Welcome to the heritage foundation. Douglas and Sarah Allison auditorium. We welcome throws who join us on our heritage. Org website on all of these occasions. For those inhouse we appreciate that courtesy check that our mobile devices have been silence silenced or turned off. For those watching online and in the future, youre welcome to send questions or comments at any time, simply emailing speaker at heritage. Org and we will post todays program on our heritage home page for everyones future reference. Leading our discussion today is elizabeth slattery, legal fellow in our edwin maceease center. She writes about judicial powers and a variety of constitutional issues and she also manages heritages appellate advocacy programs including moot Court Sessions to prepare litigators for oral arguments. Her commentaries have appeared in the washington post, National Review online and many other news outlets. She received her j. D. From george masons Antonin Scalia law school and her bachelor degree in history from xavier university. Please join me in welcomeing elizabeth slattery. [applause] ms. Slattery thank you, john. On january 21 President Trump announced his nomination. In his 10 years on the bench, judge gorsuch has been described as a judge who tries to originate the constitution according to its original meaning. During a confirmation hearing to become a judge, he explained that each case deserves the complete attention by the judge without being deiverted by being diverted by personal politics or what he ate for breakfast and promised to follow the law as written and not replace it with his own preference. In his 10 years on the bench he has done just that. The Senate Judiciary committee will hold a hearing in two weeks to discuss his philosophy and work on the bench. We have a panel here to discuss his most significant rulings on Administrative Law, free speech and religious libty. Panelists, our in order to get to our panelists , i will keep their introductions very brief. First we will hear from ambassador c. Boyd den grey, focused on constitutional and regulatory issues. He served in a number of positions in the reagan and george h. W. Bush administration administrations. He was announced ambassador to the European Union by president george w. Bush and 25 years in private practice, ambassador grey has been at my alma mater, george mason and nyu law school. He is a graduate of harvard and the university of North Carolina law school. Next we hear from the partner of jones day and focuses on constitutional litigation and First Amendment and civil rights matters. He has appeared before the Supreme Court several times and the states efforts to criminalize. Mike served in the Justice Department on the Legal Counsel and the civil rights division. He is a graduate of George Washington University Law school in tulane. Finally, well hear from ed whalen. He is the president of ethics and Public Policy center and a very prolific contributor to National Review online where he writes about judicial nominations and constitutional law. Ed has worked in all three branches of the government and to the Senate Judicial committee and law clerk to Justice Scalia, a graduate of harvard and harvard law school. With that, ill turn it over to you, ambassador. Thank you very much. This is an honor to be able to speak. One small correction. In addition to being an ambassador to the eu, also a special envoy for Eurasian Energy affairs. With assignment to get the southern corridor pipeline built at which i totally failed. [laughter] but i was invited out to dinner as i was packing up, the night i was leaving, to have dinner with the commanding general of the European Defense force. British. In order to entice me to go which i couldnt do, he sent out the invitation which i was c. Force. C. Boyden grey, u. S. Special convoy. [laughter] so that doesnt really have anything to do with judge gorsuch. I dont know to confess as a preliminary matter judge gorsuch well, but i knew his mother extremely well because i worked very closely in the deregulation efforts in the early part of the reagan administration. I think he learned as a teenager two things from his mothers experience, one, how out of control the agencies really were. You see that and thats what im going to talk about a little bit, but also learned that you have to be diplomatic and politically careful when you go after some of these people because their ability to retaliate is awesome. And so hes learned both lessons that i think will not only sail through confirmation but make an extraordinary contribution to the court. Hell be able to link up with Justice Thomas who was nicely vetted here and i think other members of the court i see glimmers of hope from even someone like Justice Briar to pitch in on some Administrative Law problems. I think the best part of what judge gorsuch has written is about the Administrative State where he takes on in a concurrence, a case which im sure youre all familiar chevron doctrine of deference. Prescientof the most diections of a doctrine i have ever read. By that i include articles and other scholarly pieces of work. This is really an extraordinary tour deforce, this opinion. I encourage you to read it. He links it up with the predecessor calls predicate which is overdelegation by the congress. Continued violations of the doctrine and delegating legislative authority to the executive branch and you create chevronine called in that the deference these best theget that courts of course with their really emasculates the congress and does not do the president any favors. Unless the president is a liberal big regulator. Theand it goes into all of separation of powers problems, federalism problems, it is really very important. Thing,the most important as i said is a discussion of the delegation problem. And he asks the question is ambiguity in the statutend investigation to the agencies to grab hold of that little ambiguity. Ride with