights were violated or whether this particular serviceMember 
was ultimately made whole. And of course he was prevented from 
even telling the other 80 serviceMembers who had been harmed 
how it all went down.
    Judge Gorsuch, this is a case where we know the law was 
violated. We know that a bank unlawfully took this soldier's 
home while he was away serving our country. And to add insult 
to injury, the man also lost his constitutional right to have 
his claim heard in a public court of law.
    So tell me, was it fair to limit this soldier's claim to 
secret arbitration and to prevent all the soldiers who had also 
lost their homes from being included in this case?
    Judge Gorsuch. Senator, I am a big believer in jury trials 
and in the Seventh Amendment. And in the Rules Committee over 
the last 6 years I have worked with my colleagues to try and 
make litigation cheaper, faster, and more accessible so that 
people can vindicate their jury trial rights.
    I have a proposal with a wonderful judge from the Ninth 
Circuit currently pending before the Rules Committee asking if 
we can actually reverse the presumption, because right now, 
when you file a complaint in Federal court, if you do not 
specify that you want your jury trial right, it goes away and 
you are presumed to want a bench trial. I do not understand 
that presumption. I think it should be----
    Senator Franken. I am talking about----
    Judge Gorsuch. The other way around.
    Senator Franken [continuing]. In this agreements, on this 
particular agreement, this----
    Judge Gorsuch. Well----
    Senator Franken. This is--this case is settled. It is not a 
live controversy. The thrust of my question is when do the 
principles of equity and fairness apply? So once there is a 
determination that there is indeed a contract, what does it 
take for the courts to decide that the outcome is so unjust 
that it cannot be enforced?
    Judge Gorsuch. Well, under the Federal Arbitration Act, 
which is an act of this Congress, an act of lawmaking by this 
Congress, the first step and the key step is did the parties 
agree to arbitrate? And normal state contract formation 
principles apply there.
    Senator Franken. I know. We have----
    Judge Gorsuch. And so----
    Senator Franken [continuing]. Talked about that. That is 
the initial test. We have talked about it.
    Judge Gorsuch. I think it is very important, though, 
Senator, if you are asking me the question, I have to give you 
the answer. And the answer is under normal state contract 
formation principles, there are a number of defenses that can 
be raised. Unconscionability might be an argument if I were a 
lawyer in this case that I would want to raise in the case you 
are presenting. That would be an argument I would raise.
    Senator Franken. Do you not think this was unconscionable?
    Judge Gorsuch. That would be an argument if I were a lawyer 
I would want to raise. I do not know how it would come out. I 
would have to--you know, I would have to have the full judicial 
process in order to adjudicate it, but that would be an 
argument. If I were the lawyer, that is one I would make. 
Right.
    I would also, if I were a lawyer and worried about these 
things, come to this body and ask you to revisit a nearly 100-
year-old law and perhaps rethink the balance between 
arbitration and jury trials.
    Senator Franken. Well, I have done that with my Fairness in 
Arbitration Act, which I keep introducing.
    Let us turn to the secretive nature of forced arbitration. 
Last year, the public was shocked to learn that over the course 
of 5 years Wells Fargo employees have been incentivized to open 
millions of sham accounts in the names of Wells Fargo customers 
and then charge the customers for those accounts, of course 
without their permission. Many of them lost--their credit 
rating just plummeted. This was a bad outcome for these people.
    One reason this fraudulent practice was allowed to continue 
for so long was because Wells Fargo's customer account 
agreement included and continues to include a forced 
arbitration clause. When customers discovered and attempted to 
sue Wells Fargo for the sham accounts, the company argued 
successfully that any dispute arising from the sham account was 
covered by the arbitration clause in the real account. So those 
customers were forced into secret arbitration.
    One such complaint was filed in September 2013. If that 
suit had been able to proceed in court, other Wells Fargo 
customers could have been alerted to the wrongdoing and may 
have been able to save themselves from being charged for the 
sham accounts and the life-changing damage it did to their 
credit scores, to their bank accounts, to the ability to buy a 
house.
    Judge Gorsuch, would you agree that one benefit of our 
civil justice system is ensuring that other victims are made 
aware of widespread wrongdoing and that such awareness allows 
them to mitigate the harm for themselves?
    Judge Gorsuch. I have spoken about that very issue, 
Senator.
    Senator Franken. Good. Now, it just--it does not just hurt 
customers. This--it hurts employees. Two weeks ago, I, along 
with a few of my colleagues here, introduced a number of bills 
aimed at combatting unfair forced arbitration clauses. In 
advocating for our legislation, we were joined by former Fox 
News anchor Gretchen Carlson. Last summer, Ms. Carlson took on 
one of the most powerful men in media, Roger Ailes, suing him 
for sexual harassment. Mr. Ailes' lawyers tried to force her 
case into private arbitration because of an arbitration clause 
in her employment contract.
    Even worse, the arbitration clause also prohibited her from 
speaking out about the claims, as is the case in most 
employment arbitration agreements. Had Ms. Carlson chosen to 
sue Fox instead of directly suing Mr. Ailes, her colleagues at 
Fox News, many of whom were also victims of sexual harassment, 
would have been left in the dark about her case and may never 
have come forward with their own claims. And Roger Ailes' now 
well-documented abuse of women might well have continued.
    In an op-ed published shortly after she joined us on 
Capitol Hill to talk about her legislation--our legislation, 
our legislation, the group of Senators who met--Ms. Carlson 
wrote, quote, ``So many women are being silenced by employers 
who force them into a secret star chamber proceeding called 
arbitration. By coercing women to remain silent about illegal 
behavior, the employer is able to shield abusers from true 
accountability and leave them in place to harass again,'' end 
quote.
    Judge Gorsuch, the Seventh Amendment gives us the right to 
a trial by jury in civil lawsuits. Would you agree that a 
critical aspect of a jury trial is the fact that it is usually 
open to the public?
    Judge Gorsuch. Absolutely. The Seventh Amendment--I am a 
big believer in the Seventh Amendment--all the amendments. And 
that amendment, civil jury trial, I have spoken about this a 
lot over the last couple days. I believe in it. I believe in 
juries. I believe in the civil involvement of the people in 
their government. I believe in the openness and transparency of 
a courtroom, the ability of every person to come into it, poor 
or rich, mighty or meek and have their cause heard. There are 
so many virtues to it. Transparency is one of them, absolutely.
    Senator Franken. I am so glad to hear you say that because 
these decisions, one 5-4 decision after another by the Roberts 
Court has closed the jury to employers--I mean, to employees 
and to customers, one after another. And that is why, frankly, 
there is so much at stake here. As Senator Whitehouse has 
demonstrated, what we are worried about is another 5-4 Roberts 
Court making one decision after another that hurts workers, 
employees, that hurts consumers.
    And, you know, you said earlier there is no Democratic 
judges, there are no Republican judges. If that is the case, 
what was Merrick Garland about? That is what it was about. It 
was about let us leave this up to the election even though 
there was almost a year left. That is what this is about. And 
what this Court has done--and, listen, I am sure there are a 
lot of cases decided where judges go back and forth, but there 
is a sort of core group of cases in which the Roberts Court 
continually has ruled in favor of corporations and against 
workers and consumers. That is what this is about, and that is 
why--this is not--I know I am over my time, Mr. Chairman, and I 
will just try to finish out with a thought.
    Chairman Grassley. Okay. Go ahead.
    Senator Franken. I think I have a thought.
    Senator Feinstein. Maybe.
    Senator Franken. Maybe. Thank you, Ranking Member.
    This is really about something. And my colleagues on the 
other side say, you know, that we are making something up over 
here. We are trying to really figure out whether we are going 
to see a continuation of this pro-corporate bias and of this 
bias toward big money and a perversion of our political system 
like through Citizens United and where the weight shifts 
against the little guy and for the big guy, and if that--if--
this election was supposed to be about the little guy but that 
is my thought.
    Senator Sasse. Could I--does Al--Senator Franken, if you 
want another minute, you can have a minute of mine.
    Chairman Grassley. I want to move on.
    Senator Sasse. Okay.
    Senator Franken. Wait a minute. He gave me a minute.
    [Laughter.]
    Senator Franken. Ah, gee.
    Chairman Grassley. I want to--when he gets done, we are 
going to take a 10-minute break----
    Judge Gorsuch. Thank you.
    Chairman Grassley [continuing]. For the benefit of the 
nominee.
    Judge Gorsuch. Thank you.
    Senator Sasse. I know this is probably imprudent, but, 
Senator Franken, I think you had two different thoughts. And 
one of them I completely agree with to the degree that I 
understand the facts and the other one I think is a non 
sequitur for what we are talking about. So I found a lot of 
what you just said now compelling. I do not know all the facts 
of the particular fraud case you are talking about, but I do 
not see exactly how that applies to what the judge who is 
sitting in front of us being considered for today.
    But to the degree that--if you are right on a lot of the 
facts you stipulate, it sounds to me like we ought to legislate 
about it and we ought to talk together about what we should do 
to fix this problem. I do not know what it has to do with the 
confirmation of a Supreme Court nominee because I think we are 
talking with him about what the law is. I think a lot of your 
commentary was on what you think the law should be, and if your 
fact pattern is right, I think there is a problem there we 
should also fix.
    But I do not think it is right that when you conclude to 
say the Republicans are indifferent to this problem, I am 
interested here not in the Republican-Democratic distinction 
but in the legislative judging distinction. So we can follow-
up.
    Chairman Grassley. The problem is lawyers get paid a lot 
more in court than they do doing arbitration.
    Senator Sasse. Thank you, sir.
    [Laughter.]
    Senator Sasse. I would like to enter into the record----
    [Laughter.]
    Senator Sasse. I think what just happened was one of the 
only nonlawyers on the Judiciary Committee just got slapped by 
the senior nonlawyer on the Judiciary Committee.
    [Laughter.]
    Senator Sasse. Nebraska is going to beat Iowa in football 
this year, sir.
    [Laughter.]
    Chairman Grassley. That is what you think.
    [Laughter.]
    Senator Sasse. I thought you were a Cyclone.
    Anyway, I would like to enter into the record a letter 
written by some of Judge Gorsuch's law students at the 
University of Colorado law school. These students hold very 
political views, but they all support the judge's nomination. 
They call him, quote, ``a kind and brilliant person dedicated 
to the rule of law and to the Constitution,'' close quote. They 
write that he was even able to make a, quote, ``mandatory 
ethics class memorable.'' So well done.
    I would like to note one story from the letter from a law 
student who served as an extern, quote, ``While serving as an 
extern, I helped him in drafting an opinion rejecting a 
prisoner's appeal. The prisoner had no lawyer and very weak 
arguments, so I turned in a draft that explained very briskly 
why the prisoner's claim lacked merit. The judge then asked me, 
'Where are the responses to the prisoner's arguments?' ''--
close quote. ``I told him that I did not see the need to 
address those because they were so weak. Well, that did not go 
over well with the judge. Judge Gorsuch responded, ``We owe 
this man the kindness of stating his arguments as fairly as we 
can and then responding with clear answers in plain English. We 
owe him the kindness of explaining to him in a way that he can 
understand why he lost the case. Ruling against this man does 
not relieve us of our obligation to show him that kindness' 
''--close quote.
    I would like to ask that we enter that letter into the 
record.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Sasse. I would also like to enter into the record a 
letter from dozens of Judge Gorsuch's Columbia University 
classmates in support of his nomination. Again, this is a 
diverse group praising the judge's character and, quote, 
``unflagging commitment to respectful and open dialogue on 
campus,'' close quote. The alumni are united in their belief 
that the judge would, quote, ``serve our country with honor and 
distinction on the Supreme Court.'' I ask that this letter be 
entered into the record.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Sasse. Finally, I would like to enter into the 
record a letter from the past president of the Colorado Trial 
Lawyers Association, Gordon Netzorg, in support of the judge's 
nomination. He has observed that the judge is, quote, 
``completely honest and above-board, a man of integrity,'' 
close quote. He also points out that the judge enjoys strong 
bipartisan support from the Colorado Bar. I ask that this 
letter be entered into the record.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Sasse. Judge, you said yesterday that there is a 
lot about this process that you do not like and that makes you 
uncomfortable. I would love to hear more about it, but I 
recognize that you probably would not answer that question, 
that you cannot and therefore will not answer. I think as a 
newbie here--I think I am one of five people on the U.S. Senate 
that has never run for anything before in my life before 
getting here--I think that this Congress does not function as 
it should on a broad range of issues. You said yesterday that 
this is still the greatest deliberative body in the world. I 
hope that can be true again, but humbly, there are a whole 
bunch of not-for-profit boards in my little town of Fremont, 
Nebraska, that function a lot better at deliberation than the 
U.S. Senate does right now.
    Speaker Pelosi or Leader Pelosi is not a Member of the 
Senate but the U.S. Congress is a place that the American 
people look at, and when they see us, they do not primarily see 
public servants. They do not primarily see a distinction 
between the Article I branch in which we serve as the 
Legislature versus an Article II and III branch that are 
supposed to check and balance one another. They do not 
primarily see a distinction between the House and the Senate. 
They primarily see political parties. And our Founders did not 
intend that. George Washington's farewell address spoke 
directly to the danger of faction.
    We live in an era where there is going to be even more 
disintermediation of public discourse through media channels as 
the barriers to entry get smaller and the digitization of 
journalism creates a world where there are going to be much 
more fragmented conversations. It is possible for us to just 
silo ourselves in a way where we create an echo chamber around 
ourselves so we only have to talk to and listen to people who 
already agree with us. The domain of shared facts is declining, 
and it is a really dangerous thing.
    And I worry about what comes next for the country. I worry 
about what comes next for public discourse broadly. I worry 
about what comes next in this institution. And I do not want to 
put too fine a point on it, but I think that people who have 
watched these hearings over the course of the last 3 days know 
that you should be confirmed, know that you will be confirmed, 
and know that comments like Leader Pelosi's that if you are an 
American who drinks water or breathes air, they should be 
scared of you, that is absurd. And my colleagues know that it 
is absurd. And there is a real danger in not condemning that 
kind of reckless speech.
    As is kind of well known, I think I am the third or fourth 
most conservative guy in the U.S. Senate by voting record but I 
am not particularly partisan and I have not been bashful about 
speaking out against my party when my party has been reckless 
about facts. And I hope that some of the folks on the other 
side of the aisle, as we head toward a vote in this Committee 
and then we head toward a vote on the Floor in 2 weeks, will 
also speak out against the kind of reckless nonsense of telling 
the American people, who have day jobs, by the way--there are 
some folks who are watching on C-SPAN and that is wonderful. 
There are parents and teachers in Nebraska who are--and across 
the country who are using the C-SPAN hearings here as an 
occasion to teach their kids civics, and that is great. We need 
more--we need a more engaged public.
    But most people are not watching these hearings, and most 
people are going to see some headline summary of what happened 
2 weeks from now after there is a vote. And when the vote for 
you should be 95-to-0 or 95-to-5 or 100-to-0--math was not my 
strong suit so Franken will fill me in on the difference 
between 1924 and 1925--when they see a final vote, if it is not 
something overwhelming, if they see something that looks like 
Republicans voted one way and Democrats voted another way and 
they have echoing in their ears the sounds of people saying 
that you are some sort of a shill for big business and that the 
American people should be scared of you, we will have in this 
body done something to further erode the public trust.
    And so I sincerely hope that my colleagues on the other 
side of the aisle, as they approach voting, will recognize that 
the audience after they vote is not just people in their next 
primary who want to see a greater politicization of every 
question in American life. But the audience for their vote is 
also going to be people who 10 and 15 and 20 years from now are 
going to look back on this body at this time and next year and 
two and 3 years from now and say did we work to create a bigger 
and broader domain of shared facts and of shared public trust?
    I know you will not comment on this confirmation process 
directly because it is fundamentally a political question, but 
I wonder if you might comment a little bit on how you see the 
interplay between Article I and Article II coming together to 
create a new member of the court, the highest court, of Article 
III.
    Obviously, the President nominates someone to serve on the 
Supreme Court, and we have the constitutional duty in the 
Article I branch of providing advice and consent. Some of us 
have done that both with the last President and with this 
President, have given advice on the kinds of people that we 
think should be on the Court, and we ultimately have a duty to 
consent or not to consent.
    It could be done in this Committee or it could be done 
exclusively on the Floor in the full body. It could be done--as 
you mentioned with Justice White, it could be done in 90 
minutes or it can be done over the course of 2 weeks. There are 
lots of ways that the Senate could organize itself. But could 
you help the American people understand what do you think are 
the hardest questions that should right be being put to you and 
to future nominees for the Court? When we are doing our duty to 
having--after provided often private advice to the President 
but also in public about the future and when we are 
deliberating about consenting or not consenting, what are the 
hardest questions that you think it is appropriate that this 
body would ask of nominees?
    Judge Gorsuch. Senator, I am grateful for the question, but 
that is one I am going to have to respectfully decline to 
answer out of respect for the separation of powers. I just do 
not think it is appropriate for an Article III judge to be 
trying to tell this body how to do its business. I just do not. 
Of course, I have my personal thoughts. I put them over there. 
I am a judge. And respectfully, I have more optimism for this 
country. I do. And I have more optimism for this body and for 
the Congress as a whole. I have seen it work. And maybe I will 
just leave it there.
    Senator Sasse. I hope you are proved right.
    I would like to pursue something that Senator Cruz asked 
about a few minutes ago. There has been presupposition behind 
some questions earlier today that if you believe in textualism, 
if you believe in originalism, if you believe that one of the 
core jobs of someone who sits on the Bench is to understand the 
original public meaning, that somehow that means you are locked 
in time in history in 1788. Our Constitution has this glorious 
amendment process. Can you explain the relationship between the 
amendment process and originalism? Since the document does 
evolve in a formal, explicit, amended way, how does that relate 
to original public understanding?
    Judge Gorsuch. The Constitution is a law. Like any other 
law, it is our foundational law, and it was drafted to last 
maybe unlike certain other pieces of legislation that this body 
might think outdated and wish to update. That is its 
prerogative. The Constitution was designed to last and it was a 
brilliant, brilliant document. And the Founders really were 
amazing. If you ever go to Philadelphia, you have got to go to 
Independence Hall and the Constitutional Center there and see 
how it happened. And it is inspiring.
    And part of the wisdom of the document is the recognition, 
the humility that even the Founders, brilliant as they were, 
could not anticipate what might happen 100 years, 200 years--we 
might hope a lot longer than that--down the line. And so they 
recognized that, ultimately, it is about we the people. The 
people are sovereign to this country, not a king, not a class. 
And if the people wish to change their Constitution, there is a 
provision. There is a way to do that. It is a government by the 
people and for the people. And that is the amendment process in 
a nutshell, Senator.
    Senator Sasse. As a sitting Supreme Court Justice tasked 
with upholding the U.S. Constitution, is it ever appropriate to 
cite international law? And if so, why?
    Judge Gorsuch. I am not going to--it is not categorically 
improper. There are some circumstances when it is not just 
proper but necessary. You are interpreting a contract with the 
choice-of-law provision that may adopt a foreign law. That is 
an appropriate time to look at any choice-of-law provision by 
any party in any contract. Treaties sometimes require you to 
look at international law by their terms.
    But if we are talking about interpreting the Constitution 
of the United States, we have our own tradition and our own 
history, and I do not know why we would look to the experience 
of other countries rather than to our own when everybody else 
looks to us. For all the imperfections of our rule of law, it 
is still the shining example in the world.
    That is not to say we should sweep our problems under the 
rug or pretend that we have solved all of the problems in our 
culture, in our society, in our civic discourse, but it is to 
say that we have our history and our Constitution, and it is by 
we the people.
    And so, as a general matter, Senator, I would say it is 
improper to look abroad when interpreting the Constitution as a 
general matter.
    Senator Sasse. How do independent agencies fit in a 
constitutional system of three branches?
    Judge Gorsuch. Senator, independent agencies are in the 
executive branch, and there is a case called Humphrey's 
Executor that was decided in the 1930s that permits independent 
agencies to be created. By an independent agency we mean that 
it is headed by usually a group of individuals who are 
removable only for cause as opposed to at will.
    Senator Sasse. How do you understand the term American 
exceptionalism?
    Judge Gorsuch. I think that term means many things to many 
people, Senator, and I do not wish to get involved in politics. 
I have spoken as to how I see our Constitution and the 
brilliance of it and the reverence I hold for it. And I think I 
will just leave it there, with your permission.
    Senator Sasse. What role does the Declaration of 
Independence play in interpreting the Constitution?
    Judge Gorsuch. The Declaration of Independence is an 
amazing document, right? These are men who--as Benjamin 
Franklin said, we either hang together or we hang separately. 
When they put their name to that document, it was a death 
warrant if they failed. And that is why John Hancock is now 
synonymous with a signature. No one remembers who John Hancock 
was, but they know that is a signature because he wrote his 
name so bigly--big and boldly.
    Senator Sasse. You just said bigly.
    Judge Gorsuch. Bigly.
    [Laughter.]
    Senator Sasse. And I just won five bucks.
    [Laughter.]
    Judge Gorsuch. You embarrassed me in front of my nephew and 
he loves it.
    [Laughter.]
    Senator Sasse. He is the one paying me the five bucks.
    [Laughter.]
    Senator Sasse. The Declaration of Independence I think?
    [Laughter.]
    Senator Sasse. Is that where we were? I think my work here 
is done, but I do want to hear your answer.
    Judge Gorsuch. John Hancock, right, the signature, that was 
his death warrant, but he did not want the king to have any 
ambiguity about who it was that was signing that document. And 
it was his death warrant. That is remarkable, a remarkable 
thing that the men and the women who fought for our freedom, 
with all apologies to my British wife.
    It is, however, not the law. The Declaration is not the 
law. It is a Declaration of Independence. The Constitution is 
the foundational document and the foundational law of the 
country, to answer your question. The Declaration I think 
certainly informs every American and should inform a judge in 
understanding the background of the Constitution and our laws. 
It is not a document that should be lightly discarded.
    Senator Sasse. Thank you. I do still want to ask you some 
questions about the Ninth and Tenth Amendment, but I will save 
that for future rounds, as I am at time. Thank you, Chairman.
    Chairman Grassley. Before you take your break and on the 
issue of America being an exceptional nation, I would hope that 
you could consider what de Tocqueville said about America being 
an exceptional nation and say that without being political.
    Thank you very much. We will take a 10-minute break.
    [Recess.]
    Chairman Grassley. I am going to wait a couple of minutes.
    Judge Gorsuch. Oh, you are.
    Chairman Grassley. No, no, you stay there, please. What we 
are trying to do is figure out how we end up tonight and get 
everything done we have got to get done. I think we have got 
something, we have got a plan here.
    [Pause.]
    Chairman Grassley. We are going to give 30 seconds to 
Senator Franken, but not right now----
    [Laughter.]
    Chairman Grassley [continuing]. And then go to Coons. After 
we finish a second round, we will do what has been done for the 
last 30 or 40 years with a nominee. We are going to have a 
closed session, and then we will reconvene after we have the 
closed session, and then we will start our third round. In 
other words, at the end of the second round I should make clear 
we are going to have this closed session, and by doing that, 
then when people are done with their third round, if they want 
to leave and not come back, they will not have to. And then for 
the third round, I think I have consulted with a leader here 
that we would allow 15 minutes but we would hope that you could 
do it in less than 15 minutes so that we can get done sooner 
than we got done last night.
    So that is the way we will handle it, and I hope not 
everybody wants a third round, but I can understand if 
everybody does want a third round. This is a very important 
part of our function as Senators, so we will do whatever it 
takes to satisfy everybody so the questions get asked that you 
want to ask.
    Senator Franken, for 31 minutes----
    Senator Franken. Seconds.
    Chairman Grassley [continuing]. Thirty-one seconds.
    Senator Franken. Thank you. Thank you, Mr. Chairman.
    Judge Gorsuch, you were right. The Federal Arbitration Act 
was passed in 1925, as you said, not in 1924, as I said. I was 
wrong, and especially so because I chose to correct you when I 
was the one who was wrong, and I humbly apologize.
    Judge Gorsuch. Not at all, not at all.
    Chairman Grassley. That does not happen very often around 
the Senate.
    [Laughter.]
    Chairman Grassley. Senator Coons.
    Senator Coons. Thank you, Mr. Chairman.
    Thank you, Senator Franken.
    Thank you, Judge.
    I will submit for the record, as many of my colleagues 
have, two more documents, an editorial from the Washington Post 
from Matt Whit, who experienced the hardship of depriving 
individuals of the ability to make their own end-of-life 
choices when his mother endured a painful death by refusing 
nutrition; and a letter from 21 national LGBT groups expressing 
concerns about Judge Gorsuch's opinions and whether they do 
indeed respect fundamental rights that would enable them to be 
protected from discrimination.
    Chairman Grassley. Without objection, those are entered.
    [The information appears as a submission for the record.]
    Senator Coons. Thank you, Mr. Chairman.
    Judge, I enjoyed our conversation yesterday about Hobby 
Lobby and your writings on assisted suicide, and I want to 
return to a discussion of privacy and the autonomy of adults to 
make their own decisions even when it might conflict with 
settled law or with the majority's view of morality.
    Yesterday, when I asked you whether the Constitution 
contains a right to privacy, you agreed that it does, and I was 
glad to hear that. But you went on to describe this right and 
its origins, and you cited I think the Third and Fourth 
Amendments and two cases from the 1920s that have to do with 
parenting, I think Pierce and Meyer.
    But you did not mention more recent cases where the right 
to privacy has been central: Griswold, protecting access to 
contraception; Roe and Casey, protecting the right to choose an 
abortion; Lawrence and Obergefell, protecting a same-sex 
couple's right to intimacy or to marry. And I think it is 
important to establish that when you agreed there is a right to 
privacy in our Constitution, that we were talking about the 
same thing.
    In general, this area of substantive due process and right 
to privacy is one about which there has been vigorous debate, 
so I thought it was constructive for us to have a broader 
conversation about it.
    First, do you agree those cases that I just cited all 
relied on the right to privacy as an essential part of their 
holding?
    Judge Gorsuch. Senator, you and I were discussing, I 
believe, some of those more recent cases in the line of the 
Fourteenth Amendment, substantive due process case law, and all 
I was pointing out, or trying to at any rate, was that they 
have a prominence that goes back quite a ways.
    Senator Coons. That is right. So would you agree that these 
are cases, the ones I just referenced, where the right to 
privacy really is an essential part of their holdings?
    Judge Gorsuch. I agree they all grow out of the Fourteenth 
Amendment due process liberty component, which has been 
interpreted by the Supreme Court to include privacy in a lot of 
different areas.
    Senator Coons. So would you agree, just to make sure I have 
understood you right, that the right to privacy today extends 
to protecting women's right to have autonomy over their 
reproductive choices and protecting the privacy of intimate 
relationships between consenting adults, whether same-sex or 
opposite sex?
    Judge Gorsuch. You have Casey, you had Lawrence, you have 
Obergefell. All of those are, I think, in the line of cases you 
are talking about, Senator. Yes.
    Senator Coons. So let us take a minute and look at Casey 
and how it explores and identifies this right to privacy. It is 
now, I think, 25 years old. It is a '92 case. It reaffirmed the 
constitutional right to choose an abortion. And the opinion of 
the Court notes--and I am going to quote here at some length--
that these protections extend to matters involving, quote, 
``the most intimate and personal choices someone may make in a 
lifetime, choices central to dignity and autonomy, central to 
the liberty protected by the Fourteenth Amendment, and at the 
heart of liberty is the right to define one's own concept of 
existence, of meaning, of the universe, of the mystery of human 
life. Beliefs about these matters could not define the 
attributes of personhood were they formed under compulsion of 
the state.'' I think that is a well-known piece of the Casey 
opinion. Is that familiar to you?
    Judge Gorsuch. Generally, yes.
    Senator Coons. And in your book on assisted suicide you 
say, ``that it remains unclear whether Casey's mystery-of-life 
passage is properly understood as a persuasive but non-binding 
dictum.'' By calling this central section of the Casey opinion 
dicta, are you saying that future courts do no need to pay 
attention to it?
    Judge Gorsuch. No, Senator, and I was not even--I do not 
recall being that emphatic about it.
    Senator Coons. Okay.
    Judge Gorsuch. What I said was that obviously Casey 
reaffirmed the right to abortion generally in Roe, and then the 
question is what additional work does that language do, and 
that remains an open question in a lot of ways, what additional 
work that language does.
    Senator Coons. Well, then, let us explore that, if we 
could. Should this Casey language be relied upon in other 
cases?
    Judge Gorsuch. I think that is going to be an argument that 
counsel will make to a court and the court will have to 
consider through the proper judicial process--briefing, 
argument, decision.
    Senator Coons. Well, let me just argue that it has been 
relied upon, that it was essential to the holdings in Lawrence 
and Obergefell. If that is correct and it has been relied upon 
in subsequent key Supreme Court cases, is Casey and this 
particular piece of the Casey holding indisputably settled law?
    Judge Gorsuch. Senator, Casey is settled law in the sense 
that it is a decision of the U.S. Supreme Court. And you also 
have Obergefell and Lawrence. Those are all precedents of the 
U.S. Supreme Court, entitled to the weight of precedent, which 
is quite considerable, as we have discussed.
    Senator Coons. Well, we have talked about precedent. You 
talked at some length about what are the tests of precedent. 
One of my concerns here is that the language in your book, I 
would argue, lays out a roadmap for ignoring this section of 
this holding, or minimizing or marginalizing it. Do I misread 
your writings here?
    Judge Gorsuch. I do not know what you are referring to 
exactly, Senator.
    Senator Coons. The section in your book on assisted suicide 
where you say Casey's mystery-of-life passage is persuasive but 
non-binding.
    Judge Gorsuch. Again, Senator, I am not sure that is an 
accurate portrayal of the book in the first instance. I think I 
said that an argument could be made to that effect, at most, 
because you had two holdings in Casey. You had one, a stare 
decisis or a precedent-based holding. Roe is upheld because it 
is precedent.
    Senator Coons. Right.
    Judge Gorsuch. And second, there was a second argument for 
upholding Roe, and this is part of it, this language. So both 
are sufficient to the day, and sometimes as a court you ask 
which is binding holding. Sometimes there is not just the law 
of judicial precedent but a law of interpreting when we have 
multiple holdings.
    Senator Coons. That is right.
    Judge Gorsuch. The Marks opinion, for example, which talks 
about how you pick which holding is binding in the future. So, 
Senator, we have a whole law which applies here.
    Senator Coons. I understand that.
    Judge Gorsuch. A whole body of case law----
    Senator Coons. It is exactly because of that and what I 
think are concerns that you raise about whether this is 
precedent that should be relied on, or a section of the Casey 
opinion that should be relied on, that I just wanted to 
emphasize that I view it as an important foundation of this 
mystery-of-life passage and the subsequent due process views it 
expresses, really central to Lawrence and Obergefell. They are 
rooted in Casey's interpretation of liberty under the 
Fourteenth Amendment.
    So would you disagree with me that Lawrence and Obergefell 
squarely rely upon Casey's view of liberty under the Fourteenth 
Amendment?
    Judge Gorsuch. Senator, I think it would be an injustice to 
Lawrence or Obergefell for me to sit here and try to 
characterize them in miniature. They are thoughtful, lengthy 
opinions that have a considerable amount of analysis unto 
themselves. I would just say they are what they are. They are 
precedents of the U.S. Supreme Court, and they----
    Senator Coons. So they are precedents, and you would view 
them as binding and as settled law.
    Judge Gorsuch. Senator, they are precedents of the U.S. 
Supreme Court, due all the weight of a precedent of the U.S. 
Supreme Court. I have written a book about how much weight that 
is, with 12 judges from around the country, appointed by 
Presidents of both parties. Justice Breyer was kind enough to 
write a forward. And it presents the mainstream view, the 
consensus view. Think about it, 12 Circuit Judges agreeing on 
800 pages.
    Senator Coons. If you could get 50 Senators to agree on 
something, you would truly be worthy of----
    Judge Gorsuch. I would be happy if I could get 20 of you to 
agree.
    [Laughter.]
    Senator Coons. So let me continue with that exploration, if 
I could. So if these cases, Lawrence and Obergefell, are 
settled law, and they are relying critically on this 
understanding of substantive due process that is rooted in 
Casey and its analysis, under what basis or circumstances would 
they be subject to reconsideration? When might they be open to 
being reexamined if they are currently indisputably settled 
law?
    Judge Gorsuch. Senator, every precedent is subject to a 
presumption that it stays, right? Francis Bacon called 
precedent the anchor of the law. Alexander Hamilton said that 
judges, because we are life tenured, need to be bound down by 
strict rules and precedents.
    Senator Coons. Right, and I think in your opening exchange 
with Senator Grassley you identified just a few factors, a 
reliance interest, whether it has been reaffirmed repeatedly, 
whether the legal construct it was on has been upheld or 
whether it is an island unto itself. Am I roughly remembering 
your----
    Judge Gorsuch. There are a number of factors, and you have 
named a few of them, and they are all outlined in the book, 
among other places, and the Supreme Court precedents.
    Senator Coons. Well, let us move to a key moment in this 
line of cases where settled precedent was overturned. You 
testified yesterday that Justice White was your judicial hero, 
a Justice for whom you clerked. And with all due respect, I 
think Justice White, who was an exceptional football player and 
jurist and Coloradoan, in this particular line of cases I think 
he was on the wrong side, in Casey and in Bowers.
    So let us discuss Bowers v. Hartwick, which was a case that 
upheld a Texas statute criminalizing sexual intimacy between 
same-sex couples. In his 1986 decision in Bowers, Justice White 
declined to extend due process protections and recognize any 
fundamental right of intimacy. And in 2003, the Supreme Court 
overturned, directly overturned Bowers and Lawrence. Justice 
Kennedy wrote the Lawrence decision in reliance upon this Casey 
language, and he did not mince words. Justice Kennedy said, 
``Bowers was not correct when it was decided, as it is not 
correct today. It ought not remain binding precedent. Bowers 
should be and now is overruled.''
    You clerked for both Justices White and Kennedy. Was 
Justice Kennedy correct in stating that Bowers was wrong when 
it was decided?
    Judge Gorsuch. Senator, that is the law of the Supreme 
Court. And you are right, I clerked for both men. I admire both 
men greatly. Both taught me an awful lot, and I a not here and 
I will not say a bad word about either one of those gentlemen.
    Senator Coons. I wrestle with your admiration for Justice 
White when his jurisprudence fails to recognize what I and the 
current Supreme Court and many Americans view as a core liberty 
interest inherent in each one of us. Obviously, Justices can be 
revered for their writing and their decisions even when 
developments in the law and history have long passed them by.
    You have also expressed admiration for Justice Scalia, and 
he dissented sharply, memorably in both of these same-sex 
decisions. He actually said in one of those dissents memorably 
that the majority's holding would mean, ``that state laws 
against bigamy, same-sex marriage, adult incest, prostitution, 
adultery, fornication, bestiality, and obscenity would be 
called into question.'' As a legal matter, do you agree with 
Justice Scalia's statement in that dissent?
    Judge Gorsuch. Senator, that is a dissent. It is not the 
controlling law----
    Senator Coons. That is right.
    Judge Gorsuch. Of the Supreme Court.
    Senator Coons. And sometimes dissents are meant to signal a 
direction a certain Justice would like the law to go.
    Judge Gorsuch. I am sure it does, but it is a dissent. And, 
Senator, with respect to Justice White, I am not here to spend 
an undue amount of time defending him. But we all, everyone--I 
know you indicated that you disagree with him; that is fine. 
Every one of us makes mistakes at some point in time. I do not 
think----
    Senator Coons. Did he make a mistake in Bowers?
    Judge Gorsuch. Senator, the Supreme Court has held that. 
Justice Kennedy held that. As you pointed out, you read the 
language, that is the binding law of the Supreme Court of the 
United States. And, Senator, I revere both men, both men 
greatly.
    Senator Coons. But if you would, Judge, what I am looking 
for is some sense of your understanding of the scope of the 
substantive due process analysis in Casey. Because you took the 
initiative to write that it should be understood very narrowly, 
that it might not be something that would stand the test of 
time, because a Justice you identified as your judicial hero 
did not agree with it, and a Justice you did not describe as 
your judicial hero overturned it, so I am just expressing 
concern.
    Judge Gorsuch. Senator, I am sorry to interrupt you, but 
that is not correct.
    Senator Coons. Okay.
    Judge Gorsuch. If you took away from my discussion that I 
do not consider Justice Kennedy a judicial hero, then I am 
sorry because I thought I made that very clear in my opening 
remarks before this body. And if I did not, I want to make it 
real clear right now, all right?
    Senator Coons. Duly noted.
    Judge Gorsuch. That I am immensely grateful--Senator, I 
cannot let that pass. I am sorry.
    Senator Coons. You did note in your opening that you 
learned from him respect for litigants and that you admired 
your time with him, and I remember you saying very positive 
things about your clerkship with Justice----
    Judge Gorsuch. I am glad, I am glad. I do not want the 
record of this Committee to go down in history as anything less 
than holding him in great admiration. That is very important to 
me, Senator.
    Senator Coons. Thank you.
    Judge Gorsuch. Very important to me.
    Senator Coons. Justice Scalia, for whom you have also 
expressed a great deal of admiration, expressed in his other 
dissent, a key one in this case, that Obergefell literally was 
undermining American democracy, that it was a threat to 
American democracy. Presumably he was referring to the fact 
that the Court's decision struck down State laws adopted by 
referenda.
    What did you understand him to mean? Do you view Obergefell 
as a threat to democracy somehow?
    Judge Gorsuch. Senator, Justice Scalia had his views, and 
he expressed them in his dissent. They are his views. The law 
of the land is the holding of the Supreme Court in Obergefell.
    Senator Coons. That is right. Your views you expressed in 
2005 in an article in National Review called ``Liberals and 
Lawsuits.''And in that article you said marriage equality and 
death with dignity cases were examples of what liberals relied 
on, an over-weaning addiction to the courtroom to advance. What 
did you mean by that?
    Judge Gorsuch. Senator, we discussed that article 
yesterday. I am happy to do it again. I was pointing out there, 
I think, two things, and a third. The first I was pointing out 
was that there are important civil rights issues that courts 
have to be available for, and that the courts are open to all 
persons. One of the beauties of our courts is that they can 
vindicate civil rights for minorities.
    Senator Coons. That is right.
    Judge Gorsuch. It is a non-majoritarian institution.
    Senator Coons. And the line of cases I have been working 
through with you are two that are landmark cases but that also 
have memorable dissents where significant advances in civil 
rights were made, and that is exactly what I was trying to 
explore, why you sort of picked out those two areas to, I will 
say, denigrate in this National Review article. Maybe I misread 
it.
    Judge Gorsuch. I do not mean to denigrate anyone's views, 
Senator. This was before I was a judge. And the second point I 
made was that there are some comparative disadvantages to 
resolving policy matters for courts. One of the disadvantages 
comparatively is that judges are not well-equipped to decide 
policy matters. We have four evanescent law clerks that come to 
us for a year out of law school. Great policymakers they are 
not, with all respect to my law clerks, all right? They are 
wonderful legal researchers, but they are not great 
policymakers.
    Senator Coons. Speaking as a former clerk, I appreciate the 
recognition that some are great legal researchers. I am not 
sure I was either a good policy advisor or researcher for my 
judge.
    Let me, if I can, move to asking you about the basis on 
which you might ever be open to reconsidering, as Kennedy did, 
White's decision in Bowers with Lawrence, the decision in 
Obergefell. Obergefell, which recognized a constitutional right 
to marriage equality for same-sex couples, rooted in the 
substantive due process, is something that is now settled law 
and on which I would say there is now a great deal of reliance, 
one of your core factors, one of the core factors in deciding 
whether or not a precedential decision should be reviewed.
    Do you think there is significant reliance interests on 
Obergefell?
    Judge Gorsuch. I am sure there are, Senator, yes.
    Senator Coons. And would you include in that the thousands, 
probably tens of thousands of couples that have now married and 
purchased property and signed contracts and changes in State 
law and municipal law such that you would agree there is really 
a significant reliance interest on this decision?
    Judge Gorsuch. Reliance interests are, as you point out, 
Senator, an important factor in any consideration of precedent, 
absolutely.
    Senator Coons. And so overturning this key piece of 
precedent would not just disrespect the now 25-year-long 
settled mystery-of-life analysis of Casey and the settled 
Lawrence decision, but also the reliance interests of many 
couples in this Obergefell decision?
    Judge Gorsuch. Senator, I have declined to make any 
promises, hints, or previews in how I would resolve any case.
    Senator Coons. That is right.
    Judge Gorsuch. And I am going to continue that here.
    Senator Coons. But I am simply asking if you think there is 
a significant reliance interest, and I think you have agreed.
    Judge Gorsuch. And I have already said yes.
    Senator Coons. Let me just turn, if I might, in the little 
time I have got left, and we might pick this up in my last 
round, to an important decision on this same question, the 
Fourteenth Amendment substantive due process right. In Browder 
v. City of Albuquerque, we talked yesterday about you being a 
Westerner, and this is a particularly Western case in which a 
police officer going off shift decided to just roar through the 
middle of town at 66 miles an hour, speeding through 11 
different intersections and, tragically, one red light, killing 
a person and severely injuring another.
    Access to the Federal courts in this case rests on 42 
Section 1983, and your own decision, the unanimous decision of 
the Tenth Circuit that you wrote, describes substantive due 
process, which is the foundation of all these privacy cases we 
were just talking about, as very much uncharted, more than a 
little open-ended, a murky area with a paradoxical name.
    What did you mean by all that in this case?
    Judge Gorsuch. Senator, a lot of that was quotes from other 
cases, as I recall.
    Senator Coons. Two out of the four, yes.
    Judge Gorsuch. All right.
    Senator Coons. I was a law clerk.
    Judge Gorsuch. And just so we are dead accurate here, I 
think those are quotes from the U.S. Supreme Court.
    Senator Coons. Yes, they are.
    Judge Gorsuch. All right. I think that is not an 
insignificant fact to note, Senator.
    Senator Coons. It is not insignificant.
    Judge Gorsuch. All right. In that case, the question was 
whether there is a substantive due process right to pursue not 
a privacy interest but a lawsuit, a tort-type lawsuit against a 
police officer for his conduct. We have precedent in the Tenth 
Circuit saying indeed there is. And in that case, the majority 
opinion that I wrote for the court, I upheld the right of the 
family to pursue the police officer for damages under the 
United States Constitution.
    Senator Coons. That is right.
    And if I might, Mr. Chairman, I have a follow-on question 
which we will get to in the third round.
    Chairman Grassley. Okay.
    Senator Coons. Thank you.
    Chairman Grassley. Senator Flake.
    Senator Flake. Thank you, Mr. Chairman.
    And thank you, Judge, for your endurance through this 
process.
    Yesterday you mentioned that, quote, ``All precedents of 
the Supreme Court deserve the respect of precedent.'' I will 
ask a couple of questions about Supreme Court precedent. One 
recent precedent was the Hosanna-Tabor case. This unanimous 
opinion affirmed the ministerial exemption to the First 
Amendment. In other words, the Government does not get to tell 
churches or other religious groups how it selects its 
ministers. Does Hosanna-Tabor deserve the respect of precedent?
    Judge Gorsuch. Yes, Senator.
    Senator Flake. Thank you. Another recent opinion was U.S. 
v. Lopez. The opinion involved a gun-free school zone act. 
Importantly, the act was passed pursuant to our commerce power. 
The Supreme Court struck down the bill saying, ``To uphold the 
Government's contentions here, we have to pile inference upon 
inference in a manner that would convert congressional 
authority under the Commerce Clause to a general police power 
of the sort retained by the states.'' Does U.S. v. Lopez 
deserve the respect of precedent?
    Judge Gorsuch. It is a precedent of the U.S. Supreme Court. 
That is a weighty thing, Senator.
    Senator Flake. Thank you. Still one more, a recent opinion 
in Glossip v. Gross. It was actually handed down in your 
Circuit, I believe. It involved the constitutionality of the 
death penalty under prohibition of cruel and unusual 
punishment. The Court said, quote, ``It is settled that capital 
punishment is constitutional.'' Does that one deserve the 
respect of precedent as well?
    Judge Gorsuch. It does, Senator.
    Senator Flake. Is foreign law ever valid precedent in an 
American court?
    Judge Gorsuch. Senator, we have just discussed this with 
Senator Sasse. There are instances when foreign law may be 
appropriately cited. For example, in contract disputes between 
private parties, sometimes they will have a choice of law 
provision where they have contracted for the application of a 
particular state's law, or maybe even a particular nation's 
law. In interpreting the United States Constitution, it is 
generally not useful for courts to be looking at foreign law. 
We have our own traditions that are, frankly, the envy of the 
world, if we want to talk about American exceptionalism. It 
does not require us to look very far to find our own precedents 
and our own history that are more germane usually, Senator.
    Senator Flake. Thank you. We talked yesterday a bit about 
being from the West. In the Tenth Circuit, you deal with a lot 
of issues that are not brought up as much elsewhere, public 
lands issues, disputes, and also Tribal issues. Can you tell me 
how dealing with Tribal issues has affected your view on 
religious liberty, or has affected your jurisprudence? There 
was a case, Yellow Bear, a sweat lodge issue.
    Judge Gorsuch. Sure. The Yellow Bear case involved a Native 
American who had murdered his daughter, 3 years old, and was in 
Federal prison, and was denied access to an existing sweat 
lodge in the prison. The prison had various reasons why it said 
it was unable to provide access to the sweat lodge for Mr. 
Yellow Bear. We applied the Religious Freedom Restoration Act, 
which was a claim brought. There was no question about the 
sincerity of the man's religious beliefs, no question that he 
found solace in his faith after he had done what he had done.
    And then the question becomes, if it was a sincerely held 
religious belief, was it a substantial burden. And that box we 
checked too, because the prison denied him any access to the 
sweat lodge.
    So once you do those two things, the case then shifts to 
the Government, as it does in any RFRA case, any Religious 
Freedom Restoration case, regardless of who is bringing it, no 
matter how unpopular, the least amongst us. The government has 
to have a compelling interest, and it has to show that its 
compelling interest was executed in the most narrowly tailored 
way possible.
    And here, the Government just could not come up with a good 
reason why it could not provide Mr. Yellow Bear with any access 
to the sweat lodge. It talked about the difficulty of moving 
him because he was an unpopular prisoner and potentially 
subject to violence by other prisoners. But the evidence showed 
they were able to move him for medical reasons, and able to 
move him to the cafeteria, for example, and back and forth. It 
could not show that it was much more, if any, of a burden 
financially or otherwise on the personnel of the prison to also 
make the sweat lodge available at least sometimes.
    And so our court held that there was a violation of the 
Religious Freedom Restoration Act in that case, just as we 
would in any other.
    Senator Flake. Thank you. Let me shift gears quite a bit 
here and talk about technology. You mentioned in the Jones 
opinion on GPS tracking and the heat lamp case, Kyllo, in the 
context of originalism, that technology cases provide thorny 
issues for the Court, obviously. You have dealt with some of 
your own, including the review of Colorado's retail tattle-tale 
law, DMA v. Brohl. How should judges approach issues of new 
technology as it applies to litigation?
    Judge Gorsuch. Senator, in the first two cases you are 
dealing with the question of an unreasonable search and seizure 
and what is a search. In the Jones case, is it a search to 
attach a GPS tracking device onto a car? If it is a search, 
perhaps the Government will need a warrant to do that. If it is 
not a search, it can just do it willy nilly.
    So you have to ask yourself, well, what is a search? Is 
that a search? And to do that, the Court went back and looked 
at the law of trespass as it was at the time of the founding 
and concluded that would be what is called a trespass to 
chattels, a trespass on your private property, not on physical 
property but personal property; and that would qualify as a 
search or a trespass or a property right violation at the time 
of the founding and concluded that when we are interpreting the 
term an unreasonable search, what is a search for the Fourth 
Amendment, that the Constitution of the United States today 
cannot be less protective now of the people's liberties than 
the common law understanding was at the time of the founding. 
That is the way the Court reasoned in that case, using existing 
legal principles to address a new technology, and that is the 
sort of thing judges do.
    Senator Flake. How should judges familiarize themselves 
with new technology? Do we get to leave that to law clerks, 
like we often leave it to staffers to understand new 
technologies? How important is it?
    Judge Gorsuch. These are areas where Congress has a role 
too, respectfully, Senator. New technologies challenge us, all 
of us. And what is a reasonable search? Guidance from Congress 
is helpful in that regard. In fact, I think Justice Alito wrote 
a separate opinion in the Jones case inviting Congress' action 
in this area when we are dealing with new technologies, 
precisely because of the challenge of trying to address vastly 
new circumstances, new technologies that we have not seen 
before.
    Senator Flake. You are right. I mean, we deal with that 
issue here all the time, trying to balance security versus 
privacy issues. We think that we have it done or balanced, and 
then new technology comes and upsets it. I am sure it is the 
same for the Court.
    Let me continue on this vein talking about Congress' role 
as opposed to the Judiciary. Mr. Chairman, I would like to 
introduce into the record a piece published in Tech Policy 
Daily called ``Gorsuch and Tech Policy.'' And in it, the 
author, a professor at Boston College Law School, concludes: 
``Our Justices should be willing to work hard and understand 
new technologies and think critically about how traditional 
legal concepts map into cyberspace.'' He concludes, ``Judge 
Gorsuch's record suggests no reason to doubt he is up to the 
task.'' So, that makes us all feel better, I am sure.
    [The information appears as a submission for the record.]
    Senator Flake. But let me talk about this in the context of 
an issue that we talked about yesterday and has been brought up 
a number of times, Chevron deference, as it relates to 
innovation here. I do not want to go back to your views on 
this. There is a great deal, as I said, of exchanges on this 
subject. But let me talk about the relation to technology here.
    If judges defer to policy decisions of Executive agencies, 
as Chevron calls for, those decisions depend largely on the 
public or the policy preferences of the agencies. Is that not 
right?
    Judge Gorsuch. Senator, I am sorry. I am not sure I 
entirely tracked the question.
    Senator Flake. Well, if agencies--if Congress sets a broad 
policy and the agencies interpret that and write regulations 
based on that, and the courts defer to the agency 
interpretation, then policy depends on the policy preferences 
of the agencies more than it does Congress in that view, right?
    Judge Gorsuch. That sounds like a reasonable conclusion.
    Senator Flake. Well, just as an example, if the Bush 
Administration had a policy on a certain technology, and then 
the Obama Administration came in and changed that policy, 
whether it is the FCC or the FTC, and then it was changed back 
when the Trump Administration came in, the technology community 
out there is getting whipsawed back and forth. They cannot rely 
on policy. I think that is why Congress and the courts need to 
take a hard look at agency deference and why I think we need to 
return here in Congress--and this has been discussed in the 
past couple of days--to legislating on different questions and 
doing more than we have over the past couple of decades and 
giving more instruction to agencies on how to interpret, or 
giving them less to interpret; I will put it that way. But I do 
think that we will have more consistent policy and policy that 
the private sector can rely on if Congress has to go through 
this exercise more than the agencies, because the agencies, it 
can go back and forth depending on who is in power there.
    So that is just a long way of saying I agree with what 
seems to be, and I hope I read it correctly, your skepticism of 
Chevron deference, and that we ought to maybe tip the balance 
back toward relying on Congress, or the intent of Congress at 
least.
    Mr. Chairman, I would like to introduce into the record a 
letter of support from the Hispanic Leadership Fund, which 
notes: ``Judge Gorsuch has an exceptional record in defending 
the Constitution and our fundamental rights such as the Second 
Amendment and the right to religious liberty.''
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Flake. In the time I have remaining, a short time, 
let me just talk a little--you have mentioned in passing about 
another technology issue, cameras in the courtroom. It has been 
presented as educational, and maybe people, after viewing this, 
may have a different view of it. Obviously, we are the 
legislative branch. Everything we do here should be and always 
will be in the open and on television. I am glad C-PAN is here 
and in every hearing, just about, that we have, with the 
exception of the intelligence agencies.
    But when you apply it sometimes to the third branch--take 
TransAm Trucking that has been discussed here at length--it is 
a pretty boring case when it was a camera-less courtroom that 
heard it. It was about standards of administrative review, 
statutory interpretation. But now, in this hearing room, it all 
of a sudden becomes a battle between the big guy and the little 
guy, and I think that there is a legitimate concern about 
opening up our courtrooms to cameras and what that will 
incentivize.
    So I hope you have said that is something that you will 
look at, as will everyone on the Court, but I hope that we 
pause as we do so, and watching these hearings over the past 
couple of days I hope will give us more pause about cases that 
do not lend themselves well when you consider what Edmund Burke 
said about the cold neutrality of an impartial judge being the 
standard. That sometimes to me seems inconsistent with cameras 
in the courtroom and what that incentivizes.
    So with that, Mr. Chairman, and with the thanks of a lot of 
endurance, like I said, over the past couple of days, and you 
still have more to come, I yield back.
    Chairman Grassley. I am surprised you are such a reasonable 
Senator you would be against cameras in the courtroom.
    [Laughter.]
    Chairman Grassley. Senator Blumenthal.
    Senator Blumenthal. Thanks, Mr. Chairman. I want to take 
issue with my good friend from Arizona and state, as I have 
before, how strongly I feel that cameras in the courtroom, 
including in the U.S. Supreme Court, would be a very good 
thing. I know the Chairman agrees with me, as do other Members 
of the Committee, and I believe that the American public would 
be better informed about the work of the Court and about their 
rights if more of the proceedings in our Federal courts were 
better known to them. I think that the image and the 
performance of our attorneys, of juries, of judges would not 
only attract interest but also elevate the performance there. 
So I hope you will take that under advisement.
    Judge Gorsuch. Senator, one thing I have really gotten out 
of this process that I did not really appreciate, I knew the 
advice and consent function worked between Article 1 and 
Article 2, and I have been asked to comment on that, and I will 
not, but I have learned a lot, and I appreciate the advice I 
have gotten, thoughtful advice on a number of issues from 
Senators across the spectrum. You are thoughtful people who 
care deeply about this country, and you care deeply about the 
judiciary, and I appreciate that and the input that I have 
received from all of you. Thank you.
    Senator Blumenthal. Well, I very much appreciate that 
statement, and it leads to my next observation, which is about 
this process. As much as there has been some handwringing and 
some doubt expressed, I happen to think this kind of process is 
a lot healthier for our democracy than the 90 minutes that our 
common mentor, Justice White, spent in your place. I think, 
actually, although I did not know him as well as you, but I did 
see him on occasion on a basketball court in the highest court 
in the land, and had occasion to observe his elbows----
    Judge Gorsuch. Did you get one? Did you get one in the 
side?
    Senator Blumenthal. I know that I have a right to remain 
silent.
    [Laughter.]
    Senator Blumenthal. But I think he would have enjoyed the 
give and take.
    Judge Gorsuch. He enjoyed physical contact in any sport 
activity. You may be right. You may be right about that.
    Senator Blumenthal. And I appreciate your being here to 
answer all our questions and, as I said yesterday, your 
patience and perseverance. I also----
    Judge Gorsuch. Senator, I consider it a privilege to be 
here with you.
    Senator Blumenthal. Thank you. I also want to raise a 
question, talking about court procedure, relating to conflicts 
of interest and ethics. I think you were asked yesterday about 
the proposed ethics rules that have been applied to your 
court----
    Judge Gorsuch. Yes.
    Senator Blumenthal [continuing]. To the appellate court, to 
the District Court, but not to the Supreme Court. Would you 
view such legislation as a violation of the separation of 
powers?
    Judge Gorsuch. Senator, I am afraid I just have to 
respectfully decline to comment on that because I am afraid 
that could be a case or controversy, and you can see how it 
might be. I can understand Congress' concern and interest in 
this area. I understand that. But I think the proper way to 
test that question is the prescribed process of legislation and 
litigation.
    Senator Blumenthal. I assume that you have observed all 
those rules as a member of the Tenth Circuit Court of Appeals.
    Judge Gorsuch. I have done my best, Senator.
    Senator Blumenthal. Have they been unduly burdensome?
    Judge Gorsuch. No, Senator, no.
    Senator Blumenthal. Have you found that they interfered at 
all with your discharge of duties as a judge?
    Judge Gorsuch. No, Senator.
    Senator Blumenthal. Would you object personally to 
following those rules as a member of the U.S. Supreme Court?
    Judge Gorsuch. My personal views, Senator, have nothing to 
do with my job as a judge.
    Senator Blumenthal. Will you commit to following those 
rules personally on your own without any legal requirement?
    Judge Gorsuch. Senator, what I have committed to do is to 
take a look at the law, talk to my colleagues collegially, and 
then make up my own mind, and I am taking into account all the 
advice I have gotten in this process carefully. I will 
carefully consider that. But, Senator, I am not going to make 
any promises in this process to anyone about anything other 
than to be the best possible judge I can be.
    Senator Blumenthal. Well, I hope that you will be as 
persuasive as possible after you make up your own mind and hope 
that you will decide that these rules make sense because, 
again, in terms of the appearance and the credibility of the 
Court, I think that they are important.
    I want to go back to some questions I asked you yesterday 
which perhaps you did not get a chance to clarify, and I want 
to give you that opportunity. If you recall, we were talking 
about Brown v. Board of Education, and you said, I believe, 
that you agree with that decision. Do I have it correctly?
    Judge Gorsuch. Senator, it is a seminal decision of the 
U.S. Supreme Court interpreting the Fourteenth Amendment, maybe 
one of the great moments in Supreme Court history.
    Senator Blumenthal. You said, that it ``corrected an 
erroneous decision, a badly erroneous decision,'' and you 
called it ``a correct application of the law of precedent.'' 
And you said also that it vindicated a dissent ``that got the 
original meaning of the Equal Protection Clause right.'' That 
sounds to me like you agree with the result in Brown v. Board 
of Education.
    Judge Gorsuch. Sir, you can characterize it however you 
want. I said what I said, and I stick by what I said.
    Senator Blumenthal. So unlike Justice Kennedy and Justice 
Roberts, Chief Justice Roberts, in their confirmation hearings, 
you will not say that you agree that it was the right result.
    Judge Gorsuch. Senator, I have said it was a seminal 
decision of the U.S. Supreme Court that corrected a badly 
erroneous decision that vindicated the original understanding 
and the correct original meaning, rather, of the Fourteenth 
Amendment, and is one of the shining moments of constitutional 
history of the U.S. Supreme Court. That is what I have said.
    Senator Blumenthal. So why will you not say that you agree 
with the result?
    Judge Gorsuch. Senator, I do not know what it means--I am 
not sure what we are arguing about here.
    Senator Blumenthal. We are not arguing. I am just asking 
why you are so averse to saying, yes, it was the right result.
    Judge Gorsuch. I am saying as a judge, it was a seminal 
decision that got the original understanding of the Fourteenth 
Amendment right and corrected one of the most deeply erroneous 
interpretations of law in Supreme Court history, Plessy v. 
Ferguson, which is a dark, dark stain on our Court's history, 
and it took way too long for the U.S. Supreme Court to get the 
Fourteenth Amendment right. It is an embarrassment in our 
history. That is what I have said, Senator.
    Senator Blumenthal. And Chief Justice Roberts, in response 
to Senator Kennedy's question, ``Do you agree with the Court's 
conclusion that the segregation of children in public schools 
solely on the basis of race is unconstitutional?'' Then Judge 
Roberts, ``I do.''
    You said yesterday--and I am quoting you now--that there is 
no daylight between you and----
    Judge Gorsuch. Respectfully, I do not see any daylight 
between what I have just said and what you just quoted from the 
Chief.
    Senator Blumenthal. Okay.
    Judge Gorsuch. I just do not, Senator.
    Senator Blumenthal. I am not going to dwell on this.
    Judge Gorsuch. We are all on the same page on Brown v. 
Board of Education, Senator.
    Senator Blumenthal. Okay.
    Judge Gorsuch. It is a great and important decision.
    Senator Blumenthal. Would you say the same about Griswold 
v. Connecticut?
    Judge Gorsuch. What I have said about Griswold v. 
Connecticut, Senator, is that it is a decision by the U.S. 
Supreme Court recognizing the right of married couples, in the 
privacy of their own home, to use contraceptive devices. It was 
decided, I believe, in 1965, though Senator Franken may wish to 
correct me.
    Senator Blumenthal. No, you are right about 1965.
    Judge Gorsuch. Good. All right, 1965.
    Senator Blumenthal. And if I am wrong, I am not going to 
tell you I am wrong.
    [Laughter.]
    Senator Blumenthal. It was decided in 1965, and that was 
its holding, and I am asking you do you believe it was the 
right result?
    Judge Gorsuch. And what I have said is, Senator, it is 50 
years old, more than 50 years old, right? The reliance 
interests surrounding it are obvious and strong. It has been 
repeatedly reaffirmed. Those are powerful things in the law of 
precedent. I have also said I cannot imagine a State trying to 
pass a law in this area, and I have said I cannot imagine the 
U.S. Supreme Court taking such a law seriously. I do not know 
how clear I could be to you, Senator.
    Senator Blumenthal. You could be much more clear about your 
personal beliefs.
    Judge Gorsuch. Right.
    Senator Blumenthal. Do you believe----
    Judge Gorsuch. And my personal views have nothing to do 
with my job as a judge.
    Senator Blumenthal. Well, let me invoke your beliefs as a 
commentator. Do you believe it was the right result based on 
your understanding of the law, not your personal beliefs about 
whether contraceptives are a good thing or a bad thing, but 
your beliefs about the constitutional underpinning the right to 
privacy, the Fourth Amendment, substantive due process 
underpinning of Griswold v. Connecticut? Was it the right 
result?
    Judge Gorsuch. Senator, I have consistently, not picking 
out Griswold or any other particular case, I have drawn a line 
that I think is required of a good judge to be fair and to 
respect the separation of powers, without respect to precedent. 
A precedent of the U.S. Supreme Court, as we were talking with 
Senator Flake, they are all precedents. They all deserve 
respect of a judge.
    Senator Blumenthal. But some more than others.
    Judge Gorsuch. Senator, it depends upon the factors under 
the law of precedent, what weight you give a precedent.
    Senator Blumenthal. Why is your--I am sorry.
    Judge Gorsuch. Including the age of the precedent, how 
often it has been reaffirmed, the reliance interests 
surrounding it, whether it was correctly decided, whether it is 
constitutional versus statutory, and a number of other things 
that we have discussed repeatedly.
    Senator Blumenthal. And you are saying that there is no 
threat of it coming before the Court because a State 
legislature is unlikely to pass the kind of criminal ban on 
contraceptive use that existed then?
    Judge Gorsuch. I have said, Senator, with this particular 
precedent we are talking about, it is over 50 years old, a 
weighty factor; that the reliance interests surrounding it are 
obvious and many and great. I have said that it has been 
repeatedly reaffirmed by the U.S. Supreme Court. I have said 
that I cannot imagine a State actually legislating in this 
area. And I have said that I cannot imagine the Supreme Court 
taking a challenge, someone wishing to challenge that 
precedent, seriously. I do not know how much more clear I could 
be to you, Senator, as a judge.
    Senator Blumenthal. Would you say the same about Eisenstadt 
v. Baird?
    Judge Gorsuch. I have already, Senator, several times in 
the course of this hearing.
    Senator Blumenthal. And you are unwilling to do, as Justice 
Alito did, and he was a judge, and I think you would probably 
say he was a good judge, correct?
    Judge Gorsuch. I think every member of the U.S. Supreme 
Court sitting is a very fine judge, yes.
    Senator Blumenthal. And he said about Eisenstadt v. Baird, 
``I do agree with the result.'' You are unwilling to say that, 
and you are unwilling to say, as Chief Justice Roberts did 
about Griswold, ``I agree with the Griswold court's conclusion 
that marital privacy extends to contraception and availability 
of that.''
    Judge Gorsuch. Respectfully, Senator, I think we are 
splitting hairs, I really do, because I have told you quite 
clearly that both of those precedents are in the realm of 50 
years old, that they have serious reliance interests around 
them, that they have been repeatedly reaffirmed. And, Senator, 
what I have tried to do with respect to all precedents is treat 
them equally in my presentation before you, because as a judge 
I come at them equally. In my line of work, a precedent is a 
heavy, weighty thing, and it deserves respect as precedent, as 
part of our history.
    Senator Blumenthal. Well, we are doing more than, with all 
due respect, Your Honor, we are doing more than splitting hairs 
here, because words matter. And the words of Chief Justice 
Roberts and Justice Alito's were different than yours. Asking 
you to agree that these results were correct I think is a 
relevant and important question, and your declining to do so--I 
respect your reasons, but I think that it speaks volumes, with 
all due respect.
    Judge Gorsuch. Well, let me try it this way for you, 
Senator. Maybe this will help. The way I look at it is I do not 
come at these issues fresh. It is not whether I agree or 
disagree with any particular precedent. That would be an act of 
hubris, because a precedent, once it is decided, it carries far 
more weight than what I personally think.
    Senator Blumenthal. Well, let me ask you----
    Judge Gorsuch. The point of a precedent--I am trying to be 
as helpful to you here as I can be, Senator--is that it 
represents collective wisdom. And to say I agree or I disagree 
with a precedent of the U.S. Supreme Court as a judge, it is an 
act of hubris that to me just does not feel like a judicial 
function. For a judge, precedent is more important than what I 
think, and my agreement or my disagreement with it does not add 
weight to it. It is what it is.
    Senator Blumenthal. Let me ask you about Loving v. 
Virginia. As you know, it invalidated bans on interracial 
marriage under both the Equal Protection and Due Process 
Clauses. Do you agree with the result there?
    Judge Gorsuch. Seminal, important application of the 
principles recognized in Brown v. Board of Education, and a 
vindication again for the original meaning of the Equal 
Protection Clause, that all of us, every single person, is 
equal, and that we can all choose with whom we wish to live our 
lives without respect to race. It is one of the great moments. 
We visited some dark moments in Supreme Court history, and we 
visited some bright moments, Senator.
    Senator Blumenthal. And Lawrence v. Texas, which held that 
the Government cannot criminalize gay and lesbian 
relationships?
    Judge Gorsuch. That is a holding of the U.S. Supreme Court 
due all the way to precedent, Senator, as well.
    Senator Blumenthal. And would you agree that it overturned 
an incorrect decision?
    Judge Gorsuch. That is what it declared, Senator. That is 
the precedent of the U.S. Supreme Court.
    Senator Blumenthal. Do you agree?
    Judge Gorsuch. Senator, it is a precedent of the U.S. 
Supreme Court. I am going to give you the same answer every 
time.
    Senator Blumenthal. Well, I suspect you will. But let me 
just say that the answer that you have given leaves doubt in a 
lot of minds. To quote from a concurrence by Justice Kennedy, 
as well as Justice Souter and Justice O'Connor, and I am 
quoting, ``Liberty finds no refuge in a jurisprudence of 
doubt.'' Your declining to be more direct and give the same 
answer about these cases that you did about Brown leaves doubt 
in the minds of millions of Americans who rely on privacy 
rights. They are relying right now. And I think that doubt is 
regrettable.
    I want to ask you--I think I know the answer. Do you agree 
with the result in Roe v. Wade and Planned Parenthood v. Casey?
    Judge Gorsuch. Senator, I am drawing the same line that 
Justice Ginsburg drew, Justice O'Connor drew, Justice Souter, 
Justice Scalia. Many, many, many people who have sat at this 
confirmation table have declined to offer their personal views 
to this or that precedent, whether it is one side's favorite or 
another side's favorite, one side's least favorite, the other 
side's least favorite. We have gone back and forth today on 
precedents, which ones people like and do not like. And I 
understand that every citizen and every Member of the Senate 
have their precedents that they prefer personally and not. I 
understand that. I respect that. That is part of the process 
and our First Amendment liberties.
    But as a judge, as a judge, my job is to decide cases as 
they come to me. And if I start suggesting that I prefer or 
not, dislike this or that precedent, I am sending a signal, a 
hint, a promise, a preview, as Justice Ginsburg called it, 
about how I would rule in future cases where those principles 
from that case are going to be at issue, and all of these cases 
that we just discussed that are very alive with controversy, as 
you know, Senator, which is why you are asking about them. And 
for a judge to start tipping his or her hand about whether they 
like or dislike this or that precedent would send the wrong 
signal. It would send the signal to the American people that 
the judge's personal views have something to do with the 
judge's job.
    And the one thing I have tried to convey over the last 3 
days is that I do not believe that is part of the judicial 
function, and I do not believe that is what good judges do. And 
I have also said, Senator, and I believe this firmly, that once 
a judge starts committing, promising, hinting, previewing, 
forecasting, agreeing or disagreeing with precedent at this 
confirmation table, we are in the process then of campaign 
promises, and we are in that process, Senator, I fear, of 
judges having to make commitments, tacit promises, hints, 
previews, as Justice Ginsburg called it, in order to become 
confirmed. And once we do that, I am fearful for the 
independence of our judiciary.
    Senator Blumenthal. Well, just for the record, because I am 
out of time, I am not asking you to look forward to cases and 
controversies that may come before you. I am simply asking you 
whether you accept the basic core principles of the right to 
privacy that are articulated in those decisions.
    I apologize, Mr. Chairman, that I have gone over by a 
couple of seconds.
    Chairman Grassley. No, that is fine.
    Before Senator Crapo, we have a vote sometime between 4:45 
and 5:15. The exact time we do not know. But that would be a 
good time for us to have the break for to move to our closed 
session and then come back here, and whoever has not had their 
second round yet will get their second round. And then we will 
immediately go to the third round.
    Senator Crapo.
    Senator Crapo. Thank you very much, Mr. Chairman.
    And Judge Gorsuch, I want to go back to the issue you have 
just been discussing. First of all, to say that I respect your 
absolute resistance to being invited to put your personal 
opinions onto the issues that you will need to face as a 
Supreme Court Justice if you are confirmed. I appreciate it, 
and I respect it.
    The fact is that as now Justice Ginsburg said, if you can 
be pushed into giving hints about what your feelings are about 
the precedent of the U.S. Supreme Court decisions or other 
cases, then you will have violated what I think is an 
appropriate approach that a judge should bring to 
jurisprudence. And so I just wanted to tell you I appreciate.
    I know you are getting questions again and again and again. 
And you consistently make it very clear that you are leaving 
your personal opinions out of it, as a judge should do. So I, 
for one, want to tell you that I appreciate that and recognize 
it.
    That leads, though, to one of the issues that I wanted to 
return to with you. You and I talked about it yesterday, and in 
fact, you have talked to a number of Senators about it, and it 
is back again to the question of originalism and textualism. 
And I realize that it is hard to put labels on this issue 
because they do not really necessarily portray what it is we 
are trying to talk about.
    But the aspect of this that I would simply like you to 
discuss a little more in detail is the one really that Senator 
Feinstein started out with today. If it is--and I do not want 
to put words in your mouth. But if it is the approach that a 
judge or a Justice should take, that they look at the 
Constitution or a statute as it was written and try to 
determine what reasonable people would understand it, the words 
in the statute to mean, does that mean that somehow for all 
time in the future as society evolves and as science evolves 
and as circumstances develop that were not contemplated perhaps 
at the time the Constitution or the statutes were written, does 
it mean that we do not have a way to deal with applying those 
laws or the Constitution to new circumstances?
    And does that--if the answer to that is, no, there is a way 
to apply these laws and to interpret the Constitution, does 
that mean that we are somehow changing the Constitution, or 
what are the parameters of that entire concept? Could you 
discuss that a little more completely?
