Transcripts For CNNW CNN Newsroom With John Berman And Poppy Harlow 20170321

And your personal views about the precedent have absolutely nothing to do with the good job of a judge. Let me ask you about citizens united. In this case, the Supreme Court held the government cant restrict independent political expentdature by a nonprofit organization. Do you agree with that decision . Senator, id 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. Were all human beings. I get that. Im not an algorithm. Theyve hasnt yet replaced judges with algorithms, but maybe ebay is trying. And maybe successfully. Were all human beings but the judges job is to put that stuff aside and approach the law as you find it. And thats part of the precedent of the United States Supreme Court that im sworn as a sitting judge to give the full weight and respect to due precedent. Those two cases were 54 decisions so let me ask you about something that was unanimous. Hosanna tabor. The Supreme Court ruled 90 that the Obama Administration couldnt 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 90. Can you tell me if that case was decided correctly . Respectfully, senator, i give you the same answer. Okay. Those are relatively recent cases. Lets talk about cases thats been around for a while. Gideon wainwright. It was decided 50 years or more. It says a criminal defendant has a right to an appointed attorney if he cant afford one. Everyone who watches cop tv shows know that 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 . Mr. Chairman, it certainly say seminal decision of the United States Supreme Court. No question about it. A very old decision of the Supreme Court now. Its been reaffirmed many times. Theres a lot of reliance built around it. So i can talk to you about the factors that a good judge considers in analyzing precedent and the weight due of precedent. But im not in a position to tell you whether i personally like or dislike any precedent. Thats not relevant to my job. Gideon is a seminal precedent 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 im new or the latest thing and no better than everybody who comes before me would be an act of hubris, inappropriate to the judicial role. What if i ask you about bush versus gore . I know some people in this room have some opinions on that, im sure, senator. But as a judge, its a precedent of the United States Supreme Court. And it deserves the same respect as other precedents of the United States Supreme Court. When youre coming to it as a judge. And it has to be analyzed under the law of precedent. Well, lets go to a kind of more controversial issue, but along the same lines ive 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 . Senator, again, roe vs. Wade decided in 1973 is a precedent of the United States Supreme Court. Its 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 United States 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 United States Supreme Court, worthy as treatment of precedent like any other. 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 . Senator, its a precedent thats now 50 years old . Griswold involved the right of married couples to use contraceptative devices in the privacy of their own home. Its 50 years old. The reliance interests are obvious. Its been repeatedly reaffirmed. All very important factors again in analyzing precedent. Well, i think im going to stop questioning but to 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 cant 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 . 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 ive already made up my mind about their cases. Thats not a fair judge. I didnt want that kind of judge when i was a lawyer. And i dont want to be that kind of judge now. I made a vow to myself i wouldnt be. Thats the fairness problem. And then the independence problem. If it looks like im giving hints or previews or intimations about how i might rule, i think thats the beginning of the end of the independent judiciary. If judges have to make effectively Campaign Promises for confirmation. And respectfully, senator, i havent done that in this process, and im not about to start. Thank you. Ill yield back eight seconds. Senator feinstein . Thank you very much, mr. Chair. Welcome, judge, and good morning. Good morning, senator. Good to see you again. Since were on roe, i wasnt 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 superprecedent, roe did in terms of the numbers. And ive put that in the record. Heres why it becomes of concern. The president said that he would appoint someone who would overturn roe. You pointed out to me that you view 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. Id be delighted to, senator. Part were going to have a real winner. Was a great meeting. Terrific people. They want a tremendous health care plan. Thats what we have, and there are going to be adjustments to it. But i think well get the votes. What was the closing part of the deal, mr. President . All right. You just heard the president say that he thinks the Health Care Legislation which comes up for a vote on the house floor on thursday will pass. Were going to assess that. Were also standing by for a News Conference. The Speaker Paul Ryan is going to be holding a News Conference shortly. In the meantime, gleelets go b to the Senate Judiciary committee. Dianne feinstein is asking questions of neil gorsuch, the Supreme Court nominee. What was once a hotly contested issue is no longer a hotly contested issue. We move forward. And the value of that is the United States 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 . My law clerks tell me its Something Like 0. 