it off into the sunset and do anything that they want question mark and i think the answer he would give is no, it should not be. And i think if he had a chance he would put an into it. He concludes with the notion that we are not going to lose anything important by getting rid of the doctrine except maybe the most important things that need to be jettisoned. I would say as a matter of caution that some form of deference to Agency Decisions long predates chevron and to the extent that chevron is not based on these doctrines of common deference, it does not really change the picture dramatically where deference does make sense. And i would commend you all to read theread the case when is younger, i would do briefs about statutory interpretation and i would always about statutory interpretation and i would always site 380, u. S. One, the interpretation of the statute is to be made by the court. It is not a case where we differ to anything the agency has decided in terms of statutory interpretation. Many of these cases come out of a nondelegation context, you have almost a bill to in exception to chevron. I have not really seen that exercised in court cases but i suspect that if judge gorsuch is confirmed, you will see more of this analysis. It isation problem hard to know exactly what caused it. Meetingsay that the factor was epa and still is epa. Suref the cases that i am that judge gorsuch would have had fun with was a recent decision under the Climate Change program of the obama agencytration where the tried to apply an obscure dealing with new source review known as psd. How many people in this room have ever heard of psd . Sorry for you back there. I am really sorry for you. This is a very obscure program. Scalia knox it out in the this is where to make it workable, the epa takes a threshold of 250 million tons as a trigger to the program and context ofno, it in the Climate Change, that really is 100,000 tons. That is quite a jump and scalia knox that and says we are not of epao sit on the dock as it goes on the voyage of discovery. So you have a sense that the ready, toready, is take on these open ended delegations. And i think one thing the executive branch can do to help is when they send out there statement of Administration Purposes that they threatened to veto any statue that is overly vague and follow through on that. That theno question congress has gotten amazingly sloppy. When i first started here, practicing law, we would go to markup sessions, i would and there would be nasty fights over the meaning of actual language. Have evereople here heard of an amendment to the third degree . Well, i feel sorry for you also. The third degree was Common Knowledge among my age group 30 years ago because that was part of the markup process. Thisthink that with addition by judge gorsuch, we hel see and the partnerships can make on the court with the justices i have mentioned, i think we will see a lot more pressure put on the congress to do its job right. And on the courts to not be taken advantage of by the agencies and the president proper role. S and thank you for the opportunity to speak. [applause] it is ok, i will give my talk from here which is in part to lower your expectations. I am supposed to talk about free speech. It will be pretty boring. The truth is judge gorsuch has not done a lot of round breaking stuff in the free speech area. The good news is that there will not be anything to latch onto for critical purposes. Itt he has done even though is relatively routine it will give you an indication that he understands the rinse of freeze each and it will reassure those who are supporting his domination. Makether comment i would about his opinions is that this guy goes deep. Somebody makes a stupid argument if i was writing the opinion, i would say that it is a stupid argument and move on but he will reframe it and say it has these consequences and we must respect and we must respectfully agree to disagree. So he goes down each rabbit hole to make sure it is the right result. He will occasionally send a signal and it may not be too much to interpret it this way so im going to interpret it that way but generally he will faithfully apply the president. Wendell holmes famously said that you are the right to speak politics but you do not have a right to be the policemen. So if you said something to annoy your employer, it they could fire you. That has changed in a number of contexts. The first context is where it used to be under the spoils system, a democrat or republican would get elected and fire all of the people from the opposite party. That was replaced by the Civil Service system and a series of the Supreme Court said if you fire people because of their political affiliation, unless they are in a supervisory position, that violates the First Amendment. Scalia dramatically disagreed with this line of cases mainly because he thought it was contrary to american tradition. The other area just to give you background is if you retaliate against an employee for speaking about a matter of public concern, you get into this vague balancing test where they say that violates the First Amendment unless he is really disrupting the workforce where the person spoke out. In a very recent iteration called garcetti, they had a very limitation on the pickering right. They recognize that you have to be able to control your employees speech. Counselor, heg cannot advocate drug use. So by definition, the employer has to tell the employee how to speak under his duties so if youre speaking in a way official to your pursuant to your duties, you are speaking as an employee not as a citizen so you do not really have any First Amendment right and can take adverse reaction from the employer it from the employer if you dip are from their preferred message. And judge gorsuch has weighed in on each of these controversies, the first case i will discuss is walton. One political faction in a local government lost to their