    Judge Gorsuch. Well, Senator, I--we have discussed this 
quite a lot. I am happy to try to do it again. But the job of a 
judge is not to make law, but to interpret the law and to apply 
the law as best as humanly possible. And one way to do that, we 
start with precedent. That is where we start. We do not 
reinvent the wheel. And we apply the precedent we like and the 
precedent we do not like because our personal views have 
nothing to do with our job.
    We apply all the precedent. And if you cannot do that, 
well, then you are in the wrong line of work. A judge's job is 
to apply precedent without respect to persons and without 
respect to their personal views.
    Then when we look at, say, an unanswered question where 
there is not precedent, for example, one thing a good judge 
will want to know is what the original understanding of that 
law was at the time. In the statutory context, I have talked 
about the fish case.
    Senator Crapo. Yes.
    Judge Gorsuch. In the Constitutional context, I have used a 
couple of cases that I think are good examples. One is the 
thermal imaging case, and the other is the GPS tracking device 
case. Those are some of my favorite teaching cases when I go 
talk to young people about these issues.
    And the point of them all is to demonstrate two things. 
That when we speak about the original understanding of the law, 
we are protecting due process interests. We are applying the 
law as we could expect a reasonable citizen, person in this 
country to have understood it.
    So that when I am putting a person in prison, for example, 
which we do as judges. We are complicit in that process. That I 
know I am putting that person in prison for something that they 
could reasonably be charged with knowing to be improper. Not 
something that comes from my heart, that I made up. Not my 
personal views, not what I like or dislike or agree with or 
disagree with. But what I can say that person should have 
known. That is the due process/fair notice value.
    And the other aspect of it is the separation of powers 
value that is behind this, which is, again, I can make a 
reasonable claim that I am declaring that the law is. A 
reasonable claim that I am not just doing politics. A 
reasonable claim that I am trying to interpret and apply rather 
than alter and amend the work of the people's representatives.
    For after all, this is a democracy at the end of the day. 
It is not an oligarchy of judges.
    Senator Crapo. I think that is an important distinction 
that you just made. You are trying to interpret and apply 
rather than to alter or amend the meaning of the Constitution 
or the words of the Constitution or the words and meaning of a 
statute. And to me, that is really the core issue here.
    That what I hear you saying is that your objective, whether 
it is called originalism or textualism or what have you, is to 
identify what a reasonable person would interpret the words in 
the Constitution to mean and not to say or to try to interpret 
it to mean what you think they should have said or written at 
the time.
    Which does not mean that you cannot apply those principles 
to new developments in society or in science. It simply means 
that you must interpret the words as they were intended and as 
reasonably understood. And if we are to change it, then there 
is a process for that to take place.
    Judge Gorsuch. That is right, Senator. And that process 
lies with the people's representatives for the amendment 
process, as we have discussed. Exactly.
    Senator Crapo. Thank you.
    One other question that I have in this round, and I do not 
intend to mean by that I will call for another round. But I 
would like to talk with you for a minute about the concept of 
independent agencies that you briefly discussed with Senator 
Sasse.
    As I understand independent agencies, they are basically 
agencies of the U.S. Government. They are in the executive 
branch, as you indicated, but they are independent. And there 
was--perhaps you could go through--you are aware, I am pretty 
sure, of the Myers case and then the Humphrey's Executor case?
    Judge Gorsuch. I am.
    Senator Crapo. I think you referenced the Humphrey's 
Executor case earlier. Could you just explain what those two 
cases tell us?
    Judge Gorsuch. Well, Myers initially suggested that--I 
think it is a fair reading to say that it cast doubt on the 
proposition whether there could be an agency whose head would--
would not be subject to removal by the President at will. And 
Humphrey's Executor overturned Myers and held that was, indeed, 
proper.
    Of course, the Court has more recently also reentered this 
area in the Peekaboo case and indicated that while one layer of 
for cause removal protection is appropriate, two layers crosses 
a line.
    Senator Crapo. Explain to me a little. I am not as familiar 
with the Peekaboo case.
    Judge Gorsuch. Sure.
    Senator Crapo. Exactly----
    Judge Gorsuch. So Humphrey's Executor says that you may 
have an agency, a multi-member agency where the head of it is 
removable only for cause. These are gross generalizations.
    Senator Crapo. I understand, and I ask you only to be 
general in your description.
    Judge Gorsuch. Right. And I am not signaling my agreement 
or disagreement with anything. I am trying to faithfully report 
to you the precedent of the U.S. Supreme Court.
    Senator Crapo. Understood. And that is the question I 
asked.
    Judge Gorsuch. And the Peekaboo case is a more recent case 
in which there were two layers of for cause removal. And the 
question was whether that was constitutionally permissible 
consistent with Article II and the statutory structure, and the 
Supreme Court said two layers is one too many.
    Senator Crapo. And what was the second layer? Was that 
congressional oversight?
    Judge Gorsuch. Two layers--no, two layers of for cause 
removal.
    Senator Crapo. Oh, I see.
    Judge Gorsuch. Yes, yes.
    Senator Crapo. So the notion is that even after the 
Humphrey's Executor and Peekaboo, there still are limits to the 
amount of independence that Congress can give to an agency?
    Judge Gorsuch. That is what the Peekaboo case basically 
says, yes.
    Senator Crapo. Well, I think I am going to leave it at 
that. There are a lot more aspects of that I would love to 
discuss with you, but obviously, the notion of understanding 
the importance of the three separate parts of Government that 
our Constitution created and the potential that this line of 
cases has of allowing Congress to create a fourth branch that 
is not responsible to either or maybe any of the other three 
branches is troubling to many of us.
    And so it is just an important area that I wanted to get 
your general understanding of. I will not ask you to opine on 
it or to give your personal opinions.
    Judge Gorsuch. I am grateful for that, Senator. It is--
Humphrey's Executor is a precedent of the U.S. Supreme Court, 
and you know, I understand that some people like it and some 
people do not.
    Senator Crapo. Understood. Like I said, I have a lot more 
questions, but I am not going to use up any more of your time 
or mine in this round.
    Senator Feinstein [presiding]. Thank you, Senator.
    Senator Hirono.
    Senator Hirono. Thank you, Madam Chair.
    Judge Gorsuch, it is good to see you again.
    Judge Gorsuch. Likewise, Senator.
    Senator Hirono. Despite the many hours that you have been 
before us, I still feel like there is much more we need to know 
about you and what kind of Justice you would be, and I still 
need reassurances that you will be the kind of Justice who is 
open to applying the law and the Constitution to protect the 
rights of the working poor, who are just one paycheck away from 
being homeless.
    Who understands the importance of ensuring that victims of 
discrimination cannot only ask for, but can also receive 
protections from our courts. And who demonstrates a commitment 
to the constitutional principles that protect the right of 
women to make the intimate and personal choice of what to do 
with our own bodies.
    So I would like to try again with you today. You painted a 
picture for us yesterday of the Court that is straight out of a 
Norman Rockwell painting. You said, ``One of the beautiful 
things about our system of justice is that any person can file 
a lawsuit about anything against anyone at any time. And a 
judge, a neutral and fair judge will hear it.''
    This is a wonderful idea that anybody can file a claim to 
protect their rights or interests and that those claims will be 
heard and ruled upon by neutral judges, apparently uninfluenced 
by their own strongly held and frequently expressed personal 
views and judicial philosophy.
    But of course, you and I both know politics and the courts 
are intertwined. In fact, you told us so in your 2005 National 
Review Online article, which was entitled 
``Liberals'N'Lawsuits.'' In that article, you wrote that as a 
result of Republican wins in the presidential and Senate 
elections, Republicans were in charge of the judicial 
appointment process. As a result, you wrote, ``The level of 
sympathy liberals pushing constitutional litigation can expect 
in the courts may wither over time, leaving the left truly out 
in the cold.''
    This shows you understand or at least recognize that judges 
appointed and confirmed by Republicans will have less sympathy 
for liberals pushing constitutional litigation, as you put it. 
I am profoundly troubled by this because I thought judges, as 
you described, make decisions divorced from their personal and 
philosophical leanings.
    So should justice depend on who won the last election or 
who is in charge of nominating and confirming judges?
    Judge Gorsuch. Senator, I appreciate the opportunity to 
answer that question because I have tried to make clear as I 
can over the last few days that I do not view my colleagues as 
Republican judges or Democrat judges. I view them as judges, 
and I believe that the courts are open to all persons.
    And I believe if you look at my record as a judge, as 
opposed to anything else, you are going to see that I have 
decided over 2,700 cases, that 97 percent of the time they have 
been unanimous, that 99 percent of the time I have been in the 
majority, that according to the Congressional Research Service 
at least, my opinions have attracted the fewest dissents of any 
Tenth Circuit Judge they studied.
    Senator Hirono. Judge Gorsuch, if I may?
    Judge Gorsuch. Those are--of course.
    Senator Hirono. And I am listening to your answer, and I am 
not getting a response to the question I asked, which was--I 
will ask it again. Should justice depend on who won the last 
election or who is in charge of nominating and confirming 
judges? And I think that requires a yes or no answer from you.
    Judge Gorsuch. And I do not think it does, Senator, as I 
have tried to express. I do not think--when you come to the 
Tenth Circuit, come to my court, I think it would be deeply 
wrong to suggest that it depends on who won the last election 
what kind of justice you are going to get in my court. It is 
not the way it happens.
    And I know the men and women of the Federal judiciary, and 
I know how hard they work, how lonely the job is often, how 
much criticism they attract from all sectors, and I know that 
when they wake up in the morning, they do so with one thing in 
mind, to be a fair and independent judge for each case that 
comes to him or her. That is what I know. That is what I have 
seen. That is what I have witnessed.
    I know the men and women of the Federal judiciary. I know a 
lot of them, and I admire them.
    Senator Hirono. So----
    Judge Gorsuch. And I do not think it matters whether they 
are Republican-or Democratic-appointed judges, no.
    Senator Hirono. That does not square with the view that is 
expressed in the article wherein you acknowledged that the 
people in charge of the judicial nomination and confirmation 
process will--or may result in, if it is the Republicans, less 
open to liberal views.
    So how do--how do your views in that article square with 
what you are telling me right now?
    Judge Gorsuch. Senator, I appreciate the chance to talk 
about that article again. We have chatted about it a few times 
the last couple of days. And as I have tried to explain, I made 
a couple of points there.
    First was that the courts have to be open to civil rights 
claims. They are very important for vindicating the rights of 
unpopular voices, minority voices, the least amongst us. That 
is what courts are for.
    But I also made the point that sometimes social issues, 
problems today are not best resolved in the courts because the 
courts have certain limitations. One, we are just not very good 
at making social policy. I have got four law clerks straight 
out of law school. With all respect to them, I love them, but 
they do not know a lot, all right?
    You have staffs for making social policy. This is the place 
of the people's representatives. We are not a democratic 
institution. We are life-tenured judges. I would not hire a 
bunch of life-tenured judges to run a country, with all 
respect, and call it good. There is a separation of powers.
    And so the point was--the other point I was trying to make 
there was, judges, somebody has to win and somebody has to 
lose. There is no room for compromise. Now one of the things 
this body is really good at, at its best, is compromise, right? 
That is what you do in legislation.
    Senator Hirono. Well, yes.
    Judge Gorsuch. Some, there is a give and a take, a pull and 
a tug, right? And----
    Senator Hirono. Judge Gorsuch?
    Judge Gorsuch. That is not present in litigation. So those 
are some of the points I was trying to make in that article.
    Senator Hirono. I believe I am trying to have more of a 
conversation with you, and in fact, I am glad that you 
acknowledge that judges are really bad at the compromises that 
result in legislation. So I actually have a question about that 
later.
    But you know, you drew a conclusion in your article about 
the impact of Republican wins in the elections, and I think 
that is--that was a really astute observation. It was a real 
world conclusion. And as we exercise our advise and consent 
role, the judicial philosophy of the judges who are nominated 
matters a great deal in determining what rights and whose 
rights are protected in the courts. As you say, there are 
winners and losers.
    So, Judge Gorsuch, you clearly understand that our 
political system has a tremendous impact on the courts. If not, 
we would have Chief Judge Merrick Garland before us, not you.
    You also understand the impact of politics on protection of 
our rights or, rather, again, as I said, on what rights and 
whose rights are protected. And again, in your 2005 National 
Review article, you admonish liberals for seeking to protect 
their rights in court rather than through the political 
process.
    And you wrote, in part, ``It would be a very good thing for 
all involved, the country and independent judiciary and the 
left itself, if liberals take a page from their own judges of 
the New Deal era, kick their addiction to constitutional 
litigation, and return to their New Deal roots of trying to win 
elections rather than lawsuits.''
    And of course, since you wrote your article, the Democratic 
nominee for President did win the popular vote in all three 
presidential elections, including the last one. So you describe 
the left as being addicted to constitutional litigation. But we 
all know, of course, on the right, we have seen well-funded 
groups looking for plaintiffs to bring lawsuits to advocate a 
corporate agenda, and there is little doubt----
    Let me just go over one example of the right looking for 
plaintiffs. In Friedrichs, conservative lawyers sought to 
challenge the 40-year-old rule established unanimously by the 
Supreme Court in Abood that all employers represented by a 
union, including those choosing not to join the union, must pay 
for their representation. Overturning Abood would 
unquestionably hurt unions.
    And the challenge to this 40-year-old precedent did not 
appear from nowhere. It was, in fact, invited by Justice Alito 
in his opinion on another case ruling against unions. And while 
the attempt in Friedrichs failed when the 4-4 Supreme Court 
left in place the Ninth Circuit decision, I am sure we will 
soon see another well-funded attempt.
    And in fact, there is little doubt that Justice Scalia or 
someone like Justice Scalia would have ruled against the 
teachers' union in that case, and it would have been a 5-4 
decision.
    In your article, why did you aim your criticism at the left 
and not to constitutional litigation from the right? What does 
that focus tell us about how you would assess such lawsuits if 
you are confirmed to the Supreme Court?
    Judge Gorsuch. Senator, I thank you for the opportunity to 
address that. As I have indicated I think probably five or six 
times in the course of these hearings, the last couple of days, 
I was agreeing with a self-described liberal commentator on his 
own assessment, a Washington Post columnist. I was agreeing 
with his assessment.
    And I also have explained that, and I explained 10 years 
ago when I was before this body last time, that I have seen 
plenty of examples on both sides and really across the 
ideological spectrum of lawsuits that maybe perhaps better 
belonged in front of legislators.
    Senator Hirono. Well, as I mentioned, I thought that was a 
very astute observation and agreement on your part that 
politics do enter into who becomes judges and who becomes 
appointed and confirmed.
    In fact, the Roberts court has issued numerous 5-4 
decisions in cases like Lilly Ledbetter, Citizens United, Hobby 
Lobby, in which corporate interests win out over individual 
rights, and clearly, the composition of the Court and identity 
of the fifth Justice, a Justice Garland versus a Judge Gorsuch, 
does matter a great deal in the real world.
    Your article reflects also a suggestion that the courtroom 
be used only for extraordinary cases. Now this does not square 
with what you told me yesterday that the beauty of our system 
is that anybody can file a claim and be heard. Who decides 
whether a claim is extraordinary enough to be--to seek justice 
in the courts?
    Judge Gorsuch. Senator, with respect, I do not recall ever 
using the words that the courtroom is only for extraordinary 
cases. That does not sound like me.
    Senator Hirono. It is in the article that I am talking 
about where you suggest----
    Judge Gorsuch. I would be surprised to hear that I said 
that courtrooms are only for extraordinary cases. I represent a 
lot of people in a lot of pretty ordinary cases as a lawyer. As 
a judge, I resolve a lot of pretty ordinary cases in the sense 
that they do not make a lot of precedent or do not get a lot of 
attention but matter deeply to the individuals involved.
    Senator Hirono. Judge Gorsuch.
    Judge Gorsuch. That is part of what a good judge does, part 
of what a lawyer does.
    Senator Hirono. I just read the article that I am quoting, 
and frankly, what you set forth in that article, 
``Liberals'N'Lawsuits,'' I think has definitely endeared you to 
the Heritage Foundation and the billionaires who recommended 
you for this position.
    Frankly, courts should not depend, of course, on who won or 
lost the election. It should depend on judges who understand 
that the law is there for all of us. And I do remain concerned 
about that is really how you view the law.
    When we look at the relationship between politics and the 
courts, I am deeply concerned about the decision the Court 
itself, the Supreme Court itself, has made which has tilted the 
political field so significantly. And this impacts both the 
laws we are able to pass and the composition of the Court that, 
in turn, is supposed to interpret and apply those laws in the 
cases that come before the Court.
    I am sure you are as familiar as I am with Justice Felix 
Frankfurter's famous admonition that ``courts ought to--ought 
not to enter this political thicket.'' But of course, there are 
times when the Court must do so, for example, to ensure one 
person, one vote.
    But courts also must be careful in doing so, getting into 
the political thicket. The Court's legitimacy itself is at risk 
when it strays too far into the political thicket, such as by 
deciding an election such as it did in Bush v. Gore.
    In the last few years, with the Citizens United and Shelby 
County decisions, we have seen the tremendous, in my view, 
damage the Court can do to our political process when it tilts 
the electoral process so heavily against ordinary Americans.
    And as we discussed yesterday in the 2010 Citizens United 
decision, the Court struck down bipartisan laws limiting 
campaign contributions that went back more than a century and 
opened a flow of money and potential corruption that has 
dominated our politics and drowned out the voices of ordinary 
Americans ever since. And in 2013, the Roberts court, in 
another narrow 5-4 decision in Shelby County, substituted its 
conclusions for that of Congress and gutted core protections of 
the Voting Rights Act, which were essential for the right to 
vote for millions of Americans.
    So taken together, these two decisions, Citizens United and 
Shelby County, have made it harder for millions of Americans to 
have their voices heard in our elections process and their 
votes counted at the ballot box. Since Citizens United, the 
floodgates have opened to unfettered corporate money in our 
elections. Since Shelby County, 13 States have enacted laws 
placing limitations on voting.
    And many of these are in the States that would have been 
prevented from passing such laws in the first place before the 
Court gutted the Voting Rights Act. And after Shelby County, 
they could pass such laws, and pass them they did.
    So given your clear understanding of the relationship 
between the political process and the courts, would you 
acknowledge that these decisions, Shelby County and Citizens 
United, have had an impact on our elections?
    Judge Gorsuch. Senator, they are precedents of the U.S. 
Supreme Court, and obviously, they have impacts.
    Senator Hirono. Would you acknowledge that elections have 
an impact on the composition of the Court?
    Judge Gorsuch. Senator, again, I would say that there are 
not Republican judges or Democrat judges. There are judges. In 
my experience, there are fair judges appointed by Republican 
Presidents and Democratic-appointed judges. And people surprise 
you from time to time, Senator.
    Senator Hirono. Well, clearly, elections have an impact on 
the composition of the Court because we have you. We do not 
have Judge Merrick Garland. So would you acknowledge that the 
composition of the Court influences the decisions that it 
makes?
    Judge Gorsuch. What do you mean by that, the ``political 
composition'' of the Court, Senator? I am sorry.
    Senator Hirono. No, the composition. I did not say 
political composition. Would you acknowledge that the 
composition of the Court influences the decisions that it 
makes?
    Judge Gorsuch. Well, I do think each individual Member of a 
court impacts a court in the sense that when I get a new 
colleague and an old colleague retires, there is a new dynamic 
with that new person. They bring with them fresh eyes from 
practice and maybe some new ideas, and maybe they also need 
some time to come up to speed in other things. Every person is 
different. I will acknowledge that, of course.
    Senator Hirono. So yesterday in response to my concerns 
about the impact of Citizens United, your narrow reading of 
OSHA, and your expansive view of the Religious Freedom 
Restoration Act, your answer was that Congress has latitude to 
act and legislate. But by tilting the political playing field 
so heavily to toward corporations and against individuals, has 
the Court not impacted the composition of who is in Congress 
and made it, therefore, even harder for Congress to take 
meaningful action to, say, pass laws to protect worker safety 
or the access of students with special needs to an education?
    Judge Gorsuch. Senator, the Supreme Court of the United 
States, I was not involved in these decisions that we are 
discussing. I was not there.
    Senator Hirono. However, they are precedent. They are being 
cited.
    Judge Gorsuch. They are precedent, and I have to follow 
them, and I respect them as precedent.
    Senator Hirono. Yes.
    Judge Gorsuch. Precedent of all kinds has impacts, of 
course, and it is obviously for this body, as the lawmaking 
body, to assess what it thinks of the impacts of any judicial 
decision and to legislate appropriately. And we do our job, and 
respectfully, Senator, the Congress does its job.
    Senator Hirono. Well, Judge Gorsuch, the Court is not an 
innocent bystander here. You have set forth a magical notion of 
what Congress can do and legislate. I wish you were right. I 
would love for all of us to be able to work together in a way 
that moves us forward for our entire country.
    And you did acknowledge yesterday that passing legislation 
is not easy. In fact, you acknowledged that today. For example, 
Congress, in passing the Voting Rights Act Reauthorization in 
2006, held 20 hearings and gathered over 40,000 pages of 
evidence. And yet the Supreme Court substituted its own 
judgment to sweep all that away, eliminating a core part of the 
Voting Rights Act, which Congress had concluded and experience 
in the last election has now proven was still needed.
    In doing so, this decision has had a real world impact, 
changing who gets to participate in the political process and, 
therefore, who gets elected and who has input in the kinds of 
laws that are passed and, indeed, who gets nominated to the 
Supreme Court.
    I yield 15 seconds, Mr. Chairman.
    Chairman Grassley. Thank you very much.
    What we would like to do, we have two people left. 
According to the message we got from the Senate, we will have a 
vote at 4:50 p.m. So I am hoping you two folks will get done, 
and if you ask questions that have never been asked before, we 
will get done really on time.
    [Laughter.]
    Senator Tillis. With you pointing that gavel at me, I am 
pretty sure I will.
    Chairman Grassley. And----
    Senator Leahy. That was a subtle hint from the Chairman.
    Chairman Grassley. So I would ask you two to finish, and 
then we will go vote at 4:50 p.m. or whenever you two are done.
    Senator Tillis. Yes.
    Chairman Grassley. And then we will reconvene, hopefully, 
by 5:20 p.m. in 226 for our closed session.
    Senator Tillis. Well, Mr. Chair, I hope to keep my streak 
alive by yielding back about 5 minutes in each of the prior two 
rounds.
    Chairman Grassley. Praise the Lord.
    [Laughter.]
    Senator Tillis. You know, we have heard a lot of 
discussions about precedent and past decisions, and there are 
clearly ones that some of the Members want to pick and choose 
that they like and ones that they want to pick and choose that 
they do not like. Do you have that option as a judge?
    Judge Gorsuch. I understand the impulse, Senator.
    Senator Tillis. Yes.
    Judge Gorsuch. It is a human impulse.
    Senator Tillis. Sure.
    Judge Gorsuch. And as the people's representatives----
    Senator Tillis. Yes, but do you have that option?
    Judge Gorsuch. I do not have that option, Senator.
    Senator Tillis. That is what I thought.
    Judge Gorsuch. I am a judge.
    Senator Tillis. That is what I thought. I mean, the law is 
the law.
    Judge Gorsuch. That is right.
    Senator Tillis. And you have got to follow it, and it has 
got to be instructive.
    Judge Gorsuch. That is right.
    Senator Tillis. Would you consider it an inappropriate 
question for me to get you to answer a question that would be 
in violation of the Code of Conduct for United States Judges? 
Would you consider that an inappropriate question?
    Judge Gorsuch. Senator, questions are not inappropriate. 
Answers would be inappropriate. I am the one who is bound by my 
Code of Conduct.
    Senator Tillis. You are a kind man. That is why I will 
never be nominated for the Supreme--well, there are a lot of 
reasons, but that is one of them.
    [Laughter.]
    Senator Tillis. You know, I--overnight I decided to go--I 
do not know why I do because reading press reports is a lot 
like roadkill. You try to avert your eyes, but then you go back 
and look at it. And so I looked at the roadkill of the 
overnight press, and of course, there were people saying you 
sidestep issues.
    These folks do not get it. You were following a Code of 
Conduct and you answered the questions to the best of your 
ability within the guidelines that you, as a judge, have. You 
are a Judge on the Tenth Circuit. And I think you did it well.
    So I think any reporter out there like the Lazy Blogger 
from McClatchy, who reported you sidestepping questions. You 
have not sidestepped a single one. You have answered every one 
to the best of your ability within the guidelines that you have 
as a sitting judge, and I appreciate you doing that.
    And I appreciate your consistency. There was never an 
instance over the course of these last 3 days where you 
wavered, and I, for one, am glad that you did that.
    You ever see the movie ``Jeremiah Johnson?''
    Judge Gorsuch. I have not, Senator.
    Senator Tillis. It is a great movie. It was filmed, I 
think, out in Utah, with Robert Redford, and I think Will Greer 
was the old codger. A lot of this discussion over the past 
couple of days reminds me of a great scene in ``Jeremiah 
Johnson.''
    Jeremiah and Will Greer meet up in the high country, and 
the old--I think his character was Bear Claw said, you know, 
``I hate skinning bears, but I do not mind hunting them.'' And 
Jeremiah Johnson was relatively new to the high country. He 
says, ``I am scared of hunting bears, but I do not mind 
skinning them.''
    So they go to bed at night with the understanding that Bear 
Claw would go out in the morning and that Jeremiah Johnson 
would stay behind and skin the bear once he got one.
    And early in the morning, there is this great sunrise, and 
Bear Claw is running through the woods, and right behind him is 
this huge brown bear. He runs up to the cabin. He jumps into 
the window. The bear jumps in with him. He runs out the front 
door and shuts it and says, ``There is one for you. I will have 
another one shortly.''
    [Laughter.]
    Senator Tillis. Well, that is what Congress is doing to the 
Supreme Court and to courts across this country. We are not 
properly hunting the bear. We are not living up to that 
expectation of actually producing a bear where we have taken 
care of the things that we should have before you had to skin 
it.
    Your job is to determine whether or not it passes 
constitutional muster, whether or not it passes the legal test 
based on decisions that we have made here. For example, in 
Hobby Lobby, you mentioned had the Affordable Care Act been 
exempted from RFRA, it probably would have produced a different 
result.
    Judge Gorsuch. One sentence in the statute.
    Senator Tillis. Yes. Well, you would think that the sponsor 
of the RFRA bill in the House, now Minority Leader Schumer, 
would have remembered that bill. It was a pretty consequential 
bill.
    So you would think that they would have taken the time if 
they wanted to exempt it. I believe he is a good attorney. He 
would have known that, and he would have exempted it. So they 
left you no other choice because they did not skin that bear if 
that is, in fact, what they wanted to do.
    Let me tell you another reason why not properly preparing 
the bear, the legislative outcome, is a problem. This morning, 
we heard about the case on children with disabilities that the 
Supreme Court decided this morning. It is a bittersweet moment 
for me.
    On the one hand, maybe it provides some level of comfort to 
families who have a child with autism and an opportunity to 
maybe put them in a private setting, a residential setting 
where they can get the care they need. On the other hand, the 
bear is not ready to be skinned because I know what is going to 
happen.
    What is going to happen in all but nine States that have 
actually had the courage and dealt with the opposition to come 
up with a way for a child with autism to have an IEP developed 
that the public school is not satisfying and have funds go to 
the private school, we have not given clarity to those other 41 
States. Parents are still going to have to fight. They are 
still going to be uncertain.
    Why? Because we have not done our jobs. If are serious 
about this issue, do our jobs. Not force you to do that.
    Because now what is going to happen, I am not an attorney, 
but I can pretty much guess what is going to happen in States 
that have not had the courage to take this issue on. In North 
Carolina, a lot of Democrats voted against the bill, because 
there are special interests that do not like opportunity 
scholarships or do not like public funds going to private 
schools for other reasons. Because they think other students 
will get access to it, and they are willing to hold these kids 
hostage when they know they need this help.
    Now in North Carolina, we have about 1,200 kids with 
disabilities who have benefited because we skinned the bear, we 
hunted the bear. You did not have to deal with it because we 
took affirmative action in the State legislature to do it 
right.
    Now what we are going to do is determine the consequences 
of this action of the Court taking the position they did that 
is in conflict with how you all ruled in Luke P. They are not 
going to know whether or not they can take the kid in. They are 
going to have to spend a lot of money probably fighting with 
the school system to ultimately get that child in the proper 
setting to be educated.
    They are still going to have uncertainty. They may have 
certainty about the legal view of this particular case, but 
they have no certainty about how they are going to help this 
child, how they are going to get them the education they need, 
how they are going to be able to generalize the skills they may 
learn in the classroom, but like in the case of Luke P., not 
have it transcend into the home setting.
    So we have not done anything good as a result of causing 
you all to do our job. In fact, you do not do our job well. 
Legislators are bad judges, and judges are bad legislators, 
just as you said.
    So we still have to fix that problem, and I do not think 
that it is a problem at all for you to say that we have an 
overweening addiction, liberals and conservatives, to 
constitutional litigation. Why do they do that? Because we are 
not doing our job. Because we are going off into our individual 
conferences and not coming to a consensus on something like 
education for children with autism.
    That is not a hard problem. It is one I solved. It is one 
my colleagues and I solved when I was Speaker of the House in 
North Carolina.
    So much of what we are talking about today, the five cases, 
out of all the cases that you have been involved in, are almost 
all rooted in the reality that we have not done our jobs. And 
we are just going, well, you know what, we will let the judges 
work it out.
    I do not want you to work it out because you cannot 
possibly work it out to the level of specificity that is 
required to give the little guy, that child that needs 
education, those parents who are living paycheck to paycheck, 
the certainty that they need to take care of these very, very 
difficult challenges.
    So we need to do our jobs. There is not--there is virtually 
no case that was brought up today that people took exception to 
your position, even when you were in the majority and writing 
the concurring opinion, that is not rooted in a lack of 
definitive action, bipartisan action, problem-solving action by 
this legislative body.
    And I, for one, think people should go back to these cases. 
I am not even going to go through them all. TransAm Trucking, 
Thompson v. Luke P., all of them where they are talking about 
they did not like your outcome. They did not like the 
legislative fix. It should have never required you to fix it.
    And this is something that I just remembered this morning 
or as Senator Hirono was speaking about politics. Was it 
Republicans or Democrats that passed a law in Colorado that was 
the subject of Riddle v. Hickenlooper?
    Judge Gorsuch. I do not know.
    Senator Tillis. You have no idea. But here is the thing I 
said last night. I do not think Senator Hirono was here when I 
said it. You managed to make a lot of people mad there. You 
exceeded your 50 percent threshold because you made Democrats 
and Republicans mad. Because it benefited them to some little 
guy, small party, startup sort of party effort in Colorado.
    I think the numbers defy the narrative that you are for the 
big guy, just by the sheer volume of cases that you have heard 
where there has been great consensus. So this whole narrative 
of you being for the big guy, are you not solving problems that 
we created?
    You know, I say oftentimes here, we have this tendency in 
Senate hearings to bring witnesses before us where many of 
their problems are rooted in decisions that past Congresses 
have made. And then we beat you until you bleed, and then we 
beat you for bleeding. And that is exactly what we are doing 
here.
    I think that we really need to look at ourselves and put a 
mirror down there and ask ourselves really a lot of the things 
that we are potentially criticizing you for your problem. They 
are our problem. We did not properly dispose of the bear before 
you were required to skin it.
    I am on the waiver here. So I will always be at the tail 
end of the Committee. No matter how senior I get in the Senate, 
I will still be here as long as I yield back at least 4 or 5 
minutes, and the chair supports me coming back on the 
Committee.
    I do not ask questions that have already been asked and 
answered satisfactorily. And I think you have done a good job 
of answering a lot of questions over the last 3 days. And I 
look forward to what I hope is the final round, and I look 
forward to supporting your nomination.
    Last thing. There is one thing that I think we do have to 
talk about in the third round, and that has to do with the 
disturbing trend that I see here of increased polarization. But 
I will wait and talk about that in the final round.
    And I yield back my 9 minutes and 1 seconds of time.
    Chairman Grassley. Thank you very much.
    Senator Kennedy.
    Judge Gorsuch. And I am going to watch ``Jeremiah 
Johnson.''
    [Laughter.]
    Senator Kennedy. Thank you, Mr. Chairman.
    I want to kind of choose my words carefully here. I have 
listened really carefully, and I think I have been here as much 
as anybody else has, if not more. But I still have some 
questions. I think--I think from my questions and from my 
comments, I have demonstrated pretty clearly I am very 
impressed with you, Your Honor, and I think you would make a 
great Supreme Court Justice.
    Some have criticized my friends on the other side for 
asking you how you would rule in specific cases. And I do not 
think that is an appropriate question. But if I am going to be 
honest, I would have to say I would love to know the answer to 
that, too. Because we live in a real world, and I can tell you 
my people, in selecting a President, who he was going to 
appoint to the U.S. Supreme Court was one of the main reasons 
that some of them voted for him.
    And I can assure you that if you are confirmed, and I think 
you will be, and you go on the Supreme Court--and I do not 
think this will happen, but it has happened before---and you 
act in a way unlike one could reasonably conclude you would act 
as if based on what you have said here. I do not know how to 
put it.
    If you went on the Court and started acting like Andy 
Kaufman or something, my clients are going to--I mean, my 
constituents are going to have something to say about it. So I 
do not want the fact that I am still asking you the questions 
to be misunderstood. But this is a big deal.
    I would like you to walk me through one more time how you 
would approach construing a statute. Let us suppose a State 
passes a law that says no law shall discriminate against people 
on the basis of eye color. I doubt that will ever come to the 
U.S. Supreme Court. I doubt a legislature will ever pass it.
    That is in front of you, and you have got to construe it. 
What is the first thing, what are the steps you go through?
    Judge Gorsuch. Senator, I understand entirely the desire of 
everyone to want to know the views that I might subscribe to 
personally and get me to make commitments about how I would 
rule in future cases. I understand it.
    Senator Kennedy. I am not asking you to do that, Your 
Honor. I hope you will understand that.
    Judge Gorsuch. I do, but I am--and I am not saying there is 
any improper questions. There are only improper answers. And as 
a judge, as a sitting judge, I am bound by canons of ethics.
    Senator Kennedy. Right.
    Judge Gorsuch. And I have tried to be as full and as open 
as I can possibly be, consistent with those canons. And those 
canons are important. They are important to me because if I did 
make a bunch of campaign promises here, what does that mean to 
the independent judiciary? What does that mean to the litigants 
in front of me? What does that mean for the future of this 
country?
    Those things are important to me, and there is a long line 
of judges who have come before me. And this is an unbroken 
chain, and I do not want to be the weak link.
    Senator Kennedy. I understand.
    Judge Gorsuch. That is important to me. In terms of 
statutory interpretation, you start with the text of a statute. 
You look at its plain words. You consider how a reasonable 
person would understand those words, the affected persons at 
the time. You look at them. They have a fixed meaning, and you 
try and apply it according to its plain meaning as best as you 
humanly can.
    Senator Kennedy. Plain meaning to whom, Your Honor?
    Judge Gorsuch. To the average----
    Senator Kennedy. To the lawmaker? To the people who have to 
comply?
    Judge Gorsuch. To the people who have to comply. To the 
average person, the public understanding.
    Senator Kennedy. Okay.
    Judge Gorsuch. Not a private understanding. We do not live 
back in Caligula's world. Thank goodness. Caligula, who posted, 
as I have indicated before, his laws so high in a hand so 
small, nobody could read them. He knew what they were, secret 
law. Ours is public law. That is our system, made by the people 
and their representatives, a government by the people, for the 
people.
    And a judge's job is not to become a legislator and rewrite 
it and fix the problems in it.
    Senator Kennedy. What if the words are unclear?
    Judge Gorsuch. If the words are----
    Senator Kennedy. Well, let me stop for a second. I 
apologize for interrupting, but I am probably going to be 
cutoff here in a second. Suppose the words are clear. Do you 
just stop?
    Judge Gorsuch. You stop. You are done. Well, unless you 
have a constitutional difficulty. You are talking about a 
statutory interpretation case, though. So I am assuming we are 
just dealing with statutory interpretation, and if the words 
are clear, you stop.
    Senator Kennedy. Would you not want to go take a look at 
the legislative history just to make sure that you are right 
that the words are clear?
    Judge Gorsuch. Senator, the Supreme Court of the United 
States precedent is quite plain on this very point. If the 
words are plain, you stop.
    Senator Kennedy. In determining whether the words are 
plain, and look, I am not about to--I am not about to debate 
Supreme Court precedent with you. I will lose handily. But I 
have read a number of cases that also say it is okay for a 
judge to take a look not only at the plain meaning of the 
words, but that legislative history is appropriate. It is not 
dispositive of what the statute means, but it can be helpful.
    And it is also okay for a judge to look at a statute and 
try to imagine what problems the legislative branch was trying 
to address. And the example I gave last night, admittedly it 
was late and we were both tired, but I would love, and I will 
bet you, you would, too--strike that. I should not have said 
that. I will bet many people would love to have a transcript of 
the Constitutional Convention that drafted our Constitution.
    Now if a Member of that convention made certain comments, 
and they were written down and we had a transcript, you could 
not go to his comments and say, well, he must speak for the 
whole convention. That would not be right. That is a failing of 
legislative history. But you are sure--if Benjamin Franklin 
said it, you would want to know it.
    And that is the case where the legislative history or the 
problems that the drafters were trying to address could have an 
impact. Do you think if a statute is clear you should never 
look at that?
    Judge Gorsuch. Senator----
    Senator Kennedy. That is honestly a question, not a 
suggestion.
    Judge Gorsuch. And I take it that way, Senator, and I am 
answering it not from my personal preference, but from a matter 
of precedent. And the Supreme Court of the United States 
precedent on this is plain, happily. This one I can give you. 
If the statute is clear, that is the end of the interpretive 
exercise for a court, period. Period.
    You are correct that if there is an ambiguity in the 
statute, then a court will look to other tools, canons of 
construction, perhaps the legislative history. There is debate 
over how valuable that is that we have all discussed several 
times in the last few days and the value and some of the issues 
associated with that.
    I respect very much the work of this body. When I am a 
judge, I like to get every scrap of information anybody wants 
to put in front of me. I read it all. I take it all seriously.
    There are problems we have discussed with perhaps too much 
reliance on legislative history, the due process issue. I think 
that we have discussed the Caligula problem.
    Senator Kennedy. Right.
    Judge Gorsuch. The fair notice problem.
    Senator Kennedy. Right.
    Judge Gorsuch. The bicameralism and presentment issues we 
have discussed and separation of powers. It is not the law. But 
you look at everything somebody gives you. A judge does not 
say, ``Ah, I am not going to read that brief today because I do 
not like the color of the brief.'' You know, it should be a 
lighter shade of blue. You know, I look at all material put 
before me.
    But when the statute is plain, Senator, the precedent of 
the United States says to the judge stop.
    Senator Kennedy. And when it is not plain, which I think is 
oftentimes the case--well, many times the case, we can probably 
agree on that. If Senator Tillis or Senator Coons or Senator 
Franken passed a bill, and it is not clear, then would it ever 
be appropriate for a judge to say, okay, it is unclear. I am 
going to take a look at legislative history, but I am also 
going to try, through looking at the legislative history, try 
to understand what was the problem they were trying to solve.
    Is that ever appropriate?
    Judge Gorsuch. Senator, I am not sure what you mean by 
that, to be honest with you.
    Senator Kennedy. Well, why did they pass the statute? Would 
you ask yourself why did they pass the statute?
    Judge Gorsuch. Well, one concern I have with that 
enterprise is I have a very difficult time getting in the head 
of anyone else. And trying to get in the head of 535 of you, 
plus a President, well, frankly, Senator, that is often beyond 
me.
    Senator Kennedy. Okay. Let me switch to another subject, 
the Third Amendment. I do not remember the language. It is 
quartering troops. It has not gotten a lot of attention, and 
there has not been a lot of jurisprudence on it.
    But some think that it has privacy implications. Have you 
given any thought to that?
    Judge Gorsuch. Senator, I think it does suggest, hey, my 
house. You got to--is off limits to your troops. There is a 
privacy implication in there. Yes, I do.
    Senator Kennedy. Okay.
    Judge Gorsuch. Yes, yes.
    Senator Kennedy. I think Justice Douglas cited it in either 
Griswold or one of the privacy line of cases.
    Let me ask you this. I want to talk to you a second about 
State action. I do not need to tell you, you know better than I 
do, the Bill of Rights protects us against government. Some 
State constitutions have bills of rights that actually 
establish our rights vis-a-vis each other as individuals, but 
the Federal Bill of Rights does not do that. It is our 
protection against government.
    What is your feeling about the State action? What do you 
understand a State actor to be?
    Judge Gorsuch. Senator, you are going to have to help me 
out. In what context are we talking about here? State action 
requirement is--the protections of the Bill of Rights are as 
against the State.
    Senator Kennedy. Right.
    Judge Gorsuch. Against the Government.
    Senator Kennedy. Right.
    Judge Gorsuch. Yes.
    Senator Kennedy. Right.
    Judge Gorsuch. If that is what you were getting at, yes.
    Senator Kennedy. Yes. If----
    Judge Gorsuch. They are rights as against the Government. 
They are protections as against the Government.
    Senator Kennedy. But sometimes there are entities that are 
alleged to be acting in the shoes of the State, agents of the 
State.
    Judge Gorsuch. Ah, yes. Yes. That is an interesting 
problem, right? Because Congress today has created a 
multiplicity of arrangements, and is it government or isn't it 
government is actually a question that arises from time to 
time. And if you would like a look at what I have written in 
the area, I might refer you to U.S. v. Ackerman, another case 
where I ruled for the little guy maybe, if you like.
    And it had to do with whether the National Center for 
Missing and Exploited Children is a governmental entity. And 
the line of cases in the Supreme Court goes all the way back to 
Dartmouth College case, and it is a fun read in terms of the 
Dartmouth College case. What qualifies as a governmental 
entity?
    The Supreme Court of the United States recently struggled 
with the issue in the context of Amtrak. So there are questions 
around this area as to what is government and what is not. Very 
important. Because if something qualifies as government, it has 
to square its corners under the Constitution and the Bill of 
Rights, of course.
    So, for example, in the Ackerman case, if NCMEC is a 
governmental entity, it needs to comply with the Fourth 
Amendment. You cannot invade--cannot invade personal privacy 
without complying with the warrant requirement, for example. 
Yes, so there are very important questions as to what is and 
what is not a State actor.
    Senator Kennedy. Yes. Well, I want to be clear for the 
record. You mentioned the little guy, and I know that has come 
up a lot. And everybody is entitled to their own opinion. I was 
taught justice is blind, and it does not matter whether the 
party, it does not matter its wealth or its status or its 
power. You decide cases on the basis of the law.
    I mean, Lady Justice is wearing a blindfold. So I agree 
with you completely on that, and I understand the other point 
of view, but I do not agree with it.
    Your book on euthanasia. Could you, kind of like you are 
talking to a Tenth grader, give me a summary of your thesis in 
your book?
    Judge Gorsuch. I can try, Senator. I find it a very hard 
issue. It is one every American has deep, understandable views 
about. It concerns the end of life.
    Chairman Grassley. I am going to ask if you can pull the 
mike just a little bit closer.
    Judge Gorsuch. Oh, I am sorry. Of course. I apologize. The 
end of life, which we all face.
    Senator Kennedy. Yes.
    Judge Gorsuch. It is a problem all of us face. And it is a 
book in which I struggle with the end of life issues that we 
all face and how we as a people might consider resolving them. 
I wrote it before I became a judge, as a commentator with my 
thoughts as an individual, not as a judge.
    Senator Kennedy. Well, what I read of it, as I told you 
last night, I did not read the whole thing. But I read parts of 
it. It is very well written, and it is something that we all 
have to deal with and we all think about.
    Judge Gorsuch. Yes, and I do not--I appreciate you having 
read some of it. I expect until about a month or two ago, it 
had not been exactly widely read.
    Senator Kennedy. I have a feeling it is now, Your Honor.
    Judge Gorsuch. Well, I expect it will make a good doorjamb 
for most folks. But I conclude that there is a very important 
interest in being left alone at the end of life and that there 
is an understandable and appropriate zone of privacy there that 
we need to respect. And we have all experienced it when parent 
or grandparent wants to go home, had enough. It is time.
    Senator Kennedy. And your thesis, once again--not to re-
plow old ground, but I want to be sure I understand--is not 
based on religion?
    Judge Gorsuch. Goodness, no, Senator.
    Senator Kennedy. It is secular. It is based on your secular 
moral values.
    Judge Gorsuch. Well, it is not even my--it is an attempt to 
work through----
    Senator Kennedy. I do not mean to imply they are yours. It 
is based on not your--your thesis is based on secular moral 
values.
    Judge Gorsuch. Yes.
    Senator Kennedy. That once you cheapen life, once we become 
desensitized to taking life, it is easier to take the life of 
those who are less powerful than you and I.
    Judge Gorsuch. Senator, that is one worry I expressed, and 
that the difference between refusing treatment and killing 
people raises with it questions about what happens to the least 
amongst us.
    Senator Kennedy. Yes.
    Judge Gorsuch. The vulnerable, the elderly, the disabled. 
And I do not profess to have the final answer here. I am not a 
philosopher king. But I do know that when you have a more 
expensive option and a cheaper option, those who cannot afford 
the more expensive option tend to get thrust into the cheaper 
option.
    Senator Kennedy. Yes.
    Judge Gorsuch. And so those are some of the concerns I 
worked through. It is a long book. It is complicated, and I do 
not profess to have the right final or complete answer. I 
hoped, at most, to contribute to a discussion on an unanswered 
social question where all people, and I do think all people 
have a good faith interest in trying to reach some consensus 
socially on it.
    Senator Kennedy. Well, it was well written. What I read of 
it was very well written. It got you an Oxford DPhil. It was 
your thesis, was it not?
    Judge Gorsuch. More or less.
    Senator Kennedy. Yes. Well, it got you an Oxford DPhil. 
That is pretty good.
    How am I doing, Mr. Chairman?
    Chairman Grassley. You have 2 minutes and 31 seconds.
    Senator Kennedy. Okay. I am going to yield back my time.
    Thank you, Your Honor.
    Judge Gorsuch. Thank you, Senator. I appreciate it.
    Senator Kennedy. I appreciate it very much.
    Chairman Grassley. We just got notice on our iPhones that 
the vote is starting right now. So we will recess now, and we 
will reconvene in 226 for probably, I would guess, a half hour, 
depending on how long the discussion goes on.
    And then we will come back here, and we will start with the 
third round. And I hope not everybody takes a third round, and 
I hope everybody will try to stay in less than 15 minutes.
    Thank you very much. Judge, the time is yours for a while.
    [Recess.]
    Chairman Grassley. I want everybody to know that I normally 
do not start until the Ranking Member is here, but I can go 
ahead because of other things that she is going to be doing for 
a while.
    Judge, we are starting out for a third round. As I said, I 
hope everybody cannot exceed 15 minutes, and hopefully shorter. 
I want to lead by example for how much time I take. It will be 
a lot less than any of that. I am going to ask you, Judge, 
about a dozen questions that really you can answer ``yes'' or 
``no,'' and then I will yield back my time.
    I want to give you a hint that all of these questions can 
be answered by ``yes.''
    [Laughter.]
    Chairman Grassley. In Ute Indian Tribe, am I right that you 
held that a country's prosecution of a Tribal Member for action 
taken on Tribal land caused irreparable injury to Tribal 
sovereignty?
    Judge Gorsuch. Yes.
    Chairman Grassley. In Fletcher v. U.S., did you rule that 
Members of another Tribe had a legal right to demand an 
accounting from the Secretary of Interior for funds the 
Government held in trust?
    Judge Gorsuch. Yes.
    Chairman Grassley. In Cook v. Rockwell, did you rule that 
plaintiffs had the right to pursue tort claims against a 
nuclear weapons manufacturing plant for committing 
environmental crimes?
    Judge Gorsuch. Yes.
    Chairman Grassley. In United States v. Magnesium, did you 
reinstate a lawsuit against a corporation alleged to have 
violated anti-pollution laws?
    Judge Gorsuch. Yes.
    Chairman Grassley. In Energy and Environment Legal 
Institute, did you uphold a Colorado law requiring that a 
certain amount of electricity sold come from renewable sources?
    Judge Gorsuch. Yes.
    Chairman Grassley. In Orr v. City of Albuquerque, did you 
hold that the pregnancy discrimination claims of two female 
police officers deserved a trial?
    Judge Gorsuch. Yes.
    Chairman Grassley. Did you in two cases affirm a finding by 
that the Department of Labor's Benefit Review Board that 
retired miners were entitled to Black Lung benefits from their 
employers?
    Judge Gorsuch. Yes.
    Chairman Grassley. In Casey v. West Las Vegas Independent 
School District, did you hold that a former school 
superintendent could take her claims for retaliatory discharge 
to trial?
    Judge Gorsuch. Yes.
    Chairman Grassley. In Crane v. National Science Foundation, 
did you hold that an academic employee had been wrongfully 
terminated from his university position without appropriate 
findings of fact?
    Judge Gorsuch. Yes.
    Chairman Grassley. In Browder v. City of Albuquerque, did 
you deny qualified immunity to police officers who wrongfully 
arrested a seventh grader for making fake burps in a gym class?
    Judge Gorsuch. I voted that way, yes, in AM v. Holmes.
    Chairman Grassley. In Blackmon v. Sutton, did you deny 
qualified immunity to staff at a juvenile detention Senator for 
using a restraining chair to punish a pretrial detainee?
    Judge Gorsuch. Yes.
    Chairman Grassley. Those are just a few examples of cases 
where you have ruled in favor of what I would call the little 
guy. But I have one last question. I think that whether you 
rule for or against the little guy or the great big guy is not 
the real question. The real question is whether you apply the 
law faithfully. Would you agree with me on that point?
    Judge Gorsuch. I can tell you I tried my best.
    Chairman Grassley. I yield back my time, which will be 11 
minutes and 33 seconds, and encourage my colleagues to do the 
same.
    Senator Durbin.
    Senator Durbin. Thank you, Judge. We have asked previous 
nominees for the Court about their experience in private 
practice and the pro bono work that they have done. Could you 
tell us briefly what pro bono work you have done as a private 
lawyer?
    Judge Gorsuch. Oh gosh. Senator, over the course of my 
career, it would be varied at different points in time, 
different things. As a judge, I have done a lot of work on the 
Rules Committee. I have done a lot of work trying to make 
litigation faster and cheaper together with colleagues. I do 
not deserve a ton of credit. A lot of--we work by consensus on 
the Rules Committee.
    The Capital Habeas Project, again, was a collegial effort. 
Before that I would point as--you know, I spent time at the 
Department of Justice. That is not pro bono work, but it is 
public service. As a private lawyer, we did all sorts of 
different things. We would modify our fee arrangements. We 
would do contingent arrangements. We waived our fee 
arrangements.
    Senator Durbin. Did you ever represent, either pro bono or 
otherwise, an unpopular or notorious client?
    Judge Gorsuch. I would think a lot of my clients would have 
been considered unpopular, Senator, and notorious is in the eye 
of the beholder. But certainly, people who were accused of 
crimes, people who were involved in what might be considered 
scandals. Yes, Senator, without revealing any attorney-client 
information, yes.
    Senator Durbin. Of course. I want to ask you about an email 
you sent at Justice. The subject line was ``Elite Law Firm Pro 
Bono Work for Terrorists,'' and you included an article about 
conservatives criticizing lawyers who were representing 
Guantanamo detainees and a list of their law firms.
    You sent this email to someone working on this Committee, 
and you said, ``I thought you might find this of interest. It 
seems odd to me that more has not been made of this. See 
especially the list of firms below.'' This was one of several 
emails you sent criticizing and drawing attention to lawyers 
representing Guantanamo detainees.
    Chief Justice John Roberts when he appeared before this 
Committee was asked about the fact that he had represented some 
unpopular clients, and said--here is what he said: ``Our 
Founders thought they were not being given their rights under 
the British system to which they were entitled, and by 
representing the British soldiers, John Adams helped show that 
what they were about was defending the rule of law and not 
undermining it. And that principle that you do not identify the 
lawyer with the particular view of the client or the views that 
the lawyer advances on behalf of a client is critical to the 
fair administration of justice.''
    So, for the record would you put in perspective any 
comments that you made about people representing Guantanamo 
detainees?
    Judge Gorsuch. Senator, my friend, Neal Katyal, who 
introduced me, successfully represented some of those 
detainees, and I have nothing but admiration for those lawyers. 
And the email you are referring to is not my finest moment, 
blowing off steam with a friend privately. The truth is I think 
my career is better than that.
    And when I have seen individuals who have needed 
representation as a judge, and I have got handwritten pro se 
filings, and I have seen something that might have merit in it, 
I picked up the phone and I have gotten a lawyer for that 
person. When I have seen lawyers who are not representing even 
undocumented aliens appropriately, I have done something about 
it.
    So, I would like to think that my career taken as a whole, 
Senator, represents my values appropriately.
    Senator Durbin. Thank you. Thank you, Judge. Thank you, Mr. 
Chairman.
    Chairman Grassley. Okay. Senator Flake.
    Senator Flake. I yield back the balance of my time and 
encourage my colleagues to do the same.
    [Laughter.]
    Chairman Grassley. Okay. Senator Whitehouse.
    Senator Whitehouse. Good luck with that.
    [Laughter.]
    Chairman Grassley. The chair did not encourage him to do 
that, but I surely did not discourage it.
    Senator Whitehouse. Well, let me start by paying a 
compliment to our Chairman. I think that he has handled these 
hearings in a very gracious way. He has given us a great deal 
of time and leeway. And whatever our opinions might be about 
the suitability of the nominee, and obviously that is as yet 
undetermined for many, I think we can agree that the Chairman 
has done a thoughtful and good job. And I appreciate the way in 
which this has been managed.
    Judge Gorsuch, this is probably the last time you will pay 
attention to me.
    Judge Gorsuch. Do not count on that, Senator.
    [Laughter.]
    Senator Whitehouse. I am not likely to appear before the 
Court unless things should change fairly dramatically.
    [Laughter.]
    Senator Whitehouse. So, there are just a few things that--
--
    Judge Gorsuch. Now, that would be interesting.
    [Laughter.]
    Judge Gorsuch. You know, I have had Senator Lee in my 
courtroom.
    Senator Whitehouse. Yes? And I have argued in the Supreme 
Court, but some time ago. I wanted to tell a story to you need 
to follow-up a little bit on our conversation where I was 
trying to draw an analogy between anti-competitive controlling 
economic power and anti-competitive controlling political 
power.
    I was elected to the Senate in 2006. I was sworn in in 
2007. For the first 3 years that I was here--2007, 2008, and 
2009--there was constant Republican activity on climate change 
in the Senate. During that period, the Republican candidate for 
President even had a robust climate change platform, and there 
were probably four or five separate bills that had Republican 
co-sponsors.
    I was on the environment Public Works Committee where 
Senator Warner--John Warner of Virginia, a Republican, had a 
bill. Senator Susan Collins had a bill with Senator Cantwell. 
Senator Alexander had a bill. I think Senator Graham was even 
working on one. There were a considerable number of them. We 
did not have agreement on that issue yet, but there was 
activity. People were talking. The legislative process was 
going forward.
    The Citizens United decision was decided in January 2010. 
The fossil fuel industry asked for that decision to be 
rendered, expected it to be rendered, and moved incredibly 
rapidly to take advantage of its new opportunities. And from 
that moment forward there has not been a single comprehensive 
piece of legislation with a Republican co-sponsor related to 
carbon dioxide emissions.
    That industry is defending, according to the International 
Monetary Fund, a $700 billion a year subsidy. So, the amount of 
weight they can throw behind trying to stop any effort to 
interfere with their current status quo goes beyond almost any 
reasonable number to spend in politics.
    So, just bear that in mind as you go forward that, in my 
view, Citizens United did not expand debate in the public 
sphere, particularly on that issue. It actually allowed 
powerful special interests to squash public debate, and I think 
the conduct of the Senate proves that point. So, take that for 
what it is worth, but I think if you look at it at some point, 
you will find that what I am saying is accurate.
    The second thing that I wanted to touch on is the jury. A 
great number of the decisions that I listed in that 16-to-90, 
corporate v. human, 5-to-4 array that the Supreme Court has 
decided recently had the effect of limiting access to a jury, 
did it with raising pleading standards, did it with limiting 
class actions, did it with encouraging mandatory arbitration.
    To me, the civil jury matters quite a lot. To the Founders, 
it was one of the casus belli of the Revolution. They took it 
terribly seriously. Hamilton described it as one of the 
absolute pinnacles of what we needed. Adams described the 
popular vote and the jury as the heart and lungs of liberty. 
So, this was a big deal.
    De Tocqueville described the civil jury as a political 
institution. He meant that in the best possible way.
    Judge Gorsuch. Right.
    Senator Whitehouse. It was part of our polis, part of the 
way in which the public had the chance to participate in making 
decisions. He called it part of the sovereignty of the people. 
Blackstone, who was probably the single jurist who most 
educated the founding generation, said that ``The civil jury is 
what prevents the encroachment of the more powerful and wealthy 
citizens.''
    So, you have a Constitution, a great deal of which is 
dedicated to protecting the individual from the power of 
government and the power of the State, and to dividing up the 
power of government and the State so it does not unify and 
crush individual behavior, or dreams, or wishes. This 
institution is the one that was designed to protect the 
individual against other more powerful and wealthy citizens. 
And in this world, our most powerful and wealthy citizens are 
these ginormous corporations, ones that collectively in the 
fossil fuel industry enjoy that $700 billion per year subsidy.
    So, I would urge that as you consider this array of cases 
that chips and chips and chips and chips away at the civil jury 
access that regular Americans have, particularly where it 
involves big corporations because they are the ones who can 
force mandatory arbitration on people, for instance, they are 
the ones who tend to be the victims of class action suits, for 
instance, that you bear that in mind.
    Are you sensitive to that so-called political institution 
of the civil jury, and do you agree with me that it has a role 
in defending the little guy against the more powerful and 
wealthy citizens?
    Judge Gorsuch. Senator, I have talked a lot about the 
Seventh Amendment over the last 3 days. Quite a lot. I am a 
believer in the civil jury system, and I do not know whether it 
is the very bulwark of liberty or the palladium of liberty.
    Senator Whitehouse. You have got the Hamilton quote. Good 
for you.
    Judge Gorsuch. All right?
    Senator Whitehouse. Yes.
    Judge Gorsuch. They debated that----
    Senator Whitehouse. Yes.
    Judge Gorsuch. Which one it was.
    Senator Whitehouse. Yes.
    Judge Gorsuch. But I am a big believer in it. I spent a lot 
of time in the trial trenches of the law. I saw the value of 
the jury system. And, yes, Senator I am a big believer in civil 
juries.
    Senator Whitehouse. Good.
    Judge Gorsuch. And my record proves it.
    Senator Whitehouse. Stick with it because it is going away 
unless the judiciary breathes a little bit of life into it. And 
at the moment, I think the Supreme Court is leaning the 
opposite way.
    The last thing I want to ask you has to do with an email 
that you sent back in some time ago, but I think you will 
remember it. Back in February 2006, the scene was Attorney 
General Gonzales' testimony to this Committee with respect to 
the terrorist surveillance program.
    Judge Gorsuch. Okay.
    Senator Whitehouse. It was the testimony that led to the 
Department of Justice Inspector General investigation. And I 
have the declassified version of it here which found that the 
Attorney General's testimony was incomplete and confusing, and 
that it was confusing, inaccurate, and had the effect of 
misleading those who were not knowledgeable about the program, 
which was obviously all of us because it was a classified 
program, and we had not been read into it.
    On this day when the Attorney General of the United States 
was giving misleading, confusing, and inaccurate testimony to 
this Committee, you emailed back to Kyle Sampson and William 
Machella, ``I think the AG is doing a really nice job today. He 
is running circles around the Committee Members.'' Now, running 
circles around the Committee Members worries me a little bit in 
the context of testimony that proved to be incomplete, 
misleading, inaccurate, and was criticized as such by the 
inspector general of the Department of Justice.
    Do you recall when you sent that memo what you knew about 
that testimony, and when it was that you came to realize that 
Attorney General Gonzales' testimony was inaccurate and 
misleading to this Senate Committee?
    Judge Gorsuch. Senator, someone shared that email with me 
this morning, and I looked at it. I do not have an independent 
recollection of it sitting here 11 years later, whatever it is. 
And to my knowledge I did not have any classified information 
at that time that----
    Senator Whitehouse. I gather that you did help him prepare 
that testimony.
    Judge Gorsuch. Senator, I did as a speechwriter work from 
public materials.
    Senator Whitehouse. As we know, Director Comey and others 
subsequently testified to all of the drama that surrounded 
that, which was the subject of why--that was the reason that 
this was misleading and inaccurate. There was the confrontation 
in the Attorney General's hospital room. There was the mad dash 
running up the stairs to try to beat White House counsel to the 
Attorney General's bedside.
    I think either Mullen or Comey testified it was the only 
time that they had ever used their sirens to try to get 
someplace fast, and it had kind of creepy Third World 
overtones, and people, you know, rushing to get to the bedside 
of the stricken Attorney General before a White House counsel 
could do mischievous things. So, it was very significant when 
it ultimately came out.
    Do you recall what you knew that day or at the time that 
you were preparing the Attorney General's testimony?
    Judge Gorsuch. That is a----
    Senator Whitehouse. Had those events taken place, and were 
you aware of them? It must have been the talk of the Department 
if they had happened.
    Judge Gorsuch. Senator, a fair question, and to my 
recollection sitting here, I found out about those things when 
everybody else did.
    Senator Whitehouse. The famous Schumer-Comey hearing.
    Judge Gorsuch. Whenever it came out publicly, Senator. I 
was not----
    Senator Whitehouse. You were not read into it, and you had 
not heard about the excitement in Attorney General Ashcroft's 
hospital room.
    Judge Gorsuch. That is my recollection, Senator.
    Senator Whitehouse. Okay. Very well. Thank you.
    Judge Gorsuch. Thank you.
    Senator Whitehouse. You are going to love hearing this, Mr. 
Chairman. I yield back my time.
    [Laughter.]
    Chairman Grassley. Senator Sash--Sasse.
    Senator Sasse. I will go with ``Sash.'' That is all right, 
Chairman.
    [Laughter.]
    Judge Gorsuch. I am ``Grouch,'' so what the heck?
    [Laughter.]
    Senator Sasse. Judge, can we talk a little bit about the 
Ninth Amendment?
    Judge Gorsuch. Absolutely.
    Senator Sasse. It reads, ``The enumeration in the 
Constitution of certain rights shall not be construed to deny 
or disparage others retained by the people.'' What does that 
mean?
    Judge Gorsuch. Well, Senator, I think it means what it 
says. The Ninth Amendment has not been much interpreted by the 
Supreme Court. There are different views about its effect and 
its meaning, and I do not doubt that there will be cases and 
controversies in which I would, if confirmed, and maybe even if 
I am not, asked to construe the meaning of that. It is one of 
those amendments that has not had a lot of judicial attention. 
We have talked about some others.
    Chairman Grassley. There is a publication in 1950 I read 
called ``The Forgotten Ninth Amendment.''
    Judge Gorsuch. Right. Right.
    Chairman Grassley. Well, that is 60 years ago, and it was 
forgotten then.
    Judge Gorsuch. Well, Senator Lee has written a book that 
includes some discussion of this as well.
    Senator Sasse. Judge Bork referred to it at one time as an 
ink blot, seemingly implying that it could just be ignored. Is 
there any precedent that we need to know about to understand 
the Ninth Amendment as it comes down through the courts?
    Judge Gorsuch. There are amendments that have been less 
interpreted and more interpreted. The Ninth Amendment is one of 
those that has been less interpreted, Senator.
    Senator Sasse. What is the best way to understand how the 
Constitution divides power between the Federal Government, the 
States, and the people? And, in particular, how do we know 
whether or not some power that has not been specifically 
enumerated and given to the Federal Government since the people 
give the Government power? The Government does not give us 
rights. The people gave the Federal Government certain 
enumerated powers. If it is not enumerated, how do we know if 
it belongs to the States or to the people?
    Judge Gorsuch. Senator, we have talked a lot about 
Federalism in these last few days. The people in this country 
are sovereign, as Lincoln said. It is a government by the 
people, for the people. So, the people are sovereign, and it 
depends on what powers they have given to the State Government 
and to the Federal Government. And there are variations between 
the States as to what authorities are given and how.
    Nebraska, you have a unicameral legislature last time I 
checked. I do not know if you are the only one.
    Senator Sasse. We are.
    Judge Gorsuch. Right? But that is--the people have 
organized their State Government in a certain fashion, and that 
is for the people to do.
    Senator Sasse. But is there any precedent on the Tenth 
Amendment that would give us some sense of what might belong to 
the domain of the Ninth?
    Judge Gorsuch. So, we do have precedent in the Tenth 
Amendment area. I think the leading precedent might be the New 
York case by Justice O'Connor, which we have discussed a couple 
of times over the last couple of days, which makes clear that 
the Federal Government cannot commandeer State Government, 
cannot tell State government to enforce and how to enforce 
Federal dictates unilaterally.
    Now, there are some--you know, there are limits to that 
principle, too. A 55-mile-an-hour speed limit, which is a 
Federally induced requirement, has been upheld, attached to the 
spending authorities. There comes a question of how far 
Congress can go in conditioning funds before it winds up 
commandeering a State Government.
    Senator Sasse. I want to ask more questions about the ways 
that you would recommend that future hearings be conducted, but 
you will not answer. So instead, I will just agree with Senator 
from Rhode Island in commending the Chairman on how he has run 
the last 3 days.
    Thank you, sir.
    Judge Gorsuch. Thank you, Senator.
    Chairman Grassley. Senator Klobuchar.
    Senator Klobuchar. Thank you very much. Thank you, Mr. 
Chairman. Thank you, Judge.
    Judge Gorsuch. Thank you.
    Senator Klobuchar. Mr. Chairman, you will be excited. I am 
going to mention one of your pieces of legislation here, so it 
will be good.
    I have been waiting for 2 days to talk about antitrust, but 
events of the day keep from getting in the way in terms of what 
we have been focusing on, and I know that is to your chagrin 
since you have taught in the area. We have talked about this. 
You are an expert as well as my counsel, Michael Kades, who has 
been waiting months for this to happen since he is an expert on 
antitrust.
    Senator Lee and I have a long headed up that Subcommittee, 
and we have been very active a lot of hearings. And I think 
there is good reason to think that this could be a major area 
of the law ahead. We have seen people struggling to afford 
everything from prescription drugs to cable TV, and one way to 
help bring prices down, as you know, is to vigorously enforce 
our antitrust laws. Vigorous enforcement also fosters small 
business growth, and reduces inequality, and increases 
innovation. Obviously, if you have only two companies 
competing, you are going to have less of an incentive to be 
innovative.
    As we discussed in our meeting, tackling concentrations of 
power is a linchpin to a healthy economy and a democracy, and 
we are right now living through an unprecedented wave of 
mergers. Over the last 5 years, there was a 50 percent increase 
in mergers reviewed by the FTC and the Department of Justice. 
Just last year, then-Assistant Attorney General for antitrust 
Bill Baer, a lifelong antitrust practitioner, said his agency 
was ``reviewing deals with such serious antitrust concerns, 
that they should never have made it out of the corporate 
boardroom.'' That is his quote.
    We also have a situation where the President of the United 
States in a rather unprecedented move commented about major 
merger that is currently over at the Justice Department. And 
then--and another major merger involving seed companies 
actually met with the CEOs involved in that merger, and they 
came out of the meeting and said they talked about the merger. 
And these are just things that we have not seen happen since 
these mergers are supposed to be within the purview of the 
Justice Department.
    So, you have taught a number of antitrust classes at the 
University of Colorado. And, as you know, although the Supreme 
Court has not addressed the merits of a merger case in decades, 
recent court decisions, Trinko, Credit Suisse, and Legion, have 
made it more difficult to bring antitrust cases challenging 
anti-competitive conduct. Do you think the courts have made 
antitrust enforcement too difficult? What do you say to your 
classes about this specific issue?
    Judge Gorsuch. Senator, thank you for bringing up 
antitrust. I cannot count myself as an expert, but I can tell 
you it is an area I enjoyed practicing in very much. I 
represented plaintiffs as well as defendants. I represented 
class actions as well as defended against antitrust charges. I 
attempted sometimes, quite unsuccessfully, to interest the 
Department of Justice and attacking a merger or two for a 
client. You know what that business is like.
    When I teach antitrust, I try to teach everything about 
antitrust. I try not to take a view. I try to teach it in the 
Socratic method. I try to expose my students to the roots of 
our antitrust decisions--Appalachian Coal, what might be 
classified as the biggest bad school. I tried to expose them as 
well to the Chicago School, which, you know, you are a graduate 
of the University of Chicago, and give them some sense of the 
economics that lie behind that.
    And then, I tried to expose them as well to more recent 
learning in this area and expose them to Professor Sunstein and 
his book, Nudge. So, I try not to take a view. I try to expose 
them to all views so they can make up their own minds. I 
believe that is an important function as a teacher is not to--
not to be doctrinaire, but to be challenging. And I was very 
gratified the other day when I opened up the mail in my class, 
which I was teaching antitrust when all this happened, and I 
had said--they were very curious whether I was going to get the 
nomination. I said, nah, it is not going to happen, but if it 
does and I turn into a pumpkin, I will have a friend step in to 
teach the rest of the semester.
    In the mail the other day, I have a tie with pumpkins on 
it.
    Senator Klobuchar. There you go, yes. So, what do you see 
as the dangers to consumers and innovation if the courts make 
antitrust enforcement too difficult?
    Judge Gorsuch. Well, the real problem at the end of the 
day, I mean, you have a problem of lack of competition between 
competitors, and then of course that filters down to the 
consumer level. And what that yields are higher prices, and 
lower output, the dead weight loss to the economy, loss of 
production, and those are real harms.
    And the antitrust laws, as you know, were the original 
Federal regulatory regime. That was it for the national economy 
for a long time, and they are still vital and brilliant in 
their simplicity and design.
    Senator Klobuchar. You know, one issue that is particularly 
important to me, and this gets into my bill with Senator 
Grassley, which I will not ask you to comment on--he has been 
very vigorous and done some great work in this area--is the pay 
for delay pharmaceutical agreements where prescription drug 
companies actually pay generic drug companies to keep their 
cheaper drugs out of the market. These deals, in our view, can 
increase the cost of prescription drugs by billions of dollars 
a year. There was actually a CBO score on that, and until 2013, 
some courts had treated such agreements as per se legal.
    Then the Supreme Court, as you know, in FTC v. Actavis, 
held that they were subject to the rule of reason. And I know 
you teach that case because it is on your antitrust syllabus. 
So, what do you understand its reasoning and holding to be, and 
do you believe it was correctly decided? You may not want to go 
into that part, but how do you describe this case to your 
students?
    Judge Gorsuch. Well, it is a great case. And as you will 
recall, and at least as I remember it because I do teach from 
it. And the year it came down, I had my students argue both 
sides, and half of them played the Supreme Court. They 
correctly predicted the outcome. It was quite impressive.
    As I recall, one side was arguing for a per se unlawful 
rule. The other side was arguing for a per se lawful rule. And 
the Supreme Court, through Justice Breyer, as I seem to 
remember, who himself is an antitrust expert, said that the 
rule of reason applies, in part because we as courts, he said, 