001 . And they are unanimous in those cases which have divided circuit judges. Thats why the Supreme Court larmgly takes those cases because its divided us. Its one of the rare cases where we disagree. Theyre unanimous 40 of the time. One other question. Sure. Do you view roe as having super precedent . Senator, i super precedent in numbers. It has been reaffirmed many times. I can say that, yes. 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 im going here. This has to do with torture. The Intelligence Committee was informed in 2006. And attorney general gonzalez played a role in this, the nature of the enhanced interrogation techniques. And you were given a very selfview. Senator rockefeller became 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 sixyear study. The staff spent long hours analyzing every cable, every email, looking at more than 100 interviews. And essentially putting in a 7,000page report, 32,000 footnotes, documenting where the information no conclusions, just facts. That 7,000page report has remained classified. I have read it. We have put out a 450page summary which is public. And in that summary, we indicate that those cases that the administration spelled out were tortureproduced 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 see. I want to ask you some questions along these lines. Its my understanding that the set of talking points were prepared for a press conference for the attorney general on november 22nd, 2005. The talking points asked whether, and i quote, aggressive interrogation techniques employed by the administration yielded any valuable information, end quote. In the margin, next to this question, you hand wrote one word. Yes. What information did you have that the bush administrations aggressive interrogation techniques were effective . Senator, id have to see the document. I dont recall all right. Thats fair enough. Why dont we do this. Id be happy to share the documents with you. I took these pages out of my binder so i wouldnt have to pause, but let me just hold up that answer and well get you the documents on that thank you. 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, and i quote, help inoculate against the potential of having the administration criticized some time 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, end quote. To be clear, the context was that earlier in 2005, the justice Departments Office of Legal Counsel had concluded that cia interrogation tactics like waterboarding and sleep derivation did not amount to cruel, inhuman or degrading treatment. I read your email as an advocating a continuation of these interrogation techniques. And worse, saying that senator mccains amendment actually codified them, which it did not. Is that true, and doesnt it mean that when you wrote this in email, you were condoning waterboarding as lawful . Senator, i want to see the email again. I dont feel comfortable commenting on documents that arent in front of me. But i can say this. I do remember my staff has the documents here. They can bring them down to you. That would be great. Thank you. That would be wonderful. And ill put aside this part. Youll have the documents because there are more. And ill go on to the next subject. No, thats fine. Im happy to i want you to look at the documents. Id like to just know what im talking about. I my recollection generally, i can, from 12 yearsing eric, bring him the documents, please. Thank you, eric. 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 neil kochel. 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. Let me help you here. I know from the documents that you workod the graham effort. Yes. For example, a selfassessment that you wrote said that you helped coordinate the legislative effort on the graham amendment within doj and in consultation with dod and others. Thats absolutely right, senator. I sure did, and im 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 dont remember, which did two things. One, affirmed this countrys 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. 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 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 bibasically prevent be habeas corpus from being used. Of course it was overturned by the court. Senator, youre 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 in investment in this process. And as a lawyer, thats 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 grahams 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 thats the buomeddiene case, as you know, senator. But to say there was no process would be inaccurate, too, because the detainee treatment act had a long list of prescribed processes and the question was simply they were adequate enough under the s suspension clause. That was a close case that divided the court very closely, and i respect that decision as a precedent of the United States Supreme Court no less than any other, senator. One last question on this. Sure. 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, and i quote, the president intended to reserve the right to use harsher methods in special situations involving national security, end quote. 