had not had a lot of experience in this area, and are very 
leery about making any per se rules, any bright line rules 
until we have some experience.
    That is one lesson we have learned in antitrust law over 
the years is to be cautious about per se rules in either 
direction before you have some experience, and that you can 
learn from the economics as you go.
    Senator Klobuchar. As I was looking over that syllabus, I 
also noticed that you assigned both the 2008 DOJ report on 
monopolization and the FTC's response.
    Judge Gorsuch. Yes.
    Senator Klobuchar. As you know, this is a big debate. The 
FTC criticized the DOJ's report because the DOJ's guidelines 
were too lenient on monopolization. It would hurt consumers. 
That is their position. How do you teach this controversy, and 
which agency do you think had the better understanding of the 
law?
    Judge Gorsuch. Senator, I teach it the same way as I teach 
the rest of the course, which is in a very Socratic method, and 
to try and expose my students to all the learning that I know 
of that is available. And it is quite a comprehensive course. I 
think it is considered one of the more difficult classes at the 
law school, or I hope it is. Federal courts maybe even harder, 
I do not know.
    Senator Klobuchar. So, you do not want to weigh in on this 
debate.
    Judge Gorsuch. Oh, Senator, there is no way you are going 
to get me----
    [Laughter.]
    Senator Klobuchar. All right. All right. One last thing 
here. We live in an age where there are dominant internet 
companies in many areas which control access to customers. 
internet search, social media, online travel are just a few 
examples. And Senator Lee and I both hear concerns in our role 
with the Subcommittee that when such dominant platforms do not 
deal with potential competitors, their refusal can pose a 
serious threat to new businesses, consumers, and innovation.
    On refusals to deal as an antitrust violation, in the 
Novell case, you wrote, ``The point of the profit sacrifice 
test is to isolate conduct that has no possible efficiency 
justification.'' That principle is not explicitly in the 
Supreme Court cases. So, is it your view that a refusal to deal 
can violate the Sherman Act only if there is no possible 
efficiency justification?
    Judge Gorsuch. Senator, I would have to go back and read 
what I wrote Novell to give you a fair and honest answer to 
that question. But I can tell you in Novell I was attempting to 
apply the Supreme Court's teaching in Trinko and Aspen Skiing, 
which are the two refusal to deal cases, as faithfully as I 
could, and I can tell you that.
    You know, we have had some fun refusal to deal cases over 
the years.
    Senator Klobuchar. Yes.
    Judge Gorsuch. Think about it. I mean, Aspen Skiing and----
    Senator Klobuchar. There you go.
    Judge Gorsuch. Right?
    Senator Klobuchar. Well, there may be more fun to come 
because, you know, I think one of the things about using such 
an absolute test and risking immunizing the conduct, 
particularly in the context of the internet, could be a problem 
because I think we have to look at what may be to come here. 
And we are just beginning to see a new kind of competitive 
marketplace with companies that may have control, and it may be 
really hard for new customers to get in. So, that was just 
something I wanted to plant in your head here as we go forward 
since you will be--if you are confirmed, you have a lot of 
expertise in this antitrust area.
    And I just think we are just seeing more and more issues 
that are new and coming up, even in the last few years. And I 
know there has not been a case for a while, but there could 
well be one.
    Judge Gorsuch. I appreciate that, Senator.
    Senator Klobuchar. All right. So, thank you very much.
    Judge Gorsuch. Thank you.
    Chairman Grassley. Senator Lee.
    Judge Gorsuch. Mr. Chairman? Mr. Chairman, before this is 
over, I would like to have one word to everyone. I do not know 
when is appropriate moment before folks leave.
    Chairman Grassley. Well, maybe we ought to notify offices 
and tell people to come back----
    Judge Gorsuch. Oh, gosh no. No, no, no, no. No, no. I just 
want to say thank you before people leave.
    Chairman Grassley. Why do you not do that right now and 
take as long as you want?
    [Laughter.]
    Judge Gorsuch. Does that mean I get to leave?
    [Laughter.]
    Judge Gorsuch. No, I just know some people are walking out 
the door, and I just want to say this for the record, and if 
there is anybody left watching, I still want to catch them, the 
American people.
    I have spent the last, what is it, 2 months in these 
buildings with you, 72 of your colleagues, and I wish the 
American people could see what I have seen. That is all. I 
think if they had seen what I have seen, they would be much 
bigger believers in their government than they are.
    It is not perfect, my branch is not perfect, but I am a 
believer in it. And I want to thank you, all of you, each and 
every one of you for doing what you do for the American people, 
the seriousness with which you take this project, and, Mr. 
Chairman, for the courtesies you have all shown me, each and 
every one of you.
    Thank you. That is what I wanted to say before folks went 
home.
    Chairman Grassley. God bless you. Senator Lee.
    Senator Lee. Thank you, Judge, and thanks for your nice 
comments about our institution. We are not an institution that 
receives a lot of praise every day, and that means a lot.
    Judge Gorsuch. You deserve a lot more than you get.
    Senator Lee. I wanted to cover one thing with you very 
briefly. One of my colleagues mentioned a few minutes ago an 
email that you had sent praising remarks by Judge--then-
Attorney General Alberto Gonzales back in 2006, February 6th, 
2006.
    I have got a copy of the transcript from that day. The 
remarks that you were supposedly praising were made and are 
recorded on page 53 of the transcript, which I offer into the 
record, and I also ask unanimous consent to offer those 
portions of the transcript and a copy of the email into the 
record.
    Chairman Grassley. Okay. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Lee. The comments that were the subject of that 
discussion, recorded on page 53 of the transcript, indicate 
that the Committee took a break and reconvened after lunch at 
1:45 p.m. on the date in question. The email, which I have 
offered into the record and which was sent by you on February 
6th, 2006 to Kyle Sampson and Will Machello, was sent at 1:17 
p.m.
    Unless I am missing something, that would indicate that 
your email in which you said, I think the Attorney General is 
doing a nice job today, was sent roughly one half hour before 
the comments that were deemed problematic by my colleague and 
were raised a few minutes ago. Do you, Judge Gorsuch, have the 
ability to see 30 minutes into the future?
    [Laughter.]
    Judge Gorsuch. Right now, I kind of wish I did.
    [Laughter.]
    Senator Lee. I would find it very impressive if you did, 
but absent that very remote possibility, I would submit to my 
colleagues that it is impossible that the email that Judge 
Gorsuch sent on February 6th, 2006 at 1:17 p.m., had any 
reference to the comments made reference to by my colleague 
from Rhode Island a few minutes ago.
    That is all. Thank you.
    Judge Gorsuch. Thank you, Senator.
    Chairman Grassley. Senator Coons.
    Senator Coons. Thank you, Mr. Chairman. Thank you, Your 
Honor, and I want to thank my colleague, Senator Franken, for 
allowing me to go ahead. I have a speech to give with a 
colleague in the Capitol in a few minutes.
    And I would like to thank Louise and everyone else from 
your family, and your family of clerks and supporters, who 
steadfastly have been with you through what has been I know a 
very demanding and long process. I think you have shown more 
diligence and more stamina than certainly I would have or many 
of our colleagues would have.
    I just want to conclude, if I could, a conversation that I 
opened in in my second round of questioning about the Browder 
case, Browder v. Albuquerque. I did not want to leave this 
unresolved, because we had a long conversation about 
substantive due process, and I have made reference before to a 
practice you engage in of writing concurrences, and sort of 
trying to understand what that means and what I can conclude 
about that.
    So, just to remind everybody, Browder is a case where you 
dealt with a claim that an off duty--a newly off duty police 
officer went roaring through the center of town at 60 miles an 
hour, sped through 11 intersections with his lights on in his 
police car, and rammed a car and killed one person and badly 
injured another. And this is a case that was in Federal court 
because of Section 1983, which is an important statute that 
allows the vindication of rights that have been violated, 
constitutional rights.
    And I was struck in this case that you went out of your way 
to write a concurrence to your own majority opinion. And the 
way I read it was that you argued Federal courts should decline 
to address Section 1983 violations if there is a remedy under 
State tort law. Why did you go out of your way to write a 
concurrence that would, if applied, significantly narrow a 
Federal court's ability to consider valid constitutional 
claims?
    This was a case directly applying substantive due process 
analysis and where you said, ``I do not think we ought to keep 
the doors of the Federal courthouse open.'' I have familiarity 
with 1983 claims from my own county service and role 
supervising a police department. It plays a central role in 
making sure that litigants who have suffered some loss or 
injury under color of State law have a chance to pursue a 
remedy.
    Why did you write that concurrence, Judge?
    Judge Gorsuch. Senator, I appreciate the opportunity to 
clarify the record on that because I think there may be some 
confusion. I vindicated the 1983 claim in that case, as I have 
in many, many, many cases, Senator, if you want to pick them 
out, one here, one there. I could give you, for instance, 
Sutton, which we have talked about, or AM we have talked about. 
Those are just a couple. I could give you a whole bunch more if 
you want.
    What I wrote separately to indicate was sometimes we judges 
judge best when we judge least. And if there is already a State 
tort claim that is perfectly suitable and can achieve 
everything that the plaintiff wants, and, in fact, sometimes 
the plaintiff wants to be in State court, but gets dragged--
removed, I should say--that is the legal term--to Federal 
court, okay? That happens not infrequently in my Circuit in 
1983 cases.
    There is a doctrine called Parratt, a Supreme Court 
decision, that suggests that we should defer to State 
proceedings in those circumstances if they are perfectly 
adequate, fair, and complete remedies. And our precedent, I 
just pointed out, maybe we had missed Parratt, Supreme Court 
direction.
    I was bound by our precedent. I followed our precedent. But 
I suggested that perhaps we needed to take another look at our 
precedent in light of Parratt, the Supreme Court's direction.
    I also emphasized, to be clear, Senator, that Parratt only 
allows abstention in circumstances where the State remedy is 
full and complete, and there is no possibility that the State 
court will be an inadequate forum. If you look carefully at 
that concurrence you will see that language there quite clearly 
and quite prominently, Senator.
    Senator Coons. And perhaps I misread it. In my 
consideration of it, I was struck by this in part because it 
seemed in Zimmerman there was already a 1990 Supreme Court 
decision that suggested Parratt should not be applied in that 
way, in that context.
    But the larger point for me is that in Browder you are 
suggesting the Supreme Court--you are pointing in the 
concurrence--you are pointing that the Supreme Court could 
overturn precedent to narrow the scope of 1983 in this way to 
limit the situations where Federal courts would hear 
constitutional claims. But in our conversation about RFRA, and 
for-profit corporations, and religious rights under Hobby 
Lobby, you pointed repeatedly saying that should be done by 
Congress. This is what the legislative branch should do, not 
what the Court should do.
    So, it seemed to me there was some tension between the way 
you looked at another situation where you issued a concurrence 
saying I am bound. I am bound by precedent, but I do not like 
it, and I think we probably ought to make a change. Instead of 
pointing it our way, you pointed it at the direction of the 
Supreme Court.
    If you thought 1983 should be narrowed, why did you not 
call on Congress to make that change?
    Judge Gorsuch. Senator, respectfully, I believe you are 
misreading what I wrote. I was not advocating limiting 1983 in 
any, way, shape, or form. I was suggesting that perhaps we as a 
court had not paid sufficient attention to the Supreme Court's 
direction in Parratt. That is it. And in all of these cases, I 
apply our precedent and the precedent of the U.S. Supreme 
Court, and the directions of Congress as faithfully as I can 
without any secret hidden agenda, Senator, none.
    And in Browder, I upheld the plaintiff's claim. That is 
what I did. That is my record in that case.
    Senator Coons. That is right. The majority opinion, which 
you wrote, which is a three-judge opinion, upheld the claim. 
But I guess what I was--what drew it to my attention was your 
comments about substantive due process. And as I--we said 
before, two of them were Supreme Court cites.
    Judge Gorsuch. Thank you for acknowledging that.
    Senator Coons. But that is a choice to say substantive due 
process, which is the subject of some debate among scholars and 
Justices, is uncharted, open ended, murky, has a paradoxical 
name, ``substantive due process.'' And I just wanted to come 
back again because this is where we ended the previous round of 
questions to see If I misunderstand how you interpret 
substantive due process.
    Are there--what are the factors that you look at, because 
this goes back to the Casey, and Glucksberg, and others. What 
are the factors that you look at to determine whether a right 
is fundamental and appropriately protected under substantive 
due process under the Fourteenth Amendment?
    Judge Gorsuch. Senator, I look to precedent. And in the 
Browder case, I applied the precedent of our court and of the 
Supreme Court of the United States. And our precedent indicated 
that the plaintiffs had a claim that should be vindicated, and 
I upheld the plaintiff's claim.
    There additionally was precedent from the U.S. Supreme 
Court that suggested that in circumstances where the State 
courts are open and available, and there is no indication that 
there be any unfairness, that perhaps sometimes judges judge 
best when they judge least. Do not make more a new law than you 
have to.
    That is a principle that I think good judges bear in mind 
when you can. That is not to say you always write the narrowest 
or craft the strictest construction. You try and come up with a 
fair construction, but that sometimes if everything is 
available that might be made available to a party to be made 
whole, not to restrict their access in a way, shape, or form, 
Senator. But if everything can be done that can be done, then 
perhaps we should stay our hand once in a while.
    Senator Coons. Well, that is reassuring. As I suspect you 
well know, Section 1983 was originally enacted. It has been 
referred casually as the Ku Klux Klan Act because it in the 
Reconstruction Era was an avenue into State court to allow 
citizens who could not get any redress in State courts to get 
into Federal court. Forgive me.
    Judge Gorsuch. Absolutely.
    Senator Coons. As a way to protect constitutional rights 
that were newly enacted after the Civil War. And it is one that 
in my role as a county elected where I was trying to monitor 
whether or not my police department, the police department the 
county for which I was indirectly responsible, was conducting 
themselves in full compliance with the rights of our citizens.
    One of those early indicators is how many 1983 filings do 
you see in any municipality, in any county. And I wanted to 
make sure I did not misunderstand your ruling in Browder, and 
your concurrence in particular, as indicating some enthusiasm 
for narrowing access to Federal courts for litigants.
    So, if I hear you right, your concurrence--again, an 
unusual thing to do to write concurrence to your own unanimous 
majority opinion--is simply expressing that if you are 
confident that there is no threat to recovery in a State court, 
that someone injured as the individual who was killed was and 
her family Member, should go to State court were tort law is 
fully developed, and there is a great deal of precedent, rather 
than to Federal court.
    Judge Gorsuch. Right.
    Senator Coons. But this is no suggestion on your part that 
constitutional rights do not belong in litigation. The 
transition point I made earlier was the 2005 article where you 
were suggesting some have too much enthusiasm for pursuing 
relief in the Federal courts.
    Judge Gorsuch. Senator, I think you now have a have a 
handle on where I was coming from. I appreciate the opportunity 
to clarify that. I think your summary right there at the end 
gets it.
    Senator Coons. Well, I will have some more questions for 
the record if I might.
    [The information appears as a submission for the record.]
    Senator Coons. I appreciate the opportunity that I have had 
to meet with you and to ask a number of questions, and the 
seriousness with which you have taken my questions and the 
deliberations of this Committee as a whole. Thank you very 
much.
    Judge Gorsuch. Likewise, Senator.
    Chairman Grassley. Senator Crapo.
    Senator Crapo. Well, thank you, Mr. Chairman. I am going to 
simply say thank you, Judge, for giving us this time and for 
your candor with us as we have asked you questions. I am not 
going to ask you any further questions, and will yield back my 
time.
    Judge Gorsuch. Thank you, Senator.
    Chairman Grassley. Senator Franken.
    Senator Franken. Thank you, Mr. Chairman, and may I just 
add with a number of my colleagues my admiration for the way 
you have done this. Thank you, Judge Gorsuch, for your family, 
your wife, and your clerks, and you for hanging in there.
    Before I begin, I would like to ask consent that the 
following letters be entered into the record, Mr. Chairman: The 
Leadership Conference on Civil and Human Rights, Bend the Arc, 
Jewish Action, and the National Education Association.
    Chairman Grassley. Those three documents, without 
objection, will be entered.
    [The information appears as a submission for the record.]
    Senator Franken. Thank you, Mr. Chairman.
    Judge, during oral arguments for Shelby County, Justice 
Scalia seemed to suggest that it is the Court's job to step in 
when Congress' motives cannot be trusted. Justice Scalia 
questioned the significant rise in support for the Voting 
Rights Act when Congress voted for its reauthorization in 2006, 
which passed the Senate 98 to zero, and the House 390 to 33.
    He essentially said that a Senator would have nothing to 
gain by voting against reauthorizing the Voting Rights Act, and 
that as a result, the Court should not read anything into the 
overwhelming support for the bill. Justice Scalia said, ``It is 
a concern that this is not the kind of question you can leave 
to Congress.'' He went on to say, ``Even the name of it is 
wonderful, the Voting Rights Act. Who is going to vote against 
that in the future?''
    When the Solicitor General suggested that it would be 
unusual to analyze Congress' judgment in this way, Justice 
Scalia said, and again quote, ``I am not talking about 
dismissing it,'' meaning Congress' judgment, ``I am talking 
about looking at it to see whether it makes any sense.'' So, he 
is suggesting that the Court look at Congress' judgment to see 
whether it makes sense.
    Now, this highlights two things that are pretty concerning 
to me. One, Justice Scalia's cynicism about lawmakers' motives. 
His remarks demonstrate a contempt for Congress that, in my 
view, also demonstrates a willingness to engage in the kind of 
judicial activism that many of my colleagues are quick to 
condemn, a willingness to ``legislate'' from the Bench. Justice 
Scalia's willingness to reach beyond the legislative history to 
question Congress' political motivations disrespects the 
separation of powers.
    And, two, Justice Scalia's remarks ignored the facts. When 
Congress debated reauthorizing the Voting Rights Act of 2006, 
it developed a significant legislative record: 15,000 pages of 
hearing testimony, documentary evidence and appendices, State 
records, and reports from outside experts that demonstrated the 
continued need for the legislation. To suggest Congress' 
support for the bill was based on anything other than substance 
ignores the reality that more Members of Congress supported the 
Voting Rights Act because the legislation accomplished on an 
ongoing basis exactly what Congress designed the Voting Rights 
Act to accomplish.
    Judge Gorsuch, during our courtesy visit I asked what you 
thought about Justice Scalia's remarks, and I asked you whether 
you agreed that what he said demonstrated a contempt for 
Congress. You emphatically said that Justice Scalia's remarks 
were not the words that you would have chosen.
    Judge Gorsuch. Senator, I admire Justice Scalia greatly, 
but his words are his words, and mine are mine. And I would ask 
you respectfully to judge me based on my credentials and my 
record. Justice Scalia's legacy will live on a lot longer than 
mine, I am sure.
    Senator Franken. I understand that. It was good to hear 
that you would not have said that, but I found that frustrating 
because it was not the answer to my question. Here, despite a 
unanimous Senate vote in support of the Voting Rights Act and a 
15,000-page legislative record demonstrating that there was a 
significant debate over the bill, Justice Scalia questioned 
Congress' motives in deciding to support the bill.
    It seems to me that he is substituting his own personal 
views for the facts on the--in the record. Do you agree a 
willingness to engage in this kind of speculation could be 
perceived as judicial activism?
    Judge Gorsuch. Senator, respectfully, I just do not think 
it is appropriate for me to comment on the work of my superiors 
or Justice Scalia's words at oral argument, or any other 
Justice's comment in oral argument.
    Senator Franken. Well, I think that it is important, this 
issue of judicial activism, because that is something that has 
disturbed me about the Roberts Court. And this is one of the 
big decisions, which is the Voting Rights Act.
    But setting aside that--that was a five-four decision--I 
want to know whether you would--forgetting judicial activism. I 
want to know if you agree with the substance here. Justice 
Scalia seemed to be reaching beyond legislative history in this 
case to question the political motivations underlying 
congressional action. In your view, is that kind of inquiry 
appropriate for courts to engage in?
    Judge Gorsuch. And, Senator, again, I just do not think it 
is appropriate for me to sit here and grade a Justice's 
comments at oral argument.
    Senator Franken. Okay. All right.
    Judge Gorsuch. Judges often make--ask questions at oral 
argument that are hypothetical or do not represent their actual 
views because they are testing ideas.
    Senator Franken. Okay. Well, that----
    Judge Gorsuch. I was not there. I did not hear it. I am not 
going to condemn a man for arguments I have not heard, or 
thought carefully about, or know more about. And Justice 
Scalia's legacy will live on a lot longer than mine. I am 
confident of that.
    Senator Franken. Well, let us move on to the Shelby 
decision itself. We talked about this in the courtesy visit. 
This was another five-four decision by the Roberts Court. Here, 
the Court gutted the Voting Rights Act. Before that decision, 
the Act required certain States, States with a history of 
engaging in discriminatory practices at the polls, to get the 
Federal Government's approval before making changes to their 
voting laws. It was called pre-clearance, and it worked.
    Within 4 years of passing the Voting Rights Act in 1965, 
nearly one million Black voters registered, and the number of 
Black elected officials in the South more than doubled. But the 
Shelby County majority suggested that discrimination at polls 
was no longer a problem, essentially using the law's success at 
preventing discrimination to justify gutting it. So, a sharply 
divided Court--again, 5-4--that is important--struck down a 
provision that determined which States were subject to pre-
clearance. As a result, none of them are.
    In the wake of that decision, States previously covered by 
preclearance started testing the limits of what they could do. 
Texas and North Carolina passed discriminatory voter ID laws. 
North Carolina eliminated same-day registration and cut the 
early voting period. When North Carolina's restrictions were 
challenged in court, the Fourth Circuit ultimately struck them 
down, finding that the State's ``new provisions'' target 
African-Americans with almost surgical precision.
    You mentioned that Section Two of the act was still in 
place when we were talking before, which allows discriminatory 
laws to be challenged, but only after they have been enacted. 
So, I pointed out that North Carolina, for example, enacted its 
surgically precise restrictions in 2013, but the Fourth Circuit 
was not able to strike down those restrictions until 2016. So, 
these restrictions were in place for years, and these 
restrictions accomplished exactly what they were designed to do 
when they kept African-Americans from voting in the 2014 
election. But these restrictions would have been stopped by 
pre-clearance.
    We talked about this, and I asked you does this disturb you 
at all. You replied simply that equal protection of the law was 
one of our country's great promises, but you did not answer my 
question. We went around the barn a few times on this one, and 
you told me that voting is a fundamental right. I know that.
    This is a job interview. You are applying for a lifetime 
appointment to the highest court in the land, and vindicating 
the rights of people before the Bench is one of the core 
functions of that job. So, knowing whether you are disturbed by 
a State's government's effort to systematically and 
strategically discriminate against its citizens by race is 
really, really important, and it seemed like an easy question 
to me.
    So, I will ask you again, does that disturb you at all what 
happened?
    Judge Gorsuch. Senator, if there are allegations of racism 
in legislation in the voting arena, there are a variety of 
remedies.
    The first, of course, is a claim under the Constitution, 
the equal protection clause.
    Senator Franken. There used to be preclearance, and that 
used to do the job.
    And, again, this is a 5-4 decision. This is what were 
talking about here. I want to emphasize why we are here, and 
why all of this matters so much.
    Some of this--some of us on this side of the aisle have 
been accused of asking unfair questions, of impugning judges, 
of essentially turning this into a show, apparently because we 
are bitter about what happened to Chief Judge Garland.
    And, yes, I strongly believe that what happened to Merrick 
Garland was unfair and disgraceful.
    The argument that we should judge and are judging 
candidates solely based on their qualifications is betrayed by 
the fact that these are the same people who blocked Merrick 
Garland, and Merrick Garland has every qualification. He is a 
man who is recognized as one of the best appellate judges in 
this country, in large part because he has developed a 
reputation for bringing judges across the ideological spectrum 
together to craft strong consensus decisions.
    So, yes, I was looking forward to his nomination moving 
forward, but I do not blame you, Judge Gorsuch, for what 
happened to him. And, ultimately, this is not about Judge 
Garland.
    If Justice Scalia had died 1 month ago, and we were here 
today with President Trump's nominee, we would be talking about 
the same things. I think I and all my colleagues have asked 
tough but fair questions about your record, about your judicial 
philosophy, and about your ability to understand the practical 
outcomes of these decisions. And it is because we are deeply 
concerned about the Roberts Court--what the Roberts Court 
rulings have done for the rights of Americans.
    In one 5-4 decision after another, we have seen the Roberts 
Court go out of its way to answer questions not before it, to 
overturn precedents, to strike down laws enacted by Congress, 
and to do all of this at great cost to consumers, workers, 
small businesses, to middle-class Americans, to those who do 
not own a car and do not have a driver's license so it is 
harder for them to vote.
    We talked about forced arbitration. Through a series of 5-4 
decisions, the Roberts Court has eroded Americans' ability to 
seek justice in the courts when they have been cheated or 
mistreated by a corporation with vast resources.
    We talked about voting rights and Shelby, another 5-4 
decision. The Court gutted a key provision of the Voting Rights 
Act and, with it, suppressed African-American votes. That is 
what it did.
    And in Citizens United, also 5-4, the Roberts Court allowed 
money to pour into our elections. We do not know where a lot of 
it is coming from, and it is eroding Americans' trust in our 
most fundamental democratic institutions. And the public thinks 
it stinks, Republicans and Democrats alike.
    That is why we are here. This is about people getting to 
court, about people getting to vote. This is about people 
losing--Americans losing faith in our democracy.
    So, look, while I strongly agree that it is your job to 
follow precedent, as you have emphasized over and over again, I 
also want to know that you will consider the real-world 
consequences of your decisions, because the stakes are just too 
high.
    I want to know that you understand why we have been here 
and why we have been asking you the questions, because--and I 
think Senator Whitehouse spoke very, very clearly on all these 
5-4 decisions.
    And I just want to hear from you that you understand what 
the stakes of this are.
    Judge Gorsuch. Senator, I appreciate the opportunity----
    Chairman Grassley. Please answer and then----
    Judge Gorsuch. Then I am done.
    Chairman Grassley. But make it as short as you can.
    Judge Gorsuch. I can do that.
    We are all in the same boat together. This ship, we are all 
in it, and either we are all going to hang together or we are 
going to hang separately, to mix my metaphors at this late 
hour.
    And the fact of the matter is, Senator, of course I care 
about this country. I care deeply about this country, and I 
know you do too. Thank you.
    Chairman Grassley. Senator Cornyn.
    Senator Cornyn. Judge, let me offer an alternative point of 
view to my friend Senator Franken's dystopian description of 
where the country is and the role of the Court.
    I am particularly concerned about his description of the 
Court's decision in Shelby County v. Holder, because we were--I 
was part of the Senate Judiciary Committee, a number of us 
were, when we voted to reaffirm the Voting Rights Act, to 
reauthorize it, and recognized it as one of the great 
accomplishments of America, in terms of protecting and 
vindicating the rights of people, everyone, to vote.
    But, as you know, Congress and the Supreme Court did not 
gut the Voting Rights Act. Section 2 remains a part of that 
important, historic legislation.
    And so I just recoil when I hear people describe what the 
Court did as gutting the Voting Rights Act. Here is what the 
Court did. Congress, when it reauthorized the Voting Rights 
Act, did not update the formula by which the--Section 5 
applied, which would require preclearance in States so they 
could not even change their own voting laws. Because they were 
covered by preclearance, they had to ask permission of the 
Federal Government, the Department of Justice, and others in 
order to do so.
    But for some reason, rather than update the formula with 
current voting records--it had decades-old, several decades-old 
voting information, which had an impact of keeping more States 
and more municipalities, more governmental entities, within the 
preclearance requirements of Section 5.
    The irony of this is the Voting Rights Act has vindicated 
and protected voting rights in an unprecedented sort of way. 
And even those States that had been swept up into the 
preclearance requirements, let us say back in the 1960s, had 
better outcomes for minority voters than many States that were 
not covered by Section 5, the preclearance requirement.
    So the mistake that Congress made when it reauthorized the 
Voting Rights Act is it included a formula that did not reflect 
current reality, did not recognize that America had made great 
strides forward, thanks to the Voting Rights Act and 
vindicating minority voter rights.
    So I just--I was here. I remember the debate. As a matter 
of fact, I joined several of my colleagues and filed minority 
views when we reauthorized it, pointing out the irony of using 
decades-old voting records in reauthorizing the Voting Rights 
Act.
    So what the Court said--the question actually presented--I 
will read it quickly. It says, does the renewal of Section 5 of 
the Voting Rights Act, the preclearance requirement, under the 
constraints of Section 4(b), that was the formula I referred 
to, exceed Congress' authority under the Fourteenth and 
Fifteenth Amendments, and, therefore, violate the Tenth 
Amendment and Article IV of the Constitution?
    That is what the Court decided. The Voting Rights Act 
maintains its force and important role in our jurisprudence 
today, and the Court found that the formula simply did not 
reflect current reality, what passed and exceeded Congress' 
authority under the Constitution.
    I mention all this not to ask you a question, but just to 
use the opportunity to say, you know, when people agree with 
the Court's decisions, and I can name a number of them that my 
friend from Minnesota would agree with and applaud, you know, 
it is great. When the Court reaches a decision that disappoints 
your expectations or perhaps your political agenda, then it is 
easy to jump on the Court and criticize it.
    Nobody likes to lose in a court, but I think you 
appropriately earlier talked about the importance of not 
criticizing or characterizing the judges because judges, by and 
large, are patriots, people performing a public service at 
great financial sacrifice and, unfortunately, sometimes get 
accused of doing things that are totally unfair and off-base.
    So I just wanted to take a moment to correct the record and 
what the Court actually did. And I happen to come from a State, 
the State of Texas, that is proud of the strides that we have 
made to overcome the record back in the 1960s when we were not 
so proud, we should not have been so proud about minority 
voting rights. But we have made great strides in that area, as 
have so many places that were covered by the Voting Rights Act 
under Section 4, which the Court struck down as not reflecting 
current reality.
    We should stand up and applaud our great country for trying 
to overcome this legacy of diminishing minority voting rights, 
and I think the Court's decision is something that reflects 
that and is to be applauded and not condemned.
    So thank you for sitting there and listening. Thank you for 
your willingness to serve. And thank you for the way you have 
conducted yourself throughout this hearing. I look forward to 
enjoying and watching from afar your service to our country for 
many years to come.
    Thank you.
    Judge Gorsuch. Thank you for your service, Senator.
    Chairman Grassley. Senator Blumenthal.
    Senator Blumenthal. Thanks, Mr. Chairman.
    I would like to enter into the record, if there is no 
objection, a letter from 55 reproductive rights, health, and 
justice organizations opposed to the nomination, and a letter 
from 72 women lawyers who submitted an amicus brief in Whole 
Woman's Health v. Hellerstedt.
    Chairman Grassley. Both will be entered in the record, 
without objection.
    [The information appears as a submission for the record.]
    Senator Blumenthal. Judge, you referred, at some point, I 
think, to your clerks as evanescent. I think you used that 
word. But I think many of them are still here, so they have----
    Judge Gorsuch. They are.
    Senator Blumenthal [continuing]. Been far from evanescent 
in this proceeding.
    Judge Gorsuch. They have been wonderful, as has my family.
    Senator Blumenthal. And congratulations to them and to 
you----
    Judge Gorsuch. Thank you.
    Senator Blumenthal [continuing]. And to your clerks.
    Judge Gorsuch. Thank you. I appreciate it.
    Senator Blumenthal. I met a couple of them earlier who said 
that, and I am not going to embarrass them by naming them, but 
one of them said that he had left his employment with a law 
firm to help you prepare for this proceeding, so they have been 
part of your team.
    Who else has helped you prepare?
    Judge Gorsuch. First and foremost, my wife, Louise, who has 
been with me through thick and thin. When the gruel is thin, 
the gruel is thick, she is there. She is my rock.
    I also have to thank Senator Ayotte, my sherpa. I did not 
know that was an official title, but it is around here.
    I really appreciate this opportunity.
    Senator Ayotte, I did not know Senator Ayotte until the day 
after my nomination, well, the day of my nomination, February 
1st, which would have been my father's 80th birthday. And he 
smiled on me that day because he gave me Senator Ayotte.
    And I do not know how many miles we have logged walking the 
halls together, meeting with you and your colleagues. She has 
become a fast and permanent friend.
    Where is Mary Elizabeth?
    Mary Elizabeth, who was in your Republican Senate Cloakroom 
and is now in the White House, she has been just so special to 
me.
    Senator Blumenthal. Anyone else from the White House?
    Judge Gorsuch. Oh, gosh. Is McGinley here? He is one of my 
former law clerks who is now a young lawyer in the White House. 
And I never thought I would actually have somebody carry my 
bag----
    [Laughter.]
    Mr. McGinley. I never thought I would carry a bag after 
graduating law school.
    Judge Gorsuch. I feel very guilty about it, because this is 
a very fantastic young lawyer. Watch out for McGinley.
    Senator Blumenthal. Anyone from the Department of Justice?
    Judge Gorsuch. Oh, gosh. Who is here from the Department? 
Well, a whole bunch of folks.
    Senator Blumenthal. So you have been well-prepared.
    Judge Gorsuch. Patrick Bumatay, Eric Tung, one of my former 
law clerks, one of Judge Tymkovich's former law clerks now in 
the Department of Justice have been helpful. As I know--to 
produce all those documents, I think they spent a lot of time 
reviewing and producing documents for this Committee, and I am 
very grateful to all of them.
    So there have been a lot, a lot of special people.
    Senator Blumenthal. I would be remiss if I failed to ask 
whether anyone from outside organizations has assisted in this 
process.
    Judge Gorsuch. I definitely had friends, you know, beat me 
up with questions and things like that, absolutely, Senator, 
sure. Of course.
    Senator Blumenthal. And has anyone from, for example, the 
Heritage Foundation helped you prepare?
    Judge Gorsuch. I do not know who is from Heritage. No one 
has come up to me and said I am from the Heritage Foundation, 
and I am here to help.
    [Laughter.]
    Judge Gorsuch. I have definitely leaned on my friends, 
Senator, and I have leaned on people from the Department of 
Justice and the White House Counsel's Office, my family.
    Senator Blumenthal. And former clerks.
    Judge Gorsuch. And former, yes, yes, yes, and current 
clerks too.
    Senator Blumenthal. I have a couple substantive questions 
for you.
    Judge Gorsuch. All right.
    Senator Blumenthal. No right is absolute under the 
Constitution. Is that a correct statement?
    Judge Gorsuch. Well, Justice Black used to think so.
    Senator Blumenthal. He said no law, and he said no law 
meant no law----
    Judge Gorsuch. Right.
    Senator Blumenthal [continuing]. Limiting free speech.
    Judge Gorsuch. Yes.
    Senator Blumenthal. But, in fact, rights frequently 
conflict, and there is a balancing that takes place, correct?
    Judge Gorsuch. Senator, there are always tensions in the 
law that we mediate. As legislators and judges and the 
executive branch, we all play a role in mediating tensions 
between competing rights.
    Senator Blumenthal. I want to talk a little bit about, in 
that context, the Second Amendment and about the decision in 
Heller.
    You undoubtedly know that Connecticut experienced one of 
the worst tragedies in our history when the massacre occurred 
at Sandy Hook. I have long been an advocate of commonsense, 
sensible measures to combat gun violence, going back to my 
earliest days as State Attorney General. And my colleagues, 
many of them, including Senator Feinstein who mentioned Sandy 
Hook here and Senator Durbin, have been champions of this 
measure, these kinds of measures.
    And I mentioned the balance of rights because that was a 
theme that Justice Scalia mentioned in Heller. He wrote that 
the Second Amendment is ``not a right to keep and carry any 
weapon whatsoever in any manner whatsoever for any purpose.''
    That I would read as a statement that the Second Amendment 
is not absolute. Would you agree?
    Judge Gorsuch. Senator, I would agree that, in Heller, the 
Court held that it protected guns in common use, for example, 
not every weapon or tank or ballistic missile, but guns in 
common use for self-defense, subject to reasonable regulation. 
That is my recollection sitting here of, more or less, the test 
the Court----
    Senator Blumenthal. Well, I will give you the quote, and I 
think it confirms your recollection. He said that the Second 
Amendment did not include ``dangerous and unusual weapons,'' 
such as ``weapons that are most useful in military service, M-
16 rifles and the like.''
    Do you agree?
    Judge Gorsuch. Senator, the law is the law. It is the 
precedent of the U.S. Supreme Court. I follow the precedent of 
the U.S. Supreme Court as a judge. It is the same answer I have 
given.
    Senator Blumenthal. Well, let me again ask you about 
another part of the Heller opinion.
    Justice Scalia wrote, he said, nothing in Heller was 
intended ``to cast doubt on longstanding prohibitions on the 
possession of firearms by felons and the mentally ill, or laws 
forbidding the carrying of firearms in sensitive places such as 
schools and government buildings, or laws imposing conditions 
and qualifications on the commercial sale of arms.''
    Do you agree with that approach?
    Judge Gorsuch. Senator, I agree that Heller is the law of 
the land and that it is precedent of the U.S. Supreme Court, 
and it is the obligation of judges to apply precedent of the 
U.S. Supreme Court.
    Senator Blumenthal. So it is a correct statement of the 
law?
    Judge Gorsuch. If you have read from Heller, Heller is the 
law.
    Senator Blumenthal. And do you believe it is a correct 
interpretation of the Second Amendment?
    Judge Gorsuch. Well, Senator, it is the controlling 
interpretation of the Second Amendment. As I indicated maybe 
yesterday or maybe it was today, I do not know--we have spoken 
about Heller so many times. But I think both the dissent and 
the majority opinion were very fine opinions, very thoughtful, 
if you want to use the term originalist, opinions, Justice 
Stevens in dissent, Justice Scalia in the majority, very 
thoughtful, detailed look at the original public meaning of the 
Second Amendment. They came to different conclusions, as judges 
sometimes do in hard cases.
    But I think that is a wonderful case to look at and say 
there are judges doing admirable work of judges who might have 
reached different conclusions, some of them, if they were 
acting as legislators and voting on their preferences rather 
than trying to interpret a law.
    Senator Blumenthal. But the basic idea of conditions 
imposed on that right, no right being absolute, public safety 
being a legitimate consideration, is one with which you would 
agree?
    Judge Gorsuch. Well, Senator, one example I remember, 
sitting here, in Heller, is the felon in possession statute, 
which I recall the Court specifically mentioned, and the 
dispossession of felons, which is a law that we administer 
regularly in the courts.
    Senator Blumenthal. And in fact, a panel of your court, the 
Tenth Circuit, has held that the Second Amendment does not 
provide the right to carry a concealed firearm. That is 
Peterson v. Martinez.
    You were not on the panel, but it was the holding of your 
court, correct?
    Judge Gorsuch. I think that is right, sitting here, but I 
would want to go reread it.
    Senator Blumenthal. I have the opinion.
    Judge Gorsuch. Senator, I trust your representation.
    Senator Blumenthal. And you did not--no one requested a 
rehearing in that case, so if you had disagreed with it, you 
could have requested a rehearing.
    Judge Gorsuch. Any judge can, as we have discussed----
    Senator Blumenthal. Right.
    Judge Gorsuch. Request a rehearing sua sponte. Yes. 
Correct.
    Senator Blumenthal. You know, I asked about your 
preparation because I think you have been very adroit in 
answering many of my questions. And as adept as you have been, 
I remain troubled because you have been less forthcoming, less 
direct and specific than I hoped on whether you agree with the 
conclusions and results in some of those cases. And I think you 
probably sense my worry or unhappiness about some of those 
answers.
    And I understand that your approach is that there could be 
cases and controversies involving these decisions, but you have 
left doubt. And the doubt is increased because of statements 
made by the President who nominated you, that he was, in fact, 
choosing someone who would, for example, automatically overrule 
Roe v. Wade.
    And so I have felt that you had a responsibility to be, if 
anything, more forthcoming than judges or Justices nominated in 
the past.
    You were fairly clear in your answer on Brown, that you 
thought it ``corrected an erroneous decision,'' and that it was 
``a correct application of the law of precedent.'' But you gave 
a different answer on Loving, Griswold, Lawrence, Eisenstadt, 
Obergefell.
    You said these cases were decisions of the Court. You 
informed us of the holding. But you were unwilling to say that 
they were correctly decided.
    And judges or Justices in the past, and I named some, we 
are more forthcoming, direct, specific, saying they agreed. 
They thought those decisions were correctly decided.
    So I remain troubled, and I am troubled because these 
doubts affect real lives and real people. Gay and lesbian 
Americans have to wonder whether Lawrence and Obergefell might 
be overturned, or whether you would vote that way. Americans 
will lack the confidence that Griswold and Eisenstadt will be 
upheld.
    They have to question whether they will be able to make 
their own reproductive decisions.
    Millions and millions of women who have apprehensions about 
Roe v. Wade and whether you would vote to overturn it will find 
very little basis for confidence in what you have said about 
those decisions.
    And I began by saying that I was looking for core beliefs. 
Your response was that your personal beliefs have nothing to do 
with decisions that you will make. But we know that core 
beliefs matter, just as words matter. And the distinctions that 
you have used in describing different cases matter.
    The great genius of our Constitution is that it grows to 
match the challenges of different times. The great genius of 
the Supreme Court, in my view, and of many Justices, is that 
they grow too. And I have seen it firsthand in the Justice I 
worked for, Justice Blackmun. You may have seen it in your 
brethren on the bench much more directly and closely than I.
    So we cannot anticipate with precision and certainty what 
Justices will do once they are appointed for a lifetime on the 
Nation's highest court, but the American people hold us on this 
panel accountable for making our best judgments based on all 
the information we can glean or elicit.
    And so that is why I have probed as hard as I can for your 
beliefs, your commitments. I think they matter.
    And I want to thank you for being here and sharing with us 
your ideas, to the extent you have, and say that I will be 
submitting more written questions as well, and I will reserve 
my own judgment until I have a chance to assess your responses 
to them and the responses that you have given us over the past 
3 days.
    Thank you very much, Judge.
    Thank you, Mr. Chairman.
    Chairman Grassley. Senator Graham.
    Senator Graham. Thank you very much, Mr. Chairman.
    Judge, I think we are getting toward the end here. And I 
only have one request, that I never hear about the fish case 
again----
    [Laughter.]
    Senator Graham [continuing]. For the rest of my life and 
yours, because if I do, we will defund the Court.
    [Laughter.]
    Senator Graham. I hate that case.
    Judge Gorsuch. It is a great case.
    Senator Graham. Yes, that is your opinion.
    Judge Gorsuch. I make all of my potential law clerks read 
it.
    Senator Graham. I know. That is why the Geneva Convention 
should apply to them.
    But so, let us just say this, Sonia Sotomayor and Elena 
Kagan have served their Nation well, honorably, and they have 
not grown, in my view, to the way I would have liked them to 
have grown. I do not expect them to decide the cases the way I 
would have.
    Now, growing means you have to agree with me, I guess. I 
know they are not going to all of a sudden change their 
judicial philosophy because the General Counsel to--who was the 
guy? To Obama? What was his name? Yes, Greg Craig said that 
Elena Kagan is progressive in the image of Obama himself. He 
did not grow a lot, in my view, in terms of his liberal 
philosophy.
    And I do not think these two Justices have served the 
country poorly by not coming my way. I just think they have not 
grown in terms of understanding the conservative view of being 
a judge. But they are qualified, and they sit on the Court 
today, and I understand that.
    As to Judge Garland, a dear man, a fine man, I do not think 
anything happened here on our watch that is anything unusual. 
When you look at the last 100 years, I think you have had one 
situation where, in the last year of a presidency, a vacancy 
was filled when it came open in the last year by a President of 
one party and the Senate of another.
    And to my friends on the other side, if you think I believe 
you would have done something differently, I do not. I do not.
    Here is what my friend Joe Biden, who I talked to today, by 
the way, as Chairman of the Committee said June 25th, 1992, 
when there was a potential opening in the last year of Bush 
41's presidency. He said it would be--``It would be our 
pragmatic conclusion that once the political season is 
underway, and it is, action on a Supreme Court nomination must 
be put off until after the election campaign is over. . . . If 
someone steps down, I would highly recommend the President not 
name someone, not send a name up.'' If Bush ``did send someone 
up, I would ask the Senate to seriously consider not having a 
hearing on that nominee.''
    We agree, Joe. We got your message.
    Here is what Harry Reid said in 2005. ``The duties of the 
United States Senate are set forth in the Constitution of the 
United States. Nowhere in that document does it say the Senate 
has a duty to give presidential nominees'' a vote.
    Here is what Senator Schumer said before the American 
Constitution Society. ``We should reverse the presumption of 
confirmation. . . . We should not confirm any Bush nominee to 
the Supreme Court except in extraordinary circumstances.''
    That was in his last year, so it is not very persuasive to 
me.
    Here is what I would say, that if an opening occurs in the 
fourth year of President Trump's term, and the political season 
is afoot, that I will be with you all if you say wait until the 
next election. That is the one thing I can say.
    You like precedent? We just created one, and I think we 
will be bound by it. And Joe Biden was going to do it back in 
1992, and you all would have--shoe on the other foot, we would 
wait until the election was over.
    And why are we here? Because Trump got 306 electoral votes. 
So that is why we are here. That is why you are nominated and 
not somebody else, because I did not expect Donald Trump to 
pick Merrick Garland, even though he is a fine person. I 
expected him to pick from a list of 21, which he told the whole 
country before the election, here is my list.
    Now the one thing you can say about President Trump, when 
it came to the Supreme Court, he showed his cards. It was 
really unprecedented. And he kept his word, and he chose from 
that list, all highly qualified.
    And I, honest to God, cannot think of anybody I would have 
chosen above you.
    I ran for President and lasted about 30 minutes. I enjoyed 
the entire process. I was, apparently, the only one.
    [Laughter.]
    Senator Graham. But if I would have won, I would have 
chosen you, too.
    But I think the bottom line is that you are highly 
qualified, from the conservative point of view, that the last 
10 years have been a testament to good solid judging. You have 
stood out in all the right ways as a judge. You have conducted 
yourself honorably. And to expect a Republican to pick someone 
like you would be very much expected, and I am happy he did 
because, I will be honest with you, I was worried he would not. 
But now we have a great nominee, and I hope we can get you over 
the line here.
    I want to ask you about a case that nobody else will ask 
you about, polygamy, not that I am advocating it. I want to get 
that straight. But the decision, Obergefell--is that how you 
say it?
    Judge Gorsuch. Obergefell.
    Senator Graham. Okay. Justice Kennedy, the Roberts Court, 
decided that the due process and equal protection clauses of 
the Fourteenth Amendment guarantee the right of same-sex 
couples to marry.
    And that is the law, right?
    Judge Gorsuch. Yes, Senator.
    Senator Graham. Is it possible three people could fall in 
love and want to marry? Are there places in the world where 
polygamy is the practice?
    Judge Gorsuch. Senator, there are places in the Tenth 
Circuit where----
    Senator Graham. But it is illegal in America, is it not?
    Judge Gorsuch. Senator, we just had a challenge to Utah's--
--
    Senator Graham. But the law of Colorado says it is illegal.
    Judge Gorsuch. It does.
    Senator Graham. Is there any State in the Union that 
recognizes polygamy as a legal marital relationship, that you 
know of?
    Judge Gorsuch. At the moment, to my knowledge, no.
    Senator Graham. So the point is that, apparently, as a 
Nation, we are all okay with not extending marriage to three 
people. One day, we may not be okay with that. One day maybe we 
want to broaden our view of what marriage should be.
    And that day may come, and you may be the judge. And I 
guess what I am saying is, to Senator Blumenthal, rather than 
pledge allegiance to all these cases, you should treat them for 
their precedential value they have, and maybe one day three 
people will argue that we love each other as much as you love 
your wife or a same-sex couple. I do not know if that day will 
ever come, but if it does not come through the political 
process, the only venue for somebody to challenge would be the 
Court.
    So in terms of Griswold, if you do not--if you cannot 
figure out what you are saying, you are not listening very 
well. I think what you are saying is that if there is ever an 
effort to overturn Griswold, it will mature as a case in 
controversy. I think you have been very honest with us. I 
cannot imagine a situation anywhere in America where some 
politician would try to change the law in this regard, and I 
cannot imagine the Court hearing that case.
    But if that ever happened, I am glad you are willing to say 
I will at least listen. And for you to do more than that would, 
I believe, run afoul of what Justice Ginsburg said, ``A judge 
sworn to decide impartially can offer no forecast, no hints, 
for that would show not only disregard for the specifics of the 
particular case, it would display disdain for the entire 
judicial process.''
    As to Justice Roberts saying I like Griswold, that is 
certainly his right. I do not know if he tipped his hand, but I 
can say this: If you are listening to this man, this judge, I 
think he recognizes the real-world consequences of overturning 
that decision, and that you will apply the law. But if there is 
ever a case before you that challenges Griswold, I am glad to 
hear that you are going to listen.
    As to these other cases, I promise you there will be 
legislative efforts to protect the unborn, and some of them may 
have a different legal theory than Roe v. Wade. Some of them 
may run into the construct of Roe v. Wade. I am glad you are 
willing to listen to those of us on this side of the issue.
    As to same-sex marriage, I have been asked a lot at home to 
introduce a constitutional amendment to overturn the decision. 
I have decided not to do that because I think it would put the 
country through something that is not going to bear fruit.
    But to the people who believe that traditional marriage 
should be protected and oppose same-sex marriage, I do not 
think you are all crazy. I think many of you have religious 
views. But the Court has ruled.
    And I do not know if the Court will ever decide that three 
people can get married, but I hope that the judges who hear 
that case one day, if it ever comes, will at least do what you 
promised to do. Listen. Base the decision on the law, should it 
change, and the facts of that particular case.
    So the bottom line here, Judge, is that you cannot give the 
answers that the other side would like, because what they want 
you to do is make sure that they can go and tell everybody he 
is okay with all the cases we like.
    The Roberts Court is interesting. When they upheld the 
Obamacare act twice, I have accused of owning Justice Roberts 
because I voted for him. Actually, I do not really disagree 
with his rulings. I am a bit surprised by it.
    When Justice Kennedy decided that same-sex couples can 
marry and State statutes have to follow, the Roberts Court was 
not very popular over here.
    All I can say about the Roberts Court is it is made up of 
some pretty incredible people. And his time will come, and his 
time will go.
    And if you get to be part of that Court, I think Donald 
Trump will have done a good service for the people of the 
United States, because what he will have done is chosen one of 
the most qualified people I have ever met in my time in the 
Senate or otherwise, someone who has endured 2 days of very 
difficult questioning, shown an understanding of the law that 
amazes me, has lived a life that I can only compliment you on.
    And as to President Trump, whatever differences we have, 
when it comes to this nomination, you did the country a great 
service.
    To my colleagues, I know it is tough right now. If this man 
does not get 60 votes, then I do not believe we can ever find a 
Republican in the country, a presidential pick, that will get 
60 votes. There is nobody I know better in my world, the 
conservative world, than this man. And I hope and pray that you 
will honor President Trump's selection, as I chose to honor 
Sotomayor and Kagan.
    Whether they are better qualified, I will let other people 
decide. But I will fight to the death to say that you are 
equally qualified.
    Thank you very much and Godspeed.
    Judge Gorsuch. Thank you, Senator.
    Chairman Grassley. The Senator from Hawaii.
    Senator Hirono. Thank you, Chairman.
    Judge Gorsuch, you have sat through many hours under the 
cameras and under the lights over the last 3 days, and that 
goes for all the people who sitting there who have been 
supportive of you.
    And for all that, many of my colleagues across the aisle, 
particularly, have called it an endurance test, granted. But, 
Judge, the real endurance test is about the struggles facing 
working families, women, people of color, the LGBTQ community, 
immigrants, and Native peoples. It is about the struggles that 
everyday Americans have and face.
    These are the people who will be impacted by the decisions 
you would make on the Supreme Court. These are the people for 
whom the need for justice is often most urgent. These are the 
people I am focused on when I consider your nomination and any 
nomination to the Supreme Court.
    It remains to be seen if you will be a Justice for all or a 
Justice for some. Over the last few days, you have often told 
us about what counts and what does not in terms of what a 
Justice should do and how we should assess your nomination.
    When other Senators and I have asked about your opinions in 
specific cases, like that involving the terrible choice facing 
Alphonse Maddin between freezing or being fired, you have told 
us to look at your whole record.
    When we asked about decisions where you seem to adopt 
strange interpretations that narrowed laws meant to protect 
worker safety, you said you are a judge and do not take sides, 
and that if the statute was too limited, Congress should do 
better.
    When we asked about your decision in Hobby Lobby, which 
found an expansive new right to religious liberty for a 
corporation that employs 32,000 people, you did not explain how 
you assessed the terrible impact this decision had for 
thousands of women who now would be denied access to 
healthcare.
    During my last round of questions, I asked you about your 
understanding of the influence of politics on the composition 
of the Court based on your 2005 article, ``Liberals and 
Lawsuits.'' It was not an attempt at a gotcha moment or to 
paint you in an unfair light. It was an attempt to get to the 
reality that both you and I understand.
    I wonder how you would approach the kind of tough cases 
that reach the Supreme Court and how, say, a Justice Garland 
would approach the same case. I think there would be a big 
difference.
    We know that Justice Scalia and Justice Ginsburg, both 
legendary jurists and close friends, would reach dramatically 
different results in cases that matter deeply in the lives of 
millions, cases like Shelby County, Lilly Ledbetter, Hobby 
Lobby, Roe v. Wade.
    Donald Trump knew this too when he set forth his very clear 
litmus test for a Supreme Court pick. He said he wanted a 
Justice who, for example, would adhere to a broad view of the 
Second Amendment and who would overturn Roe v. Wade, to quote 
him, ``automatically.''
    Your article in 2005 made clear you know judicial 
philosophy matters. Of course it does. That is why we are so 
focused on understanding your judicial philosophy and getting 
beyond platitudes about the judicial role. That is why this 
confirmation process matters.
    This is serious business. That is why we still have 
questions. That is why I remain concerned.
    Judge Gorsuch, over and over again, you have told us to 
focus on your whole record as a judge and not certain cases or 
certain of your writings in books or articles or emails. In 
fact, my Republican colleagues suggest we are being unfair to 
try to look to those things to discern how you would approach 
cases, if confirmed.
    Some have even gone so far as to conflate the questions we 
are raising about your record in the course of our advise and 
consent responsibilities with Donald Trump's abhorrent attacks 
on Federal judges, attacks like the one on Judge Watson of 
Hawaii, which he repeated last night at a $30 million 
fundraiser for congressional Republicans.
    Apples and oranges do not begin to describe the differences 
between what Donald Trump said and what we are seeking to do 
here.
    Although I was not in the Senate, I recall during Justice 
Sotomayor's confirmation hearing that Republican after 
Republican ignored almost the entirety of her nearly 25 years 
on the Federal bench. Instead, they focused in question after 
question on a gross misreading of one speech--one speech--she 
gave to a group of young women about the value of diversity on 
the bench. Many of them cited that speech to justify their 
opposition to her nomination.
    Judge Gorsuch, was that a fair basis on which to evaluate 
Justice Sotomayor's nomination?
    Judge Gorsuch. Was what? Was the speech that she gave a 
fair basis on----
    Senator Hirono. To--yes, we have been criticized for 
focusing on some very important cases to try to get to your 
heart, your judicial philosophy. Meanwhile, Justice Sotomayor 
was judged by some of my colleagues based on one speech. And I 
am asking you whether that was a fair basis on which to judge 
her nomination.
    Judge Gorsuch. Senator, I have declined to offer personal 
opinions about cases, and I have also declined to offer 
personal opinions about the advice and consent function of the 
Senate.
    That is your constitutional responsibility, and this 
body's, and it would be presumptuous of me as a judge at once 
to say I like or dislike the work of the U.S. Supreme Court as 
a lower court judge, and it would be presumptuous of me as a 
judge to say I like or dislike how this body discharges its 
constitutional obligations. That is really your judgment.
    Senator Hirono. Judge, excuse me, you have consistently 
asked us to look at your whole record. That is why I asked the 
question.
    You have said again and again in these hearings that you 
cannot provide your views on specific precedents, but at times, 
you have done that. You have praised the Youngstown case. You 
have criticized Korematsu. You have praised the Brown decision. 
You said that Cruzan and Glucksberg were rightly decided.
    So how can you express these opinions but refuse to provide 
your views on the Casey, Heller, Roe, Citizens United, 
Griswold, Gideon, Ledbetter, Gross, University of Texas, 
Southern Medical Center cases?
    Judge Gorsuch. Senator, I have offered my legal judgment as 
a judge about cases. I have not offered any personal views 
about anything, or I have tried not to very hard.
    I have tried to adhere to Justice Ginsburg's rule about no 
hints, no previews, no forecasts. Justice Scalia, Justice 
Souter, Justice O'Connor, and all the judges who come before 
me, I have tried not to break the chain.
    Senator Hirono. You did lend your support, however, to some 
precedents and not others, so that is the question.
    You have told us also several times that judges make 
terrible legislators. You told us that courts lack the staff, 
capacity, and training to the kinds of fact-finding that is an 
essential part of the legislative process.
    And in that context, I do want to return briefly to Shelby 
County and the Voting Rights Act. When Congress reauthorized a 
key expiring provision of the landmark VRA in 2006, it did so 
with a nearly unanimous vote. And before reauthorizing the 
protection of Section 5 in jurisdictions with a long history of 
discrimination in voting, this Committee alone held nine 
hearings on the VRA.
    The thousands of pages of material the Senate reviewed, 
together with a record developed in a dozen hearings in the 
House, clearly established a continuing need for Section 5. And 
yet, in Shelby County, the Roberts Court ignored this evidence 
and the Court's long precedent and made its own determination 
about the value of the extensive evidence reviewed by Congress. 
It struck down those provisions.
    So, so much for judicial modesty. So much for balls and 
strikes. So much for judges judge best when they judge least, 
which you mentioned tonight as a virtue.
    So, Judge Gorsuch, does the Shelby County decision raise 
the kind of concerns you have noted about the limits of judges 
as policymakers and the problems that arise when a court steps 
outside of the judicial role and acts as a legislative body?
    Judge Gorsuch. Senator, Shelby County is a precedent of the 
U.S. Supreme Court. I am not here to disparage the work of the 
U.S. Supreme Court.
    Senator Hirono. Both the process and the outcome in the 
Shelby County case raise exactly the kind of concerns that make 
it so important for us on the Committee and in the Senate to 
understand your judicial philosophy. You are, after all, 
talking about a lifetime appointment to the highest court in 
the land.
    And after the obstacles to voting we have seen since Shelby 
County, we now know that Congress got it right, that the 
evidence showed a continuing need for Section 5 of the Voting 
Rights Act, and the Supreme Court got it wrong when it 
substituted its judgment.
    So once again, I am asking this in a different way, and I 
will give it a shot: Judge Gorsuch, doesn't the outcome of the 
Court's action in striking down Shelby County suggest you have 
it right when you point to the limits of judges as legislators?
    Judge Gorsuch. Senator, what I would say is, after Shelby 
County, there remain some remedial mechanisms available to 
individuals concerned about voting rights. There is always an 
equal protection claim under the United States Constitution. 
There also is a Section 2 claim available to anyone who is 
concerned. It goes beyond the Constitution.
    And should Congress wish to legislate, the Court in Shelby 
County made clear that it could do so with a more updated 
formula for preclearance. So that remains a remedial regime 
possibility as well.
    Senator Hirono. The real-life impact of the Shelby County 
decision was that 13 States passed laws that could be deemed 
voter suppression laws, including--the first State was Texas, 
which intentionally passed a discriminatory law.
    So I think everyone understood the ramifications and the 
import of that particular decision. And we learned in that 
decision that it matters a great deal for our rights what is 
the judicial philosophy or, as my colleague, Senator 
Blumenthal, would put it, core beliefs of the judges who serve 
on the Supreme Court.
    If judicial philosophy developed through life experiences, 
education, et cetera, and that judges should apply instead 
precedent, why would we have so many 5-to-4 decisions in 
critical cases?
    Judge Gorsuch, I wish that I could say that this hearing 
has been illuminating for what was said by you. Instead, I am 
left to judge your nomination largely on the basis of what you 
refused to say.
    Mr. Chairman, I yield the rest of my time.
    Chairman Grassley. Senator Tillis and Senator Kennedy will 
be the last two. So whenever you finish, the judge will be able 
to go. I may have a few remarks at the tail end. It is up to 
you guys.
    Senator Tillis. Thank you, Mr. Chair.
    Just briefly, without objection, I would like to enter some 
other letters that come from a diverse group of people 
attesting to Judge Gorsuch's qualifications and balance on the 
bench and in law practice.
    Chairman Grassley. Without objection, they will be entered.
    [The information appears as a submission for the record.]
    Senator Tillis. I am going to be brief and yield back 10 
minutes of my time.
    First, I have heard the sort of messaging today about the 
Roberts Court. We have already heard from Senator Graham, whose 
comments I would like to be associated with. You know, the 
Roberts Court has produced a number of opinions that have made 
folks on my side of the aisle uneasy.
    It seems to me that we have folks down on the other side of 
the street here that do a pretty good job of being objective 
and following the law. So I am not so sure this branding that 
they are trying to come up with or that some are trying to come 
up with that the Roberts Court always rules one way or the 
other in a 5-4 split, not to mention the multitude of 
judgements they make over there that are unanimous.
    I want to talk a little bit about history and then just 
thank the judge for his contribution. But I do have to go back 
to some numbers, and I want to call out that, you know, there 
are folks here who have already laid the ground work for a 
filibuster, for trying to hold up the confirmation of an 
enormously well-qualified judge to go on to the Supreme Court.
    But I think when you criticize Judge Gorsuch, you are 
really criticizing, because of the numbers, the entire Tenth 
Circuit--97 percent of the time unanimous decisions. He is in 
the majority of decisions in which he participates 97 percent 
of the time, so I would assume the concerns that you would have 
for Judge Gorsuch you would probably have to, to be 
intellectually honest, place those same concerns with anybody 
coming out, whether they are a Democrat or a Republican judge 
on the bench or put forth by a Democrat or Republican 
administration.
    A lot of people have used history here to suggest that 
maybe requiring a supermajority is the norm. It could not be 
any further from the truth. Republicans did not require a 
cloture vote. They did not seek a supermajority for Justice 
Ginsburg, Justice Breyer, Justice Sotomayor, or Justice Kagan. 
And I would believe that if we applied the same mainstream 
standard that seems to be being created here, maybe things 
would be very different on the Bench.
    For example, I do not think most Americans think mainstream 
is to propose abolishing Mother's Day, to suggest that there is 
possibly a constitutional right to prostitution, or to urge the 
establishment of co-ed prisons. Yet those views were espoused 
by Ruth Bader Ginsburg. They are certainly controversial today. 
I suspect they were when Ruth Bader Ginsburg was before this 
Committee. But they did not require a special standard, and 
they actually voted for a confirmation. As a matter of fact, 
she was voted in 96-3.
    Now we will move to nominations under the Obama 
administration. I submit that most people would not find it 
mainstream to believe a person of one ethnicity or gender would 
reach a better conclusion than a person of a different 
ethnicity or gender. I bet they would not think it is 
appropriate for a judge that is appearing here that would say 
impartiality is an aspiration. But those were the views that 
Justice Sotomayor had when she came before this Committee.
    The aspiration to impartiality is just that--an aspiration. 
This is somebody who got voted to be a Supreme Court Justice, 
and we did not set a different standard. As a matter of fact, 
the only way that Justice Sotomayor was confirmed was through 
the support of Republicans. They could have filibustered it. 
Yet or if the Minority Leader at the time had gotten up and 
tried to convince us or convince the Members who were here at 
the time, we could have held up this new standard. It simply 
does not exist. It does not exist, I do not think, in the 
tenure of any of the Senators on this Committee.
    So the question is: Are we just creating a new set of 
rules? And are we doing that at our own peril? Is this the new 
norm? Is this how we are going to run this process? This is the 
first time I have been through it. It has only happened 112 
times in the history of the United States. This is the 113th. 
Are we really going to set that standard? Because it is not a 
standard that really has existed in history, but that is what 
we are on the brink of doing. And I will tell you, we could end 
up on a slippery slope that will not work out well for this 
institution, and I do not think it will work out well for the 
Supreme Court.
    You know, we had a 63-37 vote for Kagan in spite of her 
comments defending that the Government had the authority to 
outlaw the publishing of a pamphlet, a pamphlet that could have 
been a modern-day equivalent to ``Common Sense.'' In 
Sotomayor's case, nine Republicans, of which Senator Graham was 
a part, voted for Sotomayor, in spite of the comments that I 
just mentioned.
    I really think we ought to go back, listen to what the 
judge has said today and yesterday and the day before, and 
recognize we have an extraordinarily well-qualified nominee 
before us who will do a great job on the Supreme Court.
    And, Judge Gorsuch, I want to apologize for some of the 
people here who I think--I know you are a great, a very kind 
person, and a kind soul. You said there were no inappropriate 
questions. I for one think there were a lot. But I am not going 
to ask you to respond to that. I am just going to thank you for 
your kindness. I am going to thank you for your energy. I want 
to thank you for your resolve. And I want to thank you for 
having an impeccable record that builds a compelling case for 
you to be the next Supreme Court Justice on the Supreme Court. 
I wish you the very best. I am going to keep you in my prayers. 
And I look forward to voting for your confirmation.
    I yield back the remainder of my time.
    Judge Gorsuch. Thank you, Senator.
    Chairman Grassley. Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman.
    Judge, I join my colleagues in thanking you for your 
answers. I think they were as candid as you could make them 
under the rules. And I appreciate all the time you spent 
preparing for this hearing.
    I also join my colleagues in thanking your family, 
especially your partner. This is a tough, tough business 
sometimes, and it is especially difficult on families.
    You have quite an extended family as well. I have spoken 
casually with some of your law clerks, and they are very 
devoted to you, and that speaks volumes to me.
    I want to thank Senator Ayotte for her wise counsel and 
advice.
    I have two quick questions and then a request, but I cannot 
let go unaddressed some of the comments made by my friend from 
Minnesota about the Voting Rights Act.
    I am from the South. The Voting Rights Act, we were the 
subject of the Voting Rights Act. And I can say that I guess 
this is sort of a glass-half-full or glass-half-empty sort of 
thing. But this country has gone from institutionalized slavery 
to an African American President in 150 years, which in the 
grand scheme of life, death, and the resurrection is not that 
long, and I am very proud of that. I did not agree with our 
first African-American President on all of his positions, but I 
am very proud of the fact that this country made that kind of 
progress, and I just wanted to say that for the record.
    My first question, I do not know whether you picked it up 
from my questions and comments or not, but I have what I think 
is a healthy skepticism about Government. I believe I do have a 
right to privacy, and part of my right to privacy is to be left 
alone by Government sometimes. That does not mean that we do 
not need Government and that I do not have confidence in 
Government, but I think there should be limits to Government. 
And I think the U.S. Congress sets those limits.
    Do you agree with me that our United States Constitution is 
a document of enumerated powers and that neither the Federal 
Government nor any of its branches have a power unless you can 
point specifically to a place in the United States Constitution 
that gives them that power?
    Judge Gorsuch. Yes, Senator.
    Senator Kennedy. Thank you.
    It has been my experience--and this I was taught--that 
justice is supposed to be blind. I realize that is a cliche, 
but cliches become cliches because they are true.
    Do you agree with me that the wealth, the status, and the 
power of the parties to litigation should have absolutely 
nothing to do with the result in litigation?
    Judge Gorsuch. Senator, I take an oath written by this 
Congress; it is a beautiful oath. It is to administer justice 
without respect to persons, to be blind to who they are, and 
also to do equal right to the poor and to the rich, and to 
administer the duties of my office, to discharge them 
impartially.
    I have tried to do that here to the best of my abilities. 
Not perfect. I have tried to do it for the last 10 years as a 
Federal judge--not perfectly, but that is what I try to do each 
and every day, and it is a great privilege and a great honor to 
be able to do it. And I am humbled, I am honored every day I 
come to work. And I have been humbled and honored to be here 
with you.
    Senator Kennedy. And I believe you will do that in the U.S. 
Supreme Court.
    My final statement is not a question. It is a request. It 
seems to me that justice is kind of like healthcare. It is not 
really accessible unless you can afford it. And I am very 
concerned about the cost of litigation in America and the fact 
that it has affected access to our courts. It has just become 
so expensive that many of our people cannot afford to have 
their day in court. And I know administratively the Federal 
judiciary has some powers, and I hope once you are on the Court 
you will talk to your colleagues and see if you can put your 
thinking caps on and do what you can to try to control the 
costs of litigation.
    With that, I thank you again. I thank you, Mr. Chairman. I 
am sorry my iPad went off.
    [Laughter.]
    Senator Kennedy. But it will not happen again.
    Chairman Grassley. I have a few words to say, but before I 
say those to you, Judge, we are going to reconvene tomorrow 
morning at 9:30 when we will hear from outside witnesses. So 
before I let you go, I think that you have demonstrated a great 
deal of patience, and that is probably necessary to get the 
votes of the United States Senate. You probably cannot show you 
ever get mad, but, boy, you had to be disgusted sometimes, but 
you did not show it.
    I know you were not, but that is kind of the way I would 
feel if I were in your shoes.
    I suppose the thing that bothers me most about a lot of the 
questions you got, you seemed to agree with so many people that 
we are trying to get a yes or no out of you, and they did not 
seem to want to take a yes for an answer, even if you did not 
say yes, because you kept saying I do not know how many times, 
maybe hundreds of times, ``It is the law, it is the 
precedent,'' and how you are going to approach those things. 
There ought to be a great deal of satisfaction on people that 
we got somebody that says the law means something, what the 
people's elected representatives pass mean something, and 
within our system of judicial interpretation of law and the 
Constitution, that precedent plays a very important part, and 
that we have a document that is going to bring certainty, and 
that certainty is based upon, as it was laid out by our 
forefathers, to make sure we had stability and predictability 
in our public policies.
    So evidently it did not frustrate you, but I want you to 
know it frustrated me that they would not take really in a 
sense a yes for an answer, even if you did not answer in a 
three-letter word.
    I think you should know that I am very impressed with the 
way you handled all this testimony. For the last 3 days, the 
American people have witnessed a very impressive command of the 
law, most assuredly the thoughtfulness that you have put into 
everything you do, particularly how you responded to our 
questions, and that can only come from the discipline that you 
have given yourself as a judge already on the Tenth Circuit. 
And it pretty well ought to demonstrate to everybody how you 
are going to handle it when you get to the Supreme Court of the 
United States.
    So I think you are to be commended for your strength in 
this enduring process, and I think that the American people 
witnessed most importantly a person who has a great deal of 
humility. And I think it shines through in not only your own 
non-verbal demeanor, but also in what you say.
    So I thank you very much for being a good witness. Thank 
you very much for your public service. And the meeting is 
adjourned, and you are excused.
    Judge Gorsuch. Thank you, Mr. Chairman, very much.
    [Whereupon, at 7:53 p.m., the Committee was recessed.]
    [Additional material submitted for the record for Day 3 
follows Day 4 of the hearing.]



                          CONTINUATION OF THE



                      CONFIRMATION HEARING ON THE



                   NOMINATION OF HON. NEIL M. GORSUCH



                   TO BE AN ASSOCIATE JUSTICE OF THE



                   SUPREME COURT OF THE UNITED STATES

                              ----------                              


                        THURSDAY, MARCH 23, 2017

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:33 a.m., in 
Room SH-216, Hart Senate Office Building, Hon. Charles E. 
Grassley, Chairman of the Committee, presiding.
    Present: Senators Grassley, Hatch, Graham, Lee, Sasse, 
Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy, Durbin, 
Whitehouse, Klobuchar, Franken, Coons, Blumenthal, and Hirono.

         OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Chairman Grassley. Good morning to everybody who is here 
and especially those who have prepared for testimony today. We 
welcome everybody on what I think will be the final day of 
Judge Gorsuch's confirmation hearing.
    We have already heard 2 days of impressive testimony from 
the nominee. I think he has shown great command of the law, and 
I think he has shown a humility with his humble delivery, and I 
think people learned a lot about not only our political system, 
but our judicial system with what has gone on in the last 3 
days.
    Today, we will hear from a number of outside witnesses. We 
will hear from a number of distinguished witnesses both in 
support and in opposition to the nominee. They will all speak 
to the qualifications to be a Supreme Court Justice. I look 
forward to hearing from all the witnesses today.
    Let me modify this a little bit because I am going to spend 
maybe 15 minutes at the Agriculture Committee because the 
nominee for Secretary of Agriculture is before that Committee, 
and I am a Member of that Committee. And I will have somebody 
else chair. That will not stop the business going on. So that 
is the only time I should probably be away.
    Each of our witnesses will have 5 minutes to make an 
opening statement, and then we will proceed to questionings. If 
Members have questions of the Members, we will obviously 
accommodate that.
    But now I am going--oh, no. Do you have an opening comment? 
I am sorry. I just--I just about forget you.
    Senator Feinstein. I do not. You do not need to worry about 
that.
    [Laughter.]
    Senator Feinstein. I do not, Mr. Chairman.
    Chairman Grassley. Okay. Okay. Now we will go to our first 
panel, who will feature two representatives of the American Bar 
Association. You may come to the table.
    I will start over again. With the Standing Committee on the 
Federal Judiciary, Nancy Degan and Shannon Edwards. Nancy Degan 
is the chair of the American Bar Association
    Standing Committee on the Federal Judiciary, and Shannon 
Edwards is the Tenth Circuit representative on the American Bar 
Association Standing Committee of the Federal Judiciary and 
served as a lead evaluator on the Standing Committee's 
investigation of Judge Gorsuch.
    I would like to swear you, if you would let me. I do not 
know whether we have to stand. I guess we just do it naturally.
    Do you swear that the testimony you are about to give 
before this Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Ms. Degan. I do.
    Ms. Edwards. I do.
    Chairman Grassley. Each answered affirmatively. We would 
now have you give your statement, please.

          STATEMENT OF NANCY SCOTT DEGAN, AMERICAN BAR
         ASSOCIATION, STANDING COMMITTEE ON THE FEDERAL
   JUDICIARY, NEW ORLEANS, LOUISIANA, ACCOMPANIED BY SHANNON 
 EDWARDS, AMERICAN BAR ASSOCIATION, STANDING COMMITTEE ON THE 
              FEDERAL JUDICIARY, EDMOND, OKLAHOMA

    Ms. Degan. Thank you very much.
    It is a privilege to be here. I am Nancy Degan from New 
Orleans, and I am very privileged to chair the American Bar 
Association's Standing Committee on the Federal Judiciary.
    And as you indicated, Senator, I am joined today by Shannon 
Edwards from Oklahoma City, who is our Tenth Circuit 
representative and was the lead evaluator on the Standing 
Committee's investigation of Judge Gorsuch.
    The Standing Committee has conducted its independent and 
comprehensive evaluations of the professional qualifications of 
nominees to the Federal bench for the last 60 years plus. The 
15 distinguished lawyers who make up our committee come from 
across the country, representing every Federal Judicial 
Circuit. They annually volunteer, on a pro bono basis, hundreds 
of hours to evaluate nominees to the Federal bench, and we 
focus solely on a nominee's integrity, professional competence, 
and judicial temperament.
    We do not consider a nominee's political affiliation, 
philosophy or ideology. And we do not solicit any information 
from any nominee with regard to how he or she might vote on a 
particular issue or matter that may come before the Court.
    The Standing Committee's evaluation of a nominee to the 
Supreme Court is based upon the premise that a Justice must 
possess exceptional professional qualifications. All 15 members 
of the Standing Committee participate in the evaluation of a 
Supreme Court nominee. Each Standing Committee member reaches 
out to a wide range of people within his or her respective 
Circuit who may have information regarding the nominee's 
integrity, professional competence, and judicial temperament.
    Additionally, reading groups of scholars and practitioners 
review the written work of the Supreme Court nominee and advise 
the Standing Committee of their findings. The reading groups 
independently evaluate the nominee's analytical ability, 
knowledge of the law, application of facts to law, expertise in 
harmonizing a body of law, and the ability to communicate 
effectively.
    The academic reading groups involved in Judge Gorsuch's 
evaluation were composed of experts in their fields from the 
faculties of the University of Pennsylvania Law School and the 
Loyola College of Law in New Orleans. The practitioners reading 
group included nationally recognized lawyers who have argued 
before the Supreme Court and served as law clerks to Justices 
on the Supreme Court.
    These three groups read all of Judge Gorsuch's published 
opinions and many of his other writings. During the evaluation 
of Judge Gorsuch, the Standing Committee members contacted 
almost 5,000 people nationwide who might have knowledge of 
Judge Gorsuch's professional qualifications, and these included 
judges, lawyers, academics, and Members of the general 
community.
    Circuit members then interviewed those who indicated that 
they had personal knowledge of Judge Gorsuch through their 
dealings with him as a judge, colleague, co-counsel, opposing 
counsel, teacher, organization member, and even classmate. We 
followed Judge Gorsuch's career from his time at preparatory 
school through his tenure on the Tenth Circuit. All interviews 
were conducted in confidence to assure accurate information and 
candid assessments.
    Finally, as we do with every evaluation, we conducted a 
personal interview with Judge Gorsuch. Ms. Edwards and I met 
with him on February 27th and questioned him on a wide variety 
of topics.
    After our comprehensive evaluation was completed, our 
findings were assembled into a detailed confidential written 
report, which included the written reports of the academic 
reading groups and the practitioners reading group, and this 
report was approximately 1,000 pages long.
    Each member of the Standing Committee then studied that 
final report and individually evaluated Judge Gorsuch using 
three possible rating categories: qualified, well qualified, or 
not qualified. To merit a Standing Committee rating of well 
qualified, a Supreme Court nominee must be a preeminent member 
of the legal profession, have outstanding legal ability and 
exceptional breadth of experience, and meet the very highest 
standards of integrity, professional competence, and judicial 
temperament.
    The rating of well qualified is reserved for those found to 
merit the committee's strongest affirmative endorsement. Having 
examined Judge Gorsuch through this lens, the Standing 
Committee members unanimously voted that he deserved the well 
qualified rating.
    On March 19th, we submitted a written statement further 
explaining our process and our rating, and we respectfully 
request that it be made a part of this Committee's official 
record.
    Thank you.
    [The prepared statement of Ms. Degan appears as a 
submission for the record.]
    Chairman Grassley. Thank you.
    Ms. Edwards is not going to say anything. Is that right?
    Ms. Degan. We are pleased to answer any questions that the 
Committee may have.
    Chairman Grassley. Okay. Yes, I think I have a couple 
questions. They are somewhat repetitive of maybe some of the 
things that you said, but I would like to have that emphasis.
    But before I give a short statement, I would like to 
compliment anybody who serves on evaluating these judges at all 
levels, and probably at the level of the Supreme Court, it is 
much more difficult and elongated as it probably should be. But 
I know David Brown, Des Moines, Iowa, who does this with a lot 
of judges and takes it real seriously.
    Ms. Degan. Yes, sir.
    Chairman Grassley. And you almost--when you visit with him 
about the work he does, you almost think it is a full-time job. 
He has obviously got to go make money someplace else. So he 
must have some time to practice law, but he really--seems to me 
like he puts a lot of time into it.
    Ms. Degan. It is an honor, sir.
    Chairman Grassley. So for both of you, I would compliment 
you on what----
    Ms. Edwards. Thank you.
    Chairman Grassley [continuing]. On what you do.
    As you noted in your testimony, the American Bar 
Association awarded Judge Gorsuch its highest rating of well 
qualified by unanimous vote. The statement explaining the 
rating states this, and you have said this already, but let me 
repeat it.
    The rating of well qualified is reserved for those found to 
merit the committee's strongest affirmative endorsement. In 
other words, a rating of well qualified is not given lightly. 
Would you agree with that?
    Ms. Degan. Absolutely.
    Chairman Grassley. Okay. Now I just want to mention a few 
points from the report. First, the Standing Committee found 
that ``Judge Gorsuch enjoys an excellent reputation for 
integrity and is a person of outstanding character.''
    In fact, one of his colleagues on the bench said, let me 
quote, ``I have known and interacted professionally with Judge 
Gorsuch since his appointment to the Tenth Circuit Court of 
Appeals. In my experience as a judge, I cannot identify a 
person more qualified in every sense of the word to serve as an 
Associate Justice of the U.S. Supreme Court. Judge Gorsuch 
would be an invaluable addition to the high court.''
    Second, the committee found that the judge's professional 
competence exceeds the high criteria reviewed by the committee. 
In fact, the committee report stated, ``Given the breadth and 
diversity and strength of the feedback that we received from 
judges and lawyers of all political persuasions and from so 
many parts of the profession, the committee would have been 
hard-pressed to come to any conclusion other than Judge Gorsuch 
has demonstrated professional competence that is exceptionally 
outstanding. Time and again, those with whom he has worked and 
those who have been involved in cases over which he has 
presided have applauded his intellectual acumen, thoughtful 
discernment, and written clarity.''
    On the judicial temperament, the committee found that 
lawyers and judges alike overwhelmingly praised his judicial 
temperament.
    And finally, on judicial independence, the committee found 
``that Judge Gorsuch believes strongly in the independence of 
the judicial branch of government, and we predict that he will 
be a strong, but respectful voice in protecting it.''
    As one person interviewed for the report stated, ``In 
addition to his outstanding academic credentials and brilliant 
mind, Judge Gorsuch's demeanor and written opinions during his 
tenure on the Tenth Circuit demonstrate that he believes 
unwaveringly in the rule of law and judicial independence. In 
my opinion, he is exceptionally well qualified to serve as a 
Justice of the Supreme Court of the United States.''
    I wholeheartedly agree with the American Bar Association's 
assessment of Judge Gorsuch, and I have one question. But 
before I do that, I think we had 2 days of about 20 hours total 
that people had a chance, if they were watching, to view some 
of those things that you said about his belief in the rule of 
law and judicial independence. In fact, if there is any one 
thing that I heard in answer to so many questions that somebody 
wanted either a yes or no, what they really got is I am going 
to follow the law, and I believe in judicial independence and 
following precedent.
    Now, so I think being a little bit repetitive, but this is 
my last question. Would you describe once again for the 
Committee the scope of review that allowed you to come to these 
conclusions, and then I will go to Senator Feinstein.
    Ms. Degan. Yes, sir. To merit the Standing Committee's 
rating of well qualified, we found, sir, that he was a 
preeminent member of the legal profession, that he has 
outstanding legal ability and exceptional breadth of 
experience, and that he meets the very highest standards of 
integrity, professional competence, and judicial temperament.
    And we did this by reaching out to those who had personal 
knowledge about Judge Gorsuch's integrity, professional 
competence, and judicial temperament. We interviewed many 
people who not only encountered him as a judge, but also as an 
opposing counsel, as a co-counsel, as Principal Deputy 
Associate Attorney General for the United States, as a private 
practitioner, as a law clerk for the Supreme Court and the D.C. 
Circuit, and through personal dealings with him.
    So the scope of our investigation was deep and broad, and 
involved all 15 members of our Standing Committee, in addition 
to the 26 professors from two law schools and the 14 very well 
recognized practitioners who have appeared before the U.S. 
Supreme Court and who previously acted as law clerks.
    So that is the scope, Senator. And as I said before, we do 
not give the well qualified rating lightly, and I can assure 
you that every member of the Standing Committee reviewed 
intently the 997 pages that were compiled from the interview 
notes and the analyses by the law professors and the 
practitioners in order to each independently reach that rating 
on a unanimous basis.
    Ms. Edwards. Senator, if I might add, our----
    Senator Feinstein. Could you turn on your mike?
    Chairman Grassley. Yes. Thank you. You sure can add. I 
think for no other reason than all your relatives back home 
ought to hear something.
    [Laughter.]
    Ms. Edwards. Some of them are up pretty early.
    Our task was to cast a wide net, and that is what we did. 
We contacted over 5,000 individuals. I personally contacted 344 
and received comments from 82. So every one of the committee 
members did likewise, and that is why our report is 944 pages 
long.
    Chairman Grassley. Okay. Now Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman.
    I want both of you to know that I very much respect what 
the American Bar does in these events, and I have read your 
reports now for some 24 years and very much appreciate your 
work.
    Let me ask you a question, and then I just want to make a 
comment. Did you review the documents that cover his 
performance at the Department of Justice?
    Ms. Degan. These are documents that were recently submitted 
to the Committee. Is that right, Senator?
    Senator Feinstein. That is correct.
    Ms. Degan. The Department of Justice sent us Judge 
Gorsuch's responses to the PDQ, which is actually called the 
Senate Judiciary Questionnaire, on CD-ROM, along with a stack 
of materials. And then DOJ sent us a supplement. We did not 
receive the responses that were recently submitted to the 
Committee.
    I did take a quick look at what that encompassed just from 
the description on the website of the Senate Judiciary 
Committee and saw that it involved some 170,000 pages. Ms. 
Edwards and I attended some of the past two days of hearings 
and heard some of the questions that the Committee Members 
asked of Judge Gorsuch. It appeared from his answers that these 
materials were prepared in his role as a Principal Deputy 
Associate Attorney General and that he, in answering the 
questions, indicated that he was acting as a lawyer.
    And at one point, I believe, Senator, you may have asked 
him about some handwritten note, and he said, ``I do not have 
any independent recollection of that, but if I wrote it, it is 
because I have that from my client.'' His client being the 
Federal Government.
    We did not have an opportunity to review those materials. 
We would base our information on the personal knowledge of 
those who dealt with Judge Gorsuch, and if he was acting in his 
capacity as a lawyer to anyone, that may be protected by the 
privilege.
    Senator Feinstein. Oh, okay.
    Ms. Degan. But we are happy to review that, if necessary, 
in order to determine if we need to adjust the rating. But 
based on what I heard, I do not believe that it would change 
the opinion of the committee.
    Senator Feinstein. I appreciate that. And the documents, I 
just want to clear, are not 150,000 pages. The documents I am 
referring to are much smaller in number, maybe a stack like 
this.
    Ms. Degan. Oh.
    Senator Feinstein. But what they do indicate are some of 
his personal thinking on subjects of great concern, namely 
torture, and in a way, I regret I did not ask more questions. I 
will do some written questions in that area.
    I happen to hold the view that a Member of this Government 
is held to a different standard than an attorney may be in 
private life. That if you think something is wrong, you have an 
obligation to do something about it, not just say, well, my 
client wanted--my principal wanted this, and so I did it. And 
we have too much of that in this area.
    But I also want you to know that I think the work you do is 
very fine. I read it with care.
    Let me just say one other thing, and I am going to do this 
because for many of us, what has happened this past year has 
been very painful. And you have also done an evaluation of 
Judge Merrick Garland, who was not given the privilege even of 
a Committee hearing. So I would just like to read some excerpts 
from your report on him.
    ``Garland's integrity is off the scales.'' Page 5.
    ``Garland is the best there is. He is the finest judge I 
have ever met. There is no one who is his peer.'' Page 5.
    ``Judge Garland has no weaknesses.'' Page 6.
    ``He may be the perfect human being.'' Page 6.
    ``He is unnaturally--''
    [Laughter.]
    Senator Feinstein. ``He is--''
    [Laughter.]
    Senator Feinstein. ``He is unnaturally blessed with 
brilliance. Things come to him quickly.'' Page 9.
    ``In my opinion, there is no better Federal judge than 
Chief Judge Garland.'' Page 10.
    ``Garland's integrity is flawless, his competence 
terrific.'' Page 16.
    ``I know no one, bar none, with more integrity and more 
commitment to truthfulness and accuracy than Judge Garland.'' 
Page 17.
    ``There never has been a better candidate than Chief Judge 
Garland.'' Page 18.
    ``I have never heard anyone say anything bad about Judge 
Garland.'' Page 18.
    I read this simply to dispel anybody's thinking that this 
man was not worthy of this Committee's hearing.
    So thank you very much for the work that you have done, and 
it is very much appreciated.
    Ms. Edwards. Thank you, Senator.
    Senator Feinstein. Thanks, Mr. Chairman.
    Chairman Grassley. You bet. And I think Judge Gorsuch made 
very clear yesterday and the day before his feelings about the 
competency of Garland as well.
    But the other thing is maybe when I was talking about David 
Brown, I was trying to compliment you all without saying we 
appreciate your work very much and know you work hard at this. 
But I know how David Brown does it, and I assume I have got 
some understanding of what you go through, although I have 
never done and will never have an opportunity to do it.
    I am going to look right here and then left. Is there 
anybody on our side that wants to be recognized? Senator 
Graham?
    Senator Graham. Thank you.
    Chairman Grassley. Anybody else that wants to be recognized 
on our side?
    Senator Hatch. I do.
    Chairman Grassley. Okay, but I will get a Democrat before I 
come back to you.
    Senator Hatch. Sure.
    Senator Graham. Thank you both very much for the work you 
do.
    Is it fair to say that the people you called was a group 
beyond the Federalist Society?
    Ms. Degan. Yes.
    Senator Graham. Okay.
    Ms. Edwards. I do not think we knew if they were in the 
Federalist Society or not.
    Senator Graham. I do not know how many Members there are, 
but the odds of all of them being called are probably pretty 
limited.
    Would you say that he is a mainstream judge?
    Ms. Degan. Well, Senator, it depends on what you mean by 
``mainstream.'' We believe that he meets and exceeds the 
highest standards of integrity, professional competence, and 
judicial temperament. So if that is mainstream----
    Senator Graham. Probably----
    Ms. Degan. the answer is yes.
    Senator Graham. Well, let us put it this way. If there is a 
stream, he is on the quality end of the stream, right?
    Ms. Edwards. He is fishing in it.
    [Laughter.]
    Senator Graham. He is fishing in it. There we go. Are you 
from South Carolina?
    Ms. Edwards. I am from Oklahoma.
    Senator Graham. Close enough.
    [Laughter.]
    Senator Graham. Would you say he is a reasonable judge?
    Ms. Degan. Absolutely. Based on the feedback we received.
    Senator Graham. Would you say he has lived a good life as a 
person?
    Ms. Degan. I'll let you answer that.
    Ms. Edwards. My answer is yes.
    Senator Graham. Okay. Did you hear his testimony that he 
believed the Detainee Treatment Act outlawed waterboarding?
    Ms. Edwards. We were here yesterday.
    Ms. Degan. I cannot say that we did actually hear that, 
Senator.
    Senator Graham. I remember hearing that. Okay. So I just 
want to thank you for the service you provide to the Committee 
and to the country, and I hope people are listening to your 
evaluation.
    As to Judge Garland, everything you said is absolutely 
true, and I will talk more about the way the process in the 
Senate works. But thank you both. You did the Committee and the 
country a great service.
    Ms. Edwards. Thank you.
    Ms. Degan. Thank you. It has been an honor.
    Chairman Grassley. I am looking to my left, and I did not 
say I am looking at the left. Anybody over here have a 
question?
    Senator Franken. I do not.
    Chairman Grassley. Okay. Then I will go--I will go back to 
Senator Kennedy.
    Senator Hatch. How about me?
    Chairman Grassley. Well, I thought you did not raise your 
hand.
    Senator Hatch. I just want to say one thing.
    Chairman Grassley. Oh. Then it is your turn.
    [Laughter.]
    Senator Kennedy. I will defer to Senator Hatch.
    Senator Hatch. I will be happy to defer to you, Senator. I 
just want to thank you for the work that you have done.
    I agree that Merrick Garland is a wonderful person and a 
very good judge. I went to see him personally. I helped him to 
get through back 19 years ago, maybe more than 19 years ago. 
And that was--that was a problem. There is no question about 
it.
    But now that has been resolved, do you see any reason why 
we should not totally support Judge Gorsuch?
    Ms. Degan. Well, the ABA has given Judge Gorsuch its 
highest rating, and that is the most affirmative endorsement 
that we give. So, no, sir.
    Senator Hatch. And that is hard to get, I have to admit. So 
I appreciate the really hard work that you folks do, and it is 
very meaningful to the Committee at this time.
    Thank you, Mr. Chairman.
    Ms. Degan. Thank you.
    Chairman Grassley. Senator Blumenthal.
    Senator Blumenthal. No questions.
    Chairman Grassley. Okay. Now Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman.
    Thank you, Ms. Degan and Ms. Edwards, for all your hard 
work. I know how--how exhaustive your analysis is.
    How many grades are there, the different levels of 
qualification?
    Ms. Degan. Three. Qualified, not qualified, and well 
qualified.
    Senator Kennedy. Okay. So it is basically A, B, and F.
    [Laughter.]
    Ms. Edwards. I will add that some of the people that we 
talked to asked us if there was an extremely well qualified.
    Senator Kennedy. Really? An A-plus?
    Ms. Edwards. Yes.
    Senator Kennedy. And Judge Gorsuch received an A?
    Ms. Degan. He did. Well qualified.
    Senator Kennedy. And how many people contribute to this 
evaluation?
    Ms. Degan. Well, the 15 committee members all participate, 
and in addition, we had two academic reading teams read all of 
his published opinions and other writings, and that was about 
26 additional lawyers, academics, who are--who are experts in 
their fields, in the fields that they reviewed. So if it was a 
securities law case, a securities law expert read those 
opinions.
    And additionally, practitioners, which include those who 
regularly appear before the Supreme Court, that was 14 
additional. So if you add all that up, if my math is right, I 
would say that is about 55 people or something like that. And 
all very distinguished lawyers and academics.
    Senator Kennedy. These 55 attorneys, are they all 
Republicans?
    Ms. Degan. No, sir.
    Senator Kennedy. Are they all Democrats?
    Ms. Degan. No, sir. Very varied. Big firms, small firms. 
Democrats, Republicans. In fact, we do not even--we do not get 
into political affiliation, Senator.
    Senator Kennedy. Good for you. Is it a gender-diverse 
group?
    Ms. Degan. Very gender-diverse. Gender-diverse--every kind 
of diverse you can imagine.
    Senator Kennedy. Okay. And it is racially diverse?
    Ms. Degan. Yes, sir.
    Senator Kennedy. You probably do not even ask this 
question. But in terms of religion, is your sense is that it is 
diverse?
    Ms. Degan. Our sense is, but we do not ask that question.
    Senator Kennedy. Okay. And this group together gave Judge 
Gorsuch an A, well qualified?
    Ms. Degan. Yes, sir.
    Senator Kennedy. All right. And some asked to give him an 
A-plus. Ms. Edwards, is that right?
    Ms. Edwards. Yes.
    Senator Kennedy. Okay. Well, I just want to say for the 
record, I do not know Ms. Edwards. I just had the pleasure of 
meeting you today. My dad was from Oklahoma. I love Oklahoma.
    Ms. Edwards. Thank you.
    Senator Kennedy. But I know Ms. Degan, and she is one of 
the most prominent lawyers in Louisiana, Mr. Chairman. She is 
an undergraduate graduate of the University of New Orleans. She 
is an honors graduate of Loyola. She is a former adjunct 
professor at Loyola. She practices law with Baker Donelson, one 
of the premier law firms not just in Louisiana, but in the 
world.
    And I trust her judgment. And my experience with Ms. Degan 
has been that she calls it like she sees it. She is joined here 
today, I would be remiss if I did not recognize I will call him 
her lesser half.
    [Laughter.]
    Senator Kennedy. Lesser half, but still substantial. Mr. 
Sid Degan, who is another very prominent attorney. He went to 
UNO. He went to Tulane to law school. He founded his own law 
firm, and he is here today volunteering his time.
    I know them both well, and I trust their judgment. If they 
tell me that Judge Gorsuch is the best, you can take it to the 
bank. You can take it home to mama because it is true. And I 
thank you.
    Ms. Degan. Thank you, Senator.
    Chairman Grassley. I believe that is the last of the 
questioning for the Committee and for the American Bar 
Association. And for the country, we thank all of the people 
that participated and will continue to participate in this that 
you have reported.
    Thank you very much.
    Ms. Degan. Thank you.
    Ms. Edwards. Thank you.
    Chairman Grassley. We will take 30 seconds for staff to 
give the names of the new people, and I would ask the new 
people to come and stand behind their chair, and I will--and 
then I will swear you before you sit down.
    I am going to go ahead and start the introduction anyway. 
The next panel will be Judge Tacha, Ms. Massimino, Judge Henry, 
Mr. Jaffer, Judge Kane, Mr. Perkins, Ms. Bressack, and Mr. 
Calemine. And if I pronounced anybody's name wrong, correct me 
when you testify.
    [Pause.]
    Chairman Grassley. Okay. Would you--do you swear that the 
testimony you are about to give before this Committee will be 
the truth, the whole truth, and nothing but the truth, so help 
you God?
    [Response.]
    Chairman Grassley. I have seen positive response. So I 
think--please seat. And I--we never get everybody to honor the 
5-minute rule, and I do not expect you to stop in the middle of 
a syllable or anything like that. But if you see the red light 
come on and you can summarize in about 30 seconds or so, it 
would be very much appreciated because I am sure that there 
will be some questions of some of you, and so we want to move 
things along.
    But I think I am going to do it in the way you are seated 
there from my left to my right. So would you start out, Judge 
Tacha?