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 youll verify, 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, quote, needs to hear from us, otherwise this may wind up going the wrong way. Senator, i can tell you what i recall. My loose recollection of something that happened, i think, 11, 12 years ago, is that there were individuals that wanted a more aggressive signing statement along the lines you 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 bellanger, among others, i would have associated myself with. I dont know what was in the president s head when he wrote the signing statement. I dont know. I can only tell you what i remember and i certainly never would have counseled anyone that they could disobey the law. No reason not to believe you, but if you will read those sure. And then in my second round, well go back to it. Sure. Id be very happy to baize i think youll see that we didnt make this up. Senator, im not suggesting you are. And there was a there was a tugofwar among parties in the white house. Im sure of that. I wanted to know which side you were on. Well, count me in with John Belanger most of the time on these, okay . And thats my recollection and matt waxman would be another one. And so thats my recollection, senator, sitting here. Ill study these. Okay. Let me ask you a question on wiretapping. In december 2005, news broke that president bush ordered the nsa to intercept the content of certain communications. You helped prepare the Public Defense of the program. For example, in draft testimony that you prepared for attorney general gonzalez defending the program, you wrote these this. Quote, these authorities are vested in the president and they are inherent in the office. They cannot be diminished or legislated away by other coequal branches of government. Paul clement, president bushs solicitor general, quote, found this proposition unconvincing, and it was removed from the testimony. Do you still believe that the president has Inherent Authority to intercept the communications of americans in the United States that cannot be legislated away by congress . Goodness, no, senator. Good. And i didnt believe it at the time. What i was you serving at the time, as i recall. My recollection and id 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, include playing clement, paul clement, a dear friend of mine. And the office of Legal Counsel and others. And assembling it to put words in together that sounded like english. And i think people like my writing, and that was my job. I think i was the scribe. Okay. Lets move on. Id 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 both a majority opinion written by Justice Scalia and the dissent written by Justice Stephens were brilliant examples of originalism where both justices sought to explain the reasoning by looking at the original public meaning of the Second Amendment. Which decision did you agree with, and why . Well, senator, i think weve alluded my difficulty here. I do think everything you just said is accurate. Both Justice Scalia and Justice Stephens wrote excellent opinions in that case. I am not here, though, to grade my boss work. That would be kind of impertinent of me and 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 its now a precedent of the United States Supreme Court. Its binding. Its the law, whether we like it or not. Its the law. And if i start saying i like one opinion or i like the other opinion all right. Ill let you off the hook. Let me go to another one. Thank you. Thank you, senator. In d. C. V. Heller, the majority opinion written by Justice Scalia recognized that. And im quoting. Of course, the Second Amendment was not unlimited, end quote. 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, quote, weapons that are most useful in military service, m16 rifles and the like, may be banned, end quote, without infringing on the Second Amendment. Do you agree with that statement that under the Second Amendment, weapons that are most useful in facility service, m16 rifles and the like, may be banned . Senator, heller makes clear the standard that we judges are supposed to apply. The question is whether its a gun in common use for selfdefense, and that may be subject to reasonable regulation. Thats the test, as i understand it. Theres lots of ongoing litigation about which weapons qualify under those standards. And i cant prejudge that litigation. No, im just asking you, do you agree with his statement, yes or no . The statements out of the heller decision from the and Justice Scalias statement. Whatever is in heller is the law and i follow the law. Do you agree . Its not a matter of agreeing or disagreeing, senator, respectfully. Its a matter of it being the law. And my job is to apply and enforce the law. All right. Fair enough. Let me give you another one. The fourth circuit, judge Harvey Wilkinson offered a separate concurrence, colby v. Hogan. Heres whats he says. 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 legislatu legislatures. I hold judge wilkinson in high regard. Hes a very fine man. And a very fine judge. Can you do a yes or no . No, im i wish i could. I wish you could, too. But the Supreme Court of the United States isnt final because its infallile, as Justice Jackson reminds us. Its infallible because its final. And judge wilkinson had his view and the Supreme Court has spoken. And heller is the law of the land. And justice judge wilkinson may disagree with it, and i understand that. And he may but he will follow the law, no less than any other judge in america. Im confident of that. Hes a very fine judge who takes his oath seriously. Okay. Let me end with one of workers rights. There have been a number of Supreme Court cases where the court has made it harder for workers to hold their employers acoincidentable when they have discrimination or been injured on the job. We discussed that one case, trans am, three or four of us. Let me give you a short list. Ledbetter versus goodyear tire. Which limit ed the ability of women to seek equal pay. It made it more difficult to prove age discrimination. And the university of southwest texas medical center, v. Nasser in 2013 which made it more difficult for employees to prove theyve 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 plain discrimination claims. As senator