 STATEMENT OF HON. DEANELL REECE TACHA, U.S. COURT OF APPEALS 
 JUDGE, RETIRED, DUANE AND KELLY ROBERTS DEAN AND PROFESSOR OF 
         LAW, PEPPERDINE LAW SCHOOL, MALIBU, CALIFORNIA

    Judge Tacha. I am pleased to do so, and good morning to the 
distinguished Members of this Committee.
    It is a privilege to appear today to support the nomination 
of my former colleague and my friend, Neil Gorsuch, as an 
Associate Justice of the U.S. Supreme Court.
    I served with Judge Gorsuch on the United States Court of 
Appeals for the Tenth Circuit, and I was privileged actually to 
be Chief Judge of that Circuit when Judge Gorsuch was appointed 
in 2006. In my brief time today, I will touch on three aspects 
of Judge Gorsuch's qualifications, all of which I consider 
very, very important for judges at every level in the 
judiciary.
    First, Judge Gorsuch, the judge. Judge Gorsuch brings to 
the bench a powerful, powerful intellect combined with a 
probing and analytical approach to every issue. He brings to 
each case a strong commitment to limit his analysis to that 
case--its facts, the records, and the laws cited and 
applicable. He does not use his judicial role as a vehicle for 
anything other than deciding the case before him.
    The ``case or controversy'' requirement for jurisdiction 
is, for Judge Gorsuch, a guiding principle for his judicial 
role. He is a student of constitutional structure and of The 
Federalist Papers, and he takes very, very seriously the 
appropriate roles assigned to each of the three branches of 
government.
    He is an elegant and accessible writer. In my judicial 
writing classes, I assign some of his opinions to demonstrate 
the importance of narrative to every case before the courts. 
His jurisprudence is informed by textualism, originalism, and 
precedent, but not in a formalistic or rigid way, only as the 
lenses through which to seek an appropriate resolution of an 
issue or a case.
    Judge Gorsuch is a case by case by case judge whose 
dedication is to serving litigants and the third branch of 
government.
    Second, Judge Gorsuch, the colleague. On a multi-judge 
appellate court, it is my view that one of the most important 
characteristics of an effective and efficient court is the 
level of collegiality among its Members.
    This is not at all about getting along to get along. It is 
about improving the quality of the work of that court by 
careful and respectful listening to varying and divergent 
views, participating and engaging in robust internal debate 
about procedures and cases, and factoring in and listening to 
the diverse views of each of the other judges.
    Judge Gorsuch is such a judge. His attention to the views 
of his colleagues informs his work. He has an acute sense for 
identifying those circumstances where reaching consensus is the 
highest value and, on the other hand, those decision points 
where personal conviction and reason dictate individual 
judgment and independent decision-making.
    Judge Gorsuch believes in the court as an organic and 
flourishing entity where the views, the backgrounds, and the 
perspectives of all the judges on the court are important to 
the quality of his work.
    Finally, Judge Gorsuch, the person. Neil Gorsuch is my 
friend. He has been from the day he took his role as my 
colleague in 2006.
    I want to say that again and say it advisedly because it 
means something that, despite the many differences in our life 
experience, in our backgrounds, in our education, and in our 
interests, Judge Gorsuch immediately and always affirmed me, 
both as a person and as a colleague.
    I have watched him with all kinds of people in the 
courthouse, in social settings, and in the rough and tumble of 
judicial travel and duties. He is unfailingly kind. He is 
thoughtful, and he is empathetic to all people.
    His is the kind of dignity that reflects the dignity he 
accords to all people. Judge Gorsuch lives according to his 
values. For him, faith, family, community, nation, and his 
beloved Colorado define who he is. He is, for me, the gold 
standard in public service.
    So for all these reasons, I urge the Committee and the full 
Senate to confirm Judge Neil Gorsuch as an Associate Justice of 
the U.S. Supreme Court.
    [The prepared statement of Judge Tacha appears as a 
submission for the record.]
    Chairman Grassley. Judge Massimino, I hope I am right on 
that?
    Ms. Massimino. Perfect.

  STATEMENT OF ELISA MASSIMINO, PRESIDENT AND CHIEF EXECUTIVE 
          OFFICER, HUMAN RIGHTS FIRST, WASHINGTON, DC

    Ms. Massimino. Thank you, Mr. Chairman and Ranking Member 
Feinstein and Members of the Committee. It is an honor to be 
here today as you consider the nomination of Judge Neil 
Gorsuch.
    I speak on behalf of Human Rights First, an independent, 
nonpartisan organization dedicated to advancing American 
leadership on human rights. My focus today is on the dangers 
that arise when the executive branch claims unfettered 
authority in the name of national security.
    When Presidents override constitutionally mandated checks 
on their power, they threaten fundamental rights, the rule of 
law, and democratic ideals. They also undermine national 
security. This is not a hypothetical concern. Indeed, now would 
be an especially perilous time to promote to the Supreme Court 
a judge who would not stand up against presidential power 
grabs.
    The President has advocated torture and other war crimes, 
banning people because of their faith, deporting refugees 
without due process, and he is done all of this largely while 
bypassing Congress and expressing contempt for judges and the 
judiciary itself.
    So the key question you should ask of Judge Gorsuch is 
this. How would he respond in the face of what may be 
unprecedented threats to basic rights, separation of powers, 
and the rule of law?
    In our nearly 40 years, Human Rights First has never 
opposed a judicial nominee, and we do not do so today. Nor do 
we question Judge Gorsuch's credentials, which are exemplary. I 
am here simply because his record raises concerns that I think 
you should address before moving forward with his nomination. 
The stakes are too high to get this wrong.
    Our concerns arise from the public record of Judge 
Gorsuch's time at the Justice Department. They fall into three 
areas--subversion of congressional authority, restricting 
judicial review, and torture.
    On all three of these issues, Judge Gorsuch is not a blank 
slate. As a political appointee at the Justice Department, he 
was directly involved in defending the Bush administration's 
claims that the President has extraordinary power to disregard 
laws in the name of national security and that the judiciary 
either cannot or should not review such actions.
    These claims constitute a front assault on the integrity of 
our constitutional order. Not surprisingly, they were rejected 
by the courts.
    With respect to Judge Gorsuch's role on congressional 
authority, after photographs surfaced in 2004 showing horrific 
abuses at Abu Ghraib, Senator McCain spearheaded the Detainee 
Treatment Act, strengthening the ban on torture, which passed 
the Senate with 90 votes. Judge Gorsuch pushed for a 
presidential signing statement saying the President could 
disregard that law to the extent it conflicted with his 
authority.
    Judge Gorsuch argued that the law was ``best read as 
essentially codifying existing interrogation policies,'' 
policies that included waterboarding and other forms of torture 
and abuse that Congress specifically intended to prohibit.
    Second, on judicial review, Judge Gorsuch repeatedly sought 
legislation that would strip courts of habeas jurisdiction, 
including for people who were tortured or unlawfully detained. 
He also played a lead role in the litigation strategy in the 
Hamdan v. Rumsfeld case, where the Government argued that the 
President has the power to disregard the Geneva Conventions and 
that the courts are powerless to review that decision.
    The Supreme Court ultimately rejected these efforts to 
restrict the right of habeas and denied detainees the 
protections of the Geneva Conventions in the Hamdan and 
Boumediene cases.
    Third, on torture and standing up for human dignity. Some 
people, including political appointees in the Bush 
administration, like then General Counsel of the Navy Alberto 
Mora, were horrified when they discovered that our Government 
had a policy of torturing prisoners, and they tried to stop it.
    Judge Gorsuch, by contrast, seems to have devoted his 
energies to defending it. These were the defining legal debates 
of our time, and Judge Gorsuch was on the wrong side of them.
    Policies he promoted and defended violated American ideals 
and inflicted unnecessary suffering, and they did not 
strengthen our security. On the contrary, these policies 
compromised America's global standing, alienated communities 
whose support our country needs to fight terrorism, and handed 
our enemies a PR victory.
    Given this record, it is essential that you probe Judge 
Gorsuch's views on Executive power, on torture, and the 
appropriate roles for Congress and the judiciary as co-equal 
branches of government. Did his actions at Justice reflect his 
legal philosophy or his desire to be a team player? Did he 
disagree with positions of the administration on torture? And 
if he did, why did not he follow the example of others and 
speak out?
    The Senate must get to the bottom of these questions 
because, sooner or later--and with this administration, it is 
likely to be sooner--the Supreme Court will be called on to 
protect fundamental rights, judicial independence, and 
separation of powers from a President who treats the rule of 
law as an annoyance rather than the foundation of our 
democracy.
    Thank you.
    [The prepared statement of Ms. Massimino appears as a 
submission for the record.]
    Senator Hatch [presiding]. Judge Henry.

 STATEMENT OF HON. ROBERT HARLAN HENRY, U.S. COURT OF APPEALS 
 JUDGE, RETIRED, PRESIDENT, OKLAHOMA CITY UNIVERSITY, OKLAHOMA 
                         CITY, OKLAHOMA

    Judge Henry. Thank you, Senator Hatch, Ranking Member 
Feinstein, Members of the Committee. It is a pleasure and an 
honor to be here today, and I thank this Committee for its 
wonderful service to the third branch over the years.
    I am Robert Henry, president and CEO of Oklahoma City 
University, a former State legislator, and a former Attorney 
General of the State of Oklahoma, and a former Chief Judge of 
the United States Court of Appeals for the Tenth Circuit.
    I held that court position from 1994 to 2010, and for the 
last 4 years of my service, I was a colleague of Judge Gorsuch. 
Based on my personal experience working with him and my 
maintained contact through Circuit conferences, correspondence, 
and judicial gatherings, I am here today to speak in support of 
his nomination.
    In Federalist 78, Publius--and in this one, that would be 
Alexander Hamilton--described the nature and virtues of the 
Federal judiciary. As the ``least dangerous'' branch would have 
neither ``sword nor purse,'' care would have to be taken to 
protect its vital independence.
    Permanency in office would be required, both to promote 
independence, and to allow for the mastery of the voluminous 
``strict rules and precedents,'' in Hamilton's words. The 
granting of permanence, the importance of integrity, and the 
long and laborious study required to master the judicial craft 
led Hamilton, whose star, gratefully, has ascended again of 
late, to observe, ``Hence it is that there can be but few who 
will have sufficient skill to qualify for the station of a 
judge.''
    And this is why the Committee is, of course, gathered 
today. Fortunately, you have before you a candidate that I 
believe our judicial branch's architect Hamilton would warmly 
embrace--and not just because they both attended Columbia.
    As one who has served with Neil, decided cases with him, 
traveled and dined with him, discussed our families together, 
including the menageries his daughters have maintained over the 
years, agreed and disagreed with him, I can attest to his truly 
remarkable intellect, his oft-demonstrated integrity, his 
mastery of Hamilton's rules and precedents, and his fine 
judicial temperament and collegiality.
    Now I believe the subject of intellect speaks for itself 
and needs but summary mention: His honors degrees from Columbia 
and Harvard Law School; his Marshall Scholarship to Oxford, an 
honor he shares with Justice Stephen Breyer, that resulted in a 
Doctor of Philosophy degree; and his corpus of work, which 
includes outstanding service awards from the State Department, 
from the Truman Foundation, scholarly writings, and some 900 
opinions that lawyers have described as ``straightforward,'' 
``learned,'' ``well-reasoned.''
    Deserving special mention is ``The Law of Judicial 
Precedent.'' This book, which Judge Gorsuch joined with Bryan 
Garner, America's foremost lexicographer and legal rhetorician, 
and several distinguished Circuit Judges of quite diverse 
backgrounds is a remarkable work of legal scholarship. 
Impressively, all these eminent judicial co-authors of 
different political and occupational backgrounds produced a 
single volume, written with a single voice and no signed 
sections.
    As to integrity, I have never found Neil's integrity to be 
in question. His career has subjected himself to various 
reviews of his public service. He served as a law clerk to two 
Supreme Court Justices, the late Justice Byron White, a highly 
esteemed judicial figure in the Tenth Circuit, where the 
courthouse is named for him--and not just because of his 
football records, by the way--as well as clerking for Justice 
Kennedy. And this Committee has reviewed him before as a 
Circuit Judge. All of this also speaks to Neil's mastery of the 
law.
    He has some unique qualifications, though. In the Tenth 
Circuit, we have a lot of cases from the great American West. 
We have cases involved our Native American nations, cases 
involving land and water that are important, and his experience 
in these areas will be helpful to the Court.
    I will skip judicial temperament. It is discussed in my 
written testimony, previously submitted. I am running low on 
time, and as I want to talk about one thing that is especially 
important to me.
    When Judge Gorsuch and Judge Tymkovich and Judge Lucero 
were in Santa Fe hearing cases one summer, they were very 
distressed by the quality of legal representation of those 
charged with the most difficult cases that Federal judges must 
deal with, habeas death penalty cases. I have to say that most 
of these cases come from Oklahoma, and our Bar was not 
adequately doing the job.
    Judges Gorsuch and Tymkovich volunteered, and they came to 
Oklahoma City and Tulsa. They created seminars, symposia. They 
brought their Circuit Judge colleagues to Oklahoma to hear 
actual cases. They met with these lawyers and helped them, 
trained them, and I have had one lawyer, a noted defense 
lawyer, who said these actions had an instrumental effect in 
improving the advocacy, Senator Hatch, of this most important 
area.
    Thank you.
    [The prepared statement of Judge Henry appears as a 
submission for the record.]
    Senator Hatch. Well thank you, Judge.
    Mr. Jaffer.

 STATEMENT OF JAMEEL JAFFER, EXECUTIVE DIRECTOR, KNIGHT FIRST 
  AMENDMENT INSTITUTE, COLUMBIA UNIVERSITY, NEW YORK, NEW YORK

    Mr. Jameel Jaffer. Chairman Grassley, Ranking Member 
Feinstein, Members of the Committee, thank you for inviting me 
to testify.
    I do not think this Committee has any task more important 
than the one it has been engaged in this week. If Judge Gorsuch 
is confirmed, he will likely play a key role in shaping 
American law and society for two or three decades or more.
    I think it is clear that Judge Gorsuch has the professional 
competence to serve on the Court. I agree with Ms. Massimino, 
though, that Judge Gorsuch's service in the Bush administration 
raises important questions about his views on Executive power 
and the role of the judiciary in the sphere of national 
security.
    At the time Judge Gorsuch served in the Justice Department, 
the Bush administration was advancing extremely broad claims of 
Executive power in the service of unlawful policies relating to 
surveillance, detention, military prosecution, and 
interrogation. Judge Gorsuch was closely associated with those 
claims. It would be a mistake to confirm him without ensuring 
that he will defend individual rights as well as the authority 
of Congress and the judiciary in the context of national 
security.
    I want to recognize at the outset that Judge Gorsuch might 
approach issues relating to Executive power differently as an 
Associate Justice than he did as a Justice Department lawyer. 
At the Justice Department, Judge Gorsuch was a lawyer with a 
client. He says he regarded himself as a scribe or a scrivener.
    With respect, I would encourage the Committee to bring a 
degree of skepticism to that characterization. Judge Gorsuch 
sought out a high-level position with the Justice Department in 
the fall of 2004, just 7 months after the publication of the 
Abu Ghraib photos and only 5 months after the Washington Post 
published one of the torture program's foundational documents.
    That was a memo written by the OLC, stating that 
interrogation methods would be lawful unless they inflicted the 
kind of pain ordinarily associated with organ failure or death. 
It was a chilling document then, and it remains an astonishing 
document today.
    It is also worth noting that Judge Gorsuch appears not to 
have registered disagreement with any of the policies that he 
defended, though other officials did. Nor is there evidence 
that he registered discomfort with any of the broad arguments 
that the Justice Department advanced in support of those 
policies, though, again, others did.
    The documents provided by the Justice Department suggest 
that Judge Gorsuch was comfortable with the policies and with 
the Bush administration's defenses of them. It was challenges 
to the policies that troubled him.
    Senator Durbin asked Judge Gorsuch about an email in which 
he had criticized lawyers who represented prisoners held at 
Guantanamo. I thought the answer that Judge Gorsuch gave to 
that question was a good one. He said that he regretted having 
sent the email and that the email was ``not his finest 
moment.''
    I hope you will give Judge Gorsuch an opportunity in his 
answers for the record to respond more fully to broader 
concerns relating to the positions he advanced at the Justice 
Department.
    Questions relating to Executive power are presented 
especially sharply today. President Trump has issued an 
Executive order banning Muslims from six countries from 
traveling to the United States. He said that he will consider 
prosecuting U.S. citizens in the military commissions at 
Guantanamo. He is promised to intensify surveillance of 
minority communities inside the United States.
    If Judge Gorsuch is confirmed, he will be called on to 
consider the lawfulness of some of those policies, and his 
conclusions will have far-reaching implications for the lives 
of millions of Americans and others and on the relationship of 
the United States with the rest of the world.
    So I urge you not to confirm him without fully exploring 
his views of Executive power. This should not be a partisan 
issue. We all know that the powers abused today by a Republican 
President may be abused tomorrow by a Democratic one.
    The question the Committee should ask is whether Judge 
Gorsuch will safeguard individual rights and the separation of 
powers, whoever occupies the Oval Office.
    Thanks again for giving me the opportunity to testify.
    [The prepared statement of Mr. Jaffer appears as a 
submission for the record.]
    Senator Hatch. Well, thank you.
    Judge Kane.

         STATEMENT OF HON. JOHN L. KANE, U.S. DISTRICT
           COURT JUDGE, SENIOR, DISTRICT OF COLORADO

    Judge Kane. Thank you, Senator Hatch and Members of the 
Committee.
    I am the only trial judge that is appearing in these 
hearings. I would like to say, Senator, I have no reason for 
you to remember this, but I appeared before you 39 years ago. 
And I was honored to be here then, and I am honored to be here 
now.
    Senator Hatch. We are honored to have you.
    Judge Kane. Thank you.
    Judges are no different from anybody else. Like you, we 
have social, political, and religious views, whether the 
product of culture and upbringing, or the result of education, 
predilection, or intellectual or philosophical pursuit. To don 
the robe, however, is to surrender the freedom to act on those 
views so that justice may be served.
    The discipline of deciding, irrespective of one's personal 
beliefs, is the essence of judicial integrity. Being 
consciously aware of one's views and setting them aside at the 
start of every case is no easy task, nor should it be. The 
question for any nominee is, does he or she have the discipline 
to do that and decide each case according to the rule of law? I 
believe Judge Gorsuch does, and his opinions prove it.
    Long ago I gave up identifying judges as liberal or 
conservative because those words seem to mean whatever the user 
wants. They have no common understanding and provoke no further 
analysis.
    However one might pigeonhole either of us, the fact is 
Judge Gorsuch and I share few of the same social, political, or 
religious views. In evaluating fitness for the Bench, the real 
question is, does the nominee embrace the discipline of the 
robe? Do his or her opinions reflect any sort of ideological 
bias? Is the judge fair? Judge Gorsuch is not a monk, but 
neither is he a missionary or an ideologue.
    I read a great many appellate opinions from Circuit Courts 
throughout the United States. To the extent that a judge can be 
judged by his opinions, the ones written by Judge Gorsuch tell 
me a great deal. His are clear, cogent, and mercifully to the 
point.
    I have been both affirmed and reversed by him, and each 
time I thought he was fair and right. He treats the parties and 
the trial judge's rulings with respect. He does not ridicule 
them or take cheap shots, nor does he insult or demean other 
judges who might disagree with him.
    His writing is filled with grace and wit. But does he know 
the difference between his personal views and those of the 
court? Judge Gorsuch is the only judge of whom I am aware who 
has written both majority opinions and concurring opinions in 
the same case. The majority opinions were the opinions of a 
three-judge court. The concurring opinions were his separate, 
additional perspectives. He has done this at least twice. He 
knows the difference between speaking for a court and for 
himself.
    Judge Gorsuch's opinions also make clear his concern for 
the separation of powers and his keen awareness of the 
judiciary's independence. He has written that legislation 
belongs to Congress and adjudication belongs to the courts.
    He has disagreed with the late Justice Scalia by suggesting 
there is far too much adjudicative activity in the executive 
branch's administrative agency rulings. He has questioned the 
values of the Chevron doctrine, which asserts the judiciary 
should defer to agency interpretations of statutes. The Chevron 
doctrine intrudes equally upon the authority and prerogatives 
of the legislative branch.
    As is often the case, Justice Oliver Wendell Holmes said it 
best. In his decision in Lochner v. New York, Justice Holmes 
wrote, ``The case is decided upon an economic theory which a 
large part of the country does not entertain. If it were a 
question whether I agreed with that theory, I should desire to 
study it further and long before making up my mind. But I do 
not conceive that to be my duty, because I strongly believe 
that my agreement or disagreement has nothing to do with the 
right of the majority to embody their opinions in law.''
    Like Justice Holmes, Judge Gorsuch knows that his social, 
political, and religious views have no place on the bench. In 
embracing the discipline of the robe, declaring--dedicating 
himself to the separation of powers and consistently devoting 
himself to being fair, Judge Gorsuch has earned the right to be 
considered by you for the highest bench in the land.
    I hope you will judge him with the fairness and integrity 
with which he himself has served.
    [The prepared statement of Judge Kane appears as a 
submission for the record.]
    Senator Hatch. Well, thank you, Judge Kane.
    Mr. Perkins, we will turn to you.

         STATEMENT OF JEFF PERKINS, BERTHOUD, COLORADO

    Mr. Perkins. Mr. Chairman, Ranking Member Feinstein, and 
Members of the Committee. Thank you for the opportunity to give 
voice to my son, Luke, whose access to an appropriate education 
and, thus, to a meaningful and dignified life was threatened by 
views of Judge Neil Gorsuch.
    Luke was diagnosed with autism in 1996 at age 22 months. An 
intensive early childhood program taught him letters, numbers, 
and colors, but he struggled with speech. He developed a 
restricted diet, an erratic sleep cycle, and intolerance to 
sounds. When overwhelmed, he would tantrum and often injure 
himself.
    Luke's care became too much for my wife and me alone. His 
older siblings and hired caregivers helped. My parents moved 
next door to assist. It was clear that his education program 
was failing, and Luke began to regress significantly. Teachers 
were reinforcing inappropriate behaviors, and he was not 
participating in meaningful educational activities.
    Moreover, his program failed to address his profound 
inability to generalize. Luke might learn a skill in a 
particular classroom with one teacher, but unable to perform it 
within any other setting. While such learning might check off a 
box on an education plan, it provided no meaningful benefit. 
Multiple experts agreed that he needed an intensive program 
with wraparound services to address his educational needs.
    We made many unsuccessful attempts to address these 
deficiencies with the school district. Since the needed 
services were not available locally, we were left with the 
agonizing option of sending him 2,000 miles away to a 
specialized school for autistic children in Boston.
    When Luke enrolled in Boston Higashi School at age nine, he 
was not toilet trained, ate only a few foods, could not sleep 
in a bed, could not eat with utensils, and did not interact 
with his peers. Within months of enrolling, Luke was toilet 
trained. He ate healthy foods with proper utensils. He was 
sitting calmly in a classroom with peers. He participated in 
group activities, such as roller blading. When Luke visited 
home during breaks, we could shop, eat at restaurants, and even 
attend church together.
    But this improved life for Luke was costly. Despite my 
comfortable income as a physician, Luke's education costs 
rapidly depleted our reserves. My parents contributed from 
their retirement savings.
    In 2005, we requested reimbursement for Luke's education 
under the Individuals with Disabilities Education Act. At a due 
process hearing, the independent hearing officer found in our 
favor. The decision was upheld both by an administrative law 
judge and a U.S. District Court Judge. But when the school 
district appealed to the Tenth Circuit, Judge Gorsuch authored 
the decision overturning these previous rulings.
    His legal reasoning set a new low standard of education 
required under IDEA as merely more than de minimus. De minimus, 
lacking significance or importance so minor as to merit 
disregard. Judge Gorsuch felt that an education for my son, 
that was even one small step above insignificant, was 
acceptable. Despite Luke's inability to meet three-quarters of 
his educational goals or to use any of these skills outside the 
classroom, his education was judged appropriate.
    That left us only one real option. One of Luke's parents 
would have to move to a school district that would better 
accommodate Luke's educational needs. After much prayer and 
thought, my wife decided to permanently relocate. Thankfully, 
the Dedham School District acknowledged Luke's extraordinary 
needs, allowing him to finish out his time at Higashi.
    Now age 22, Luke will always need support in a world that 
still seems perplexing and threatening to him, but his quality 
of life after 13 years of appropriate education is vastly 
better than it would have been otherwise. He cooks and does 
household chores. He is able to shop, work, eat, and play in 
the community, and he has developed a new passion, Legos. 
Luke's mind is uniquely attuned to this plastic brick world. He 
constructed this particular model this January.
    His present life would have been--would not have been 
achievable without an appropriate education. Thankfully, Luke 
is unaware of the price paid for his education. The financial 
cost pales in comparison to the human sacrifice: his mother 
separated from her 13-year-old daughter, his parents' marriage 
broken. He is also unaware of the key place that one judge, 
with his radically restrictive interpretation of law, played in 
the fight for his right to a free and appropriate public 
education.
    In his Tenth Circuit ruling, Judge Gorsuch eviscerated the 
educational standard guaranteed by the IDEA. His interpretation 
requires that a school provide an education to a disabled child 
that is just above meaningless. His minimalistic interpretation 
of Federal law in Luke's case has been used to deny an 
appropriate public education to countless other disabled 
children in the Tenth Circuit over the last 9 years.
    Legal philosophy and case law aside, such an interpretation 
clearly fails the common sense test. Why would Congress pass a 
law with such a trivial intent, and why would a parent settle 
for an education for any of their children, regardless of their 
abilities or challenges? To quote Chief Justice Roberts from 
yesterday's Supreme Court ruling, ``When all is said and done, 
a student offered an educational program providing merely more 
than de minimus progress from year to year can hardly be said 
to be offered an education at all.''
    On behalf of all children--disabled, typical, and gifted--I 
urge you to deny confirmation of Judge Neil Gorsuch to the 
Supreme Court of the United States. Thank you for providing me 
this opportunity, and I ask that my full statement be included 
in the record.
    I look forward to answering your questions.
    [The prepared statement of Mr. Perkins appears as a 
submission for the record.]
    Senator Hatch. Your full statement will be included in the 
record. We appreciate your testimony.
    Ms. Bressack, we will turn to you.

                  STATEMENT OF LEAH BRESSACK,
                FORMER LAW CLERK, WASHINGTON, DC

    Ms. Bressack. Mr. Chairman, Ranking Member Feinstein, and 
other Members of the Committee, I am deeply honored to have the 
opportunity to address the Committee today and talk about one 
of my mentors, Judge Gorsuch.
    Senator Feinstein, I grew up in California where you and 
Senator Boxer were my home State Senators, and my family still 
laughs that there was a time when I believed that only females 
could be Senators.
    [Laughter.]
    Ms. Bressack. Of course, when I left for college I moved to 
Maine, which also had two women Senators, so take from that 
what you will.
    I served as a law clerk to Judge Gorsuch from 2009 to 2011. 
I would like to direct my remarks to how Judge Gorsuch 
approaches cases.
    His commitment to assess each case from all points of view, 
and never make up his mind until every point of view has been 
considered, is the quality I respect most about him. First, 
Judge Gorsuch is truly independent. In deciding cases, he does 
not care what politicians or parties want. He only cares what 
the law says.
    In the 2 years I worked with him, never once did politics 
influence a decision he made. I saw the Government win cases. I 
saw the Government lose cases. I saw each private litigant 
receive the same meticulous analysis of its arguments. Judges 
like Judge Gorsuch are the keepers of our independent 
judiciary.
    Second, Judge Gorsuch works together with judges from all 
different points of view to build consensus wherever possible. 
In my 2 years clerking for the judge, the judge heard many 
cases together with other judges whose judicial philosophies 
differ from his. Yet the great majority of those cases were 
decided unanimously, and that is no coincidence. It is a 
reflection of the judge's deep respect for the opinions of his 
colleagues and commitment to craft decisions that benefit from 
their reasoning.
    In my experience as a law clerk, the judge always pushed me 
to research all sides of a case, question the reasoning 
underlying each party's position, and give all arguments 
exhaustive consideration. That process more or less consumed my 
life for 2 years. It is a cornerstone of how Judge Gorsuch 
works, and he will not accept anything else.
    Third, there is no question that a Supreme Court Justice 
wields significant power, but having worked closely with Judge 
Gorsuch, I am confident that a change in title from ``judge'' 
to ``Justice'' will not change him. His judicial philosophy is 
based on the idea that the future of this country will be 
decided by elected representatives, like the Members of this 
Committee, not by him, and that will never change.
    On a personal level, some of my fondest memories of my 
clerkship with Judge Gorsuch were the afternoon runs that he 
led us on through Denver. Weaving in and out of the city 
streets, I questioned the judge's description of these events 
as jogs when to me they felt much more like a sprint. When it 
was easy--while it was easy to begin the run discussing cases 
with the judge, the true test was whether you could continue to 
communicate about the cases 20 minutes later when the judge was 
doing just fine, and most of the clerks were out of breath. I 
now think of those runs as a metaphor for the experience of 
working with the judge. His relentless drive pushes everyone 
around him to try harder and reach higher.
    In casual conversation in chambers, the judge always wanted 
to hear about our experiences exploring the Colorado outdoors. 
I still remember the morning ritual of quizzing clerks on their 
adventures over the weekend. One weekend while hiking in Rocky 
Mountain National Park, I found myself within a few feet of a 
beautiful red fox, and I knew I would have the ace come Monday 
when the quiz occurred on Monday morning.
    We all know the saying that ``You are judged by the company 
you keep.'' One of the greatest gifts of clerking for 2 years 
for Judge Gorsuch is my co-clerks, whose humility, 
intelligence, and diligence mirror the qualities I admire so 
much about the judge.
    Many of the judge's clerks, whose political views span the 
spectrum, have traveled to be here for this hearing, and we 
have uniformly recommended him as an extraordinary judge. We 
believe he is a judge of whom all Americans would be proud.
    [The prepared statement of Ms. Bressack appears as a 
submission for the record. ]
    Senator Hatch. Thank you very much. Mr. Calemine.

    STATEMENT OF GUERINO J. CALEMINE, III, GENERAL COUNSEL, 
       COMMUNICATIONS WORKERS OF AMERICA, WASHINGTON, DC

    Mr. Calemine. Mr. Chairman and Members of the Committee, my 
name is Jody Calemine. I am general counsel of the 
Communications Workers of America. We are a labor union 
representing hundreds of thousands of workers across this 
country. Thank you very much for the opportunity to testify.
    Our concern about Judge Gorsuch ascending to the Supreme 
Court is about as fundamental as it can get. His jurisprudence 
is a threat to working people's health and safety.
    This hearing has already paid some attention to Judge 
Gorsuch's dissent in the TransAm Trucking case, and that 
attention is justified. That dissent, issued just 7 months ago, 
reveals an anti-worker bias, and features a judicial activism 
that will ultimately put workers' lives at risk.
    At issue in TransAm Trucking is a law that protects truck 
drivers who refuse to operate a vehicle out of safety concerns. 
When driver Alphonse Maddin refused to operate his truck and 
trailer in the manner his supervisor directed him, which was to 
keep the truck parked and hitched to a disabled trailer in 
subzero temperatures while he froze to death waiting hours for 
help, and instead finally drove his truck to safety, he was 
exercising that right to refuse an unsafe operation, and could 
not be fired for it. Only one judge at any level of this case 
ever dissented from this view: Judge Gorsuch.
    He found that when Mr. Maddin drove his truck to safety, he 
was not refusing to operate his truck. He was operating it, 
and, therefore, could be fired for disobeying orders. Judge 
Gorsuch has said that the result he reached might be unkind, 
forcing Mr. Maddin to choose between dying or losing his job, 
but he contends he is merely applying the unambiguous text of 
the law to the facts of the case.
    Far from it. To reach this result, Judge Gorsuch had to 
choose one particular definition of the word ``operate'' from 
the dictionary. As it turned out, there are multiple 
definitions of ``operate'' in the dictionary. Judge Gorsuch 
chose the definition that allowed him to rewrite the law.
    After he was done, a worker's right to refuse to operate 
would mean only refuse to drive. That is not judicial 
restraint, and the rewrite of the law in this case leads to 
absurd, deadly results and fewer rights for truck drivers.
    As we know, Judge Gorsuch is no fan of agency deference, 
and so we have every reason to expect his judicial activism 
will narrow other worker rights beyond the Surface 
Transportation Assistance Act at issue in TransAm Trucking. Our 
union members are typically not truck drivers, but rely on 
other safety laws to protect them on the job, like OSHA's rule 
allowing us to refuse hazardous work. On a very frequent basis, 
a worker that we represent will identify a hazard in the 
workplace, and the union will stand with him and others to stop 
the work until the hazard is abated.
    Just a few weeks ago, one of our technicians in Detroit 
discovered significant asbestos contamination where he was 
supposed to do telecom work in an underground vault directly 
below a manhole on a public street. He told his supervisor. His 
supervisor repeatedly told him to blow fresh air into the 
vault, which would not only expose this technician to friable 
asbestos floating in the air, but exposed the public on the 
street above as well. So, the technician refused to do the 
hazardous work demanded by a supervisor, and he and the public 
are safer for it.
    We take these actions knowing the law is on our side. To 
us, health and safety are not, as Judge Gorsuch dismissively 
puts it, ``ephemeral and generic.''
    Now, the right to refuse hazardous work under the OSHA Act, 
unlike the statute at issue in TransAm Trucking, is a product 
of agency interpretations of the statute. If Judge Gorsuch 
takes a sledgehammer to workers' explicit statutory rights as 
he did in TransAm Trucking, imagine what he may do to rights 
stemming from agency interpretations. More workers will die on 
the job.
    Judge Gorsuch's dissent in TransAm Trucking, in our view, 
is disqualifying. Ignoring agency interpretations, legislative 
purpose, common sense, and instead picking the narrowest 
definition one can find in the Oxford English Dictionary to 
redefine our rights, that is not applying the law to the facts. 
It is a form of judicial activism.
    It is said that our health and safety laws are written in 
the blood of working people. Please do not allow Judge Gorsuch 
to repeal these laws from the highest bench in the land with 
his brand of judicial activism. We urge the Senate to reject 
this nomination, and thank you very much for your time.
    [The prepared statement of Mr. Calemine appears as a 
submission for the record.]
    Senator Hatch. Well, we thank all of you for being here 
today and for your testimony.
    I just have one question for you, Judge Tacha. By the way, 
welcome. You were a great judge in our Circuit out there, and I 
really appreciate your leadership over the years.
    Judge Tacha, this hearing has been somewhat of a civics 
lesson with the separation of powers being prominent--a 
prominent theme throughout this week. This was the first of 
three aspects of Judge Gorsuch's qualifications that you 
described in your testimony. As you put it, he ``takes very 
seriously the appropriate roles assigned to each of the three 
branches of government.''
    Now, this is a critical principle, but it can sometimes 
seem a tad detached or even cold when the facts of the toughest 
cases are presented. I am sure you wrestled with this when you 
were on the Tenth Circuit. Now, how important is it for a 
judge, too, as Senator Schumer put it in 2009, stick to the 
law, even when it means ruling against sympathetic litigants?
    Judge Tacha. Thank you, Senator Hatch, and I appreciate 
your kindness in this full Committee, and I might say I was a 
part of the Tenth Circuit, and now I am working in Senator 
Feinstein's native California at Pepperdine University. So, I 
am pleased to be both places.
    Your question goes to the heart of what a judge does. And 
let me just say in response to Mr. Perkins, as a parent and as 
a human being, my heart goes out to you for the facts that you 
have laid forward that were in Luke P. But as a judge, to your 
point, Senator Hatch, the judge must look at the law as he or 
she sees it at that moment. And in particular, in the Luke P. 
case, Judge Gorsuch was following very longstanding precedent.
    This court--I mean, this Committee--I am sorry--has heard 
Judge Gorsuch repeatedly say precedent is important. Precedent 
stands. It is an important piece of how--of the lens that I 
referred to that a judge looks at a case through. And to be 
absolutely specific, Judge Gorsuch was applying precedent that 
went all the way back to 1982 in the Supreme Court decision of 
Board of Education v. Rowley. So, with all my heartstrings with 
the family, what Judge Gorsuch was called on to do was apply 
that very longstanding precedent for our Circuit.
    Let me also say it was not just our Circuit. I believe it 
was all but two Circuits. All the rest of the Circuits in the 
Nation were following the same standard in interpreting the 
IDEA. Further, I can say with some authority that he was 
following not as dicta, but as a holding in his case what I 
wrote in the Urban case. And both required that--the statute as 
interpreted must be more than de minimus. So, there is a lot of 
discussion, but it is important to know that was longstanding 
precedent from a long time back.
    Now, I will say, you know, Circuit Judges are really glad 
when the U.S. Supreme Court clears up Circuit conflicts. And 
so, what happened in that case that was issued yesterday was 
two Circuits had chosen one standard, and the rest of us had 
chosen the other standard, three longstanding precedents on 
interpretation of the IDEA. So, yesterday the Supreme Court 
carried out its very important function of clearing up what the 
standard would be.
    I have not had time--I have to say I have not had time to 
thoroughly review the opinion from yesterday, but I know for 
sure that the Luke P. case was based on the Urban case that I 
wrote, and it said the standard must be more than de minimus.
    Senator Hatch. Well, thank you so much. Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman, and 
thank you, Judge, for making that clear. I think you made a 
very cogent statement. I gather the standard the Court passed 
yesterday would have covered Mr. Perkins' son. Is that correct?
    Judge Tacha. Well, I will not opine on how the law would be 
applied to particular facts, but it does appear to me that the 
standard that we had been using has changed.
    Senator Feinstein. Thank you. And, Mr. Perkins, I just want 
to thank you for being here. That display you presented is very 
telling. And one question. When did he do this?
    Mr. Perkins. He did this in early January of this year, 
ironically about 2 weeks before Judge Gorsuch was nominated to 
the Supreme Court.
    Senator Feinstein. Well, that is quite amazing because it 
is quite a complicated building of the Capitol, and very much 
appreciated. So, thank you for being such a good parent. It is 
very much appreciated.
    I wanted to go to Mr. Jaffer, if I could. And I feel I am 
remiss because I wanted to ask some of these questions 
yesterday and did not have an opportunity to do so. So, let me 
now throw out a question and ask you your view on it.
    The judge acknowledged that he worked on the Graham 
amendment, which sought to eliminate habeas for Guantanamo 
detainees, and he also acknowledged that in December 2005, 
after the Detainee Treatment Act was passed, there were 
different factions in the Administration advocating different 
versions of a signing statement.
    In an email Judge Gorsuch sent to Steven Bradbury and 
others, here is what he said, . And this is in the document. 
``Along the lines proposed below would help inoculate against 
the potential of having the Administration criticized sometime 
in the future for not making sufficient changes in 
interrogation policy in light of the McCain portion of the 
amendment. This statement clearly, and in a formal way that 
would be hard to dispute later, puts down a marker to the 
effect that the view that McCain is best read as essentially 
codifying existing interrogation practices.''
    Now, this is in December 2005, 9 months after the Bradbury 
memo had concluded that waterboarding, stress positions, sleep 
deprivation, and other techniques were not prohibited by the 
standard applied under Article 16 of the Convention Against 
Torture.
    My question to you is, what do you make of this email, 
``inoculate against being criticized in the future for not 
making sufficient changes in interrogation policy?''
    Mr. Jameel Jaffer. So, I think that this is a really 
important question. So, in May 2005, the Office of Legal 
Counsel wrote memos that concluded, as you--as you mentioned, 
Senator Feinstein, that concluded that certain interrogation 
methods, including waterboarding, did not constitute cruel, 
inhuman, or degrading treatment. And my understanding of the 
email that you--that you--that you quoted is that Judge Gorsuch 
believed that the signing statement--that the way the 
Administration should interpret the law is to essentially 
ratify those interrogation methods that the Office of Legal 
Counsel had signed off on in May.
    So, I think one really important question is what did Judge 
Gorsuch know about the interrogation methods that the CIA was 
using at the time he urged that President Bush issue a signing 
statement interpreting the DTA in the way that he ended up 
interpreting it? I think that is a really important question, 
and I do not think it has been answered yet in this--in this 
hearing.
    Senator Feinstein. Thank you. Thank you. Thank you very 
much, Mr. Chairman.
    Senator Hatch. Thank you, Senator. Senator Graham.
    Senator Graham. Well, thank you. I remember the debate 
well, and here is what Senator McCain said about his amendment, 
which I supported vigorously. ``The amendment I am offering 
simply codifies what is current policy and reaffirms what was 
assumed to be existing law for years. In light of the 
Administration's stated commitment, it should require no change 
in our current interrogation and detention practices. What it 
would do is restore clarity on a simple and fundamental 
question. Does America treat people humanely? My answer--
inhumanely. My answer is no, and from all I have seen, 
America's answer has always been no.'' So, that was Senator 
McCain's view of what we we are trying to do here.
    The Graham amendment, I cannot what the--how the bill was 
passed, but it was overwhelming. What I tried to do is say that 
the Combat Status Review Tribunal System within the military 
would be the primary way of determining enemy combatant status, 
but we would have judicial review of that at the D.C. Court of 
Appeals.
    I think the Supreme Court said in a five-four decision that 
the CSRT is not an adequate substitute for habeas, and that is 
the law of the land today. We basically redrafted the Military 
Commissions Act, and I feel good about where we are at.
    Mr. Jaffer, is the current system that if you are alleged 
to be an enemy combatant, you can be held as such, but you get 
a habeas hearing in Federal court? Is that correct?
    Mr. Jameel Jaffer. That is right.
    Senator Graham. Okay. And the Government has to prove by a 
preponderance of the evidence that you are, in fact, an enemy 
combatant to be held?
    Mr. Jameel Jaffer. That is right.
    Senator Graham. And if you are an enemy combatant, you can 
be held without--under the law of war indefinitely. Is that 
correct?
    Mr. Jameel Jaffer. I am not sure about indefinitely. I 
think that is still an issue in the courts. But, yes, you can 
be held.
    Senator Graham. Well, there are people at Guantanamo Bay 
who are being held as enemy combatants, and they have been 
there for years. Is that correct?
    Mr. Jameel Jaffer. That is right.
    Senator Graham. President Obama left them in that status.
    Mr. Jameel Jaffer. Some of them, yes, that is right.
    Senator Graham. Yes, I think there is 48----
    Mr. Jameel Jaffer. That is right.
    Senator Graham [continuing]. That have been determined too 
dangerous to release. So, under the Obama administration, at 
least to those 48, they are being held under the law of war as 
enemy combatants.
    Mr. Jameel Jaffer. That is right, Senator Graham. As you 
know, hundreds of prisoners have now been freed from 
Guantanamo.
    Senator Graham. Right.
    Mr. Jameel Jaffer. I do not know how many of them would 
have been freed----
    Senator Graham. Right.
    Mr. Jameel Jaffer.--under the rules that Judge Gorsuch was 
proposing.
    Senator Graham. Right. Do you also know about 30 percent 
that have been freed have gone back to the fight?
    Mr. Jameel Jaffer. I do not think that figure is accurate, 
Senator.
    Senator Graham. How many do you think have gone back to the 
fight?
    Mr. Jameel Jaffer. I do not know the number, but----
    Senator Graham. How many Americans have been killed and 
others have been killed by people released at Guantanamo Bay?
    Mr. Jameel Jaffer. Senator Graham----
    Senator Graham. Do you know?
    Mr. Jameel Jaffer. The detainees--I do not know the number.
    Senator Graham. Okay. How about letting me help here? You 
have got to take some risk because you cannot hold people 
without due process. Do you agree with that?
    Mr. Jameel Jaffer. I agree with that.
    Senator Graham. I guess the safest way is to never let 
anybody go, but that is not the right way.
    Mr. Jameel Jaffer. It is not the way that the Supreme Court 
has proposed that the law should be--has said the law should 
be.
    Senator Graham. No, the Supreme Court says--they have never 
said you cannot hold anybody indefinitely. You have to give 
them due process.
    Mr. Jameel Jaffer. That is right, Senator.
    Senator Graham. Okay. So, I am all for due process, and 
sometimes you make mistakes. We have actually been aligned more 
than most people would think. I do not believe that 
waterboarding was ever an appropriate technique to gain 
information, and I am sure you agree with that.
    Mr. Jameel Jaffer. I do, Senator Graham. I think the 
question is whether Judge Gorsuch agreed with that at the time 
he was in the Justice Department. And my interpretation of that 
email is that he did not.
    Senator Graham. Well, is it fair to say that Judge Gorsuch, 
who I interacted with a lot, said that waterboarding is illegal 
under the Detainee Treatment Act? He said that before this 
Committee.
    Mr. Jameel Jaffer. I read that. I read that. I was--I was 
pleased to read that. I do not think that is the view he 
expressed in the Justice Department.
    Senator Graham. Do you know why--do you know why he said 
that? Because I interacted with him a lot. He never bought the 
idea that waterboarding was consistent with the Geneva 
Convention. He has never bought the idea that it was consistent 
with other law. Some people had that view, and I am just here 
to tell you that he said before the country that waterboarding 
is now illegal without any question.
    And I brought up the situation of the current President, 
that if he decided--and I do not think he will because of 
General Mattis to go down that road--he would be, in my view, 
violating the law. And Judge Gorsuch said no man/woman is above 
the law. So, I hope that gives some comfort to people that 
Judge Gorsuch understands that the purpose of the Detainee 
Treatment Act was to outlaw waterboarding and other type 
techniques. He acknowledged it before the country that no 
President can just seize the law because of national security 
concerns alone.
    Ms. Massimino, do you agree we are at war?
    Ms. Massimino. I do.
    Senator Graham. And this is a complicated endeavor in terms 
of how you fight the war because there is no nation-state to 
fight, no Air Force to shoot down, no Navy to sink.
    Ms. Massimino. It is quite complicated.
    Senator Graham. But we need to adhere to our values, but 
also realize that intelligence gathering is an essential 
ingredient of law of war.
    Ms. Massimino. It is. It has been a huge challenge for us.
    Senator Graham. Thank you all very much. You have done the 
country a great service.
    Senator Hatch. Well, thank you. Senator Durbin.
    Senator Durbin. Thanks, Mr. Chairman. Thanks to the panel.
    Just to follow-up on Senator Graham's line of questions. At 
the time of the memo that was sent by Judge Gorsuch on this 
issue in which he said that, ``McCain is best read as 
essentially codifying existing interrogation policies,'' I am 
told the waterboarding was part of the existing interrogation 
policies of this country. Is that correct?
    Mr. Jameel Jaffer. That is correct.
    Senator Durbin. He could not remember that email nor any 
details surrounding it. But we clearly through the McCain 
amendment or the McCain legislation, which I supported, we 
clearly wanted to outlaw waterboarding and any form of cruel, 
degrading, and inhumane treatment of prisoners. So, there was a 
built-in inconsistency here.
    Mr. Jameel Jaffer. I think that is exactly right.
    Senator Durbin. Codify existing procedures, which included 
waterboarding, and address that as a signing statement on the 
McCain amendment, which would have prohibited waterboarding, a 
clear distinction which Judge Gorsuch, because of a variety of 
circumstances, did not directly answer.
    Let me move to another issue, and I do not know if it is 
Mr. or Dr. Perkins. Thank you for being here. Thank you for 
your touching story about Luke and his travels and journey, and 
all that you and your family have done to bring him to this 
point in his life.
    When Judge Tacha--did I pronounce your name correctly?
    Judge Tacha. Tacha.
    Senator Durbin. Tacha? When Judge Tacha talked about the 
Tenth Circuit standard, she left out one word: ``merely.'' 
``Merely.''
    I am trying to draw an analogy, and it may not be the best 
one. But if I said when it comes to hungry children, the law 
requires you to provide them more than just a little bit of 
food, that is a lot different than saying when it comes to 
hungry children, the law requires you to provide them merely 
more than just a little bit of food. Difference? One word has 
made a big difference. It has taken de minimus lower.
    That was the express statement by Judge Gorsuch which 
expanded what was the Tenth Circuit standard when it came to 
your son. It was the express phrase ``merely more than de 
minimus'' that the Supreme Court unanimously struck down 
yesterday, saying that means no education at all.
    When you saw that opinion, what was your reaction that 
Judge Gorsuch said he was just following Tenth Circuit 
precedent?
    Mr. Perkins. Well, I was devastated. At the time the 
opinion came out, Luke had been at Boston Higashi for five and 
a half years. I knew what he had accomplished in that time, all 
of the progress he had made. And to realize that Judge Gorsuch 
had by this subtle word craft taken what would seem to be--
making a statement that seemed to be saying he was following 
precedent, but actually further restricting an already 
restricted precedent with unfortunately my son in the bull's 
eye of that decision. It was very hard to take.
    Senator Durbin. Mr. Calemine, did I pronounce your name 
correctly?
    Mr. Calemine. Calemine.
    Senator Durbin. Calemine. Mr. Calemine, I am sure--the 
Chicago Tribune this morning chided me, and I am sure many of 
the Committee Members will be chided, that we spent so much 
time talking about a frozen truck driver. What in the world is 
going on here? We are talking about the Supreme Court. Why 
should we be talking about Alphonse Maddin and whether he was 
facing hypothermia or frostbite?
    But whether we are talking about one young man--young boy 
with autism or one truck driver, we are really trying to figure 
out this judge and what makes him tick and what his values are. 
And all we can rely on are really important decisions, not the 
routine decisions--they come and go--but the ones where you 
really have a moment where you have to make a call with the law 
and the facts that really defines you.
    Many of the arguments that I have heard here today I have 
heard over and over in this Committee, and that is this is 
programmatic. Here is the law, here are the facts, here is the 
judge, case closed. We know better. We know better because 
Merrick Garland is not sitting at the table or was not 
yesterday.
    The decision was made that it would be Neil Gorsuch for 
fear that Merrick Garland, an Obama appointee, would come in 
and say exactly the same thing. That really tells us that there 
is more at stake here than just this programmatic, robotic 
application of the law. There is something much more 
fundamental here.
    I thank you for coming and speaking on behalf of working 
people. Thank you, Mr. Chairman.
    Senator Grassley. Senator Lee.
    Senator Lee. Thank you very much. Mr. Jaffer, I just wanted 
to find out whether you are familiar with the column that came 
out in the Wall Street Journal yesterday, an article by Jess 
Bravin talking about the fact that former Justice Department 
official, John Bellinger, corroborated Judge Gorsuch's account 
to the effect that he pushed back against advocates of 
waterboarding and other cruel interrogation techniques during 
the Bush Administration. Are you familiar with that?
    Mr. Jameel Jaffer. I am not familiar with the column, but I 
am glad to hear that. And I think that if you have the 
opportunity to ask questions for the record, it would be great 
to get more information about precisely what Judge Gorsuch did 
to push back against these interrogation methods. It is great 
to hear if he did that, but it would be good to get that on the 
record.
    Senator Lee. In the email that has been referenced, dated 
Thursday, December 29th, 2005 at 4:47 p.m., it is worth noting 
I think that--I do not think he is saying there were no changes 
being made. He used words like ``sufficient'' and 
``essentially,'' talking about sufficient changes and whether 
they essentially codified existing law, not suggesting that 
there were no changes at all that were made by the law. Would 
you dispute that?
    Mr. Jameel Jaffer. No, I think that is another good line of 
inquiry. I think it would be important to ask Judge Gorsuch 
again what he knew of the interrogation methods that were being 
used at the time, and what adjustments he thought the 
Administration was going to make as a result of the DTA. I 
think those are important questions that have not yet been 
answered.
    Senator Lee. Thank you. Judges Tacha and Henry, it is very 
good to see both of you, and I do have to say it is a little 
bit more comfortable standing on this side of a stand rather 
than the other side. I am used to seeing you in an elevated 
position with both of you in robes, so thank you for being 
here.
    On the point, Judge Tacha, about the use of the word 
``merely,'' when you are looking at what Circuit precedent 
already demands, and you are trying to evaluate whether or not 
that precedent has been satisfied, the use of the word 
``merely,'' as I see it, could mean and ordinarily would mean, 
if I am not mistaken, this law does not require everything. It 
does not require a hundred percent if we are measuring this on 
a one to hundred percent basis. It requires merely X percent.
    Ordinarily when a judge would use such language, a judge 
would not necessarily be meaning to denigrate or minimize what 
the law requires, but indicate that the law requires X and 
nothing beyond X. Would that be how you would normally use that 
as a judge?
    Judge Tacha. That is exactly right. I cannot opine--thank 
you, Senator Lee, for those kind words. I cannot opine what 
order the adjective and everything came in the sentence. But 
what it does is merely define existing precedent, which was our 
standard--more than de minimus.
    So, yes, how that word was used is probably exactly as you 
describe, which was there is a standard here, there is a 
standard here, there is a standard here, and this one is the 
standard that is selected by the Circuit and followed Supreme 
Court precedent since 1982.
    Senator Lee. And as an Article III judge, even a powerful 
judge--at one point you were the Chief Judge of the Tenth 
Circuit--it is not your job to write the laws.
    Judge Tacha. It definitely is not, and I will add to that 
Judge Gorsuch is meticulous in that. And you will find 
throughout his opinions, ``this is not our job, this is 
Congress' job,'' or, ``this is the President's job,'' or 
whatever. He is so meticulous about the roles of the three 
branches of government.
    And, in fact, he and I have actually had these 
conversations. One of the things that is probably not seen, 
although you understand it in Committee work, is that in an 
appellate court there is a lot of back and forth among the 
judges on panels and unvalued in en banc sittings. I have heard 
Judge Gorsuch on many occasions say it is so important for us 
to be absolutely meticulous about what the role of each of the 
branches is.
    As I said in my written comments, he is a student of the 
Federalist Papers and of the founding documents, and really 
believes in that separation of powers.
    Senator Lee. And it is that separation of powers that 
recognizes that in our constitutional republic, it is the 
people who are sovereign, and the people's branch is the 
legislative branch. That is the branch of government where 
there is the most accountability to the people at the most 
regular intervals.
    I see my time has expired. Thank you, Judge. Thank you, Mr. 
Chairman.
    Chairman Grassley. Thank you. I think on the Democratic 
side--I have a list here, but I will go by seniority.
    Senator Whitehouse. Thank you, Chairman. Mr. Calemine, you 
represent a labor union?
    Mr. Calemine. Yes, sir.
    Senator Whitehouse. I would like to read from a New York 
Times news story that relates to the Abood case, which is a 
precedent of the Supreme Court that controls when labor unions 
like yours can charge non-members for services that they render 
in the collective bargaining process.
    Here is what Adam Liptak, the writer in The New York Times, 
wrote: ``In making a minor adjustment to how public unions must 
issue notifications about their political spending, Justice 
Alito digressed to raise questions about the constitutionality 
of requiring workers who are not members of public unions to 
pay fees for the union's work on their behalf,'' the Abood 
issue.
    ``Justice Sonia Sotomayor saw what was going on. `To cast 
serious doubt on longstanding precedent' ''--she wrote in a 
concurrence' ''--`` `is a step we historically take only with 
the greatest caution and reticence. To do so as the majority 
does on our own invitation and without adversarial presentation 
is both unfair and unwise.' '' End quote of Justice Sotomayor.
    The story continues: ``Michael A. Carvin, a leading 
conservative lawyer also saw what was going on. He and the 
Center for Individual Rights, a libertarian group, promptly 
filed the challenge Justice Alito had sketched out. Indeed Mr. 
Carvin asked the lower courts to rule against his clients''--I 
will interject into the story my own addition that is a rather 
unusual behavior for a lawyer--``so that his clients could 
hightail it to the Supreme Court,'' the article continues.
    Last year Justice Alito wrote a second majority opinion 
attacking the central precedent in the area, a 1975 decision 
called Abood v. Detroit Board of Education. But the majority in 
the new case, Harris v. Quinn, stopped short of overruling 
Abood. ``By now,'' the story in The New York Times continues, 
``everyone saw what was going on. Readers of today's decision 
will know that Abood does not rank on the majority's top ten 
list of favorite precedents, and that the majority could not 
restrain itself from saying and saying and saying so,'' Justice 
Elena Kagan wrote in dissent.
    ``Last week,'' the article continues--this is some time 
ago--``the Court agreed to hear Mr. Carvin's case, Friedrichs 
v. California Education Association, and it may soon complete 
the project Alito began in 2012, that of overruling Abood.'' 
End of my quotation of The New York Times story.
    As we know, the Friedrichs case did, in fact, come forward. 
It was expected to be a body blow to unions, according to 
reporting at the time. The Justice--the passing of Justice 
Scalia put the Court back to 5-4, so the Friedrichs decision 
came in 4-4, and went back to the Ninth Circuit, whose decision 
was upheld because it was a tie.
    Could you just react to me as a lawyer who represents a 
labor union on that series of events, and what you--how that 
makes you think about this particular Court and its 5-to-4 
decisions?
    Mr. Calemine. Certainly. My concern is based on the quotes 
you read from the Times article. Is that--there is a project 
underway to harm workers' rights, a project under way to harm 
workers' organizations so that workers do not have the ability 
to exercise the bargaining power that they all have and win a 
better deal for themselves at work.
    The notion that there are signals being sent for cases, 
rather than waiting for the case or controversy to arise, is 
very concerning. And it is one of the reasons why in the case 
of Judge Gorsuch, there has been a lot of talk about all he has 
done is apply the law to the facts in the TransAm Trucking 
case.
    What he did was he picked out the narrowest definition in 
the dictionary for the word ``operate,'' and it had a 
particular result. There were other definitions in the 
dictionary that could have been chosen, and once you saw 
multiple definitions, perhaps you should defer to the agency 
because maybe they know how the law can work effectively on the 
ground given their expertise.
    He chose the most narrow definition, and the result was 
absurd. And the result, if it had carried the day, would have 
made life a little more dangerous for truck drivers. If the 
kinds of absurd results you get out of that particular 
definition, things like the word ``operate'' only means to 
drive, then if a trucking company told a truck driver to go 
over the speed limit or speed up, go faster. They can see--
sometimes you can see the trucks on the computer and see how 
fast they are going. And the truck driver reports back, I 
cannot, I am in a construction zone, full of traffic, but the 
trucking company persists and says go faster, that trucker, if 
he went the speed limit, complied with the law, he would not be 
protected under Judge Gorsuch's version of that statute. He 
could be fired for going the speed limit because he is driving.
    He would have to completely stop the truck on the highway 
to protect himself for disobeying that order. And you can 
imagine the traffic that could cause if that is the way this 
statute was carried out. Those are the kinds of absurd results.
    In fact, I think Judge Gorsuch's dissent is Exhibit A for 
why we should have Chevron deference, because instead of 
picking out a dictionary definition, look and see the--look at 
the agency and see how they, the experts, have figured out how 
this law works in the real world.
    Senator Whitehouse. Thank you. My time has expired.
    Chairman Grassley. Senator Tillis, do you want time?
    Senator Tillis. Yes, sir. Thank you, Mr. Chair. Mr. 
Perkins, I first want to probably just say something. I do not 
know if you will need to respond or not. But probably I do not 
know anybody on Capitol Hill that has actually ratified bills 
that were sympathetic to families and persons with autism.
    As Speaker of the House, we had our State employees' 
healthcare plan cover autism treatment, which included 
psychiatric care, psychological care, pharmacy care, and 
adaptive behavioral treatment. And I know if you have studied 
autism, you know how those are critically important. We went on 
against insurance industry's wishes to include an insurance 
mandate in North Carolina to do the same thing.
    And the Court case yesterday, on the one hand I am happy 
that it provides other people that are going through your 
condition with an option. But in reality, it is a failing on 
the part of legislators. Now, you live in Colorado still?
    Mr. Perkins. Yes.
    Senator Tillis. Promise me you will not vote for a Colorado 
legislator that will not support a mandate, and will not 
support opportunity scholarships for children with autism. You 
do not have to make--I may have just broken a law or a rule or 
whatever.
    [Laughter.]
    Senator Tillis. But these folks need--there are nine States 
in this Nation. North Carolina is one of them. We have gone 
probably about as far, or maybe further in some cases, than any 
other. But this is an example of where I am going to support 
Joe Gorsuch, and my guess is that Judge Gorsuch the individual, 
who separates his jurisprudence job from his personal feelings, 
is just okay with what the Supreme Court did yesterday. But in 
reality, the whole need for that lawsuit is a failure on the 
part of the States to solve the problem.
    So, in a State like North Carolina, you do not have to--you 
do not have to get into a conflict and a lawsuit with the 
school system because it is still going to be difficult to do. 
You are still going to have to probably hire an attorney and 
work through all the complexities. They are going to push back.
    So, I hope, and I am glad to hear that my colleagues on the 
other side of the aisle, all of whom are from States who have 
not done this, but they are okay with the fix the Supreme Court 
got because I am going to try and move legislation to make it 
easier for people like you to get the care you need.
    But it is a classic example of legislators--last night I 
used an analogy of a bear skinner and a bear hunter. I will not 
use my time here. But we need to actually skin that bear here, 
not have the courts do it. And I do think that what Judge 
Gorsuch was doing was saying fix the problem.
    He said, and something I will repeat time and time again to 
a question here before one of my colleagues on the other side 
of the aisle, it is not my job to do your job. I think that was 
a very insightful thing for him to say. In our case, if 
legislators did their job, you would not be before us today, 
your family situation would be better, and Luke would be 
probably farther along.
    And one other thing I want to tell you. We may need to get 
Luke to come to my office because we are actually putting that 
same Lego model together, and my staff are struggling.
    [Laughter.]
    Senator Tillis. But thank you for being here. If you have a 
brief comment, and then I have one other question, Mr. Chair.
    Mr. Perkins. I would just like to comment briefly. I would 
say that the Congress had indeed passed the IDEA, and based on 
my----
    Senator Tillis. They did, but let me----
    Mr. Perkins. Based on my reading of Judge Gorsuch's 
opinion----
    Senator Tillis. Mr. Perkins, let me--I do not mean to 
interrupt you, but I want to get one last comment, and I may 
just have to submit it to the record. But here is the problem 
with the IDEA and relying on the vagaries of the IDEA to fix 
the specific problems back in the State.
    I am already reaching out as a result of that Court opinion 
yesterday, saying how do you actually provide clarity that puts 
the benefit in the hands or the benefit of the doubt in the 
hands of the parent. The way you do this properly is 
structurally after an IEP in the parents' judgment is failing 
to allow a child, in your case, to generalize the skills and 
learning in school back at home, how do you get--grant them the 
power to, after just a year, move somewhere else? How do you 
make sure that the State funding follows the child? How do you 
make sure that Federal funding follows the child? How do you 
make sure that the parent does not have to go into a courtroom, 
or an arbitrator, or all the other things that they will still 
have to do with that court decision?
    How do you get the Members here, and I am thrilled to hear 
that we have such support on the other side of the aisle. How 
do you get us to provide more specificity in the IDEA so the 
burden is not on you? You have your own burden with your--with 
your beautiful child. You should not have to do it.
    It is a failing of Congress. It is not a failing in this 
case of Judge Gorsuch. And I hope that people understand that I 
am so glad to hear in States, none of whom have stepped up and 
done it, are prepared to actually go with me to those States 
and convince them to do it, because we can solve the problem.
    And I will submit my other questions for the record.
    [The information appears as a submission for the record.]
    Senator Tillis. Thank you, Mr. Perkins.
    Mr. Perkins. Senator Tillis, may I have the opportunity 
that you offered me to briefly respond? The IDEA is not a 
perfect law, but the fact of the matter is Judge Gorsuch in his 
opinion shrank and minimized the requirements of the IDEA such 
that they trivialize this law. And as the opinion yesterday 
characterized, current law provides much more significant 
protection to disabled children than Judge Gorsuch's ruling 
offered.
    Senator Tillis. But it does not provide enough, and it is 
because of a failing of legislators and Congressmen, not the 
courts. Thank you, Mr. Perkins.
    Chairman Grassley. Senator Franken.
    Senator Franken. Thank you, Mr. Chairman.
    Judge Tacha, in your testimony, you were talking about 
Judge Gorsuch as a judge, and you said ``His attention to the 
views of his colleagues informs his work. He has an acute sense 
of identifying those circumstances''--I am reading from your 
testimony--``where consensus is the highest value. And on the 
other hand, those decisions were personal conviction, and 
reason dictate individual judgment and independent 
decisionmaking.'' Personal conviction.
    Judge Tacha. That is about whether consensus should be 
built on the decision or whether the judge should write 
independently either as a concurrence or dissent, or whatever.
    Senator Franken. But he says--you are saying that he 
takes--that what is important to him is--well, his colleagues 
believed, ``but also his personal conviction.''
    Judge Tacha. About how he reads the law.
    Senator Franken. His personal conviction about how he reads 
the law, because what basically he would not tell us are any of 
his personal convictions.
    Judge Tacha. Because he would not bring those to cases. He 
would be----
    Senator Franken. Well, I am sorry, this is what bothered me 
is that he said his personal convictions did not enter into his 
decisions. And we spent 3 days here hearing that back--over and 
over and over and over again. ``My personal convictions do not 
matter,'' but now from someone who is endorsing him say that 
they do matter.
    And this is what I worry about, that we were not allowed to 
hear any personal convictions, and yet now I am hearing that 
those matter a great deal.
    Judge Tacha. Senator, could I--could I explain that?
    Senator Franken. Please, may I have more time then?
    Chairman Grassley. Let him finish. Go ahead.
    Senator Franken. Thank you, Mr. Chairman. I belonged to 
four labor unions before I have here. It is really important. 
Friedrichs is an important case. We could not get any personal 
convictions on anything basically. What is your--Mr. Calemine, 
what is your read on--from what you see from his decisions on 
how you feel about how he will rule on Friedrichs? What is 
your----
    Mr. Calemine. I think--I think--this TransAm Trucking 
dissent is only seven paragraphs long, and I think it is worth 
reading it closely because of what it shows his judicial 
philosophy being capable of, which is rewriting law. Not just 
applying the laws written by Congress, but rewriting it.
    That is why one should pay attention to that decision as a 
guide on how he might treat other workers' rights laws. And 
then you pay attention to what he says in that decision, and 
the way he treats the workers' perspective in that case. For 
example, he describes the option that his--that the supervisor 
gave to the worker to illegally drag the trailer down the 
highway as being maybe sarcastically offered. In other words, 
he is excusing the boss' outrageous order.
    When it comes to describing the option of staying at the 
truck and freezing, suffering hypothermia, he describes that as 
merely unpleasant. And I am--actually I am adding the word 
``merely'' there. He describes it as unpleasant. And he 
describes--creates an analogy for this situation involving an 
office computer rather than a truck and freezing to death. That 
analogy I believe shows a bit about what the real concerns are 
here, which again, is from the boss' perspective. I think 
that----
    Senator Franken. The hostility to the worker here.
    Mr. Calemine. Yes, if you--yes, sir. If you let Mr. Maddin 
drive his truck to safety, well, the next thing you know, we 
will have to let him drive the truck to the beach is the sense 
one gets from it. So, we are concerned about his ability to 
look at things from a worker's perspective.
    Senator Franken. I know I am out of time. I just want to 
say one thing about that, which is that this is--was not about 
this comfort. He had hypothermia. He had fallen asleep with 
hypothermia, but only was woken up when his cousin called him. 
And the way you freeze to death is you fall asleep and die. So, 
he was really given a choice between dying--possibly dying--or 
unhitching that cab and driving off. And this says to me a lot 
about the man's judgment.
    So, thank you, Mr. Chairman, for your indulging.
    Chairman Grassley. Judge Tacha, take a few minutes to say 
what you wanted to say, and then we will go to Senator Kennedy 
if he has--do you have questions, Senator Kennedy? Go ahead.
    Judge Tacha. Just very briefly to the question of personal 
conviction. What I meant there, and what perhaps I did not get 
clear, is each judge brings to his or her reading of the law 
their own intellect, their own interpretations, their history, 
the precedent. And so, what--and I am going to give you an 
example here because it is really important.
    Judge Gorsuch and I disagreed in a very, very important 
case. I will not bother you with all the details, but we read 
the law--it happened to be First Amendment law--quite 
differently. We tried to reach consensus. We were in lots and 
lots of conversations. Judge McConnell was in on this, too, and 
note all three of us appointed by Republican Presidents, and we 
all three had very different views on this very important First 
Amendment case. Finally, it came to the point where my reading 
of the law was different from Judge Gorsuch and Judge 
McConnell's.
    Now, I ultimately became convinced that I was wrong after 
the Supreme Court reversed me 9-0, but they were--it was a 
wonderful exchange and a wonderful way to bring different 
judges' perspectives to the interpretation of whatever the case 
or the law is.
    Chairman Grassley. Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman.
    Mr. Jaffer mentioned a few cases that Judge Gorsuch had 
worked on at the Department of Justice. And I note that, in one 
of those matters, the Government actually continued the 
litigation during the Obama administration. In fact, it filed a 
cert petition, made the same argument as the Bush 
administration had made. And the Solicitor General who signed 
the brief was now-Justice Elena Kagan. Of course, she was 
serving as Solicitor General at that time.
    I would like to make the briefs part of the record, Mr. 
Chairman, in the case of United States Department of Defense et 
al., Petitioners, v. American Civil Liberties Union.
    Chairman Grassley. Without objection, it is included.
    [The information appears as a submission for the record.]
    Senator Kennedy. All right, just because of the nature of 
her job, my guess is the person on this panel who has been 
around the judge the most in the shortest period of time is Ms. 
Bressack.
    Am I saying your name right?
    Ms. Bressack. Yes.
    Senator Kennedy. Okay. And I believe you joined the Judge 
right out of law school.
    Why don't you turn your mike on?
    Ms. Bressack. I apologize.
    I clerked on the Southern District of New York and then 
went to clerk for the judge on the Tenth Circuit.
    Senator Kennedy. Okay. And you finished Vanderbilt Law 
School?
    Ms. Bressack. I did. Yes.
    Senator Kennedy. You were first in your class?
    Ms. Bressack. I was.
    Senator Kennedy. Order of the Coif?
    Ms. Bressack. Yes.
    Senator Kennedy. Okay. You were with the judge probably 
about every working day, right?
    Ms. Bressack. Absolutely.
    Senator Kennedy. That is just the nature of being a clerk.
    Ms. Bressack. That is correct.
    Senator Kennedy. Tell me what he is like.
    Ms. Bressack. The judge is an incredibly caring person. I 
think sometimes when we read his opinions and we hear--and we 
get these characterizations that he is very robotic, I think 
that misses the essence of the judge, which is he takes very 
seriously his job of interpreting the law correctly. And he 
also, obviously, has great sympathy for the litigants that 
appear before him, and he has a deep respect for the litigants. 
And I think anyone who has appeared before him, as well as his 
clerks, understands that.
    So I think that the sense that I had to respect everyone 
around me I think was really solidified in that year of 
clerking. And I think he is an individual who is not only 
brilliant but very humble in the way that he approaches his 
important task of applying the law to the facts of a particular 
case, but also clearly understands that the litigants in front 
of him are real people.
    Senator Kennedy. Okay. And I appreciate all that. Tell me 
what he is really like.
    Ms. Bressack. Well----
    Senator Kennedy. What is in his heart?
    Ms. Bressack. He is just--he is a very caring man. I think 
that, on a personal level, he always wants to know what his 
clerks are planning to do after their clerkship. He takes very 
seriously the choices we make, whether we go into public 
service, whether we go into the private sector. He cares when 
you have personal events in your life, whether you get married, 
whether you have a kid.
    And I think that beyond just the intelligent judge, he is 
just incredible human being.
    Senator Kennedy. Is he political?
    Ms. Bressack. Not when we are deciding cases, no. I mean, 
again, when we approach cases, we are just looking at the 
arguments that are being made by the litigants, the law for us 
and the facts of the case, and politics has no place when we 
are looking at a case in that way.
    Senator Kennedy. Did you ever see him decide a case based 
on one of the litigant's wealth or status or power?
    Ms. Bressack. No.
    Senator Kennedy. Okay. Did you ever see him approach a case 
in terms of, here is the result I want, now let me figure out 
how to get there? Or did he approach it from, let me look at 
the law and see what the law says, and then that will determine 
who wins the case?
    Ms. Bressack. The latter. What he does is he approaches the 
case, he looks at the arguments that have been made by the 
parties. He looks at the applicable text, whether it is a 
contract, a statute, or the Constitution. And then he sincerely 
takes his task very seriously, of attempting to figure out what 
Congress meant by the words of, for example, a statute, or what 
the parties meant by the words of a contract. And that is how 
he figures out the result that is required by the case, not 
based on the identity of the parties before him, government or 
individual litigant.
    Senator Kennedy. Did he read the briefs or did he give them 
to you and say summarize them for me?
    Ms. Bressack. No. We read the briefs, and then he read the 
briefs, and then we talked about the briefs.
    Senator Kennedy. So you both read the briefs.
    Ms. Bressack. Absolutely.
    Senator Kennedy. Okay. Did you ever see him render 
decisions that he felt the law required but he was not 
necessarily happy with the result?
    Ms. Bressack. Absolutely. I mean, the job of a judge is a 
very difficult job. I think sometimes there are very 
sympathetic parties that appear before him, but he takes very 
seriously his oath to apply the law before him, and sometimes 
that means results that are not in favor of very sympathetic 
parties. But that does not mean that he lacks sympathy for 
them. He simply takes very seriously his oath to apply the law.
    Senator Kennedy. Thank you, Ms. Bressack.
    Thank you, Mr. Chairman.
    Chairman Grassley. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman.
    I think I will just start with you, Dr. Perkins. Thank you 
so much for being here and for sharing your son Luke's 
experience with us.
    This was a matter of discussion yesterday at the hearing, 
as you probably heard, in light of the Supreme Court's 8-0 
decision rejecting the standard that had been used in your 
son's case that denied him the help that he needed.
    What did you think when that opinion came out yesterday? 
How did you feel about it?
    Mr. Perkins. Well, I guess the first thing was just I was 
very happy for Endrew F. and his family, having gone through 
what they went through, to ultimately have that vindication.
    And I think, for ourselves, although belatedly, we did feel 
vindicated. We felt that, ultimately, when a very similar case 
made it to the Supreme Court----
    Chairman Grassley. I have been asked to have you speak into 
the mike.
    Mr. Perkins. Okay.
    When this case was decided, I mean, we felt, in a sense, 
although indirectly, Luke's case and Luke's situation was being 
vindicated.
    Senator Klobuchar. You know, my mom taught second grade 
until she was 70 years old and worked a lot with kids with 
disabilities in public school. And as a parent of a son who has 
benefited from the IDEA, could you quickly talk about what the 
law's mandate, which is to help students achieve ``full 
participation, independent living, and economic self-
sufficiency,'' means to your family?
    Mr. Perkins. It is huge. Luke, without an appropriate 
education, would have--was in a very restricted situation. He 
basically lived his life in his house and in a special needs 
classroom and school, and that was it. That was the only 
context that he could be in. And behaviors and a lack of tools 
to deal with his disability really restricted him.
    Now he has a good life. He enjoys what he does. He is able 
to get joy out of interaction with peers, with his family. It 
is meant--it is a huge difference in his life.
    Senator Klobuchar. Thank you so much.
    Mr. Calemine, just again, briefly, we have little time, I 
have questioned the nominee a lot on the Gutierrez case, which 
is the concurrence that he did to his own opinion regarding the 
Chevron doctrine. And, as you know, Chevron allows some 
deference to administrative decisions by agencies.
    Could you just briefly talk about the uncertainty this 
would create for safety rules in your industry, if this was 
overturned for workers?
    Mr. Calemine. As I mentioned earlier, the rule that allows 
us to refuse hazardous work, to do hazardous work, is a rule 
that is not explicitly in the OSH Act. It has been developed 
through agency interpretations of the statute.
    So this creates an opportunity, if the courts are not going 
to follow Chevron deference, it creates an opportunity to just 
strip those kinds of rights away. And those rights, as we 
speak, are saving lives right now. That is what is at stake 
here.
    Senator Klobuchar. Thank you very much.
    Last, Ms. Massimino, thank you so much for being here. You 
talked about, in your written testimony, about the importance 
of checks and balances. The Constitution gives the President 
certain powers as Commander-in-Chief, but those powers have the 
potential to be abused if they are unchecked.
    How should the Supreme Court approach, in your mind, with 
your background with human rights, how should the Supreme Court 
approach the balance between national security and civil 
rights? And what does the judge's record suggest about how he 
would assess presidential assertions of Executive authority?
    Ms. Massimino. Thank you.
    Well, it is often said that there needs to be a balance 
between security and liberty, but we know from long experience 
now that respect for human rights and individual dignity is the 
foundation of peace and security in the world. That was the 
wisdom of the Universal Declaration of Human Rights that 
Eleanor Roosevelt pushed forward, and it remains true today.
    I heard Judge Gorsuch testify the other day that no man is 
above the law, and that is an important tenet for our 
democracy. But unfortunately, we know from sad experience, 
fairly recent, that is not enough.
    When the Bush administration authorized torture and other 
abuse against detainees, torture was already a Federal crime. 
And the problem was that the administration, and, in 
particular, many of its lawyers, had a different view of the 
law.
    So it is not enough to say that no man is above the law. 
According to the legal memos that were prepared at that time by 
Bush administration lawyers, they believed that the law against 
torture allowed torture. This is the sort of ``Alice in 
Wonderland'' kind of situation that we were in.
    And that is why I find that email that Senator Feinstein 
pointed to from Mr. Gorsuch while he was at the Justice 
Department one of the most troubling things about his record. 
He was basically arguing there that the Bush administration 
ought to interpret the McCain amendment--one of the strongest 
and most bipartisan pieces of anti-torture legislation that 
this body has ever enacted--as actually codifying and 
legalizing torture, rather than prohibiting it.
    And when Judge Gorsuch was asked the other day in the 
hearing whether there were any circumstances in which it would 
be lawful for a President to authorize torture or to authorize 
an act that was specifically prohibited through an act of 
Congress, he did not answer that question. I think it is very 
important, particularly in this environment where we have a 
President that is asserting these kinds of powers, to get an 
answer.
    Each branch of government has to play its role, and it is 
going to be particularly important that the Supreme Court is 
willing to stand up to Executive overreach in the era that we 
are in now.
    So I urge you to get clarity from Judge Gorsuch about his 
specific views on those issues.
    Senator Klobuchar. Thank you very much.
    Chairman Grassley. Senator Leahy.
    Senator Leahy. Thank you very much, Mr. Chairman.
    I appreciate all of you being here.
    I have a question for Mr. Jameel Jaffer. I grew up in a 
family that believes very strongly in the Constitution, 
especially the First Amendment. They had owned a small weekly 
newspaper and a printing business. They said the right to 
practice any religion you want, or none if you want, is 
important. The fact that you could say what you want is 
important. If you guarantee all that, you guarantee diversity. 
If you guarantee diversity, you guarantee a democracy. But you 
also have to have an independent judiciary.
    I asked Judge Gorsuch to give me a clear answer to basic 
questions. I asked him whether the First Amendment prohibits 
the President from imposing a religious litmus test on entry 
into this country. I thought it would be a fairly easy 
question. He said it is currently being litigated, so he could 
not discuss it. I meant it as a softball.
    So does the Constitution allow the President to impose a 
religious litmus test for entry into the United States?
    Mr. Jameel Jaffer. Of course not, Senator Leahy.
    Senator Leahy. And does it concern you that he would not 
answer that question?
    Mr. Jameel Jaffer. You know, I think that there is a bigger 
concern here. You know, some of the responses that Judge 
Gorsuch gave to questions like this, including about--including 
in response to questions about Executive power, I think we are 
very abstract.
    And I do not think it is enough, for example, to say no 
person is above the law in response to a question about the 
Youngstown framework. You know, the dispute 10 years ago over 
torture was not a dispute between people on one side who said 
we should follow the law and on the other side people who said 
we should not follow the law. Everybody claimed to be following 
the law, including the Bush administration officials who 
authorized torture.
    So really, I am hoping that, in questions for the record, 
the Committee will be able to get Judge Gorsuch to speak more 
specifically about the role he envisions for the judiciary in 
the context of national security.
    Senator Leahy. Hope springs eternal, but do not hope too 
much. He might.
    But, Ms. Massimino, you would think someone with my Italian 
background, an Italian mother, I could pronounce that 
correctly.
    You raised the actions of the Justice Department, and I am 
very concerned that he declined to answer any questions 
regarding his role there, what his views were, even though 
documents indicate that he helped the Bush administration 
justify torture, indefinite detention, and warrantless 
surveillance.
    Should we be concerned about that work?
    Ms. Massimino. I think you should. And you know, that 
period of time in our history was so important to our 
democracy. We talk a lot here about the law, but, you know, it 
turned out that the lawyers were actually, in many respects, 
even more important than the law because they were the ones who 
were trying to interpret what the law meant.
    And there were other people at that time, government 
lawyers, who were extremely troubled when they found out what 
was going on, and they tried to stop it. And from the record 
that we have here, it does not appear that Judge Gorsuch was 
one of them.
    Senator Leahy. Well, it was a great expansion of Executive 
power that many of us questioned.
    In my remaining time, I know, Mr. Perkins, many of us know 
about the story of Luke. And, you know, I would hate to have 
been in your shoes, but I think I would have felt the same way.
    But we found out yesterday Judge Gorsuch's application of 
the Individuals with Disabilities Education Act was turned down 
by the U.S. Supreme Court. They said the standards are markedly 
more demanding than the standard that Judge Gorsuch created in 
your son's case.
    How did you feel about--what did you think when you heard 
the Supreme Court?
    Mr. Perkins. I was very happy that they reversed a trend 
that clearly Judge Gorsuch and the Tenth Circuit had been part 
of to water down the standards for progress such that they were 
of minimal practical benefit. And even with these very watered-
down standards that were part of Luke's education program, he 
was only meeting 25 percent of his objectives, but I really 
appreciated the fact that Judge Roberts--or Chief Justice 
Roberts used words like every child should have the chance to 
meet challenging objectives. That, indeed, is the case. And 
when that can happen, even a child with severe disability can 
make tremendous progress.
    Senator Leahy. Thank you very much.
    Thank you, Mr. Chairman.
    And I thank the Senator from Hawaii.
    Chairman Grassley. Senator Hirono.
    Senator Hirono. Thank you, Mr. Chairman.
    Thank you all for being here.
    Mr. Perkins, yesterday was a good day for your family with 
the Supreme Court's decision.
    IDEA is what I would call remedial legislation meant to 
protect a class or a group of people--in this case, people with 
disabilities. And generally, remedial legislation--not even 
generally. Remedial legislation should be broadly interpreted, 
broadly interpreted to effect its purpose.
    So when you were before Judge Gorsuch and you saw that 
opinion, do you think that Judge Gorsuch did, in fact, do that, 
broadly interpret IDEA to effect its purpose, in your son's 
case?
    Mr. Perkins. Absolutely not. In fact, he did the exact 
opposite. He took precedent that, frankly, in light of 
yesterday's decision, was already inappropriately narrow or 
restrictive, and further restricted that interpretation, such 
that I really wondered why would Congress even bother, if that 
is really what IDEA meant?
    Senator Hirono. So do you think that, if Judge Gorsuch had 
looked at legislative history, perhaps, of what was behind 
IDEA, that he may have issued a more expansive ruling than his 
dissent showed?
    Mr. Perkins. I would hope so. I know that his picture of 
what he felt the law said was a huge distortion of what the 
actual intent was. And so I would have hoped that, if he had 
looked into it some more, he might have been able to see that 
he had reached a wrong conclusion and maybe backtracked in his 
judicial reasoning and come to a more appropriate conclusion.
    Senator Hirono. So I understand that your family had a lot 
of resources. You are a doctor. You had parents who helped you. 
You did different things to accommodate the needs of your 
child.
    And I am wondering whether, as you sat there before Judge 
Gorsuch, knowing that your family is one of literally 
thousands, hundreds of thousands, in our country who have 
children who look to the IDEA for the kind of educational 
support that they require, what did you think about all the 
families who do not have the kind of resources that you have 
and what Judge Gorsuch's ruling would have done to their 
ability to do the best for their child with disabilities?
    Mr. Perkins. Actually, that is probably one of the most 
frequent thoughts that we had through this whole legal process, 
is just realizing how overwhelmed we were. With all of the 
resources, financial, family support resources that we were 
blessed with, we were overwhelmed. And to think that the people 
out there--I mean, many of my patients, I think how in the 
world, if they had had Luke in their family, could they have 
done this?
    And having a child with a severe disability is completely 
overwhelming, and sometimes it may seem impossible. I mean, 
even for us with our resources, we felt at many times that this 
may be impossible, because the law apparently is not on our 
side.
    Senator Hirono. Thank you.
    With the brief time that I have left, I would like to ask 
Mr. Calemine, we have concerns about how Judge Gorsuch would 
rule in cases relating to workers' rights and unions, and I 
referred to his decision in NLRB v. Community Health Services.
    Is that a decision you are familiar with?
    Mr. Calemine. Yes. I had to look back in my notes here.
    Senator Hirono. Okay, familiar enough.
    Mr. Calemine. A little bit.
    Senator Hirono. So he had a dissent there that really 
disadvantaged these workers who had been illegally denied 
longer hours, and it affected their pay, so they had to get 
another job.
    Would you share your thoughts on Judge Gorsuch's dissent 
and his overall judicial record on workers' rights, really 
briefly?
    Mr. Calemine. Briefly, the dissent in that case involved, I 
believe, Judge Gorsuch saying that these hospital workers who 
had been unlawfully--their hours had been reduced unlawfully. 
They went out and got other jobs to try to make up for their 
loss of income.
    What Judge Gorsuch wanted to do in his dissent was to 
subtract the money that they earned from those outside jobs 
from the total backpay award, which meant--it does not 
recognize--it is an example of not recognizing what life is 
like for somebody working for hourly pay trying to make ends 
meet.
    Just going out and getting another job itself is a big 
problem. You have new schedules. You have family issues.
    Senator Hirono. So my question really was whether you think 
that, on the Supreme Court, he would continue----
    Mr. Calemine. That is the concern.
    Senator Hirono [continuing]. A very restrained view of 
workers' rights.
    Mr. Calemine. That is the concern we have, that the 
workers' perspective is not going to see a fair shake here.
    Senator Hirono. Thank you, Mr. Chairman.
    Chairman Grassley. I have one question, and then I will 
turn to Senator Feinstein. When she is done, we will bring on 
the next panel.
    Judge Kane, I bet this is the first time since 1977 you 
have been before this Committee. Is that right?
    Judge Kane. That is correct, Senator.
    Chairman Grassley. You have been a judge for 40 years, but 
before that, you were a public defender. When you were a public 
defender, did you adopt every position of your client?
    Judge Kane. Well, I represented a number of murder 
defendants, and I did not agree with them on that.
    [Laughter.]
    Chairman Grassley. So you can represent somebody without 
agreeing with them, just like Judge Gorsuch when he was in DOJ 
could also represent his superiors, as their counsel?
    Judge Kane. Absolutely.
    Chairman Grassley. Okay.
    Senator Feinstein.
    Senator Feinstein. Your Honor, I would just say, this is 
just my view, that for those in government, the standard has to 
be a little bit different. You have to do what is right.
    And this goes up even to the launching of a nuclear bomb. I 
asked someone who was in a position once, if you thought the 
President was absolutely wrong in what he was doing, would you 
deny a launch? And the answer was no.
    And that caused me to think about the obligation that we 
have as service in government to do what is right as far as we 
know it.
    And I think that even affects attorneys who have bosses 
because, in this case, lives are a real problem.
    In any event, I would like just quickly to put in the 
record the Supreme Court's opinion in the IDEA case.
    And I would like to just quote a few lines. ``To meet its 
substantive obligation under the IDEA, a school must offer an'' 
educational improvement plan ``reasonably calculated to enable 
a child to make progress appropriate in light of the child's 
circumstances. The 'reasonably calculated' qualification 
reflects a recognition that crafting an appropriate program of 
education requires a prospective judgment by school 
officials.''
    So I would like to put that in the record, if I may, Mr. 
Chairman.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Senator Feinstein. The second thing, in response to my 
friend and colleague who spoke about the Detainee Treatment 
Act, Senator Graham, I was McCain's cosponsor on his bill, and 
I would like to read from his statement on the floor on 
February 13, 2008.
    And in this, he makes clear that his view of the Detainee 
Treatment Act in 2005 outlawed waterboarding. He says, ``I 
stated during the passage of that law that a fair reading of 
the prohibition on cruel, inhumane, and degrading treatment 
outlaws waterboarding and other extreme techniques.''
    So I would ask that this statement be part of the record, 
and also the opinion in this case.
    Chairman Grassley. Without objection, so ordered.
    [The information appears as a submission for the record.]
    Chairman Grassley. Now should I go to Senator Blumenthal.
    Senator Feinstein. Yes.
    Chairman Grassley. Senator Blumenthal.
    Senator Blumenthal. Thank you, Mr. Chairman.
    And thanks to the members of the panel for sharing your 
insights and experience with Judge Gorsuch.
    I have a question for Mr. Calemine, but others are free to 
answer it as well.
    As you know, the importance of our consideration here is 
not only the results. In fact, even more important than the 
results is the judge's method of reasoning, his approach to 
analysis in cases. And a couple cases I think are illustrative.
    In Compass Environmental, Inc. v. OSHRC, Judge Gorsuch 
voted to overturn a fine that was imposed by the Department of 
Labor against a company whose failure to properly train a 
worker actually caused a death.
    In TransAm Trucking v. Administrative Review Board, as we 
all know now from the discussion that took place when he 
testified here, he voted to reverse the judgment of both an 
administrative judge and the Department of Labor, which held 
that a truck driver had been improperly fired in violation of 
Federal law. The truck driver abandoned his truck in 
subfreezing weather when the heater in his cab failed to 
function, and did so, in essence, to save his own life.
    I wonder if you could comment about the purpose of the laws 
that he was interpreting here, and why you have reservations 
about his analytical approach, his method of reasoning in 
approaching these laws, and other cases that have the same 
effect? And I open the same question to others on the panel.
    Mr. Calemine. Thank you.
    So the purpose of the laws in the two cases that you just 
mentioned, Compass Environmental and TransAm Trucking, the 
purpose of those laws is to protect workers' health and safety. 
And one of the most alarming things about one of those cases is 
Judge Gorsuch describing those purposes as ephemeral and 
generic.
    In other words, there is not enough concrete there to allow 
those purposes to guide how we interpret these laws.
    So instead, we turn to things like the Oxford English 
Dictionary, which he did in that particular case.
    Another concern from the other case, from Compass 
Environmental, is his description of OSHA's powers as being 
remarkable. And in that case, a worker had been electrocuted to 
death, and the remarkable power imposed by OSHA was a $5,550 
fine, just a $5,500 fine on the employer, and that is described 
as remarkable.
    And that is a concern because workers in this country rely 
on that agency and other agencies to enforce their rights every 
day, and we have come to rely on those interpretations.
    We want to know what the law is. We do not want the Second 
Edition 1989 Oxford English Dictionary to suddenly be pulled 
out to change that law, and that is what almost happened in 
TransAm Trucking, a rewrite of the law.
    Senator Blumenthal. Any other members of the panel?
    Ms. Bressack. If I might, Senator?
    Senator Blumenthal. Sure.
    Ms. Bressack. I am comforted to hear that you specifically 
note that we are not just going to look at the results of cases 
in judging Judge Gorsuch, because, obviously, he has been on 
the bench for 10 years, so we are focused on certain cases in 
which he may have ruled against certain workers, but there are 
a number of other decisions that I believe the panel--the 
Committee is aware of, where he ruled in favor of workers.
    And I believe that the approach he applies in all of those 
cases, irrespective of the result, is to look at the text that 
was passed by Congress and apply it fairly to the facts before 
him. And I believe that it is that process that does not 
change. It is the results that change based on, obviously, the 
facts of the case before him, as applied to the statute.
    Senator Blumenthal. And the reason I asked about the 
reasoning and analytical approach is precisely the answer that 
has just been given. To regard a worker protection statute or 
the concept of health and safety as ephemeral and generic is, 
in my view, a gross understatement of the purpose of these 
laws, which are basic to people who leave their homes in the 
morning, say goodbye to their families, expecting to come home 
at the end of the day without having been injured, maimed, or 
killed. That is the purpose of these laws. That purpose is not 
generic or ephemeral. It is urgent and important.
    And Mr. Calemine I think well-stated the reservation I have 
based on his use of that language.
    And by the way, I have been here for 7 years. I have never 
heard any United States Senator quote the Oxford dictionary for 
the meaning of a term. Never. Not once.
    And yet, Judge Gorsuch uses it very, very abundantly in his 
opinions to seek a definition for how he is going to apply a 
statute. That is not a real-world approach to health and 
safety.
    And it concerns me, and that is why I asked the question.
    But it is not the result alone. In those cases, I was 
concerned about the result. He probably has ruled for 
individuals. And we have been throwing around this term, the 
``little guy.'' It does not matter whether it is a big or 
little person or a group of people. It is more the concept of 
preserving worker safety that is important.
    Thank you.
    Chairman Grassley. Thank you, Senator Blumenthal.
    Thank you all for your presentation, more importantly for 
your preparation and for informing the Committee.
    Thank you very much.
    And will the second panel come, but while the second panel 
comes--and please do not sit down until I swear.
    But I want to inform the Members----
    Senator Feinstein. Swear you in, you mean. You are not just 
going to swear.
    Chairman Grassley. Yes, swear in.
    Here is what I would like to have the Members think about. 
We will not get through this panel presentation--12:25 is when 
the vote starts, so I think we are going to go with this panel 
until 12:35. And then we will recess, and I will vote at the 
end of the first vote, and then vote on the second vote 
immediately.
    So that means we probably will reconvene this panel about 
1:05 or 1:10, in that period of time, and then we will have the 
rest of the panel presentation and the questions. And then we 
have yet one more panel, I believe one more panel after that.
    [Witnesses sworn.]
    Chairman Grassley. Thank you.
    I am going to do something that I forgot to do, and it was 
very wrong, my not doing it. I did not say anything about the 
last panel individually.
    Jeff Lamken is a founding partner of MoloLamken, and he 
clerked for Justice O'Connor.
    Heather McGhee is president of Demos.
    Is that how you----
    Ms. McGhee. Demos.
    Chairman Grassley. Demos. Okay.
    Professor Lawrence Solum is a Carmack Waterhouse Professor 
of Law, Georgetown.
    Fatima Goss Graves, senior vice president for program and 
president-elect of the National Women's Law Center.
    Professor Jonathan Turley is on TV all the time. That does 
not say that here, but I can say it. He is the J.B. and Maurice 
C. Shapiro Professor of Public Interest Law, George Washington 
University Law School.
    Pat Gallagher is director of the Environmental Law Program, 
Sierra Club.
    Karen Harned is executive director at the National 
Federation of Independent Business Small Business Legal Center.
    And Eve Hill is partner with Brown Goldstein Levy. She 
previously served as Deputy Assistant Attorney General for the 
Civil Rights Division from 2011 to 2017.
    We will start there, and we will go until we see how this 
vote goes.

               STATEMENT OF JEFF LAMKEN, PARTNER,
                   MOLOLAMKEN, WASHINGTON, DC

    Mr. Lamken. Thank you, Mr. Chairman, Ranking Member 
Feinstein, Members of the Committee, for the opportunity to 
speak to you about Judge Gorsuch.
    Since clerking for Justice O'Connor in 1992, I have had the 
honor of arguing 23 cases before the U.S. Supreme Court, many 
of those as Assistant to the Solicitor General, first under 
Seth Waxman, who was President Clinton's Solicitor General, and 
then later under Ted Olson, who was President Bush's.
    I have known Neil Gorsuch--Neil, as I have always known 
him--as a colleague and a friend for more than 20 years. My 
wife, who is here today, has known him even longer, because she 
went to law school with him.
    I like to think I helped recruit Neil to Kellogg Huber 
after his Supreme Court clerkship and his time at Oxford. I 
think I may have edited the first brief he ever wrote as a 
young lawyer. I understand he has improved substantially since 
then, and I can tell Senator Sasse that he never once used the 
word ``bigly'' in a brief.
    Of course, from the outset, it was always clear to all of 
us that he was not only smart and thoughtful and a great 
writer, but he had great judgment. In both the literal and 
figurative sense, he had gray hair from the beginning of his 
career.
    But I want to speak to you about something other than Judge 
Gorsuch's legal acumen. I want to speak to you about his 
kindness, his compassion, his generosity of spirit as a person, 
and why those values are integral to who he is and what we 
should expect from him from the Bench.
    Since I first got to know Neil many years ago, he has been 
one of my dearest friends. We both have two daughters, his a 
bit older than mine. And he has always been there for me to 
listen, to advise, and to commiserate about the trials and 
travails of the often-difficult project that is being a parent.
    I have vivid memories of standing in Neil's backyard in 
Colorado after he became a judge, talking about what then 
seemed to me a very difficult moment. As we spoke, we scooped 
up horse manure, while his family's pet goat Nibbles tried to 
ram the judge. I honestly never understood what they saw in 
that goat.
    Neil's kindness resonated throughout his family, excluding 
the goat, of course. His daughters were always so sweet to my 
children, even though my kids were considerably younger.
    I remember Neil and his kids repeatedly leading one of my 
kids through one of life's adventures by the hand, whether 
trying to balance on skis or trying on hats at a department 
store. If something happens to me and my wife, Neil stands in 
line to inherit my children.
    Some people say, if you want a friend in Washington, get a 
dog. Those people never got to know Neil Gorsuch; his wife, 
Louise; or his family. Simply put, Judge Gorsuch is a 
thoroughly decent and kind person.
    So why does that matter to this body as it is considering 
his nomination? As a former colleague of mine from the 
Solicitor General's Office told me, if you have someone who is 
that good a person, it means he listens. It means he truly 
hears. It means he can be persuaded. That is, to my mind, the 
most essential attribute for a Supreme Court Justice.
    The Supreme Court has an argument calendar, but the printed 
list of cases and counsel the Court prepares for each session 
is called the ``hearing list.'' It is the chance for people to 
be heard. When the Chief Justice calls each case, he says we 
will hear argument in case number, and then he gives the case 
number and case name. The key words there are ``hear 
argument,'' not just have argument, but hear it.
    I know that everyone who appears before Judge Gorsuch, 
before Neil, will be heard, genuinely heard, regardless of who 
they are, who they represent, their position, or the nature of 
the controversy. His kindness and his humility make him place 
extraordinary value on listening to the lawyers, to his 
colleagues, and to those with backgrounds different from his 
own, who may come at the matter from a different angle or 
insight borne of different experiences.
    I have heard a lot of speculation over the last few days 
and months about how Judge Gorsuch might rule on this matter or 
the other. I do not know how he might rule. I do not think he 
knows.
    These are often really hard cases. That is why they get to 
the Supreme Court, because they are hard, because the judges 
disagree. But I do know that Judge Gorsuch will struggle with 
those hard cases.
    He will immerse himself in the law, in precedent, in the 
context, in the record, in the briefs and the arguments. He 
will listen to the litigants, listen to his colleagues, to 
history, to experience and its lessons. And he will decide the 
cases based on where those things lead him at the end of the 
case, based on the force of the better argument, not based on a 
preexisting intuition that may predate the case's beginning.
    That, I believe, is precisely what we should all hope for 
from our judges and Justices. That is true whether you consider 
yourself a Democrat like me, or a Republican, or an 
independent. If the Senate believes that as well, I believe 
that Judge Gorsuch should be confirmed.
    Thank you.
    [The prepared statement of Mr. Lamken appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Mr. Lamken.
    Now Ms. McGhee.

                  STATEMENT OF HEATHER MCGHEE,
              PRESIDENT, DEMOS, NEW YORK, NEW YORK

    Ms. McGhee. Chairman Grassley, Ranking Member Feinstein, 
Members of the Committee, thank you so much for the privilege 
of testifying here today.
    My name is Heather McGhee, and I am the president of Demos, 
a public policy organization working for an America where we 
all have an equal say in our democracy and an equal chance in 
our economy.
    What is at stake is not just the critical issues that you 
have heard about over the past few days, but the way that we 
the people make decisions about all of the issues that we face 
as a Nation and whose voices are heard in that process.
    Judge Neil Gorsuch has the potential to be the deciding 
vote to destroy the few remaining safeguards against big money 
corrupting our politics completely. His troubling record on 
money in politics requires this Committee to reject his 
nomination to the U.S. Supreme Court.
    I would like to make three basic points today. First that 
the way that we fund our campaigns in the U.S. enables wealthy 
individuals and institutions to take their economic might and 
translate that directly into political power. Second, the 
Supreme Court's activism in striking down democratically 
enacted safeguards is what has brought us to this perilous 
place in our history. In the world's oldest democracy, nearly 
nine out of 10 Americans have lost so much faith in our system 
that they think a total overhaul is needed.
    Senators, we are near a breaking point--nine out of 10. It 
is hard to imagine things getting worse, and yet the prospect 
of a lifetime seat for Judge Gorsuch has given us a glimpse.
    Fortunately, there is an overwhelming bipartisan consensus 
supporting pro-democracy reforms, even though Neil Gorsuch is 
far outside of that consensus. Your constituents want you to 
stand up to big money, and your vote on this pivotal Supreme 
Court seat will be one of the best chances you will ever have 
to do so.
    Leading political scientists have concluded that our 
Government now resembles a plutocracy more than a 
representative democracy. Just 25 individuals pumped more than 
$600 million into last year's elections. Less than 1 percent of 
the population provides the vast majority of the funds that 
determine who runs for office, who wins elections, and what 
issues get attention from elected officials.
    They say that he who pays the piper calls the tune, and so, 
of course, our public policies are skewed toward the wealthy 
and away from working-class families and people of color who 
remain massively underrepresented among top donors and in the 
halls of power.
    The role of the Supreme Court in creating this crisis 
cannot be emphasized enough.
    Last week, Demos released a report calculating how much 
extra money has flowed into politics because of Supreme Court 
rulings striking down campaign finance laws. We found that, in 
the 2016 election cycle, court decisions were responsible for 
nearly half of all the big money spent.
    Still, it is not too late to reverse course. The Roberts 
Court campaign-finance rulings have been 5-4 decisions in which 
the majority's basic assumptions about politics have been 
proven false, including the idea that so-called independent 
expenditures are actually independent of candidates and, 
therefore, cannot be corrupting, and that disclosure laws would 
be effective.
    With a Supreme Court that was responsive to the facts 
rather than ideology, we could end the super-PACs that the 
Court created and begin to restore our democracy.
    But Judge Neil Gorsuch would have been with the majority in 
Citizens United. His overall record puts him to the right of 
Scalia. And on the question of money in politics, he would take 
us even further down the Roberts Court's extreme path.
    Judge Gorsuch has had two directly relevant cases. In Hobby 
Lobby, he voted to expand First Amendment rights for 
corporations, building on Citizens United's troubling logic. In 
Riddle v. Hickenlooper, he went out of his way to signal 
openness to applying the harshest possible standard of review 
to campaign contribution limits, which would deem a wealthy 
donor's check worthy of more constitutional protection than the 
Court has consistently offered for our most precious right to 
vote.
    Judge Gorsuch was given an opportunity in this room to 
distance himself from one of the most unpopular court cases in 
American history, and he failed to do so.
    Thankfully, outside of the Beltway, this is not a partisan 
issue at all. Ninety-one percent of President Trump's own 
voters thought it was important that he appoint someone to the 
Supreme Court who would be open to limiting big money in 
politics. Seventy percent of Republicans say that Congress 
should reject any nominee who ``will help the wealthy and the 
privileged wield too much power in our elections.''
    The American people are demanding change to a political 
system that favors the already wealthy and well-connected.
    So we urge you to vote against Judge Gorsuch's nomination 
and to tell your constituents that a key reason you did so was 
to stand with them over big money. They will thank you, and I 
think you.
    [The prepared statement of Ms. McGhee appears as a 
submission for the record.]
    Senator Crapo [presiding]. Thank you very much.
    Professor Solum.

 STATEMENT OF LAWRENCE SOLUM, CARMACK WATERHOUSE PROFESSOR OF 
                 LAW, GEORGETOWN UNIVERSITY LAW
                     CENTER, WASHINGTON, DC

    Professor Solum. Thank you very much, Senator.
    Ranking Member Feinstein, I voted for you in 1992, and it 
is a pleasure to appear before you today.
    My statement concerns an aspect of Judge Gorsuch's judicial 
philosophy--originalism. And over the course of these hearings, 
I think we have learned several things about originalism, and 
there are still some things that I think might be cleared up.
    What is originalism? It consists of three basic ideas.
    The first idea is that the meaning of the Constitution 
should be its original public meaning, the meaning of the words 
and phrases in context to ``we the people.''
    The second idea is that meaning is fixed, not that the law 
is fixed, but that the meaning of the words is fixed at the 
time they are written.
    And the final idea is that original public meaning should 
constrain what judges do, that judges, the President, the 
Members of this august body, are all bound by the original 
public meaning of the Constitution.
    Over the course of the past 3 days, we have learned some 
other things. We have learned that there are a number of myths 
about originalism, and I think that those myths have, for the 
most part, been cleared up.
    Originalism does not ask the question, what would Madison 
do? A very silly question, when we try to apply the 
Constitution to modern circumstances.
    We have learned that the words of the Constitution can be 
adapted to new circumstances. At the time the Constitution was 
adopted, California did not exist. It was not a State. But we 
have no problem concluding that, nonetheless, California is now 
a State and entitled to two Senators in this body.
    We have learned that Brown v. Board, one of the most 
important decisions in the history of the Supreme Court, is not 
inconsistent with the original meaning of the Constitution. As 
Judge McConnell demonstrated in 1995, Brown v. Board was 
required by the original meaning of the Constitution.
    And we have learned this very clearly, that originalism is 
not inconsistent with precedent.
    What I would like to say today, most importantly, is that 
originalism is in the mainstream of American jurisprudence, 
originalism in the mainstream of American jurisprudence 
because, throughout our history, for the most part, with some 
important exceptions, the Supreme Court has been an originalist 
court.
    But originalism is in the mainstream for another reason. 
Originalism can and should be endorsed by both Democrats and 
Republicans, by progressives and conservatives. This point is 
important to me personally. I am not a conservative. I am not a 
libertarian. I am not a Republican. But I do believe in 
originalism.
    Why is that? It is because I am convinced that giving power 
to judges to override the Constitution, to impose their own 
vision of constitutional law, is dangerous for everyone.
    If you are a Democrat and you know that the next Justice to 
the U.S. Supreme Court will be appointed by a Republican 
President and confirmed by Republican Senate, would you prefer 
that an originalist like Judge Gorsuch be appointed or would 
you prefer a conservative Justice who is a living 
constitutionalist who believes that their values are an 
appropriate ground for modifying or overriding the 
constitutional text?
    There is a final reason that originalism is in the 
mainstream. The Supreme Court has never claimed the right to 
override the Constitution. There are cases where the Supreme 
Court did, in fact, depart from original meaning. But in all of 
those cases, the Supreme Court either strained to make its 
decision consistent with the text or ignored the text 
altogether.
    I support Judge Gorsuch's nomination because he is an 
originalist.
    [The prepared statement of Professor Solum appears as a 
submission for the record.]
    Senator Crapo. Thank you, Professor Solum.
    Ms. Graves.

  STATEMENT OF FATIMA GOSS GRAVES, SENIOR VICE PRESIDENT FOR 
   PROGRAM AND PRESIDENT-ELECT, NATIONAL WOMEN'S LAW CENTER, 
                         WASHINGTON, DC

    Ms. Graves. Thank you, Senator, Ranking Member Feinstein, 
and the Committee. My name is Fatima Goss Graves, and I am 
senior vice president for program and president-elect of the 
National Women's Law Center.
    Since 1972, the center has been involved in virtually every 
major effort to secure and defend women's legal rights.
    I thank you for your invitation to testify today and ask 
that my full written testimony be submitted.
    Over the past few days, Judge Gorsuch has talked a lot 
about how he follows the law rather than his personal views or 
his feelings, and that he applies the law to facts. But a 
review of his record shows that, time and again, his approach 
to the law gives the benefit of the doubt to employers, to 
politicians, to other powerful entities rather than the 
vulnerable individuals who rely on the law for protection. And 
time and again, this approach disadvantages women.
    If you take the case of Betty Pinkerton, an administrative 
assistant whose sexual harassment claim was dismissed, Judge 
Gorsuch ruled against Ms. Pinkerton on the grounds that her 
failure to report the harassment she faced for all of 2 months 
was unreasonable.
    During that period, she had to listen to her boss ask about 
her breast size, ask about her sexual habits. And, under Title 
VII, these sorts of remarks only become a pattern of harassment 
as they add up over time.
    If she complained too early under Title VII, she would have 
no claim. And waiting 2 months, under Judge Gorsuch's approach, 
again, she had no claim.
    This is an approach that ignores the workplace realities 
that the law is designed to address and the very nature of 
workplace harassment.
    Or if you take the Hobby Lobby case, in which a corporation 
challenged the Affordable Care Act's birth control benefit, 
which requires health insurance plans to provide birth control 
without cost-sharing--access to contraception means, for women, 
the ability to plan their lives, to plan their futures. And the 
birth control benefit relieves women of a steep financial 
burden, which can run as high as $1,000 in upfront costs.
    Judge Gorsuch joined the Tenth Circuit holding under the 
Religious Freedom Restoration Act that an employer's religious 
beliefs could override an employee's right to birth control 
under the Affordable Care Act, including an especially extreme 
holding that promoting gender equality in public health, the 
very goals of the birth control benefit, were not compelling 
government interest.
    His concurring opinion was stunning in its refusal to even 
acknowledge the health impact and the financial burden on women 
who would lose insurance coverage under his approach.
    Ultimately, the case reached the Supreme Court. And unlike 
the decisions joined and written by Judge Gorsuch, the Supreme 
Court instructed that, as a part of RFRA's balancing test, 
courts must consider the impact on women.
    Judge Gorsuch's record also shows hostility to the 
Constitution's protections of the most personal and intimate 
decisions, which is the basis for the right to birth control 
and the right to abortion.
    Yesterday, Judge Gorsuch declined to say whether Roe v. 
Wade was correctly decided, merely acknowledging that it is 
actually precedent of the Court. And he refused to answer key 
questions about other areas of the law that are core to women's 
lives.
    When he was questioned about letters from former students 
who claimed that they had--that he had suggested companies can 
and should ask women and only women about their pregnancy plans 
and their family plans, even in explaining this incident, Judge 
Gorsuch shockingly refused to acknowledge that such behavior 
would violate Title VII.
    And to be clear, statements like these are wildly at odds 
with the very letter and the very purpose of Title VII and the 
Family Medical Leave Act.
    Finally, we reviewed Judge Gorsuch's record against a 
highly unusual backdrop, including promises made by President 
Trump that his nominee would overturn Roe automatically, and 
that he would be selected from lists approved by the Heritage 
Foundation and by the Federalist Society, a really highly 
unusual occurrence, to say the least.
    When you put these extraordinary promises together with the 
judge's record and his refusal to provide anything but 
platitudes about his judicial philosophy to this Committee, 
there is only one possible conclusion, and that it is that 
Judge Gorsuch should not be confirmed.
    [The prepared statement of Ms. Graves appears as a 
submission for the record.]
    Senator Crapo. Thank you, Ms. Graves.
    And to the remaining witnesses on the panel, and the 
Members of the Committee, we are about halfway through a vote, 
and we are going to need to take a recess to go vote.
    So what we will do is also give a few extra minutes to that 
recess, so that folks can get a bite to eat, if they can.
    In fact, do we have two votes?
    Chairman Grassley. I will be back here about 1:10 to take 
up again.
    Senator Crapo. Okay. So we will recess until 1:10 and 
continue our deliberations at that point.
    The Committee is in recess.
    [Recess.]
    Chairman Grassley. I will abrogate the recess, but I want 
to explain something. This vote that we thought would get two 
votes done by 1:10, the first vote is not going to end until 
about 1:20. So I will have a chance to get through four 
people's testimony, and then if we have hopefully a Republican 
and Democrat vote and they are over here, so I can go finish 
voting. If you wonder about the importance of voting for me, I 
have not missed a vote since 1993, so that is about 7,900 votes 
without missing a vote, and I do not intend to miss another 
one.
    Professor Turley.

   STATEMENT OF JONATHAN TURLEY, J.B. AND MAURICE C. SHAPIRO 
    PROFESSOR OF PUBLIC INTEREST LAW, THE GEORGE WASHINGTON 
             UNIVERSITY LAW SCHOOL, WASHINGTON, DC

    Professor Turley. Thank you, Chairman Grassley and Members 
of the Senate Judiciary Committee. It is an honor to appear 
before you today to discuss the nomination of Judge Neil M. 
Gorsuch for the U.S. Supreme Court. I believe that a nominee 
should be extraordinary to merit the distinction of being one 
of nine on our highest court. I should state at the outset that 
I do not agree with all of Judge Gorsuch's legal views. 
However, I believe Judge Gorsuch to be an exceptional choice 
for the Court.
    While many have focused on replacing a conservative with 
another conservative, the primary concern should be to replace 
an intellectual with another intellectual. Judge Gorsuch is 
precisely that type of nominee who has the intellectual reach 
and vigor to sit in the chair of the late Antonin Scalia.
    One of the primary complaints regarding past nominees has 
been a lack of substantive writings or opinions on major legal 
issues of our time. Such thin records can make for good 
nominees. They do not make for great Justices. Judge Gorsuch is 
a refreshing departure from that trend. He has a record of 
well-considered writings both as a judge and as an author, so 
this is not a blind date. We have a very good idea of who Judge 
Gorsuch is and the type of Justice he will be.
    In my written testimony, I have focused on two aspects of 
the nomination: first, I have addressed the criteria often used 
to evaluate a nominee; and, second, I have looked at the cases 
by Judge Gorsuch with a particular emphasis on separation of 
powers, agency review, and Chevron.
    Every President and Senator has expressed a commitment to 
placing the best and the brightest on the Court, though few 
agree on the qualitative measures needed to guarantee that 
goal. Historically, the record is not encouraging, to be frank. 
Our respect for the Court often blinds us to the fact that our 
Justices have ranged from towering figures to virtual 
nonentities. To be blunt, we have had more misses than hits 
when it has come to appointments onto the Court. Top candidates 
are often rejected due to writings and views that might attract 
opposition. The result is a preference for nominees with 
``clean'' records that have no public thoughts challenging 
conventional theories, devoid of any particularly interesting 
ideas.
    That is not the case with this nominee. Judge Gorsuch has 
actively participated in debating some of the toughest 
questions of our time. This is, in other words, a full 
portfolio of work at the very highest level of analysis.
    On the basis of all the criteria I discuss in my testimony, 
Judge Gorsuch is a stellar nominee. I realize that many do not 
welcome a conservative nominee any more than they welcomed a 
conservative President. However, President Trump has every 
right to nominate someone who shares his jurisprudential views.
    To put it simply, Neil Gorsuch is as good as it gets, and 
he should not be penalized for engaging in the policy and 
academic debates of our time. In my written testimony, I 
discuss some of his opinions. There are many, 2,700 or so cases 
with a full record of opinions by Judge Gorsuch. The 
jurisprudence reflects, not surprisingly, a jurist who crafts 
his decisions very closely to the text of a statute, and, in my 
view, that is no vice for a Federal judge. The exception, as I 
discuss in my written testimony, is Chevron in terms of the 
consistency of his views with those of Justice Scalia. There 
has been a fair amount of discussion of cases, which I would be 
happy to go into further today.
    The confirmation hearings bring almost a mythical aspect to 
this process as people try to predict who a Justice will be 
decades in advance. Of course, nobody knows that, except 
perhaps the nominee. Yet, if history is any judge, even the 
nominee does not know that with any certainty.
    These hearings often remind me of a story of Supreme Court 
Justice Oliver Wendell Holmes who was traveling by train to 
Washington, DC When the conductor asked him for his ticket, 
Holmes looked in all of his pockets, and the conductor finally 
stopped him and said, ``Do not worry about your ticket, Mr. 
Holmes. We all know who you are. When you get to your 
destination, just send us the ticket.'' Holmes responded, ``My 
dear man, the problem is not my ticket. The problem is . . . 
where am I going?''
    Most nominees are in the same position as Oliver Wendell 
Holmes. They are not quite sure where they are going. People of 
good faith can evolve on the Court. I do not expect Judge 
Gorsuch to be a robotic vote for the right of the Court. While 
conservative, he has shown intellectual curiosity and honesty 
that I think is going to take him across the ideological 
spectrum.
    But in conclusion, I would simply say we are not looking 
for the best imitation or facsimile of Justice Scalia. We are 
looking for someone who can be an intellectual force on the 
Court in his own right. That person, in my view, is indeed Neil 
Gorsuch, who just might eclipse his iconic predecessor. He will 
not be the same. He is going to bring something new. In the 
end, Gorsuch and Holmes share a common destination. He will go 
where his conscience takes him. It might be a track to the left 
or to the right. But he will follow his conscience. I cannot 
say what the final terminus will be, but it will be exciting to 
watch.
    It is, therefore, my honor to recommend the confirmation of 
the Honorable Judge Neil Gorsuch for the U.S. Supreme Court.
    [The prepared statement of Professor Turley appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Professor.
    Now, Mr. Gallagher.

  STATEMENT OF PATRICK GALLAGHER, DIRECTOR, ENVIRONMENTAL LAW 
               PROGRAM, THE SIERRA CLUB, OAKLAND,
                           CALIFORNIA

    Mr. Gallagher. Chairman Grassley, thank you for the 
opportunity to testify here today on behalf of the Sierra Club 
and its 2.8 million Members and supporters nationwide.
    A Supreme Court Justice holds considerable power over the 
laws which safeguard the very air we breathe and the water we 
drink and the integrity of our democracy. Unfortunately, Judge 
Neil Gorsuch's ideology threatens both bedrock environmental 
law and the rights of American citizens to a fair and equal 
voice in our democracy. For these reasons, the Sierra Club 
respectfully opposes Judge Gorsuch's confirmation to the 
Supreme Court.
    Judge Gorsuch has displayed a consistent willingness to 
close the courthouse doors to citizens, while holding them open 
for corporate interests. Think for a moment of the child in 
Bakersfield, California, struggling to breathe as a result of 
the oil and gas operations right outside her home and school, 
or of the family who may not be able to take their annual 
camping trip to the Wayne National Forest in Ohio because of 
fossil fuel drilling operations at that place, or of the 
families right here in Washington, DC, who continue to suffer 
from the lead contamination of their drinking water.
    I presume that everyone in this room would agree that every 
single one of these people deserves access to the Federal 
courts to remedy these wrongs. Unfortunately, Judge Gorsuch's 
writings and judicial records show that he would shut the 
courthouse doors on many of these people who want nothing more 
than to protect their air, water, public lands, and their 
families.
    In 2005, Judge Gorsuch authored an article in the National 
Review entitled ``Liberals and Lawsuits,'' where he criticized 
those who seek to remedy injustices in the Federal courts when 
the executive branch fails to do its job. While Judge Gorsuch 
has repeatedly stated--reportedly stated that he wishes this 
National Review article would just ``disappear,'' his judicial 
record continues to reflect this philosophy, as he has 
repeatedly denied environmental plaintiffs access to the 
courts. Where citizens must jump through multiple, often 
insurmountable hurdles just to get inside Judge Gorsuch's 
courtroom, corporations have been able to walk right in. Let me 
cite two examples.
    In 2013, the Sierra Club moved to intervene in a lawsuit 
that an off-road vehicle group brought against the Forest 
Service, challenging the closure of certain forest trails to 
off-road vehicles. The court granted us intervention, but Judge 
Gorsuch dissented, concluding that we should have been excluded 
from the case. Tellingly, neither the Government, the off-road 
vehicle group, nor the majority of judges objected to our 
participation in that case.
    Second, in 2005, a coalition of citizens groups, including 
the Wilderness Society and the Sierra Club, challenged a Utah 
county's attempt to take over Red Rock wilderness areas that 
were managed by the Bureau of Land Management by claiming that 
they were county highways. Judge Gorsuch ruled that the 
citizens did not have standing to sue. They did not get into 
the courtroom.
    In an emphatic dissent to Judge Gorsuch's ruling, one that 
echoes my testimony here today, Judge Lucero, also of the Tenth 
Circuit, stated, ``A citizen's right to protest and be heard on 
the supremacy of Federal rules and regulations is ignored.''
    Not only has Judge Gorsuch limited access to the courts, he 
has stated open hostility to the Chevron doctrine, a 
longstanding precedent of the Supreme Court that ensures 
scientific integrity is respected as our public servants 
implement clear air and clean water regulations. The Chevron 
doctrine ensures that the laws on the books are carried out by 
career public servants using the best available science.
    Here is the most troubling issue. Judge Gorsuch's opinion 
that Chevron deference violates the Constitution echoes the 
current White House's extreme anti-agency demagoguery. One 
month ago, Trump senior adviser Steve Bannon gave a speech to 
the Conservative Political Action Conference in which he 
professed that a White House priority is the ``deconstruction 
of the administrative state.'' Trump's massive budget cut for 
EPA was the next hammer to fall. Sadly, Judge Gorsuch's 
ideology will further this agenda, hamstringing the EPA's 
ability to enact pollution safeguards and incentivizing 
corporate polluters to challenge the EPA at every turn, thereby 
forcing Federal judges to second-guess agency scientists.
    In closing, we now stand at a precipice in history. How 
will we deal with climate disruption? How will we lift up our 
communities who lack access to clean drinking water and clean 
air? How will we leave a safe and livable future for our 
children?
    America cannot afford the appointment of yet another 
Justice whose ideology disfavors citizens groups, favors 
corporate interests, and leads to the degradation of the 
environment and our democracy. This is why the Sierra Club 
respectfully opposes the confirmation of Judge Neil Gorsuch to 
the Supreme Court.
    Thank you very much.
    [The prepared statement of Mr. Gallagher appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Mr. Gallagher.
    Now, Ms. Harned.