whitehouse pointed, each of these cases was 54 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 its only fair to ask you, do you disagree with any of the mairjority opinions that jue scalia joined in these cases . If so, which ones do you especially disagree with, and why . These have already been decided. I understand, senator. Again, if i indicate my agreement or disagreement with a past precedent of the United States Supreme Court, im doing two things that worry me sitting here. The first thing im doing is singling to future litigants that i cant 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 continue to be litigated. Ive had post ledbetter act cases in my court. How do we have confidence in you that you wont just be for the big corporations, that you will be for the little man . This is the question that senator horono asked so well yesterday. 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 im just looking for something that would indicate that you would give a worker a fair shot. Maybe its in your background somewhere that i dont know about, but id like to have you respond to it any way you can. Senator, i really appreciate that. I think there is a way to take a look at this question without me potentially prejudging the case. And i appreciate your respect for that. And just to finish that thought, im 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 youre not a fair judge. Ive got no answer for that. No answer for that. So what i think can give you comfort in this area is i know a case or two has been mentioned yesterday. Respectfully, id suggest that does not represent the body of my work. Ive written 2, i participated in 2,700 opinions over 10 1 2 years. And if you want cases where ive ruled for the little guy, as well as the big guy, there are plenty of them, senator. The indian tribe. Would you be willing to submit some of them . Ill name a bunch of them right now. Im sorry, senator, of course. U 5 and 6, fletcher, the rocky flats case which vindicated the rights of people subject to pollution by Large Companies in colorado, uranium pollution. I point you to the magnesium case, similar pollution case, the Salt Lake City area. Colorados effort with renewable energy. Upheld that. Ore versus city of albuquerque involving pregnancy discrimination in the Police Department in albuquerque. Wd sports. Discrimination claim. Casey, energy west, crane, simpson versus cu. Women harassed by the football team. A. M. , brouder, sutton. I can give you a long well find them and well read them. The bottom line is that id like to convey to you from the bottom of my heart is that im a fair judge. I think if you ask people in the tenth circuit, is he a fair judge, youll get the answer you got yesterday from both senator bennett and senator gardner and from general kotchel and senator salazar ten years ago. I cant guarantee you more than that, but i can promise you absolutely nothing less. Okay. I have a minute and 21 seconds. Lets talk chevron. Thats been used thousands of time 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. Heres the point. We can do the rules for the first ten 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 thats still the law. Its working. The goal is ive read articles that say there will be 54 miles by 2025 in this continues. What is wrong with that . How else could we have done it . Im not aware of anything wrong with that, senator. Ive never suggested otherwise. But you what you said is the congress could not legislate by leaving some of the rules up to the scientists or other professionals and departments, as i understood it in chevron. I appreciate the opportunity to correct this misunderstanding, senator. The case i think youre referring to is gutierrez. Thats correct. It involved an undocumented immigrant to this country. And the question was, there are 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 ten years. We had a judicial precedent that said the first statute controls. That was the ruling of our court. After that, three or four years, i cant 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. Senator, that reminded me of 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 act. Thats what the case is about and it suggested respectfully, senator, that under the apa, the administrate of procedures act, this body tasked judges to decide legal questions. And left to administrative agencies great deals when it comes to fact finding. Thats 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 be allowed to rely on Judicial Press dense on the book or have the ball picked up. I think ive exceeded my time. Im sorry. , i apologize. Thank you. You didnt exceed your time because i said if you ask your question before the last second is up, and you did, that wed give whatever time it took for that to be done. If everybody follows that rule, i think well be treating everybody fairly. But i call on senator hatch, id like to enter into the record an article in the wall street journal editorial. Neil gorsuch, how would you vote . Democrats demand the nominee declare himself on cases. Ill just quote the first paragraph. Democrats have come up empty trying to find something scandalous that neil gorsuch has said, so now theyre blaming him for what he wont say. To wit, they want him to declare how he would rule in specific areas of law, questions that every Supreme Court nominee declines to answer, end of kwoeft. Without objection, i enter that in the record. Senator hatch. Thank you, mr. Chairman. Judges, i said yesterday my goal in this confirmation process is to get an understanding or 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 Scalias legacy. Justice scalia, you explained, emphasized thing the