         STATEMENT OF KAREN HARNED, EXECUTIVE DIRECTOR,
  NATIONAL FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS 
                  LEGAL CENTER, WASHINGTON, DC

    Ms. Harned. Chairman Grassley, on behalf of the National 
Federation of Independent Business, I am honored to testify 
today in support of the nomination of Judge Neil Gorsuch to be 
an Associate Justice of the U.S. Supreme Court.
    NFIB is the Nation's leading small business advocacy 
organization, with hundreds of thousands of members across the 
country in every industry and sector.
    As the lead plaintiff in the historic challenge to the 
Affordable Care Act, NFIB v. Sebelius, NFIB understands 
firsthand the importance one Justice can have on the ability of 
small businesses to own, operate, and grow their businesses. 
After reviewing Judge Gorsuch's articles, decisions, and public 
statements, we are pleased to see a judge who both applies the 
actual text of the law and the original meaning of that text at 
the time it became law rather than changing it to fit his 
personal views and preferences.
    Specifically, small businesses are encouraged by three 
qualities Judge Gorsuch has brought to the bench. His opinions 
are clear and often provide bright-line rules. He has a deep 
respect for the separation of powers. And he has shown a 
willingness to tackle the difficult legal issues of our day 
head on.
    Judge Gorsuch is not known for using ambiguous or broad 
language that fails to settle the question before him. Rather, 
his decisions provide meaningful direction for District Court 
Judges, as well as businesses and ordinary individuals who may 
be affected by that law moving forward.
    Like their larger counterparts, small business owners 
want--and need--certainty. They need bright-line, easy-to-
understand legal standards. If small businesses do not know 
what is expected of them, what the rules of the game are, they 
may be hesitant to undertake actions that otherwise would help 
their business grow. Judge Gorsuch takes seriously his 
obligation to provide that clarity whenever possible.
    Judge Gorsuch also has demonstrated that he truly respects, 
and seeks to protect, the separation of powers among the 
branches of government. This is important because NFIB is 
concerned about what we see as the rising tide of regulation 
promulgated by unelected bureaucrats. This trend over the last 
30 years contravenes the fundamental principle that only 
Congress, as the elected and politically accountable 
legislative branch, should be able to enact and change 
statutory law.
    When it comes to regulations, small businesses bear a 
disproportionate amount of the regulatory burden as compared to 
their larger counterparts. That is not surprising since it is 
the small business owner, not one of a team of compliance 
officers, who is charged with understanding new regulations, 
filling out required paperwork, and ensuring the business is in 
full compliance with new and ever-changing Federal mandates. 
The uncertainty caused by future regulation negatively affects 
a small business owner's ability to plan for future growth.
    For small business, the problem of overregulation has been 
further exacerbated by the broad deference Federal courts give 
to Executive agencies in their interpretations of statutes 
passed by Congress. This judicial deference to Executive 
agencies, known as Chevron deference, has led to a breakdown in 
our constitutional system of checks and balances.
    Therefore, NFIB welcomed Judge Gorsuch's concurring opinion 
last year in Gutierrez encouraging the Supreme Court to revisit 
the Chevron doctrine. In my written testimony, I referenced 
three cases where the Chevron doctrine has caused serious harm 
to small business.
    For example, in City of Arlington v. FCC, the Supreme Court 
invoked Chevron to find that courts must defer to an agency's 
interpretation of its own statutory authority. By extending 
Chevron deference to agency determinations of its own 
jurisdiction, the Court set a dangerous precedent that 
encourages agency aggrandizement of regulatory authority--with 
minimal judicial oversight. By abdicating its responsibility to 
determine the scope of an agency's statutory authority, the 
Court signaled that agencies may intrude into the affairs of 
States and businesses with impunity--as long as their actions 
are justified as ``reasonable'' to the slightest degree.
    Our constitutional system of governing and our separation 
of powers doctrine play a large role in empowering the vitality 
of small businesses in the United States. When this system 
erodes or functions less perfectly, there is an adverse impact 
on small business and our Nation's economy.
    Small businesses, like every American, have an important 
stake in who fills Justice Antonin Scalia's seat. NFIB is 
pleased to support the nomination of Judge Neil Gorsuch to the 
U.S. Supreme Court.
    Thank you.
    [The prepared statement of Ms. Harned appears as a 
submission for the record.]
    Senator Whitehouse [presiding]. Thank you very much.
    Our next witness is the former Deputy Assistant Attorney 
General for Civil Rights who has specialized in disability 
rights. We are delighted to hear her testimony. Ms. Hill.

                STATEMENT OF EVE HILL, PARTNER,
           BROWN GOLDSTEIN LEVY, BALTIMORE, MARYLAND

    Ms. Hill. Thank you very much for inviting me to speak 
today. I am an attorney with more than 20 years' experience 
implementing the laws protecting the rights of people with 
disabilities. I have serious concerns about Judge Gorsuch's 
approach to and acceptance of America's disability civil rights 
laws and the basic principles of disability rights.
    People with disabilities have long experienced what former 
President, and then candidate, George W. Bush called ``the soft 
bigotry of low expectations.'' Unfortunately, Judge Gorsuch 
bakes these very low expectations into his disability rights 
jurisprudence, in spite of Congress' bipartisan attempts to 
dismantle such prejudices through Federal disability rights 
laws.
    Judge Gorsuch's decisions on the education of our children 
with disabilities are troubling, not just for their devastating 
human consequences, but also for their dismissiveness of the 
law as established by Congress.
    The Individuals with Disabilities Education Act, or IDEA, 
requires public schools to ensure a free appropriate public 
education for each student with a disability. In the Luke P. 
case that you heard about earlier, Judge Gorsuch read the IDEA 
to require only an education that is ``merely more than de 
minimis.'' That concept appears nowhere in the statutory text 
of the IDEA or in Supreme Court precedent. Judge Gorsuch 
adopted this standard in spite of Supreme Court precedent 
requiring educational benefits to be meaningful, in spite of 
statutory text requiring appropriate educational programs, and 
in spite of Congress' repeated updates to the IDEA explicitly 
calling for high educational standards for children with 
disabilities. Yet in Luke P., Judge Gorsuch substituted his own 
opinion for that of three decisionmakers who had found that 
Luke's school did not provide an appropriate or meaningful 
educational benefit. Nor did Tenth Circuit precedent require 
the ``merely'' standard. For a judge that claims fidelity to 
the principles of judicial conservatism, a decision to overrule 
the findings of three lower courts in a way that ignores 
statutory text and congressional intent is deeply troubling.
    Luke's records showed that he was failing in over 75 
percent of the goals in his plan. Few parents in this country 
would find a 25-percent success rate to be appropriate or 
meaningful for their child, with or without a disability. Yet 
Judge Gorsuch found that 25 percent success was a passing grade 
for Luke's school.
    Notably, a little over a year after the change in his 
placement, as you heard this morning, Luke made significant 
progress in the goals that his prior school had failed in. It 
was Judge Gorsuch's expectations, not Luke's capabilities, that 
were de minimis in this case.
    Just yesterday, the Supreme Court explicitly and 
unanimously rejected Judge Gorsuch's ``merely more than de 
minimis'' standard. The Court found Judge Gorsuch's standard 
mischaracterized the intent and language of both Congress and 
Supreme Court precedent. The Court found in requiring an 
appropriate public education Congress meant what it said. The 
Court stated, ``When all is said and done, a student offered an 
educational program providing merely more than de minimis 
progress from year to year can hardly be said to have been 
offered an education at all.''
    Unfortunately, it is likely too late for many of the 
children with disabilities in Colorado, Kansas, New Mexico, 
Oklahoma, Utah, and Wyoming who have been subjected to the soft 
bigotry of de minimis expectations for nearly 10 years.
    Judge Gorsuch's other IDEA opinions have shifted standards 
of review and created legal minefields of administrative 
processes to undermine the education rights of students with 
disabilities. And Judge Gorsuch's opinions on the rights of 
adults with disabilities also reflect, rather than challenge, 
the stereotypes that Congress enacted in Federal disability 
rights law--rejected in disability rights law.
    Congress passed the Americans with Disabilities Act, or 
ADA, to open doors to the workplace for people with 
disabilities. But Judge Gorsuch in 2010 held that an employee 
with multiple sclerosis did not have a disability because she 
was able to work. He made this holding in spite of both the ADA 
and the ADA Amendments Act of 2008, where Congress made clear 
that the ADA provides and has always provided protection to 
people with MS and that disability is not defined, Catch-22-
like, as an inability to work.
    Federal disability laws are intended to address not just 
blatant discriminatory treatment of people with disabilities, 
but the ways the employment processes, benefits, and buildings 
have been designed in ways that inherently exclude people with 
disabilities. This is the basis for the central ADA requirement 
of reasonable accommodation.
    In the case of Hwang v. Kansas State University, a 
professor requested a slight extension of her leave time to 
return to work when Kansas experienced an H1N1 outbreak that 
could have risked her life. The university routinely allowed 1-
year sabbaticals for other professors, but Judge Gorsuch 
insisted that Professor Hwang could only extend her leave if 
she was already entitled to such a sabbatical. The ADA asks not 
just whether an employee with a disability was offered what she 
was contractually entitled to, but also whether something more, 
a reasonable accommodation, is available. Judge Gorsuch ignored 
that test. Instead, he suggested that Congress was wrong to 
require leave as an accommodation at all and that leave of over 
6 months was inherently unreasonable, no matter what other 
employees were given.
    You may believe that a judge's role is to protect the 
dignity of all people and especially those of disempowered 
minority groups. Or you may simply believe that a judge's role 
is to remain faithful to the clear intent of Congress as 
expressed in statutes. Either way, Judge Gorsuch's opinions in 
disability rights issues do not meet that standard.
    [The prepared statement of Ms. Hill appears as a submission 
for the record.]
    Senator Kennedy [presiding]. Thank you, Ms. Hill.
    Senator Hatch, do you have questions?
    Senator Hatch. Yes. Professor Turley--I am sorry. Professor 
Turley.
    Professor Turley. Yes, sir.
    Senator Hatch. You have observed and written about the 
confirmation process for a long time. Some of my Democratic 
friends have been saying that the only way to find out what 
they need to know about Judge Gorsuch is to demand what Justice 
Ginsburg once called ``hints,'' ``forecasts,'' and ``previews'' 
about his future votes or opinions in cases that will come 
before the Supreme Court.
    Now, your testimony is very different. In your written 
statement, you insist that, ``We have a very good idea of who 
Judge Gorsuch is and the type of Justice he will be.''
    Now, do you agree with me that results-oriented litmus 
tests based on specific issues are not the best standard for 
evaluating the fitness of a Supreme Court nominee?
    Professor Turley. Absolutely. And when I referred to 
knowing what type of Justice that Judge Gorsuch will be, I was 
referring to the fact that he has a well-known jurisprudence; 
he has a well-known view of the Constitution. He shares that 
distinction as a nominee with the man he would replace, and 
that is one of the reasons I believe he will have a lasting 
legacy.
    The reason that Justice Scalia has such a lasting legacy is 
that he was a relative rarity: He actually changed the Court 
more than it changed him because he came to the Court with a 
clear understanding of his jurisprudence.
    When I look at Judge Gorsuch, I see someone that, quite 
frankly, is going to follow his conscience. He is unlikely to 
be as predictable as many have suggested. I do not think he 
will be robotic. I think that view, his jurisprudential view, 
will take him to the left and the right of the spectrum.
    What we do know is he is a textualist. That should come as 
no surprise, and I do not think that is a vice. But what his 
opinions also show is someone with an intense intellectual 
curiosity and also an intense independence. I could think of no 
better possible nominee than that.
    I do not want a blind date. I do not want someone who we 
know nothing about. What we have in Judge Gorsuch is someone 
who was not just a pedestrian, not participating in these 
important debates. He got involved, and I respect that. I do 
not think we should penalize someone for being active in 
debating these issues.
    Senator Hatch. That is a good point. The suggestion has 
been made in this hearing that concern about the Chevron 
doctrine, which requires deference to executive branch agency 
interpretations of the law, is just another way of opposing 
regulation in general. One Democratic Senator even said that 
without Chevron, agencies would not have the authority to 
address problems at all.
    Do you agree with that characterization?
    Professor Turley. No, I do not. I share Judge Gorsuch's 
view on Chevron. We come from two different places, I think, 
probably politically. But I think how you view Chevron depends 
a lot on whether you view it from a constitutional standpoint 
or from an administrative law standpoint. I think I share Judge 
Gorsuch's view looking at it through the lens of a 
constitutional standpoint.
    Chevron is troubling because it does tend to usurp a 
traditional role of the courts. It is also tends to usurp a 
role of this body. I also do not think that the suggestion that 
if Chevron was set aside that all of Rome would burn. I think 
that Judge Gorsuch made a very good point when he said in one 
of his opinions, ``What do people think is going to happen if 
we do not have Chevron?'' What is going to happen is we will be 
in the same position we were before Chevron, which was not a 
bad position. You had the Skidmore case where Justice Jackson, 
someone that Judge Gorsuch respects a great deal, who 
maintained that, we have to respect agency opinions, we have to 
give them great weight. The APA itself, I believe in Section 
706, says that you have to defer to that.
    So there is not a cliff here that people are suggesting. By 
moving away from Chevron, we would see the courts more heavily 
involved in the review of agency decisionmaking and also to 
give more authority back to this body where I believe it should 
rest.
    Senator Hatch. Great. I agree with you.
    Ms. Harned, we often speak about the impact of court 
decisions on the parties to a specific case and beyond. Now, I 
really appreciated your response in this area, and your 
comments, because I think they provide an important perspective 
on this issue. And I am sure you know from observing this 
process my Democratic colleagues focus only on which party wins 
or loses or which narrow political interest is advanced by the 
decision in an individual case.
    Now, you seem to have a very different take. Your testimony 
emphasizes more broadly that clarity about the law and 
adherence to basic principles such as separation of powers have 
the most important impact. Now, that is why you have such high 
praise for Judge Gorsuch's approach not only to making 
decisions but on writing the opinions that explain those 
decisions as well.
    Now, my view is that the law, not the judge, should 
determine the outcome of individual cases and the broader 
impact of those decisions. Do you agree with that?
    Ms. Harned. Absolutely.
    Senator Hatch. Well, that was a nice quick answer.
    [Laughter.]
    Ms. Harned. There was a good discussion with Senator Tillis 
about this as well, which is that the separation of powers is 
important because coming here before you is where my Members, 
small business owners, are going to have the greatest impact. 
You are in the light of day with a true public discourse about 
what the law should be. They are not going to be in every 
courtroom in the country. They are not going to be in every 
agency walking the halls, and they need to know that once you 
all enact a law, the regulation is issued that is appropriately 
within that statutory framework, it is a law they can rely on, 
because that certainty is the only way for them to be able to 
do business. Certainty is a critical component of small 
business owners' abilities to operate their business.
    Senator Kennedy. Thank you.
    Senator Hatch. Thank you.
    Senator Kennedy. Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman. May I ask 
unanimous consent--we have Ms. McGhee here from Demos. May I 
ask unanimous consent that Demos' 2017 report titled ``Election 
Money Resulting Directly from Supreme Court Rulings''; as well 
as a March 13, 2000, letter from 109 House Members to Chairman 
Grassley and Ranking Member Feinstein urging this Committee to 
question Judge Gorsuch about money in politics; and a 2017 
Demos report titled ``Money in Politics, Racial Equity, and the 
U.S. Supreme Court''; and, fourth and finally, a 2015 Demos 
report titled ``Breaking the Vicious Cycle: Rescuing Our 
Democracy and Our Economy by Transforming the Supreme Court's 
Flawed Approach to Money in Politics'' all be entered into the 
record.
    Senator Kennedy. Without objection.
    Senator Whitehouse. Thank you very much.
    [The information appears as a submission for the record.]
    Senator Whitehouse. Ms. McGhee, welcome. I appreciate that 
you are here and the work that Demos has done to shed some 
light on the problem of money in politics and the influence 
that it gives special interest groups. We have kind of an 
unusual circumstance here in that President Trump originally 
outsourced the creation of the list from which Judge Gorsuch 
was selected to a pair of well-known right-wing interest 
groups. And then the notification to Judge Gorsuch that he 
describes in his description of the selection process, the 
opening sentence is, ``On or about December 2, 2016, I was 
contacted by Leonard Leo,'' who is the head of one of those 
same special interest groups.
    Then it has been reported in the news that the White House 
outsourced the political campaign on behalf of Judge Gorsuch to 
those interest groups, and, indeed, we have seen reports of a 
$10 million political campaign to try to influence the Senate 
in Judge Gorsuch's favor through a front group, so we do not 
know who the real donors are. It is dark money that is behind 
that entire operation. And it was the same front group that 
spent nearly an equivalent amount of money trying to disrupt 
the nomination of Judge Merrick Garland. And, finally, we have 
the Colorado reporting on Judge Gorsuch's friend and, it 
appears, his patron in the quest for the Tenth Circuit seat, 
Mr. Philip Anschutz, who is a billionaire, who is also a very 
big political spender. And all of that I think causes concern 
to some of us that although the talk may be about Olympian 
detachment, the actual operation of getting Judge Gorsuch 
before us has been special interest, dark money politics. And I 
would like to ask you to react to that.
    Ms. McGhee. Thank you, Senator Whitehouse. I think you are 
right to express concern about this, the same way that the 
American people, including 91 percent of President Trump's own 
voters, have expressed concern about the role of the Supreme 
Court in expanding our current big-money system.
    Judge Gorsuch had the opportunity over the past couple of 
days to distance himself from the entire problem of Citizens 
United, either spoken of expansively in terms of the influence 
of the wealthy millionaires and billionaires and special 
interests in our politics to even some of the more narrow 
concerns.
    I was particularly concerned in your exchange, Senator 
Whitehouse, with the judge when you gave him an opportunity to 
talk about something that is his predecessor, his potential 
predecessor's--one of his great North Stars, which is the 
importance of disclosure in our campaign finance system. And 
instead of saying clearly that there is a public interest in 
knowing who is spending millions of dollars to buy influence 
with our politicians, he was quite evasive and, in fact, to my 
dismay, raised the idea that disclosure chills speech and even 
suggested that the $650 million in secret money from society's 
most powerful, which is what we have seen since Citizens 
United, would be on the same level as the brave civil rights 
leaders in the NAACP case, people who endured violence, 
bombings, and shootings for their political activism.
    And if you do not mind, I just want to read just one 
sentence from what Senator Scalia said----
    Senator Whitehouse. Justice Scalia.
    Ms. McGhee. Sorry, Justice Scalia said in Doe v. Reed about 
the importance of disclosure, which gives us a sense that he 
might even be parting with Scalia on this important piece: 
``There are laws against threats and intimidation; and harsh 
criticism, short of unlawful action, is a price our people have 
traditionally been willing to pay for self-governance. 
Requiring people to stand up in public for their political acts 
fosters civic courage, without which democracy is doomed.''
    Senator Whitehouse. My time has expired, Chairman. Thank 
you very much. Thank you, Ms. McGhee.
    Ms. McGhee. Thank you, Senator.
    Senator Kennedy. Thank you, Senator.
    Chairman Grassley.
    Chairman Grassley. Thank you. Thanks to Senator Whitehouse 
and you for filling in when I had to go vote.
    Professor Solum, while many try to argue that originalism 
is inherently conservative, others have pointed out that 
originalism has been ascribed to by liberal judges and 
academics as well. Professor Cass Sunstein at Harvard Law 
School, for example, once described the last Justice Hugo Black 
as ``a liberal originalist.''
    Would you agree that originalism is not by itself 
ideologically or political in nature?
    Professor Solum. Yes, I would, Chairman Grassley. And if I 
might just give an example or two, it is absolutely true that 
much of the interest in originalism at the beginning was 
generated by critics of Warren Court decisions, and originalism 
has been associated with conservatives to some extent. But 
originalism is the idea that we are going to enforce the 
original meaning of the United States Constitution, and the 
United States Constitution has implications that both 
conservatives and progressives, both Democrats and Republicans 
can welcome. Let me give an example that relates to the 
question we have just been discussing, the rights of 
corporations.
    Justice Thomas in his opinion in the McDonald case says 
that incorporation of the Bill of Rights can only be justified 
under the Privileges or Immunities Clause of the United States 
Constitution.
    The Privileges or Immunities Clause is different than the 
Equal Protection Clause or the Due Process Clause. Those 
clauses guarantee rights to all persons. The Privileges or 
Immunities Clause guarantees rights only to citizens, and 
corporations are not citizens.
    Now, this is not a result that corporations will welcome at 
the State level, where the Fourteenth Amendment applies, but it 
is an implication of the original public meaning of the 
Constitution.
    Chairman Grassley. Thank you.
    Mr. Lamken, you worked with the judge when he was in 
private practice at Kellogg Huber, and you said you support his 
nomination to the Supreme Court. Do you think his experience as 
a trial lawyer would be relevant to his work on the Supreme 
Court?
    Mr. Lamken. Yes, I think it is highly relevant. As somebody 
who was a trial lawyer for many years, the judge has, from what 
I see, a great respect for the record, great respect for the 
factual development, whether that record is one that is 
developed by this body in support of the statutes that it 
enacts, or it is a record created by the parties at trial. And 
I think when you are a trial lawyer and you are involved in 
those, you develop that type of great respect that is 
critically important to really understanding what is going on 
in the cases, to understanding not merely what the abstract 
principles of law are, but how they are affecting people, and 
then how the process plays on the trial court.
    I think practical experience as a trial lawyer is something 
that is not as common among our Supreme Court Justices now as 
it should be, and I think that is a good perspective he would 
bring to bear.
    Chairman Grassley. Okay. Ms. Harned, my last question. We 
have heard a lot during these hearings about the rule of law. 
We have heard in particular about how it is the role of judges 
to enforce laws as they have been written by the Congress. Can 
you explain why it is important to your clientele, small 
businessmen and -women, for judges to interpret statutes 
according to the text?
    Ms. Harned. Right, because small business owners need to 
know what the rules of the road are, what is expected of them, 
and not have to worry that, because of one judge's decision, a 
practice that they had been doing that they thought was 
perfectly legal one day is now unlegal--or illegal. And so that 
is why small business owners are so committed to the way that 
the separation of powers works, where legislators legislate and 
judges tell us what the law is, and that is why we have so much 
respect for Judge Gorsuch's work.
    Chairman Grassley. Okay. Thank you. I yield back my time.
    Senator Flake [presiding]. Senator Coons.
    Senator Coons. Thank you, Senator Flake.
    Ms. Hill, if I might, earlier today we heard testimony, 
compelling testimony, from Jeff Perkins about his son, Luke, 
and about the consequences for Luke and his family of Judge 
Gorsuch's perspective in his opinion in the Tenth Circuit, and 
then, pointedly, the Supreme Court disagreed with Judge 
Gorsuch's reasoning. I believe the goal of laws passed by 
Congress, like the ADA and the IDEA, is access, opportunity, 
and participation, not isolation and segregation.
    I would be interested, Ms. Hill, both Judge Gorsuch 
yesterday and Judge Tacha today insisted that Judge Gorsuch was 
bound by precedent, both Circuit and Supreme Court, to set the 
standard under the IDEA as ``merely more than de minimis.'' Are 
they right?
    Ms. Hill. I do not believe so. Of course, the Supreme Court 
yesterday indicated that it was not correct to approach Rowley 
or interpret Rowley as meaning that the standard was merely 
more than de minimis; rather, the standard was for meaningful 
and appropriate education, just as Congress had said that it 
was.
    In addition, I looked more closely at the Urban case. That 
was the case that Judge Gorsuch cited for the de minimis 
standard, which, by the way, still did not use the word 
``merely.'' In Urban, there was no dispute about whether 
sufficient services had been provided for this child. There was 
a dispute about whether a procedural requirement of the IDEA 
had been followed, and whether that failure to follow the 
procedural requirement had created a substantive violation.
    To the extent that there was no argument over whether the 
free appropriate public education had been provided, any 
argument about what the standard for free appropriate public 
education was is largely dicta.
    Senator Coons. Thank you, Ms. Hill.
    Mr. Gallagher, if I might, in a 2013 case--I think it is 
New Mexico Off-Highway Vehicle v. U.S. Forest Service--the 
Sierra Club attempted to intervene in a case attacking the 
Forest Service rule, and the Court allowed you to participate. 
Judge Gorsuch dissented and would not have allowed Sierra Club 
participation in the case, even though none of the litigants 
opposed your participation.
    In another case in 2011, Judge Gorsuch voted to block 
another environmental group from litigation to assert its 
interests.
    Why do you think it is important that interest groups like 
the Sierra Club be allowed to participate? And how do you think 
Judge Gorsuch's position would affect advocates' ability to be 
engaged on litigation around the environment?
    Mr. Gallagher. Thank you, Senator. Right now, when 
President Trump and his adviser Steve Bannon are threatening to 
dismantle the EPA, and when we have a new Administrator of the 
EPA, Scott Pruitt, who essentially eviscerated environmental 
enforcement while the Attorney General of Oklahoma, it is 
critical that citizens be able to enforce environmental laws. 
This body legislated citizens' rights to enforce environmental 
laws. There are citizen suit provisions in all of the major 
environmental laws.
    If we cannot get access to court and Mr. Trump and Mr. 
Pruitt are not going to protect our drinking water, who are we 
going to call?
    Senator Coons. Thank you, Mr. Gallagher.
    Ms. Graves, in Strickland v. UPS, Judge Gorsuch's Tenth 
Circuit colleagues found that a woman had shown enough evidence 
of discrimination, discrimination based on sex, to have a jury 
rule on her case. The woman had multiple co-workers testify she 
was treated worse than her male co-workers. Though the law 
required the court to look at the evidence in the light most 
favorable to the woman, Judge Gorsuch again dissented.
    Can you tell us more about this case and what it says about 
Judge Gorsuch's approach to deciding these opinions?
    Ms. Graves. Sure. Thank you, Senator Coons. I think that 
the Strickland case is a good example here of the concern that 
we have when Judge Gorsuch says he just applies law to facts, 
because here the real issue was that there were a lot of facts, 
and these facts were disputed, in fact. And when facts are 
disputed, the thing to do is have the jury decide, have the 
jury determine and resolve the facts. Here, despite a lot of 
evidence that she should have been able to continue her claim, 
Judge Gorsuch said, no, no, no, no, that is not enough.
    And so in that case, that is an example of, yes, he was 
applying the law to the facts, but the jury itself is the one 
who is supposed to resolve the facts.
    Senator Coons. Thank you, Ms. Graves.
    Thank you, Mr. Chairman.
    Senator Flake. Thank you.
    Senator Kennedy.
    Senator Kennedy. Thank you, Mr. Chairman.
    Ms. McGhee--is it ``McGhee'' or ``McGee-hee''?
    Ms. McGhee. McGhee.
    Senator Kennedy. McGhee.
    Ms. McGhee. Thank you.
    Senator Kennedy. I listened to your testimony about your 
criticism of Judge Gorsuch and Citizens United. Tell me what 
your complaint is with respect to Judge Gorsuch and Citizens 
United. Just briefly.
    Ms. McGhee. Sure, absolutely. First of all, we believe that 
based on his record in two cases--Hobby Lobby and Riddle v. 
Hickenlooper--that you have a recipe for striking down some of 
our last remaining protections against big money. He went out 
of his way in Hickenlooper----
    Senator Kennedy. I do not mean to interrupt you, but I have 
only got 5 minutes.
    Ms. McGhee. Okay.
    Senator Kennedy. I understand that. Do you really expect a 
nominee for the U.S. Supreme Court, whether he or she is 
nominated by a Democratic President or a Republican President, 
to come before the United States Judiciary Committee and talk 
about what is good policy or bad policy?
    Ms. McGhee. Fortunately, he does not have to get into 
policy to just talk about enduring democratic principles. And I 
also think that the Heritage Foundation, the number of right-
wing organizations that are anti-campaign finance reform that 
have backed his nomination for the Court would be surprised to 
learn that he was at all ambiguous about Citizens United, which 
is one of the most important court cases in recent memory and 
where all of the principles around grandly interpreting the 
First Amendment to give and protect the rights of millionaires 
and billionaires to spend unlimited amounts was just a 
continuation of a set of ideological jurisprudence that I would 
be surprised to hear him part from, and he did not when he had 
the opportunity.
    Senator Kennedy. I think I understand how you feel about 
Citizens United, but I want to understand your criticism of 
Judge Gorsuch as a nominee for the U.S. Supreme Court. You are 
criticizing Judge Gorsuch for not coming before this body and 
offering a policy preference in terms of campaign finance in 
elections in America?
    Ms. McGhee. I am not criticizing the judge. I am saying 
that he had an opportunity to say basic principles about our 
democracy and upholding an interpretation of the First 
Amendment that would protect a vision of one person, one vote. 
He was asked multiple times about many different issues 
concerning campaign finance reform, including cases where he 
went out of his way to write concurrences on majority opinions 
that put into doubt his opinions in future cases about issues 
such as the scrutiny level for campaign contributions, which is 
to date, we believe, a matter of settled law, and the very 
possibility of moving into corporations giving direct 
contributions to candidates based on his concurrence in Hobby 
Lobby.
    Senator Kennedy. And you would prefer to have a nominee who 
agrees with you on those policy issues?
    Ms. McGhee. I would prefer to have a nominee who was open 
to considering the facts, and we have seen that since Citizens 
United, the facts have shown that some of the basic premises--
the idea that independent spending is actually independent and 
cannot corrupt, the idea that disclosure is real--have been 
proven false.
    Senator Kennedy. All right. I am going to put you down as 
doubtful on Citizens United.
    Ms. McGhee. Thank you, Senator.
    Senator Kennedy. Ms. Hill, how do you think judges ought to 
decide cases? Could you turn your mic on for me?
    Ms. Hill. I think judges should decide the cases based on 
the law as expressed by Congress, interpreted by the agencies, 
and applied to the facts in front of them.
    Senator Kennedy. What if the agencies got it wrong?
    Ms. Hill. If the agencies got it wrong, there are 
administrative procedures processes through which to challenge 
those and correct----
    Senator Kennedy. Okay. Do you think that a party's wealth 
or status or power should have any effect whatsoever on the 
outcome of a case?
    Ms. Hill. No, I do not.
    Senator Kennedy. Okay. Thank you, Mr. Chairman. I yield 
back my time.
    Senator Flake. Thank you.
    Before going to the next panel, let me just ask a couple of 
questions.
    Ms. Harned, your organization promotes small business, 
obviously, and regulation has a little to do with the success 
or failure of small business. What have you seen over the years 
with regard to decisions by the Supreme Court or other courts 
that has impacted the ability of small business to succeed?
    Ms. Harned. Right. Well, that has been--really over the 
last several decades, we continue to see an increasing 
regulatory state, and in large part that is because of agency 
deference that courts--or deference courts are giving to 
agencies, the Chevron doctrine. And we have seen this firsthand 
with a number of cases in which we have gotten involved. I have 
several referenced in my testimony where, because of that 
agency deference, small business owners--the interpretation of 
the regulation by the agency governs, and as a result, a small 
business owner is sued and out millions of dollars in one case, 
the Nack v. Walburg case that I talk about here.
    But, more importantly, more broadly, on the regulatory 
state generally, small business owners do bear the 
disproportionate burden of regulation on their business as 
compared to their larger counterparts. It has been a primary 
concern, the reason they have not been able to grow over the 
past 9 years. And so that is why we are so committed and so 
encouraged to see that Judge Gorsuch recognizes, as he said in 
his testimony, raised his hand to the Supreme Court and said, 
look, Chevron deference, this may be a time where we need to 
revisit that, because we do think it is responsible for 
increasing the regulatory state in this country.
    Senator Flake. All right. Thank you.
    Mr. Turley, I would like your thoughts kind of on that 
similar theme. With Chevron deference, certainly Judge Gorsuch 
has expressed some skepticism about it, to put it mildly, I 
hope. But with regard to technology, which is an increasing 
percentage or share of our economy, what we have seen over the 
past several years is you have one administration whose 
agencies will regulate in a certain way, and the new 
administration comes in with maybe a completely different idea. 
We just dealt with the Congressional Review Act on certain tech 
regulations, internet regulations, just a few minutes ago on 
the floor. And then the next administration might come in with 
something completely different. One thing that small business 
and large business, any business, cannot stand is uncertainty 
moving ahead.
    With Chevron deference, looking back for the Congress to 
have maybe a more balanced or more predictable application of 
statutes which will govern regulation, is that a better way? 
What do you say?
    Professor Turley. I do think it is a better way to move 
beyond Chevron. I have been a critic of Chevron for many years. 
I am a particular critic of Brand X, which is the subject of 
one of these opinions. I thought the judge was right on that 
one. A lot of people do not realize that Brand X says that an 
agency can essentially negate the legal interpretation of a 
Federal court, and Judge Gorsuch appropriately noted that he 
thought that courts interpret the law after Marbury v. Madison, 
but that is how Chevron works. As I have written, it serves as 
the Marbury of the administrative state saying that they can be 
the final word.
    I think what you are seeing in our system is a dangerous 
shift of the center of gravity. This is a tripartite system 
that was designed to have three branches held together by a 
type of inverse pressure in a fixed orbit that Madison set. 
Yet, we have this rising fourth branch of administrative 
agencies.
    I happen to identify with many people in those 
bureaucracies because they are dweebs like me. They have 
advanced degrees. They are sort of wonky. But the fact is that 
we have a fourth branch that I think is a dangerous change in 
our system, one that we are not having a debate over. Chevron 
has fueled that change. If we did not have Chevron, we would 
largely go back to the conditions of cases like Skidmore where 
the courts gave a lot of deference, even without Chevron. You 
have the APA which requires deference to agencies. What it 
would do is allow judges to rule on what the law means.
    By the way, apropos of your question, Chevron was actually 
a case that was a victory for Judge Gorsuch's mother. This was 
actually a victory of Republicans that were trying to reverse 
measures that were put into place by a previous Democratic 
administration and used administrative authority to do that.
    So I would caution those that have suggested that this is 
going to be an apocalyptic moment. What it would do, if we went 
beyond Chevron, is return us to a position closer to the design 
of our Government.
    Senator Flake. Well, thank you. My time is up and I believe 
the time for the panel. We will go on to the next panel. Thank 
you for your service.
    We will call the next panel, if you want to set the 
nameplates. It will consist of Ms. Clarke, Mr. Kirsanow, Ms. 
Warbelow, Ms. Fisher, Ms. Miller, Ms. Smith, Professor 
Marshall, Professor Meyer, Ms. Phillips, and Professor Jaffer.
    If you will please stand and raise your right arm.
    [Witnesses sworn.]
    Senator Flake. Thank you. Please be seated.
    Kristen Clarke is the president and CEO of the Lawyers' 
Committee for Civil Rights Under Law.
    Peter Kirsanow is a partner with the firm Benesch Labor 
Employment Practice Group and is serving his third term on the 
U.S. Commission for Human Rights--or for Civil Rights, I am 
sorry.
    And Sarah Warbelow is the legal director for the Human 
Rights Campaign.
    Alice Fisher is a partner in Latham and Watkins' 
Washington, DC, office and is a member of the firm's Executive 
Committee. From 2005 to 2008 she served as assistant Attorney 
General in charge of the Criminal Division at the Department of 
Justice.
    Amy Miller is the president and CEO and founder of Whole 
Woman's Health.
    Hannah Smith is senior counsel at Becket. She clerked for 
then-Judge Alito on the Third Circuit Court of Appeals, for 
Justice Clarence Thomas, and then for Justice Alito on the 
Supreme Court.
    Professor William Marshall is the William Rand Kenan, Jr., 
distinguished professor of law at the University of North 
Carolina.
    Tim Meyer is a former law clerk for Judge Gorsuch from 2007 
to 2008. He is now professor of law and Enterprise scholar at 
Vanderbilt Law School.
    Sandy Phillips is the mother of Jessica Ghawi----
    Ms. Phillips. Ghawi.
    Senator Flake [continuing]. Who was--thank you. Ghawi, got 
it. Thank you. Who was tragically killed in the 2012 shooting 
at the Aurora, Colorado, movie theater.
    Jamil Jaffer is a former law clerk for Judge Gorsuch from 
2006 to 2007. He currently serves as adjunct professor, 
National Security Institute founder, and director of the 
Homeland Security law program at the Antonin Scalia Law School 
at George Mason University.
    I welcome you all to the Committee and look forward to 
hearing your testimony. This will be 5 minutes each. If you can 
summarize that way, we will proceed after that with 5-minute 
rounds.
    But let us go ahead, Ms. Clarke.

        STATEMENT OF KRISTEN CLARKE, PRESIDENT AND CHIEF
 EXECUTIVE OFFICER, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER 
                      LAW, WASHINGTON, DC

    Ms. Clarke. I want to thank the distinguished Members of 
this Committee for the opportunity to testify today on behalf 
of the Lawyers' Committee for Civil Rights Under Law. We are 
one of the Nation's historic, nonpartisan civil rights 
organizations with the unique mission of mobilizing lawyers 
across the country to provide critical pro bono support to 
advance our work.
    The Supreme Court occupies a central place in American 
democracy. And for African Americans and other minorities, the 
Court has been a crucial forum for seeking equal justice under 
law. Historically, minority groups have looked to the Court to 
vindicate their constitutional and civil rights.
    We have reviewed the civil rights record of Judge Neil 
Gorsuch, as we have done for all Supreme Court nominees for the 
last several decades. We do not believe that the record is 
sufficient to conclude that he meets our standard, which 
requires demonstration of a profound respect for the importance 
of protecting civil rights afforded by the Constitution and the 
Nation's civil rights laws.
    Judge Gorsuch's views reflect a very narrow definition of 
what constitutes a civil right, and he has deep skepticism 
about the importance of protecting those rights in the 
courtroom. Our concerns are especially pronounced with respect 
to the question of whether he will fairly interpret and apply 
one of our Nation's most important civil rights law, the Voting 
Rights Act.
    In 2013, the Supreme Court issued a decision that gutted 
the act in Shelby County, Alabama v. Holder. At issue in Shelby 
County were the Section 5 preclearance provision of the Act 
that helped identify and successfully block hundreds of 
unconstitutional and discriminatory voting changes and the 
Section 4--Section 5 provision that determined where the law 
applied. A closely divided Court ruled that Section 4 was 
unconstitutional, a decision which eviscerated the heart of the 
Voting Rights Act.
    Witnesses have drawn parallels between Judge Gorsuch and 
the late Justice Scalia. During oral argument in Shelby County, 
Justice Scalia referred to Congress' renewal of the Voting 
Rights Act as the, quote, ``perpetuation of racial 
entitlement.'' That was a startling perspective on a law that 
has ensured that millions of American citizens have not, merely 
because of the color of their skin, been unlawfully deprived of 
the most sacred right in our democracy.
    What is most troubling about the Court's decision in Shelby 
County is that the carefully considered judgment of Congress 
was set aside. In 2006, the Senate voted to renew Section 5 by 
a vote of 98-to-0 after documenting overwhelming evidence of 
ongoing discrimination against minority voters.
    It is unclear whether Judge Gorsuch appreciates Congress' 
broad enforcement powers under the Fourteenth and Fifteenth 
Amendments and unclear whether he brings awareness of the 
widespread voting discrimination and voter suppression that we 
continue to face today. The right to vote is too important. We 
must understand where Judge Gorsuch--whether Judge Gorsuch is 
committed to fairly interpreting and preserving what remains of 
the Voting Rights Act.
    Equally important are questions concerning Judge Gorsuch's 
tenure at the U.S. Department of Justice between 2005 and 2006 
when he occupied the role of Principal Deputy Associate 
Attorney General. As a career attorney at the Civil Rights 
Division of the Justice Department during that time, I am 
personally aware of issues that led to the politicization of 
the agency's civil rights work. Those views were substantiated 
in a July 2008 Inspector General's report which found that 
politicization of the Civil Rights Division's hiring practices 
and its work violated Federal law and Justice Department 
policy.
    We must not turn a blind eye to the fact that Judge Gorsuch 
had some responsibility for overseeing the division during this 
time. The materials provided by Judge Gorsuch, together with 
his Senate questionnaire, do not clarify or elucidate the 
extent of his involvement and the significant problems that 
tarnished the work and integrity of the Civil Rights Division 
at this time. I urge the Senate to seek answers to these 
important questions.
    Before I conclude, I want to say a brief word about Judge 
Gorsuch's record on criminal justice issues. Criminal justice 
concerns remain at the forefront for many African American, 
Latino, and minority communities. Our review shows that he 
takes an unusually narrow view of the constitutional rights of 
defendants, particularly under the Fourth Amendment. Judge 
Gorsuch has also shown extreme deference to police officers in 
excessive-force decisions.
    In closing, I must observe that this nomination arises at a 
tumultuous moment in our Nation's history. We have seen 
intensifying efforts to restrict the rights of minority voters, 
unconstitutional policing practices, rising xenophobia, 
religious intolerance, and other circumstances that make clear 
the fragile state of our democracy. Our Nation deserves a 
Supreme Court Justice who will interpret the Constitution and 
civil rights laws in a way that recognizes that discrimination 
is both ongoing and a threat to democracy and who is committed 
to ensuring equal justice under law for all Americans.
    Based on the record to date, I am not able to support the 
nomination of Judge Gorsuch to the Supreme Court today. I 
respectfully request that the Lawyers' Committee for Civil 
Rights Under Law's report on the nomination of Judge Gorsuch 
and accompanying letter signed by more than 100 of our board 
Members expressing concern regarding the nomination be entered 
into the record.
    Senator Flake. Without objection.
    [The information appears as a submission for the record.]
    Ms. Clarke. Thank you.
    [The prepared statement of Ms. Clarke appears as a 
submission for the record.]
    Senator Flake. Thank you, Ms. Clarke. Mr. Kirsanow.

 STATEMENT OF PETER KIRSANOW, COMMISSIONER, U.S. COMMISSION ON 
  CIVIL RIGHTS, AND PARTNER, BENESCH, FRIEDLANDER, COPLAN AND 
                    ARONOFF, CLEVELAND, OHIO

    Mr. Kirsanow. Thank you, Mr. Chairman, Members of the 
Committee. I am Peter Kirsanow, member of the U.S. Commission 
on Civil Rights and partner at Labor Employment Practice Group 
of Benesch Friedlander. I speak as one member of the Commission 
on Civil Rights, not necessarily on behalf of the commission as 
a whole.
    The U.S. Commission on Civil Rights was established 
pursuant to the 1957 Civil Rights Act to, among other things, 
act as a national clearinghouse for information related to 
discrimination and denials of equal protection and in 
furtherance of that clearinghouse function and with the help of 
my assistant, I have reviewed the nearly 200 cases related to 
civil rights that Mr.--that Judge Gorsuch had authored or 
participated in at the Tenth Circuit.
    These opinions relate to, among other things, title 7, ADA, 
ADEA, IDEA, equal protection clause, and a host of other 
provisions related to civil rights. And our examination reveals 
that Judge Gorsuch's approach to civil rights cases is 
consistent with generally accepted textual interpretation of 
the relevant statutory and constitutional provisions, as well 
as governing precedent. His opinions are squarely within the 
judicial mainstream when it comes to civil rights.
    Of the opinions we examined related to civil rights that 
Judge Gorsuch participated in, he was in the minority in only 5 
percent of those cases. In 43 cases he was on a three-judge 
panel in which the two other panel members were appointed by 
Presidents of the Democratic Party, and in 94 percent of those 
cases he joined the majority opinion or concurred in the 
result.
    A useful example of Judge Gorsuch's mainstream textualism, 
mindful of the limits of the judiciary and the prerogatives of 
the Legislature is his dissent in TransAm Trucking v. 
Administrative Review Board where a majority of the panel found 
that a statutory provision that provided that an employer may 
not discharge an employee who refuses to operate a vehicle 
where that employee has a reasonable apprehension of serious 
bodily harm actually meant that the employee may not be 
discharged if he operates the vehicle, contrary to employer 
instructions. Judge Gorsuch applied the plain text of the 
statute in a very precise manner and noted that the employee in 
question had done the opposite of the statutory privilege; that 
is, he had operated the vehicle, not refused to operate the 
vehicle.
    Similarly, Judge Gorsuch's reasoned deference to precedent 
and his interpretation of the text of the governing statutes 
yields cases and record on civil rights that is consistent with 
prevailing civil rights norms, for example, Carrera v. Tyson 
Foods. Judge Gorsuch upheld summary judgment against a 
plaintiff in a hostile environment/sexual harassment case where 
there was no evidence that there was a hostile environment. The 
evidence proffered was that supervisors were standoffish. That 
standing alone does not constitute a hostile environment. 
Moreover, the defendant had immediately discharged the 
employees who had made provocative gestures and immediately 
transferred plaintiff upon her request.
    Similarly, in Gaff v. St. Mary's Regional Medical Center, 
Judge Gorsuch upheld summary judgment in a retaliation claim 
where there was no evidence that the hospital had fired the 
plaintiff for reporting sexually explicit remarks made by a 
coworker as opposed to firing plaintiff because the plaintiff 
had threatened to shoot such coworker.
    As pertains to religious discrimination cases, Judge 
Gorsuch's record shows that he takes First Amendment issues 
soberly and seriously, regardless of whether or not the issue 
at hand may be trivial to some, may be obscure, or the 
plaintiff is unsympathetic or the plaintiff's beliefs may be at 
odds with prevailing societal norms.
    An example is Yellowbear v. Lampert in which Judge Gorsuch 
upheld the free exercise rights of an unsympathetic plaintiff 
who had murdered a little girl, which plaintiff had been denied 
his right to access a sweat lodge pursuant to his religious 
beliefs. Judge Gorsuch has also noted that wherefore 
protections might be available to individuals and families who 
are given the Hobson's choice of either abiding by their 
sincerely held religious beliefs or saving their business.
    In sum, Judge Gorsuch's approach to civil rights cases is 
consistent with the norms in jurisprudence. His record shows 
that he is a careful and exacting judge who has great respect 
for the constitutional order, the rule of law, the rule of 
Congress, and the corresponding limits on judicial authority. 
He is consistent with mainstream textual interpretation of the 
governing statutes, and, in addition to that, all of his record 
shows that he will faithfully and carefully apply the law to 
protect the civil rights of all Americans.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Kirsanow appears as a 
submission for the record.]
    Senator Flake [presiding]. Thank you, Mr. Kirsanow. If you 
are wondering where my colleagues are, there is a vote going on 
right now. Chairman Grassley will be back in a minute and I 
will go and vote, but I assume some other Members will come in 
as well.
    Ms. Warbelow.

   STATEMENT OF SARAH WARBELOW, LEGAL DIRECTOR, HUMAN RIGHTS 
                    CAMPAIGN, WASHINGTON, DC

    Ms. Warbelow. Thank you. On behalf of the Human Rights 
Campaign, the Nation's largest civil rights advocacy 
organization for lesbian, gay, bisexual, transgender, and queer 
people, I am honored to be here before you today representing 
our nearly 2 million members and supporters nationwide. 
Unfortunately, I am disappointed that the topic for discussion 
is President Trump's nominee to the Supreme Court, Mr. Neil 
Gorsuch.
    LGBTQ people are no strangers to the Supreme Court. We 
understand the power of the Court to affirm or deny our most 
basic rights. Jim Obergefell and his partner John Arthur had to 
be medivacked to a tarmac in Maryland in order to marry before 
John died from ALS because their home State of Ohio refused to 
allow them a marriage license.
    Their heartbreak did not end on that Maryland tarmac. The 
State of Ohio attempted to erase their marriage by refusing to 
place Jim's name as a surviving spouse on John's death 
certificate. By a narrow 5-4 ruling, the Supreme Court 
validated Jim and John's relationship and extended marriage 
equality nationwide. By his own words, Judge Gorsuch admitted 
he would have forced same-sex couples to pay the price of 
inequality for decades to come. This is why Judge Gorsuch 
cannot be given a lifetime appointment to the Supreme Court.
    Time and time again, Judge Gorsuch has employed a dangerous 
brand of originalism that ignores the essential context and 
values of each case and the lives that they touch. His record 
and statements place him squarely in the mold of Justice 
Antonin Scalia, who consistently demeaned and denied the 
dignity of LGBTQ people from the Bench. Judge Gorsuch has 
directly questioned the Court's recognition of the fundamental 
right to personal autonomy that has served as the keystone for 
multiple LGBTQ rights cases.
    Distressingly, Judge Gorsuch accepted a quote from Justice 
Scalia in its entirety, equating marriage equality to 
bestiality and made no effort to distinguish marriage, one of 
our society's most sacred traditions, from criminal antisocial 
behavior.
    Despite records that Judge Gorsuch's personal friends with 
LGBTQ people, his choice to embrace this line of reasoning 
reveals a level of indifference to the LGBTQ community that 
should be disqualifying for an individual to be appointed to 
the U.S. Supreme Court.
    During his time on the bench, Judge Gorsuch ruled against 
Rebecca Castle, a transgender woman working for a community 
college. After being rehired for a second term, Rebecca 
transitioned and began to use the women's restroom. Halfway 
through the semester, the school informed her she would have to 
begin using the men's restroom based on safety concerns. 
Rebecca was terminated because she refused to subject herself 
to the dangers of using a men's restroom.
    As Justice Kennedy made clear in Romer v. Evans, false 
justifications may never be used to cloak bare animus. That is 
what happened in Rebecca's case. The Supreme Court Justices 
must be able to discern legitimate government interests from 
clear hostility to vulnerable communities.
    Judge Gorsuch's other rulings such as Hobby Lobby, while 
not directly addressing the LGBTQ community, have been used to 
blatantly defend discrimination against LGBTQ people. Amy 
Stevens is one of these people. After working for a for-profit 
funeral home for nearly 6 years, she informed the owner she 
would be transitioning when she returned to work and would be 
dressing consistent with the women's dress code. Ignoring the 
employee's strong record, the funeral home owner stripped her 
of her job based on his belief that it is unacceptable to be 
transgender. In providing the funeral home a pass from 
complying with Title VII, the judge in this case adopted Judge 
Gorsuch's views regarding moral culpability, which callously 
disregards harm to real people. If this reasoning is widely 
adopted, it will undermine our core civil rights laws, allowing 
pervasive discrimination not only against the LGBTQ community 
but Americans widely.
    Areas of law that the majority of Americans view as 
settled, including marriage equality, are being litigated and 
debated by groups who are emboldened that a Justice like 
Gorsuch will reopen settled law. The Supreme Court will be 
asked to hear cases such as those that could decide whether a 
public school counselor from Mississippi can turn away LGBTQ 
youth in need, whether City of Houston employees may be 
stripped of their spousal benefits, or whether moms like Marisa 
and Terrah Pavan must both be listed on their daughter's birth 
certificate.
    We might not agree with every decision a Supreme Court 
Justice may make, but we must believe that their commitment to 
reaching impartial judgments based on fact, not political 
ideology or bias. And they must agree that LGBTQ have a 
fundamental right protected by the Constitution and that we as 
individuals and a community are entitled to equal treatment 
under the law. We need a Justice who recognized our basic 
equality and shared humanity. Judge Gorsuch has never met this 
bar, and that is why the Human Rights Campaign opposes his 
nomination to the Supreme Court.
    [The prepared statement of Ms. Warbelow appears as a 
submission for the record.]
    Senator Flake. Thank you, Ms. Warbelow.
    Ms. Fisher, I will have to excuse myself to vote, but 
Senator Hirono is here. Thank you.

              STATEMENT OF ALICE FISHER, PARTNER,
               LATHAM AND WATKINS, WASHINGTON, DC

    Ms. Fisher. Thank you, Senator Flake. Thank you, Senator 
Hirono.
    It is an honor to be here today. It is a privilege to be 
able to testify in support of my friend and former colleague 
Judge Neil Gorsuch. It has been a privilege over the years to 
watch his career unfold. I had the pleasure of meeting him in 
1991 when we both had our summer jobs in law school. He was in 
his third year of law school, I was getting out of my second 
year in law school, and we worked together as summer associates 
that summer in 1991. It may make me the longest person that 
knew him today--that is who testifying.
    Of course, I was struck by his brilliance and his keen 
intellect, but what was more striking was his character and his 
integrity and his courtesy and his kindness. Every day he would 
walk into work and he would stop and he would talk to people, 
everyone in the office, ask them how they were doing, ask them 
about their lives, about their troubles. And he was so generous 
with his time and his consideration for others. It was almost 
like it was an unlimited reserve of courtesy, kindness, and 
with good humor to boot.
    I was the beneficiary of that, and I am forever grateful 
for the time that he took with me early on in my legal career--
to spend time counseling me, mentoring me, helping me. It was 
almost as if he cared as much about my success as he did about 
his own. And I was not alone as a recipient of the way he 
treated people. I will be forever thankful for his support. 
That is just the man that he is.
    He has been, through the years, as you can see, driven by 
his devotion to his country and his devotion to public service, 
and he comports himself with deep humility when he comes into 
public service. And I can remember our conversations about when 
he was entering public service and how much that meant to him 
to have the ability to do that.
    He has a keen intellect, of course, but he holds himself to 
the highest standard of excellence--in his unwavering 
commitment to the law--and you have heard him and many others 
talk about that. Of course, he is an adoring husband to Louise 
and a devoted father and a devoted friend to many.
    As I have watched Neil--Judge Gorsuch--for many years, I 
find him a man of the highest personal integrity. He has a 
commitment to fairness and decency that will serve the Supreme 
Court well, and I am hopeful that he is confirmed. Thank you.
    [The prepared statement of Ms. Fisher appears as a 
submission for the record.]
    Senator Hirono [presiding]. Thank you.
    Next, we have Amy Miller. Ms. Miller.

STATEMENT OF AMY HAGSTROM MILLER, PRESIDENT AND CHIEF EXECUTIVE 
   OFFICER, FOUNDER, WHOLE WOMAN'S HEALTH, CHARLOTTESVILLE, 
                            VIRGINIA

    Ms. Miller. Thank you. Chairman Grassley, Senator 
Feinstein, and Members of the Committee, I am very honored to 
speak with you today.
    My name is Amy Hagstrom Miller. I am the founder and CEO of 
Whole Woman's Health, a group of women's health clinics that 
provide comprehensive reproductive services, including abortion 
care. I am here today on behalf of abortion providers, women's 
health advocates, and the people we serve all across the 
country who deserve access to quality healthcare delivered with 
dignity and respect.
    We are gravely concerned about the nomination of Judge 
Gorsuch to the U.S. Supreme Court. In fact, Whole Woman's 
Health joined 54 other reproductive health rights and justice 
organizations in a letter to the Senate opposing Judge 
Gorsuch's nomination.
    In our clinics, we offer holistic care for women that 
includes caring for their heart, their mind, and their body. We 
envision a world where every woman who has decided to end a 
pregnancy will be respected and where she will have the 
information she needs and the quality care she deserves.
    We were the lead plaintiff in last year's landmark Supreme 
Court case Whole Woman's Health v. Hellerstedt and witnessed 
how decisions made at the high court directly impact the lives 
of women. I know what happens when politicians find devious 
ways to deny women's constitutional rights and why it is so 
important to have independent jurists who respect precedent and 
the rule of law.
    Roe v. Wade, the 1973 decision that guaranteed the right to 
abortion and the right to privacy, has been settled law for 
more than four decades and has been reaffirmed repeatedly by 
the Supreme Court. Nevertheless, that has not stopped 
legislators across the country from putting roadblocks in front 
of women seeking abortion care. More than 330 have been passed 
since 2010.
    Nowhere was the impact of these laws more evident than in 
the State of Texas, where antiabortion legislators passed a law 
in 2013 that forced over half of the State's clinics to shut 
down. The law forced women to drive hundreds of miles, even 
across State lines, to access their right to safe and legal 
abortion. In some cases, the hurdles were so high women simply 
took matters into their own hands.
    I will never forget the woman who called from South Texas 
right after the law went into effect. We told her our clinic 
was shuttered and she now had to drive 250 miles each way to 
San Antonio. She told us there was no way she could take 2 days 
off work, find child care and the money to drive that far. She 
said, ``I will tell you what is in my medicine cabinet, and can 
you please tell me what to use to do my own abortion?''
    In our country, where abortion has been legal for more than 
40 years, no woman should be forced to take matters into her 
own hands, nor should she fear criminalization or jail time if 
she does. We need Justices on the Bench who oppose unnecessary 
obstacles to our constitutional rights. Neil Gorsuch is not 
that Judge.
    I also remember the woman who called from West Texas where 
every single clinic had been shut down. She was a single 
working mother with three children. We helped her to find a 
clinic, raise money for her abortion, child care, 
transportation, and lost wages. By the time she made it to a 
Dallas clinic 8 weeks later, it was too late for her to have an 
abortion in the State of Texas. We need Judges on the Court who 
support our constitutional rights no matter our zip codes. Neil 
Gorsuch is not that Judge.
    Last year, we took Texas to the Supreme Court and, in its 
ruling, the Court called out these and other clinic shutdown 
laws for what they are: sham laws that create obstacles to care 
with no medical basis behind them. Women need to know that if 
their rights are once again on trial, they will be decided by 
Justices who are independent and not beholden to an ideological 
agenda. Judge Gorsuch has refused to answer basic questions 
about his stance on Roe, Whole Woman's Health, or the right to 
privacy. Yet we know in the Utah Planned Parenthood case, he 
sided with politicians using misinformation and false claims to 
defund women's health services. And in the Hobby Lobby 
contraception case, he supported the notion that corporations 
are people.
    Judge Gorsuch's positions raise concerns about his ability 
to be open minded, fair, and guided by the Constitution, and 
not his own ideology or personal beliefs. Your decision on this 
nomination will have profound impact on all of your 
constituents. Everyone loves someone who has had an abortion, 
and we all want the people we love to be safe and treated with 
respect, compassion, and dignity. I urge you to keep this in 
mind as you consider the awesome responsibility of entrusting a 
lifetime appointment to the U.S. Supreme Court.
    Thank you very much.
    [The prepared statement of Ms. Miller appears as a 
submission for the record.]
    Chairman Grassley. Thank you. And Senator Hirono, thank you 
for filling in so we could keep it going. Thank you very much.
    Now, Ms. Smith.

                   STATEMENT OF HANNAH SMITH,
             SENIOR COUNSEL, BECKET, WASHINGTON, DC

    Ms. Smith. Thank you, Mr. Chairman, Senator Feinstein, and 
Members of the Committee. My name is Hannah Smith, and I am 
senior counsel at Becket. Our firm is dedicated to protecting 
religious liberty for people of all faiths.
    As Judge Gorsuch has said, religious liberty law, quote, 
``doesn't just apply to protect popular religious beliefs: it 
does perhaps its most important work in protecting unpopular 
religious beliefs, vindicating this Nation's long-held 
aspiration to serve as a refuge of religious tolerance,'' end 
quote.
    To prepare for this hearing, I have reviewed all 40 cases 
related to religious liberty in which Judge Gorsuch either 
wrote an opinion or cast a vote. My assessment is that Judge 
Gorsuch, as an Associate Justice of the Supreme Court, would be 
a jurist committed to protecting this vital freedom. None of 
his religious liberty opinions has ever been reversed by the 
Supreme Court. In fact, every time the Supreme Court reached 
the merits in one of these cases, it vindicated Judge Gorsuch's 
position even where he had dissented.
    An examination of these cases reveals that Judge Gorsuch is 
also a remarkable consensus-builder. When he sat together with 
judges who were appointed by a Democratic President, those 
judges unanimously agreed with him in 80 percent of those 
cases. Overall, he was part of a unanimous decision almost 90 
percent of the time, and when he actually authored the 
religious liberty decision for the court, he produced a 
unanimous decision every single time, 100 percent.
    This is a striking record of coalition-building in an area 
of jurisprudence that can be quite contentious. I will focus my 
remarks on two areas: first, Judge Gorsuch's prisoner cases; 
and second, his decisions involving the Religious Freedom 
Restoration Act.
    First, Judge Gorsuch has demonstrated repeatedly that he 
applies the law fairly to protect religious minorities and 
incarcerated persons, some of the most politically powerless in 
our society. For example, in Yellowbear v. Lampert, Judge 
Gorsuch addressed a case where a Native American prisoner had 
requested access to a sweat lodge for religious purposes. For a 
unanimous panel, Judge Gorsuch authored an eloquent opinion in 
which he said, quote, ``While those convicted of crime in our 
society lawfully forfeit a great many civil liberties, Congress 
has repeatedly instructed that the sincere exercise of religion 
should not be among them--at least in the absence of a 
compelling reason,'' end quote. Here, there was no such 
compelling reason.
    Judge Gorsuch recognized that, especially in the prison 
context, it is, quote, ``easy for governmental officials with 
so much power over inmates' lives to deny capriciously one more 
liberty to those who have already forfeited so many others,'' 
end quote. Therefore, he wrote, that the Government must prove 
it has a good reason for denying religious liberty by offering 
much more than the Government's, quote, ``bare say-so,'' end 
quote.
    On this point, Justice Sonia Sotomayor quoted Yellowbear in 
her concurrence in another prisoner case, Holt v. Hobbs. There, 
a unanimous Supreme Court ruled in favor of a Becket client, a 
Muslim prisoner who sought to grow a religiously required 
beard.
    In two other prisoner cases, Judge Gorsuch voted in favor 
of a Muslim prisoner seeking access to religiously required 
meals and reversed a lower court decision failing to adequately 
consider a pro se prisoner's request for a kosher diet.
    Second, regarding his RFRA cases, in Hobby Lobby and Little 
Sisters of the Poor, the Government tried to force religious 
ministries and family owned businesses to change their health 
plans in a way that would violate their faith or else pay 
millions of dollars in IRS penalties. Applying RFRA, Judge 
Gorsuch voted in favor of the religious objectors, and the 
Supreme Court vindicated his position in both cases.
    Now, some have tried to frame these cases as an 
irresolvable conflict between religious liberty and women's 
rights. Not so. In the Little Sisters case at the Supreme 
Court, the Government conceded that it could still achieve its 
interests by allowing women to access contraceptive services on 
the Government's own exchanges, through another government 
program, or through other insurance plans. The government's 
concessions exposed an important truth: No real conflict 
existed between contraceptive access and religious liberty.
    In closing, Judge Gorsuch has a consistent record of 
carefully applying the relevant statutory and constitutional 
provisions, as well as governing precedents, without regard to 
a particular ideological outcome. His jurisprudence 
demonstrates an evenhanded application of the principle that 
religious liberty is fundamental to freedom and to human 
dignity and that protecting the religious rights of others, 
even the rights of those with whom we may disagree, ultimately 
leads to greater protections for all of our rights.
    Thank you.
    [The prepared statement of Ms. Smith appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Ms. Smith.
    Now, Professor Marshall.

    STATEMENT OF WILLIAM MARSHALL, WILLIAM RAND KENAN, JR., 
 DISTINGUISHED PROFESSOR OF LAW, UNIVERSITY OF NORTH CAROLINA, 
                  CHAPEL HILL, NORTH CAROLINA

    Professor Marshall. Thank you very much, Chairman Grassley 
and Members of the Committee. It is an honor to appear before 
you.
    My purpose here today is to not pass judgment on Judge 
Gorsuch, but rather to discuss the subject of originalism and 
constitutional interpretation.
    The term originalism is new, dating back essentially to the 
1980s, but it has not had only one meaning. At first, it was 
said to be original intent. Then, it was changed to original 
public meaning. Then, it was changed by some to original public 
meaning abstracted to allow for technological change. Then, it 
was changed by others to say semantic meaning that might be 
completely different from the common public understanding.
    Nevertheless, despite their lack of consensus on what 
originalism means and what the theory requires, those who 
support the theory argue that originalism should be the 
governing mode of constitutional interpretation. First, they 
suggest that originalism promotes fealty to a written 
Constitution and is therefore consistent with the Framers' 
design. But the early courts did not see it that way. Chief 
Justice John Marshall wrote in McCulloch that ``we must never 
forget it is a constitution we are expounding, intended to 
endure for ages to come and consequently to be adapted to the 
various crises of human affairs.'' This means that 
constitutional interpretation is to give meaning and substance 
to enduring principles over time in new contexts.
    The fact that the Framers did not envision this approach is 
also evidenced in the text of the Constitution, which uses very 
broad words such as freedom of speech, equal protection, due 
process of law. Those terms are not conducive to fixed meaning, 
and the Framers likely intended that they would be interpreted 
and given context over time.
    Third, the Framers came from a common-law tradition. They 
understood that law changed to adapt to new circumstances. It 
is incorrect to suggest that was inappropriate for that to do 
so because the Framers knew otherwise.
    And finally, the Framers were visionaries. They were not 
concerned only with addressing the issues of the day; they were 
concerned with setting forth broad principles that would guide 
future generations. The irony of originalism is that, while it 
purports fealty to the Framers, it actually demeans the 
Framers' enterprise because it suggests they were more 
concerned with solving the problems of 1787 than in developing 
a Constitution that could solve the problems of 2017.
    Originalists also err when they suggest that their theory 
limits the ability of courts to insert their political 
preferences, at least the way originalism has been practiced by 
conservative jurists. For example, there is no originalist 
theory that can support striking down Federal affirmative 
action, as the conservative Court did in Adarand. The text of 
the Fourteenth Amendment's equal protection clause does not 
even apply to the Federal Government, and history during that 
period indicated that there were special programs that 
advantaged only African Americans.
    Originalism does not support Citizens United. The Framers 
did not give much credence to corporations. They distrusted 
them. There were very limited charters. It does not support the 
expanded property rights that exist in the Regulatory Takings 
Doctrine, and it is worth noting that Justice Scalia, when he 
wrote on that, suggested those cases were supported not by text 
or history but by ``constitutional culture.''
    Now, in my written arguments I suggested some results that 
originalism might lead to that would be troublesome: the end of 
one person, one vote; the overruling of Brown; the idea that 
there would be no equal protection for women, the abolishment 
of the United States Air Force. Now, to their credit, many 
originalists will not go that far, will not take us back to the 
way of life of a 19th century, and some have gone out of their 
way to argue that Brown can be reconciled with originalist 
principles, which would be news to those who drafted the 
Fourteen Amendment and also segregated the schools of the 
District of Columbia, and would also be news to the Brown Court 
itself, which looked for originalist basis and could not find 
it and expressly disavowed originalism as the basis for the 
holding in that decision.
    Now, but what does this say about originalism? I think it 
suggests two things. I think it suggests that originalists know 
in their hearts that originalism is fundamentally at odds with 
who we are as a Nation; and second, it also demonstrates that 
originalism can be used to manipulate the particular results 
that you want to get to, so therefore, it does not give the 
fixed meaning that those who support originalists say that it 
does.
    Originalism then is a doctrine of false promises. It 
suggests a fealty to the Framers' design when it is actually 
antithetical to the Framer's vision. It purports to offer 
jurisprudence with fixed and predictable results when its 
application is nebulous and variable. It claims value 
neutrality when it has been erratically deployed in order to 
achieve specific results.
    Certainly text and history are important in constitutional 
interpretation, but the claim that constitutional 
interpretation should be controlled only by history and text 
was one that was rejected in McCulloch v. Maryland in 1819. We 
should learn that lesson.
    [The prepared statement of Professor Marshall appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Professor.
    Now, Mr. Meyer.

                    STATEMENT OF TIM MEYER,
             FORMER LAW CLERK, NASHVILLE, TENNESSEE

    Mr. Meyer. Mr. Chairman, Members of the Committee, thank 
you for the opportunity to testify today.
    I am a professor of law at Vanderbilt Law School, and I had 
the honor to clerk for Judge Gorsuch from 2007 until 2008. I am 
here today to enthusiastically support his nomination to the 
Supreme Court. Judge Gorsuch is a brilliant, fair, principled, 
and independent jurist. He is also the epitome of a gentleman. 
You will never in your life meet a kinder or more charitable 
public servant.
    One of the biggest risks a judge takes each year is 
inviting a few recent law school graduates into his or her 
chambers. Judges use law clerks as sounding boards for ideas; 
to spot flaws in arguments, including their own; and to find 
and help analyze precedent. This requires a judge to put quite 
a bit of faith in these recent law school graduates, and it 
requires them to invest quite a bit of time in teaching these 
recent law school graduates to be competent assistants and 
competent lawyers.
    More than that, though, working side by side in close 
quarters every day for a year or more makes the relationship 
between a judge and his or her clerks especially intimate. 
Judges thus often become the most important mentors young 
lawyers have. This mentoring role is not the most important 
that judges play, but it does provide a window into a judge's 
temperament and their approach to the law.
    I could not have hoped for a better mentor than Judge 
Gorsuch, and the country could not hope for a better teacher 
for its brightest legal minds. I could say a lot about Judge 
Gorsuch, about how he welcomes his clerks to Colorado and into 
his family, about how he hosted a birthday party for my 1-year-
old son in chambers when we did not know anybody in Colorado. I 
could talk about his love of being a lawyer, the joy he takes 
in the back and forth of legal argument, or his concern for the 
integrity of our judicial system. Instead, I want to spend my 
time today talking about what Judge Gorsuch has taught me about 
writing.
    By the time I arrived in Judge Gorsuch's chambers, I had 
been in school for 21 years and I had probably written 
thousands of pages, including most of a doctoral dissertation. 
But I did not really learn to write until I worked for the 
judge. Through conversations, reading the judge's work, and 
reading his careful comments on my work, I learned the 
importance of clarity in legal writing.
    The judge spends hours and many drafts on just the 
introductory paragraphs to his opinions. These sentences, he 
taught the clerks, are the most important. Lawyers need to know 
how the Court thought the Constitution, statutes, and 
regulations applied to the facts of the case. But even 
nonlawyers, the Judge taught us, should be able to understand 
the stakes in a court case and the basic reason a case came out 
the way it did. The litigants themselves deserve an explanation 
that does not require a lawyer to interpret. I have taken this 
lesson with me at each stop on my legal career.
    Judge Gorsuch's care for writing is important in its own 
right because the written word is the primary medium through 
which judges communicate. But the judge's emphasis on writing 
is part of his broader concern for the process due litigants 
who seek the protection of our courts. As a clerk, I had the 
opportunity to observe over and over again Judge Gorsuch's 
respect for litigants and the care he took to make sure that he 
fairly and fully evaluated and addressed each of their claims.
    I have a number of examples in my written testimony, but by 
way of one brief example, the Federal courts receive a very 
high number of pro se petitions from prisoners. For many of 
these petitioners, the Anti-Terrorism and Effective Death 
Penalty Act, passed by Congress in 1996, sets a bar to relief 
that they cannot clear, and consequently, many courts summarily 
dismiss these petitions. Not Judge Gorsuch.
    When I worked for him, he insisted that each petitioner 
receive a written decision on his petition. Each inmate, he 
told me, is entitled to an explanation he can understand, no 
matter how far off the mark his claim. And to be frank, many of 
the claims we received were prepared without the aid of counsel 
and were difficult to understand. No matter. The Judge reminded 
we clerks that the Court had a duty to liberally construe that 
is, to give the benefit of the doubt to those who appear on 
their own behalf seeking the protection of the courts.
    The judge's concern for fair notice also underlies his deep 
respect for precedent. I can recall many times that Judge 
Gorsuch wrote that while he might have decided a case 
differently, a prior panel of the Tenth Circuit had already 
addressed the question.
    Indeed, I had the chance this morning to look back at the 
Tenth Circuit decision in Endrew F., which is the case that the 
Supreme Court decided yesterday reversing the Tenth Circuit. 
And in that case, the Court expressly noted that the more than 
de minimis standard that Judge Gorsuch had applied in Thompson 
is actually from an earlier Tenth Circuit case in Urban and a 
line of cases that stretch from Urban until Thompson.
    I will end by noting that in both of these instances, 
prisoner litigation and disabled students, Judge Gorsuch has 
ruled on both sides of the issues, has come out both ways. 
Equally importantly, though, he has advocated for better 
representation for prisoners who are seeking the protection of 
our courts and for disabled students. Judge Gorsuch believes 
that access to the courts and a fair opportunity to be heard 
for all is a critical component of our judicial system.
    And with that, I will look forward to your questions.
    [The prepared statement of Mr. Meyer appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Mr. Meyer.
    Now, Ms. Phillips.

           STATEMENT OF SANDY PHILLIPS, BOERNE, TEXAS

    Ms. Phillips. Chairman Grassley, Ranking Member Feinstein, 
and Members of the Judiciary Committee, thank you for the 
opportunity to speak with you today.
    My name is Sandy Phillips. I am a registered Republican, a 
gun owner, and I live in Texas, but I now vote a straight 
Democratic ticket. I am a mother, and I am here to speak on my 
efforts to stop other families from experiencing my nightmare.
    I am here to speak on the gun violence that takes 33,000 
American citizens' lives each year. On average, 91 Americans 
are killed each day, eight of whom are children. My daughter 
Jessie was one of them.
    Five years ago this July, my beautiful 24-year-old daughter 
Jessica Ghawi was slaughtered in the Aurora, Colorado, theater 
massacre along with 11 other beautiful souls. Seventy others 
were wounded, many with wounds that will shorten their lives. I 
know them. I know their struggle. I know their pain, both 
physical and emotional, and I understand it.
    My daughter went to a movie and was slaughtered. I use the 
word slaughtered because the killer chose to use a weapon 
designed for the battlefield by the military as part of his 
arsenal and ambushed people that could not escape. He was able 
to purchase 4,000 rounds of green-tipped .223 high-velocity 
bullets over the internet without even showing his driver's 
license. These steel-jacketed bullets were designed to rip 
through bone, tissue, flesh, seats, and walls.
    When we sued that online seller to change their dangerous 
business practices, our case was thrown out because of the 
PLCAA law. The gun lobby brags that this law was their crowning 
achievement because it protects the industry from being sued in 
civil court and denies the constitutional rights of gun 
violence victims to have their day in court.
    The night Jessie was murdered, I was texting with her. I 
was due to go visit her in just a few days, and we were very 
excited to be able to spend some mother-and-daughter time. The 
last thing she wrote to me was, ``I cannot wait to see you. I 
need my momma.'' I wrote back, ``I need my baby girl.''
    Minutes after that text, my phone rang. It was the young 
man with her that we have known for many, many years and we 
think of as family. What I heard on the other end of the phone 
changed our lives forever. I could hear horrific screaming. I 
asked what was wrong. He said that there had been a shooting 
and it was random. I asked if he was okay. He said I think I 
have been shot twice. At this point I grew alarmed since he was 
the one calling and not my Jessie. I said, ``Where is Jessie?'' 
He answered, ``I am sorry.'' I asked, ``Is she okay?'' And he 
said, ``I tried.'' I said, ``Brent, oh, God, please tell me she 
is not dead.'' And again, he said, ``I am sorry.''
    Brent is a firefighter and a paramedic, so I knew at that 
very moment that my daughter was gone. I started screaming, I 
am told, but I have little memory of my husband catching me as 
I collapsed on the floor.
    Our little girl had been hit six times with the .223s that 
sprayed the theater in mere seconds. One bullet tore through 
her leg and entered into the other leg, making it impossible to 
escape. Three more ripped through her abdomen, one hit her 
clavicle and shattered it, and one exploded through her left 
eye, leaving a five-inch hole that blew her brains onto the 
theater seats, floor, and people. I live with that image every 
day of my life.
    This preventable pain and suffering of victims and 
survivors has changed my life. I can no longer remain silent on 
the sidelines. Our Second Amendment begins with the phrase ``a 
well-regulated,'' but guns are not well-regulated. Our lack of 
strong Federal laws let people who should not have them acquire 
guns too easily, people like Jessie's shooter, who showed clear 
signs of severe mental illness that made him dangerous to 
himself and others, was still able to get his hands on 
military-style weapons and over 4,000 bullets he bought for his 
attack.
    Since this shooting, Colorado has put restrictions on the 
kind of magazine he used and passed new background check laws, 
but over the past few years, a small number of extremists have 
been pushing courts across the country to accept and endorse a 
gun-lobby-backed radical version of the Second Amendment that 
would call into question basic public safety law like those in 
Colorado. This version is the one that Justice Scalia rejected, 
understanding the Second Amendment is not unlimited.
    As a mother and an American, I believe it is critical that 
any Supreme Court Justice understands this as well. Cases 
pushing these radical views could make their way to the Supreme 
Court in the months and years to come. This Committee must know 
does this nominee believe the Second Amendment have limits? 
Does this nominee recognize that it does not override any other 
constitutional rights like my daughter's right to live in a 
safe community? Does this nominee understand that, as times 
change, laws must change and responsible regulations to protect 
communities from gun violence have been recognized as and are 
constitutional and necessary? To be confirmed, any Supreme 
Court nominee must answer these questions clearly and 
convincingly. If not, the public's safety is at risk.
    Thank you for the opportunity to speak with you today.
    [The prepared statement of Ms. Phillips appears as a 
submission for the record.]
    Chairman Grassley. Thank you, Ms. Phillips.
    Now, Mr. Jaffer.

                   STATEMENT OF JAMIL JAFFER,
             FORMER LAW CLERK, ARLINGTON, VIRGINIA

    Mr. Jamil Jaffer. Thank you, Mr. Chairman, and thank you to 
the Committee for having me here today.
    I want to say obviously a very painful story from Mrs. 
Phillips and her daughter Jessie. I think what I want to say to 
Mrs. Phillips and to the Members of the Committee is that Judge 
Gorsuch--I have known him for 13 years--Judge Gorsuch is the 
kind of judge that Mrs. Phillips and that Jessie would want on 
the Bench. He is the kind of judge that applies the law fairly 
and evenhandedly to all litigants before him. He is the kind of 
judge that does not rule based on a policy preference or a 
preference for an outcome but on the law as it is written by 
the Members of this body, the Constitution our Framers wrote. 
He is the kind of judge that applies the law in the way we want 
the law to be applied. He is a judge's judge.
    I have known Judge Gorsuch since he was a private practice 
attorney at a small law firm here in Washington, DC. I then 
followed Judge Gorsuch to the Justice Department in a different 
office, but I saw him there as a senior Justice Department 
official. I then went with him to the Tenth Circuit when he was 
confirmed on the bench and spent his first 4 months with him on 
the bench as he became a judge. I watched him transform from a 
passionate, strong advocate for his clients into a passionate, 
strong advocate for justice under the rule of law.
    He is the kind of man that cares about people, that cares 
deeply about his family, his friends, the parties that appear 
before him. He feels what the litigants before him feel, and he 
applies the law fairly to each and every one of those 
litigants.
    Today, we have heard from a lot of individuals on this 
panel about what Judge Gorsuch, if he were to be confirmed by 
this body to the Supreme Court, may or may not do on the Court. 
But what I would direct you to is his real record in the 10 
years that he has been on the bench. This is not a judge that 
had a short period of time on the bench where we cannot tell 
what kind of judge he is going to be. We can look at his record 
and determine exactly what kind of judge he is going to be.
    Now, over the last few days, you have heard about a handful 
of cases where people feel like he has not ruled for the little 
guy. Well, let me tell you about some of the cases where he has 
ruled for the little guy: Avila v. Jostens, where he voted to 
allow a Hispanic employee to bring a claim of race 
discrimination reversed in District Court; Dasgupta v. Harris, 
where he voted to deny qualified immunity to a university 
official accused of discriminating against an Asian American 
professor; Orr v. City of Albuquerque, where he had that two 
female police officers could bring pregnancy discrimination 
claims and reversed the District Court there also; Gad v. 
Kansas State, where he allowed a professor of sex 
discrimination claim to proceed; Allstate Sweeping, where he 
allowed two female contractors to bring a gender bias claim 
against a male Denver airport employee; Chapman v. Carmike 
Cinemas, where he voted to reverse the District Court and 
allowed a female employee who had been sexually assaulted to 
bring a hostile work environment claim against her corporate 
employer; Dossa v. Wynne, where he voted to allow a female 
employee to sue her employer for gender discrimination; W.D. 
Sports, where he reversed the District Court and allowed a 
female employee's sexual harassment suit to proceed to trial; 
Eisenhour v. Weber County, where Judge Gorsuch voted to allow a 
female court employee to bring claims against a male judge who 
had sexually harassed her; Ridgell-Boltz v. Colvin, where Judge 
Gorsuch voted to reverse a District Court dismissal of a female 
worker's hostile work environment claim; Lowber v. City of New 
Cordell, where Judge Gorsuch ruled that a female employee could 
sue a city government for sex discrimination, again, reversing 
the District Court.
    In case after case after case, Judge Gorsuch has applied 
the law fairly and evenhandedly to the litigants before him. 
Yes, it is true in the occasional cases, the three or four you 
heard about over the last few days, Judge Gorsuch ruled for a 
corporate employer, but time and time and time again, he has 
ruled for the little guy, the woman, the sexually harassed, the 
discriminated against, the disabled.
    So the notion somehow that Judge Gorsuch is not capable of 
being an evenhanded, fair judge, the kind of judge that Mrs. 
Phillips and that Jessie deserve, is absolutely wrong. He is a 
judge's judge. He will be a credit to our Nation and to this 
body, and he should be confirmed swiftly.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Jaffer appears as a 
submission for the record.]
    Chairman Grassley. Thank you. I am going to call on Senator 
Coons because he has another assignment.
    Senator Coons. Thank you very much, Mr. Chairman.
    I would like to thank this entire panel. I will take just a 
few minutes and ask two questions, if I might?
    Ms. Warbelow, over the course of the entire several days of 
hearings, Judge Gorsuch repeatedly said that he respects 
precedent and follows settled law, and I questioned him about 
critical cases--Casey, Lawrence, Obergefell. The judge also 
wrote that judges should, ``apply 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.''
    But these three critical cases, as I questioned him about--
Casey, Lawrence, and Obergefell--do not merely look forward. 
They applied a more inclusive and modern principle of liberty 
and its understanding to protect the right to privacy, 
relationships, and marriage.
    Can originalism, as Judge Gorsuch defined it, protect the 
freedoms the Supreme Court has now recognized for LGBT 
individuals based on the due process clause?
    Ms. Warbelow. If we press the pause button at the exact 
moment in time when either the Constitution was written or any 
single statute was written, we miss the broader context at how 
it affects and applies to people's lives. It is not a surprise 
to anyone in this room that in the 1700s LGBTQ community was a 
stranger to the law.
    And if we continue to advocate for a view of the 
Constitution that is stuck in that time period, we will always 
be strangers to the law. And Judge Gorsuch himself made very 
clear that he thought the LGBTQ community should only have 
recourse through the legislature, that marriage equality was 
not appropriate topic for the courts and should be left solely 
to the legislatures.
    But the role of the Court is to recognize that minority 
populations are often disadvantaged when it comes to the 
tyranny of the majority, and a good Justice looks to how 
people's lives are affected and how the rule of law will apply 
in the day to day.
    Senator Coons. Thank you, Ms. Warbelow.
    Ms. Miller, there has been a lot of discussion in the 
course of these hearings from President Trump's campaign 
promise about what kind of Justice he might nominate through 
questioning of Judge Gorsuch this week. And the potential 
overruling of Roe v. Wade seems to always hover in the middle 
distance in these hearings.
    I am concerned, however, that there is many ways that 
courts can and would limit women's access to healthcare without 
explicitly overruling Roe. And as you heard perhaps in my 
questioning of Judge Gorsuch, I had questions for him about 
what his standard of complicity meant and where it came from 
and what its consequences would be.
    In what ways could the Court limit access to reproductive 
care without overturning Roe? And what does Judge Gorsuch's 
record say to you about how he might approach these cases?
    Ms. Miller. Thank you for the question.
    I am very concerned about his record and his ability to set 
aside personal beliefs and rule in a fair-minded, independent 
way. What we have seen since 2010, like I referenced in my 
statement, is 330 laws that have been passed to restrict 
women's access to abortion services, even with Roe being 
stable. We have seen waiting periods. We have seen requirements 
that close physical plants. We have seen, you know, really 
women with undue burden, having to travel hundreds of miles and 
encounter, you know, lots of obstacles.
    So what we really have is a situation where a right exists 
on paper, but it is not--the ability to access it in the real 
way people live their lives is blocked.
    Senator Coons. Ms. Miller, if I might, though, just to 
clarify, you are talking about legislatures acting. Why is that 
not an appropriate venue, and what is the Court's role in this?
    Ms. Miller. Well, what you might, in our case--Whole 
Woman's Health--we brought to the Supreme Court, we were able 
to illustrate that legislators went too far, and the Court 
ruled in our favor, saying you cannot just pass laws willy 
nilly to block people's access. They need to be substantiated 
by medical fact and medical evidence and that it put an undue 
burden on women's ability to access their rights to privacy and 
their right to safe abortion, as guaranteed by Roe.
    Senator Coons. Thank you. I would like to thank you both, 
and I appreciate your consideration, Mr. Chairman, and the 
opportunity to talk with you both about legitimate concerns 
about the scope of the right to privacy and its impact on 
people's lives.
    Thank you.
    Ms. Miller. Thank you.
    Chairman Grassley. Senator Hatch now.
    Senator Hatch. Thank you, Mr. Chairman.
    Let me ask Mrs. Smith some questions. I want to thank you 
for your work defending our first freedom, religious freedom. 
As you know, I am one of the authors of the Religious Freedom 
Restoration Act, one of the prime authors, and also I am the 
author of the Religious Land Use and Institutionalized Persons 
Act.
    Now these statutes make it difficult for the Government to 
substantially burden the exercise of religion. And your 
organization, the Becket Fund, uses these statutes to vindicate 
the fundamental right to exercise religions for men and women 
of many faiths. Your written testimony quoted from Judge 
Gorsuch's concurring opinion in Hobby Lobby Stores v. Sebelius 
that RFRA ``does perhaps its most important work in protecting 
unpopular religious beliefs, vindicating this Nation's long-
held aspiration to serve as a refuge of religious tolerance.''
    In Hobby Lobby, Judge Gorsuch's court concluded that RFRA 
can apply to a corporation. My guess, however, is that in your 
practice, the most frequent use of these statutes is to defend 
the individual, the little guy, if you will, since we have had 
talk about that we have heard so much about. It is to defend 
the weak and the powerless and the disfavored.
    Now I have two questions about Judge Gorsuch's record in 
this area. First, do any of his decisions or opinions in such 
cases go beyond interpreting statutes the way Congress enacted 
them and implementing those statutes as Congress intended?
    And second, how critical is it to faithfully interpret and 
apply statutes like these when it might be controversial as 
well as when the plaintiffs are more sympathetic?
    Ms. Smith. Thank you very much for that question, Senator 
Hatch.
    So your first question was, are there any decisions that go 
beyond the correct interpretation of these statutes in Judge 
Gorsuch's 10 years on the bench? And I have looked at a lot of 
his opinions that he has written where he has interpreted RFRA 
and its sister statute RLUIPA, which you also mentioned. And I 
think his jurisprudence very clearly shows that he understands 
the limits of these statutes. He understands the balancing test 
that Congress put into these statutes and that he has found in 
favor of religious parties some of the time, but he is also 
found against parties who are religious litigants in other 
cases.
    Hobby Lobby and Little Sisters are two examples where he 
was in favor of the religious objectors, and he found that 
there was a substantial burden on their religious exercise in 
those cases. And the Government even ultimately conceded that 
they had alternative ways to meet their interests without 
forcing these religious objectors to violate their faith.
    And I think, you know, those two cases show very clearly 
that there was no conflict to begin with between religious 
liberty and women's rights. But there are some other cases 
where he has held that the religious parties were either 
insincere or that they did not suffer a substantial burden 
under RFRA.
    There was one case I spoke about in my written testimony 
where a couple had set up a fake church, created to distribute 
marijuana, and they sought the protection of RFRA for their 
drug running. And Judge Gorsuch said, sorry, that is an 
insincere claim, and RFRA is not going to protect you there.
    So I think, you know, Judge Gorsuch's ability to really 
require the Government, as he has said over the last few days, 
to square its corners, to prove its case, to show that it has a 
good justification for what it is doing, along with his ability 
to really impose and recognize these reasonable limits on 
religious liberty where there are meritless claims shows that 
he has a very balanced and thoughtful approach to applying 
these statutes, as he has done so over the last 10 years on the 
Tenth Circuit.
    And how critical is it that these statutes be faithfully 
interpreted and faithfully applied? Well, it is absolutely 
critical.
    And as you know, Senator, you know, RFRA has been used to 
protect religious minorities around the country, and certainly 
many of Becket's clients are religious minorities. I am 
thinking here of Pastor Soto, who is a pastor of a Native 
American church out in Texas, and the Government created 
Operation Powwow and went in undercover and invaded his 
religious circle to confiscate eagle feathers.
    Now it was because of RFRA and, I might also add, the Hobby 
Lobby decision, which the Court cited, that he was able to get 
those precious eagle feathers back and use them in his 
religious ceremonies.
    It was also RFRA who helped another of Becket's clients, 
Captain Simmer Singh, who is a devoted Sikh, to be able to ask 
the Army to give him an accommodation so that he could wear a 
religious beard and a turban according to the requirements of 
his faith. And eventually, he was able to get that 
accommodation, thanks to RFRA. And then, eventually, the Army 
was actually willing to change its regulations so that now all 
Sikhs can faithfully serve in the Army and not have to deny 
their faith in doing so.
    So I appreciate the question, Senator. I think it is a 
really important point that we make here that RFRA and RLUIPA 
protect religious minorities around the country and do this 
vital work of preserving religious freedom.
    Senator Hatch. Well, thank you so much.
    Chairman Grassley. Senator Franken.
    Senator Franken. Thank you, Mr. Chairman.
    Ms. Phillips, thank you for your testimony honoring your 
daughter.
    Ms. Phillips. Thank you very much.
    Senator Franken. So sorry for your loss.
    Ms. Phillips. Thank you. I appreciate that.
    I would also like to ask Senator Grassley if he would 
please make note in the record that this gentleman next to me 
does not speak for me or my dead daughter.
    Chairman Grassley. You just made that point, and we accept 
it.
    Ms. Phillips. Thank you.
    Chairman Grassley. Proceed, Senator.
    Senator Franken. Okay. Ms. Clarke, thank you for being here 
today. I would like to talk about voting rights.
    Now as Judge Gorsuch and I discussed yesterday, the Supreme 
Court's Shelby County decision gutted the preclearance 
provision of the Voting Rights Act, which required certain 
States, States with a history of engaging in discriminatory 
practices at the polls, to get the Federal Government's 
approval before making changes to the voting laws.
    Shelby County struck down the provision that determined 
which States were covered by preclearance, meaning that none 
are. I am not sure that people fully appreciate just how 
quickly some of the States previously covered by preclearance 
reacted to Shelby County, the Shelby County decision.
    Let us look at North Carolina. The Shelby County decision 
was issued on June 23, 2013. North Carolina legislators had 
already teed up a photo ID bill in anticipation of the ruling, 
and within hours of the decision, a State Senator indicated 
that it would start to move. And it did. Additional provisions 
were added, and the North Carolina Senate approved an omnibus 
package of restrictions on July 25, 2013, 2 days later.
    No African-American member of the State Senate voted for 
the bill. The House approved the Senate's bill later that same 
day. The Governor signed it on August 12, 2013.
    Now after Shelby County, Section 2 of the act remained in 
place. But where preclearance stopped discriminatory measures 
before they could do any harm, Section 2 allows plaintiffs to 
challenge restrictions after they have been enacted. So even 
though litigants successfully challenged North Carolina's 
restrictions under Section 2, even though this Fourth court 
found that the law ``targeted African-Americans with almost 
surgical decision, the Fourth Circuit did not strike down that 
law until July 29, 2016.''
    That means that some of those restrictions were on the 
books for years before a successful Section 2 challenge could 
work its way through the courts. In the meantime, these 
restrictions kept people from voting.
    According to the NAACP Legal Defense Fund, hundreds of 
North Carolina voters, disproportionately people of color, were 
not counted in the 2014 primary election because North Carolina 
eliminated same-day registration and allowed provisional 
ballots to be thrown out if they were cast at the wrong polling 
place.
    So I mentioned this to Judge Gorsuch. I wanted to know 
whether Judge Gorsuch was bothered by the consequences of the 
Shelby County decision. He said that Section 2 was still 
available.
    I responded by pointing out that bringing a challenge under 
Section 2 can take time, and in the time it takes to bring one 
of those challenges, people are robbed of their right to vote. 
We went around the barn a few times on this. He told me that 
voting is a fundamental right--I know that--but did not answer 
my question.
    Ms. Clarke, I was not reassured by my conversation with 
Judge Gorsuch. Now I understand that he cannot weigh in on 
certain policies or proposals, but as a judge who makes 
decisions based on the facts and the law alone, as he says, I 
think it is important to know whether he takes proper measures 
of the facts.
    And the fact of the matter is, is Section 2 is not adequate 
on its own. Do you agree?
    Ms. Clarke. Thank you for the question, Senator Franken.
    Section 2 of the Voting Rights Act is no adequate 
substitute for the strong protections that had long been 
provided by the Section 5 preclearance provision of the Voting 
Rights Act. I believe this is an important area for the Senate 
to focus on.
    The right to vote is the most sacred civil right in our 
democracy, and I listened to Judge Gorsuch yesterday in 
response to your question. I listened to his response to 
Senator Leahy, who asked for his view about Justice Scalia's 
statement in the Shelby County argument, where he referenced 
the Voting Rights Act as a racial entitlement.
    And he refused to disavow that statement or distance 
himself from that statement, and I find that deeply troubling. 
I believe our Nation deserves Justices on our Nation's highest 
court who appreciate that the right to vote is central in our 
democracy and understand and appreciate that right remains 
under attack.
    You point to the example in North Carolina, and sadly, we 
have seen the floodgates of voting discrimination and voter 
suppression open all across our country since the Supreme 
Court's 2013 ruling in Shelby County, Alabama v. Holder.
    Texas is another example. On the day that the Court issued 
its ruling, it put in place a discriminatory and burdensome 
photo ID requirement that, on the day it went into effect, 
disenfranchised more than 600,000 legitimately registered 
voters who were without one of the forms of qualifying ID. I 
listened intently and carefully to Judge Gorsuch's response to 
questions on the right to vote and on the Voting Rights Act and 
remain incredibly dissatisfied.
    Again, our Nation deserves a Justice who will take the 
Bench and understand that grave challenges arising under the 
Voting Rights Act and other controversies concerning voting 
will come before the Court, and we need a Justice who will be 
prepared to ensure that what remains of the Voting Rights Act 
is fairly interpreted and applied.
    Senator Franken. Mr. Chairman, may I just ask consent--
thank you, by the way. Ask consent that the NAACP Legal Defense 
and Education Fund report entitled ``The Civil Rights Record of 
Judge Neil M. Gorsuch'' be entered into the record?
    Chairman Grassley. Without objection, that will be entered 
in. Thank you, Senator.
    [The information appears as a submission for the record.]
    Senator Franken. Thank you.
    Chairman Grassley. Senator Crapo.
    Senator Crapo. Thank you, Mr. Chairman. I do not have any 
questions.
    Chairman Grassley. Okay. Then Senator Hirono.
    Senator Hirono. Thank you, Mr. Chair.
    Chairman Grassley. Am I beginning to pronounce your name 
right?
    Senator Hirono. I think you have been doing okay so far. 
Otherwise, I would have corrected you.
    Senator Franken. He is actually--[whispering] it is Hirono. 
Hirono.
    [Laughter.]
    Senator Hirono. Thank you. Okay. You have to add another 10 
seconds to my time for that.
    [Laughter.]
    Chairman Grassley. Add 15 seconds to her time.
    Senator Hirono. Thank you.
    So, Ms. Clarke, let me continue with Shelby County because 
we talked about what happened in North Carolina and in Texas, 
where not only did they pass a voter suppression law, but they 
made it very plain their discriminatory intent. So, generally, 
these kinds of laws do not have that kind of intent, and it is 
very difficult, is it not, to prove discriminatory effect under 
Section 2?
    Ms. Clarke. Senator Hirono, it is, indeed, difficult. But 
sadly, we are seeing States and localities put voting 
restrictions on the books that not only have a discriminatory 
effect on protected minority groups, but we're seeing evidence 
of discriminatory purpose animating the laws in North Carolina. 
Texas' photo ID is one law that we believe clearly was adopted 
to disenfranchise African Americans, Latinos, the elderly, and 
students.
    Senator Hirono. So the very thing that people were 
concerned about, because you argued the Shelby County case, 
that people were concerned about would happen after the Court 
eliminated Section 5 would happen, did happen, and some 13 
States, maybe more, are passing various kinds of laws that 
disenfranchise, in effect, voters.
    So, well, I know that you were listening to Judge Gorsuch's 
testimony yesterday and the day before, probably all of you 
were. And it was very difficult to ascertain what his judicial 
philosophy is because he basically said that he would apply 
precedent.
    Let me ask Ms. Miller, you founded Whole Woman's Health, 
and I commend you for that. Thank you for the work that you are 
doing.
    I think you are probably familiar enough with the Hobby 
Lobby case, where the access to contraception coverage for 
some, well, there are thousands of Hobby Lobby employees. And 
to have Hobby Lobby be referred to as a ``family owned 
business,'' when they basically had over probably 30,000 
employees is a stretch to me. But nonetheless, there were 
thousands of Hobby Lobby employees whose right to contraceptive 
coverage was given very short shrift or no consideration at 
all.
    Ms. Miller, do you consider Judge Gorsuch's position on 
Hobby Lobby, do you see Hobby Lobby as indicative of where 
Judge Gorsuch would be on issues relating to a woman's right to 
choose?
    Ms. Miller. Thank you for the question.
    I absolutely do. I think that women have a right to 
healthcare that covers all of our healthcare needs, whether it 
is contraception, preventive care, abortion services, 
pregnancy, everything. And I do not think that we can be sort 
of set aside because of who we work for.
    Senator Hirono. Professor Marshall, there are a number of 
ways to describe originalism, and I have come to the conclusion 
that originalism is used as a tool and a justification to 
restrict the rights of vulnerable Americans. So let me ask you 
this.
    If originalism had been applied, would the Supreme Court 
have made the--would Supreme Court's decisions have been what 
it was in the following cases? And I want to cite the cases to 
you. Griswold v. Connecticut? If they had applied originalism, 
would the Court have come up with that decision?
    Professor Marshall. No, Your Honor. No, Senator. Sorry. 
But----
    [Laughter.]
    Professor Marshall. It would be great by me if they were 
appointing you to the Supreme Court.
    [Laughter.]
    Senator Hirono. Thank you for that. Loving v. Virginia?
    Professor Marshall. No.
    Senator Hirono. Virginia v. United States?
    Professor Marshall. No.
    Senator Hirono. Lawrence v. Texas?
    Professor Marshall. No.
    Senator Hirono. Obergefell v. Hodges?
    Professor Marshall. No.
    Senator Hirono. Thank you. So, basically, you did write 
that it is basically a philosophy or an approach to 
construction that conservatives use to restrict rights?
    Professor Marshall. I think it was mentioned earlier today 
that originalism took hold as a reaction to the Warren Court. 
So that might give a little bit of sense of the direction that 
it took.
    There was just a discussion of Shelby County, which I would 
happen to agree is one of the most important cases decided by 
the Supreme Court in the last 100 years because of its effect, 
and yet the originalist case for striking down the preclearance 
provisions of Section 5 is very weak. It was recently--a recent 
article in the Harvard Law Review pointed out the fallacy 
behind the notion of equal dignity that the Court relied on in 
that case.
    So, yes, it has been selectively used. And as I point out 
in my testimony, in cases like Federal affirmative action, when 
an originalist decision would clearly uphold Federal 
affirmative action, the originalists slid away from that 
decision.
    Senator Hirono. Mr. Chairman, I just wanted to express my 
profound sorrow for Ms. Phillips. We all share that feeling. 
Thank you very much for being here and testifying.
    Thank you, Mr. Chairman.
    Chairman Grassley. Thank you, Senator.
    Senator Kennedy, do you have any questions? Proceed.
    Senator Kennedy. Thank you, Mr. Chairman.
    Ms. Miller, I think I understand your position on abortion. 
I went to your website--which is a well-put-together website.
    Ms. Miller. Thank you.
    Senator Kennedy. And it is an issue that divides many 
Americans. Would you ever support a nominee for the U.S. 
Supreme Court that did not agree with you on abortion?
    Ms. Miller. Senator, whether the nominee agrees with me, to 
me, is not what is at issue here. It is whether they can uphold 
the precedent and the rule of law.
    Senator Kennedy. Let me rephrase it, and I am sorry to 
interrupt, but they do not give me much time.
    Ms. Miller. It is okay. I know.
    Senator Kennedy. Would you ever support a nominee to the 
U.S. Supreme Court who would not declare in front of the United 
States Senate on the Judiciary that he or she supported Roe v. 
Wade?
    Ms. Miller. I think what we have seen Judge Gorsuch do is 
acknowledge----
    Senator Kennedy. No, ma'am. I am asking you----
    Ms. Miller. Yes.
    Senator Kennedy [continuing]. Would you ever support a 
nominee that would not do that?
    Ms. Miller. I am trying to answer the question. I am sorry. 
But what I--what we have seen him do is acknowledge that Roe 
exists, but I have not heard him affirm that he is going to 
uphold it.
    Senator Kennedy. Okay. But I am not asking about Judge 
Gorsuch. I am sorry. I am probably not being clear. Would you 
support any nominee for the U.S. Supreme Court who did not come 
before this panel and say ``I support Roe v. Wade''?
    Ms. Miller. I believe that Roe v. Wade is precedent and 
that it is important for the Justices to uphold precedent.
    Senator Kennedy. Okay. Is that a yes?
    Ms. Miller. Yes, it is.
    Senator Kennedy. Okay. And look, that is your right. You 
are an American. I mean, you can believe what you want.
    I do have to ask you this, though. You made a charge that 
Judge Gorsuch decides cases purely on the basis of his personal 
policy preferences, and that is a pretty serious charge. What 
is your basis for saying that?
    Ms. Miller. So what I said is I am concerned that he will 
not be able to set aside his personal beliefs and rule 
independently.
    Senator Kennedy. Why do you say that? What is your evidence 
for that?
    Ms. Miller. Because I have seen him in the Hobby Lobby case 
and the Planned Parenthood v. Utah case. I think that he ruled 
in favor, as you guys say, of the ``big guy.'' I would say of 
the--you know, I tend to side with the ``little gal,'' and I am 
concerned that women's rights were set aside in favor of big 
business.
    Senator Kennedy. Do you think judges ought to decide cases 
based on the wealth or status or power of the parties, based on 
the identity of the parties?
    Ms. Miller. Absolutely not.
    Senator Kennedy. You just said you always support the 
little guy, whatever that is.
    Ms. Miller. I am concerned that women's rights were set 
aside in favor of a large corporation in the Hobby Lobby case.
    Senator Kennedy. And what is your--what is your evidence 
for saying that?
    Ms. Miller. The Hobby Lobby case?
    Senator Kennedy. No. What is your evidence for making the 
statement about the judges in that case decided it purely on 
their personal policy preferences?
    Ms. Miller. Because I think the beliefs got in--I think 
personal beliefs and religious beliefs got in the way of 
objectivity when women are trying to access healthcare.
    Senator Kennedy. And what is your evidence for saying that?
    Ms. Miller. Reading the Hobby Lobby case.
    Senator Kennedy. The result?
    Ms. Miller. Yes.
    Senator Kennedy. Okay.
    Ms. Miller. Yes.
    Senator Kennedy. Professor Meyer, how do you like 
Vanderbilt?
    Mr. Meyer. Very much, Senator. Thank you.
    Senator Kennedy. Yes. Do you go to the basketball games?
    Mr. Meyer. Sometimes. We probably should not talk about how 
the first round ended at the NCAA tournament. Yes, thank you. 
Thank you for bringing that up.
    [Laughter.]
    Senator Kennedy. You spent a year with Judge Gorsuch?
    Mr. Meyer. I did, yes.
    Senator Kennedy. Yes. You saw him when he was tired?
    Mr. Meyer. I did.
    Senator Kennedy. Saw him when he was under pressure?
    Mr. Meyer. I did.
    Senator Kennedy. You probably saw him more than he saw his 
spouse that year, did you not?
    Mr. Meyer. Yes.
    Senator Kennedy. He works pretty hard, doesn't he?
    Mr. Meyer. He does work very hard.
    Senator Kennedy. Works you pretty hard, too, doesn't he?
    Mr. Meyer. Yes, he did.
    Senator Kennedy. Have you ever seen him decide a case based 
purely on the personal--his personal policy preferences?
    Mr. Meyer. I did not ever see him bring his personal policy 
preferences into chambers at all, ever.
    Senator Kennedy. Have you ever seen him walk in and say, 
okay, Mr. Clerk, do not show me the briefs here. We will look 
at those later. Let us go do some research on who the parties 
are?
    Mr. Meyer. No. That never happened. He pays scrupulous 
attention to the briefs.
    Senator Kennedy. Have you ever seen him decide a case based 
on a litigant's wealth?
    Mr. Meyer. No.
    Senator Kennedy. You spent--how long did spend with him?
    Mr. Meyer. I worked for him for about 14 months.
    Senator Kennedy. Fourteen months. You ever see him in 14 
months decide a case based on the litigant's status or power?
    Mr. Meyer. No.
    Senator Kennedy. Did you ever see him succumb to political 
pressure?
    Mr. Meyer. Not at all. Not once.
    Senator Kennedy. Okay. Did you ever see him sit down and 
use a tic sheet to say, okay, I have decided this many cases 
for the little guy, whatever that is, and this many cases for 
the big guy. So we need to give one to the little guy. Did he 
ever--is that his approach?
    Mr. Meyer. Absolutely not, Senator.
    Senator Kennedy. I am out of time.
    [Laughter.]
    Senator Kennedy. Thank you. Thank you, Mr. Chairman.
    Mr. Meyer. Thank you, Senator.
    Chairman Grassley. Senator Blumenthal is next, but I am 
hoping that if no other Members come in who have not asked 
questions that I will ask my questions, and then I will close.
    Senator Blumenthal.
    Senator Blumenthal. Yes, thank you.
    Chairman Grassley. Yes.
    Senator Blumenthal. First of all, Ms. Phillips, there is 
nothing--there is nothing anyone can say here to ease the pain 
or close the hurt. And I know from having worked with families 
of Sandy Hook and many, many others around Connecticut and the 
country how senselessly and needlessly you suffer as a result 
of gun violence.
    And all I can do is pledge to you that more than saying 
anything, I will continue to work as hard and long as possible 
for common sense measures that will stop gun violence in this 
country.
    Ms. Phillips. Senator Blumenthal, you know you are my hero.
    Senator Blumenthal. Well, thank you.
    Ms. Phillips. And the work that you are doing in 
Connecticut, the whole country should look to as the leadership 
that you have given there to emulate throughout the country.
    So thank you.
    Senator Blumenthal. I deeply appreciate those comments, but 
much more important, I deeply appreciate the work that you are 
doing day in and day out. And I know that every day, as you 
said so eloquently at the opening, the work you do reminds you 
of your loss. And all I can do is stand in awe and admiration 
of what you are doing.
    And that is partly the reason why I asked Neil Gorsuch 
yesterday about exactly this topic and about his reading of the 
Heller decision, which, in my view, perfectly well allows 
measures to stop gun violence, including stopping the kind of 
weapon that was used to kill your daughter. The fact that this 
country has failed to stop the sale of such weapons and impose 
commonsense measures like universal background checks is 
absolutely reprehensible.
    And I was disappointed in Judge Gorsuch's response to me 
when I asked him these questions because he failed to agree 
with me in my reading of the statute and used the same kind of 
disclaimer that he did in response to numerous other questions 
that I put to him that he would not answer about a particular 
case or controversy, would not state his personal views.
    And I think that a person's stance on these issues is a 
matter of core beliefs and principles and values that a judge 
brings to the bench. No matter how objective and impartial he 
or she may be, every judge is a flesh and blood human being, 
not an automaton, and I was looking to what was in his heart, 
as one of my colleagues put it.
    So I just really want to thank you for being here today and 
for giving a face and voice to this profoundly important 
American issue.
    Thank you very much.
    Ms. Phillips. I am honored, sir. Thank you.
    Senator Blumenthal. I want to ask--Ms. Miller, I want to 
thank you for the great work that you are doing at Whole 
Woman's Health and the service that you provide for women every 
day.
    And as you may know, yesterday, when I asked Judge Gorsuch 
about Brown v. Board of Education, he said, in effect, that 
decision was correctly reached, that the result was correct, 
that he agreed with it. But he was not willing to say the same 
about the cases underlying the constitutional right to privacy, 
which underlies the work that you do every day. It is not just 
the results of those cases. It is the core constitutional 
principle underlying them.
    Why is the right to privacy so important for people facing 
the very personal, private decisions that they do in coming to 
your clinic, and why is apprehension or doubt about that right 
so hurtful?
    Ms. Miller. I appreciate your question, and I am very 
thankful for your support.
    I cannot get over the fact that candidate Trump and 
President Trump has been very clear that there was a litmus 
test for this nomination, and in addition to that, we have not 
seen Judge Gorsuch affirm his support for Roe. He has 
acknowledged it exists.
    And the woman's right to privacy is a fundamental right for 
our ability to realize our full humanity and for us to 
participate in society as equal citizens. We have to be able to 
control our reproduction and via contraception and sometimes 
via access to safe abortion care. And I think that is a 
fundamental right that has been approved and reaffirmed by the 
Supreme Court for over 40 years.
    Senator Blumenthal. Thank you.
    My time is up. I really want to thank all the members of 
the panel for being here today. This is a profoundly important 
proceeding for the Nation, and you are making a great 
contribution.
    Thank you so much.
    Chairman Grassley. I have three questions I want to ask, 
and I would like to have my time start now. But I want to yield 
a few seconds to Senator Kennedy because he asked for that. Go 
ahead.
    Senator Kennedy. Thank you, Mr. Chairman.
    Chairman Grassley. Out of my time.
    Senator Kennedy. I will be lightning fast if it is coming 
out of your time.
    Professor Jaffer? Am I saying that right?
    Mr. Jamil Jaffer. Yes, sir.
    Senator Kennedy. I just want to clear up the record. Did 
you mean to speak for anybody today other than yourself?
    Mr. Jamil Jaffer. Well, thank you, Senator Kennedy, for the 
opportunity to clarify. I certainly did not, and I wanted to 
apologize to Mrs. Phillips. I did not mean to suggest that I 
was speaking on behalf of her or her family.
    Senator Kennedy. Okay. I did not take it that way, but I 
appreciate you clearing the record.
    Thank you.
    Mr. Jamil Jaffer. Thank you.
    Chairman Grassley. I will bet Mr. Kirsanow thinks that if I 
ask him a question, it is because he has not spoken lately. But 
I do have a question for you.
    You have watched the last 2 days of testimony. A lot of it 
has focused on Judge Gorsuch's record on civil rights. I would 
like to focus first on the cases that he decided alleging 
discrimination on the basis of race. What conclusions can you 
draw from his record in this area?
    Mr. Kirsanow. The conclusions are, as I testified, that 
when it comes to the application of the law, that Judge Gorsuch 
is precise. He is a faithful applicant of the law to the facts. 
And if you are looking for an outcome-driven judge, he is your 
wrong judge. If you are looking for someone who will apply the 
statutory text as written by this body, that is your judge.
    Chairman Grassley. Okay. Now, Ms. Smith, now while Hobby 
Lobby seems to get the most attention, Judge Gorsuch has 
applied Federal law protecting religious freedom, specifically 
the Religious Land Use and Institutionalized Persons Act--I 
think you referred to that already--to protect the First 
Amendment rights of other Americans as well.
    For example, could you tell us a bit about Calbone, and 
then I think you already mentioned Yellowbear but say it again 
for the benefit of responding to me. And then how--so it really 
does--I think it is going to show that Judge Gorsuch, depending 
on your response, has applied these statutes to protect 
Americans of all faiths.
    Ms. Smith. Thank you very much, Chairman.
    Yes, so the first case that you mentioned was Abdulhaseeb 
v. Calbone, and that was a case I think that really 
demonstrates just what a fair judge Judge Gorsuch is because he 
was on that panel, and they had a pro se prisoner bring this 
claim for a religiously required diet. And it was a Muslim 
prisoner. And the panel decided that there would be potentially 
some merit to some of the claims that he had brought.
    And so the panel decided that they were going to appoint 
counsel in that case. So they appointed counsel so that this 
Muslim prisoner would have the benefit of a real lawyer who 
knew what he was doing to help him argue his case effectively 
before the Court.
    They also gave an extended schedule. So they extended the 
briefing schedule so that they had more time to really dig 
deeply into these claims. And ultimately, that panel decided 
that this Muslim prisoner was due a religiously required diet 
under the Religious Land Use and Institutionalized Persons Act, 
and Judge Gorsuch agreed with that decision of the Court.
    And then in Yellowbear, the case that I discussed in my 
opening statement. It is a very significant case involving a 
Native American prisoner who had claimed that he was being 
denied access to a sweat lodge, which was essential to his 
religious practice, being a Northern Arapaho Native American.
    And Judge Gorsuch, in a unanimous opinion, wrote an 
eloquent opinion saying that, you know, prisoners are denied so 
many of their civil liberties when they go to prison, but 
religious exercise should not be one of them. And he went on to 
find that the Government had not proven its case, that they had 
not shown that they had a compelling reason to deny him access 
to this sweat lodge. And so, again, in that case, the little 
guy, the Native American prisoner, prevailed in that case.
    And I think both of these are really important cases to 
show that, you know, Judge Gorsuch applies Federal statutes as 
Congress has written them to protect the religious liberty of, 
in these two cases, a Muslim prisoner and a Native American 
prisoner.
    Chairman Grassley. Thank you very much.
    Now, Mr. Meyer, my last question. Since you worked with him 
for a year, I think you can touch on this issue.
    What does he look to get out of advocates during oral 
arguments? Have you ever witnessed him change his mind about a 
case during oral argument?
    Mr. Meyer. Thank you, Senator.
    Oral argument is incredibly important to the judge. It is 
part of the basic notion that the litigant should have a fair 
opportunity to be heard. And yes, I have seen the judge change 
his mind based on oral arguments.
    The briefs, of course, are the fullest presentation of the 
parties' arguments. But what oral argument does is it gives you 
the opportunity to interact and pose some questions to counsel 
that they may have not actually addressed in their briefs. And 
I have seen a number of cases that the judge's thinking has 
been shaped in certain--on certain questions by the exchanges 
he is had with counsel.
    His preparation for oral argument is incredible. I mean, 
the amount of the number of hours he devotes to the briefs, and 
then thinking through all of the issues in the briefs and 
background research is really--is really incredible. It is a 
huge amount of time.
    Chairman Grassley. Okay. Senator Blumenthal, I was told you 
would like to ask one more question.
    Senator Blumenthal. I have one more brief question, Mr. 
Chairman.
    Chairman Grassley. Go ahead. Please proceed.
    Senator Blumenthal. Professor Marshall, I was struck in 
your testimony by your reference to Brown v. Board of 
Education, and as you will note in my discussion with Ms. 
Miller, I mentioned the distinction that there was in Judge 
Gorsuch's comments on the privacy cases versus Brown in the way 
that he acknowledged that the privacy cases were decisions of 
the Court, and he declined to say whether or not he thought 
they were correct, and Brown v. Board of Education, which he 
said, in effect, was correctly decided.
    So my question is when I saw the reference to Brown, it 
reminded me of a question that I did not have time to raise 
yesterday with Judge Gorsuch, which is whether Brown v. Board 
of Education is somehow distinguishable because it is an 
originalist case?
    I do not believe it is, but you are the professor. So let 
me ask you.
    Professor Marshall. No, it is not an originalist case, or 
at least if it was, it would be a surprise to the framers and 
the drafters of the Fourteenth Amendment, who supported 
segregated schools in the District of Columbia. It would be a 
surprise to the Justices who wrote and signed on to the Brown 
case.
    They looked for an originalist backing, and they 
specifically requested information on whether it was supported 
by originalism. They were told no, and they decided the case 
anyway. So it is very difficult to get to that point.
    Some originalists try to get there, and the reason why they 
try to get there is because of how difficult it would be to say 
we have a theory of the Constitution that does not support 
Brown v. Board of Education.
    But my answer would be the problem is not with Brown v. 
Board of Education. The problem is with the theory that, if 
honestly applied, does not get there.
    Senator Blumenthal. And just by way of historical 
enlightenment, I think I remember correctly--it has been a 
while since I looked at the history--actually, Chief Justice 
Warren asked Justice Frankfurter to find an originalist 
justification for Brown. He went to one of his law clerks, I 
think it was Alexander Bickel, who then wrote about it 
subsequently.
    And Bickel could not find anything. Frankfurter could not 
find anything. And Warren said, well, we are going to reach the 
result anyway. We will write the opinion without an originalist 
justification. Am I roughly correct in that?
    Professor Marshall. You are absolutely correct.
    Senator Blumenthal. Thank you. I am sorry I am not in your 
law school class.
    Chairman Grassley. If you want to----
    Professor Marshall. I think you could teach it.
    Chairman Grassley. If you want to review--or a view of a 
farmer after that discussion, I would say that you very clearly 
say that it is not originalist. Gorsuch said that it was not, 
and I think you backed up what he said because he said 
yesterday that he did not consider that part of--or that you 
can call him an originalist, at least on that point.
    Okay. I want to thank----
    Senator Blumenthal. Thank you, Mr. Chairman, for your 
courtesy and being able to ask the question.
    Chairman Grassley. Yes. So it is my opportunity for the 
third time today to thank the panel for participating. I know 
it takes a lot of work for time to be here, your presentation 
and your preparation. And it is all part of a very important 
part that Congress does not get--and thank God does not get 
involved in very often because we do have continuity on the 
Supreme Court, but it is very important for all the testimony. 
So I want to thank you for that.
    And then for the benefit of the Committee, I said earlier 
this week, so this should not come as a surprise, questions for 
the record are due by tomorrow at 5 p.m. The record will also 
remain open until tomorrow at 5 p.m.
    [The information appears as a submission for the record.]
    Chairman Grassley. The hearing is now adjourned.
    Thank you all.
    [Whereupon, at 3:46 p.m., the Committee was adjourned.]
    [Additional material submitted for the record for Day 1, 
Day 2, Day 3, and Day 4 follows.]

                            A P P E N D I X

Additional Material Submitted for the Record
              
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]              





Prepared Statement of Hon. Neil M. Gorsuch
               
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]               


Prepared Statement of Senator Michael S. Lee

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



Prepared Statement of Senator Richard J. Durbin
            
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]            


Prepared Statement of Senator Al Franken

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


Prepared Statement of Senator Thom Tillis

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


Prepared Statement of Jeff Lamken

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




                 Additional Submissions for the Record

A list of material and links can be found below for Submissions for the 
                                 Record
 not printed due to voluminous nature, previously printed by an agency 
                                 of the
   Federal Government, or other criteria determined by the Committee:

    Constitutional Accountability Center, Elizabeth B. Wydra, 
President,
     Washington, DC, statement:
        https://www.judiciary.senate.gov/imo/media/doc/Constitutional
        %20Accountability%20Center%20-%20Statement.pdf

    Demos, ``Breaking the Vicious Cycle: Rescuing Our Democracy and
     Our Economy by Transforming the Supreme Court's Flawed Approach
     to Money in Politics,'' Adam Lioz, New York, New York, report:
        https://www.judiciary.senate.gov/imo/media/doc/Demos%20-%20
        Breaking%20the%20Cycle.pdf

    Demos, ``Court Cash: 2016 Election Money Resulting Directly From
     Supreme Court Rulings,'' Adam Lioz, Counsel and Senior Advisor,
     Policy and Outreach, Juhem Navarro-Rivera, Senior Policy Analyst,
     and Sean McElwee, Policy Analyst, New York, New York, report:
        https://www.judiciary.senate.gov/imo/media/doc/Demos%20-%20
        Court%20Cash.pdf

    Endrew F. v. Douglas County School District RE-1 (2017), legal 
case:
        https://www.judiciary.senate.gov/imo/media/doc/Endrew%20F.%20v.
        %20Douglas%20County%20School%20District%20Re-1%20(2017).pdf

    Herndon-Reston Indivisible, Herndon, Virginia, letter to Hon. 
Charles E.
     Schumer, a U.S. Senator from the State of New York, January 26, 
2017:
        https://www.judiciary.senate.gov/imo/media/doc/Herndon%20Reston
        %20Indivisible%20-%20Letter_Redacted.pdf

    Laird v. Tatum, 92 S. Ct. 2318, legal case:
        https://supreme.justia.com/cases/federal/us/408/1/case.html

    Lawyers' Committee for Civil Rights Under Law, ``Report on the
     Nomination of Judge Neil M. Gorsuch as an Associate Justice of the
     United States Supreme Court,'' Washington, DC, March 2017, report:
        https://www.judiciary.senate.gov/imo/media/doc/Lawyers'%20
        Committee%20for%20Civil%20Rights%20Under%20law%20-%20
        Report%20on%20Neil%20M%20Gorsuch.pdf

    National Association for the Advancement of Colored People Legal
     Defense and Educational Fund, Inc. (LDF), ``The Civil Rights
     Record of Judge Neil M. Gorsuch,'' New York, New York, and
     Washington, DC, March 16, 2017, report:
        https://www.judiciary.senate.gov/imo/media/doc/NAACP%20Legal
        %20Defense%20Fund%20Report%20on%20Neil%20Gorsuch.pdf

    Post, Robert C., and Reva B. Siegel, Yale Law School, ``Questioning
     Justice: Law and Politics in Judicial Confirmation Hearings,''
     Yale Law School Legal Scholarship Repository, January 1, 2006, 
article:
        http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=
        1173&context=fss--papers