difference between judges and legislators. Legislators may appeal to their own moral convictions and to claims about socio utility to shape the laws they think it should be in the future. But they should do none of these in a democratic society, unquote. I think that accurately describes Justice Scalias view. Is that also your own view . Senator, it is, though i have to confess that lecture was attended by about 20 people and its gotten a lot more attention since. Were 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. And one opinion last year, for example, you used phrases such as, quote, its not our job, unquote. And, quote, it simply isnt our business, unquote. What is an Appellate Courts jojob in your view . Its a limited vital role in our separated powers. To make sure every person, poor or rich, mighty or meek, gets equal protection under the law. In vermont marble, though i believe the Lincoln Memorial is made out of colorado marble. And 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 when i sit on the bench and someone comes to argue before me, i treat each one of them equally. They dont 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 open my heart and i listen. And i tell my clerks that their very first and most important job is to tell me im wrong. And to persuade me im wrong as i read the briefs and listen to the arguments. And then if they manage to do that, i tell them their next job is to try to persuade me im 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. Its the law. And its a great joy and its a great privilege and its a daunting responsibility to come in every day and to try and get it right. Then i go listen to the arguments of the lawyers. I dont treat them as cats paws. Theyre 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 listen to my colleagues after that. And senator hatch, i cant tell you how many times in the tenth circuit ive gone through that whole process, go through conference and think i know my mind and then one of my colleagues, harris harts was here yesterday, hes often the one. There are plenty of others, who Say Something absolutely brilliant that changes my mind. And thats the judicial process. And thats the role i see for the appellate judge. Thank you. Thats a 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. Quote, judge sotomayor puts the rule of law above everything else. Judge sotomayor has viewed carefully to the text of statutes, even when doing so results in rulings that go against socalled sympathetic litigants, unquote. Do you agree with senator schumer that your duty is to follow the law, even when it requires ruling against sympathetic litigants . Yes, senator. I cant tell you that when i go home and take off the robe im not a human being, that i dont 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. Thats my oath. Theres not every law in the book i love, you love. Im sure of that. But my job isnt to write the laws. Its to apply the laws. And i try to do that, and that enough is enough for a days work and its enough for a lifes work. In my opening remarks yesterday i mentioned a letter we received from a dozen of your peers at harvard law school. I ask consent that this letter be admitted in the record. Without objection it will be included. All parties 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 . Senator, im just a person. I remember what it was like to represent clients who had problems. My kids asked me what my job was when i was young, was to help people with their problems. And as a judge, i have to resolve their problems. One of the hard things about being a judge is that somebody has to win and somebody has to lose. You make half the people unhappy 100 of the time. Thats the job description. But you have to believe in something larger than yourself and that youre part of something larger than yourself. And i believe in the rule of law in this country. And i believe in 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. The Fourth Amendment protects the right to be free from, quote, unreasonable searches and seizures, unquote. It was written in the late 18th century when the tools used by Law Enforcement to investigate crime and monitor suspects were radically different than they are today. In your view, how should a judge approach interpreting and applying constitutional provisions like the Fourth Amendment in cases where the technologies or and or methods at issue were, obviously, not even imagined by the founders . May i offer an example, senator, i think might be helpful . Sure. I take United States versus jones. Recent case from the United States Supreme Court involving whether Police Officers might attach a gps tracking device to a car. Modern technology. How do you apply the original constitution written 200 years ago to that . And the court went back and looked at the law 200 years ago. And one of the things it found was that attaching something to someone elses property is a trespass. And would be considered a search. And the court held that if thats a trespass and a search 247bd years ago, it has to be today, though the technology is obviously different. So the Technology Changes but the principles dont. And it cant be the case that the United States constitution is any less protective of the peoples liberties today than it was the day it was drafted. Well, you authored the opinion in meshworks versus toyota motor sales. This 2008 case applied principles from earlier cases involving photography, relative to Old Technology to determine the intellectual property protections for digital modeling a new medium. How should judges approach questions of intelectual 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 they believe better addresses that the changing technological landscape . Senator, i think its a very similar sort of question. 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 thats how law making through the judicial process happens. Thats proper judicial decision making. It is a very different thing if you want to create a revolution in the area and change the draw dramatically. Thats for this body to do. Thats for judges to interpret the law as best they can from the original understanding to current circumstances. And apply to current circumstances. So in meshworks, thats exactly what we did. And looked at old case law having to do with copyright. And applied it to digital media. Same principles from the beginning of the copyright act just applied to a new medium. Several of your writing have called into question the chevron doctrine. Its been raised here already. Most americans wonder why a Supreme Court nominee would talk about a gas station, but the concept of chevron is very straightforward. It commanded federal judges to defer to agencys interpretation of the law. In effect, this deference allows unelected, unaccountable bureaucrats to rewrite the law. Any middle schooler, however, should be able to see how chevron is inconsistent with the basic duty of judges under the constitution. As you probably know, im a chevron skeptic and have led the fight to overturn this designation 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. I chose its title for a reason. Reexampling chevron is not about being antior pro regulation. Rather, its about restoring the constitutional allocation of powers between the three branches. Its about maintaining fidelity to the laws passed by congress and the exact bounds of authority granted to regulatory agencies. And its about ensuring that the bureaucracy abides by the law no matter what its policy goals, liberal or conservative. Judge, do you agree that theres nothing extreme or inherently ideological when the Supreme Court said in marbury versus madison that it is emphatically the province and duty of the Judicial Department to say what the law is, unquote . Senator marbury versus madison is the cornerstone of the law in this country. I dont know anybody wants to go back and reconsider that. I hope not. I feel the same way. Last week the New York Times reported that the primary line of attack against you is that you are, quote, no friend of the little guy, unquote. Weve had that come up time and again in these proceedings in the last couple of days. Harvard Law School Professor noah feldman who does call himself a liberal wrote an opinion piece on the subject that appeared last week on bloomberg. Com. He opens this way. Quote, i dont know who decided that the democratic critique of a u. S. Supreme court nominee, judge neil gorsuch, would be that he doesnt side with the little guy. Its a truly terrible idea. Mr. Chairman, i ask that this column by professor feldman be placed in the record at this point. Without objection, so ordered. 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 into the roird an essay i wrote that appeared at scotusblog. Com. Without objection, so ordered. How would you respond to that type of criticism . A good judge doesnt give a wit 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 its a job. You do your very best, and you go home. And thats how i approach things. 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 president s and who happen to be appointed by republican president s. I hate to even use those words because theyre all just to me judges. I dont think of them that way. But my decisions have always been independent. Regardless of who im agreeing or disagreeing with and if i ruled against the government, my goodness, ask the u. S. Attorneys office in colorado. I give them a pretty hard time. I make them square their corners, senator hatch, all right . If you want some examples, i would point you to carlos, kruger, ackerman, three recent Fourth Amendment cases, ruling for the accused, the least amongst us against the government. 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 the courts are not the appropriate place to make policy. Now youre criticized for that same common sense idea. 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 . Well, again, it goes to our separation of powers. Judges would make very poor legislators. Were not equipped for it. Were not responsive to the people. Cant elect us. Cant get rid of us. Youre stuck with us. And we dont have the opportunities to talk to people, to have hearings like this one in places like this. Im permitted four law clerks for one year at a time. Right out of law school. Its kind of an evanescent crowd. Replenishes itself every year. If you were to make laws, i dont think youd design a system where youd let three older people with four young law clerks straight out of law school legislate for a country of 320 million. Thats not how anyone would design the railroad. And so those are some of the problems i see, senator. Thank you. And that with all respect to my law clerks. I love them very much. Theyre like family. But theyre not the same as your staffs and the investigative powers you have. They are lucky to be with you is all i can say. And 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 was with those policies that were liberal, not that they were achieved through litigation. Again, i want to give you a chance to respond. Well, i would say that in that article, i would say a couple of 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. Its a place where unpopular voices get heard the same as popular voices. In a democracy, in the legislature, majorities win. Thats not the case in courts. The best argument should prevail