severe opponents but the woman who was in the losing faction was smart. She had her boss maker a civil servant. So now she is entitled to Civil Service protections. The new faction comes in and fires her basically because of her prior political affiliation. This is not even a rattan case because in rattan cases, the state was firing you. Here, the state says they have got Civil Service protections and you cannot fire them. It is an easy case. I will make two points. To is there was an advocacy use the Mcdonnell Douglas test from title vii to figure out the retaliation standards which is a very bad standard that essentially says if you are a minority and qualified the government has to explain why they did not hire you. Judge gorsuch said this created enough problems in the title vii context that we are not going to transport it to the First Amendment content context. But said we will use the test but only for little if the political affiliation this person wouldve been fired in terms of matter of public concern. Relatively straightforward application of rattan. I do not think it suggests how it coincides with scalia absence of Civil Service protections which is the First Amendment say. Second was the case where the thentiff complained about conflict of her boss of interest. The boss was contracting with a company affiliated with his gorsuchand here judge did a very straightforward kind of garcetti and analysis saying look, part of your duty is to bring to the attention of your superior this kind of conflict of interest. When the boss found out about it, he fired the person but he said that is not protected speech under garcetti because it is pursuant to your job duties. The consequence of this garcetti line of cases is that whistleblowers do not have First Amendment protection. They may have a number of statutory protections but if youre just bringing valid administration or corrupt practices to the attention of your superiors, you cannot assert a First Amendment claim in another case called casey, how you sort all of this through was dramatically illustrated. The woman was a School Superintendent who was complaining about two things. One is that her superior was not adequately monitoring the Head Start Program because 50 of the people in the program exceeded the income levels and she constantly complained to her supervisor and the school board about that. Judge gorsuch correctly ruled it is not protected speech under garcetti. But then he came back and said she was also complaining that the board was not complying with the open meetings law when they had their board meetings. And he said that is protected because that is not part of her job. So the potentially counterintuitive result of these cases is that if you complain about things that affect your job, your protected. When you were complaining about when you are performing your job it is not your speech, you are the agent of your employee. Is not job related directly or pursuant to your duties, you do get the First Amendment protections. The reason i talked about all of these cases even though they are not inherently enlightening in and of themss, there may be a court that comes before the Supreme Court which i coincidental litigated last term which involved nonunion obliged to give support to their unions. We argued contrary to a 1977 opinion of the Supreme Court that that is violating First Amendment rights. Needless to say, all the liberal justices who were formerly very much in favor of employees speech rights in these pickering cases switched sides and said this is employees speech not entitled to any protection and they said the unions are not talking about matters of public concern. They are just talking about money and wages and things like that. So that lead some people to think that Justice Scalia might not because he had been very suspicious of the pickering line of cases and rattan, that he might not support this line of oral argument. But he was on our side because he realized that all of this is quite irrelevant. We are not talking about whether or not the union can speak. The union speech rights are not at issue. You cane issues were tell the union for example not to make political contributions but that hardly suggest you could force a dissenting employee to give money to the unions so they could engage in political contributions. I suspect that judge gorsuch will follow that distinct line that Justice Scalia seemed to be a adopting so that when friedrichs comes up again for the court which it will in the next year or so, i suspect judge gorsuch will see the right view of that as well. That wouldher issue be relatively relevant is campaign finance. He had a scr a case out of colorado where because of statutory anomaly, in a weird system, if you were a republican or democrat, you had to have a primary even if you did not have a opponent. Party, you a minor would not have a primary unless there was more than one candidate vying for the seat. He also had a campaignfinance limit. Because the major parties always had primaries and the minor parties really had primaries, this essentially meant that you would have 400 contribution limits for major parties and 200 contributions for minor parties. Gorsuchvance of judge filing a concurrence and they struck this down because it was a goofy law this differential treatment of major and minor party parties. What i found interesting about this was he said under buckley, contribution limits have this relaxed level of First Amendment scrutiny. Closely drawn somewhat less than strict scrutiny. He strongly suggested that might imhe role the rule bound by and the First Amendment context if you were neutrally suppressing constitution. I think strict scrutiny should apply. Hold that because he it failedrrectly that the buckley test regardless because there was no explanation for this deferential differential treatment. I think it shows a sympathy for political speech, a recognition of how important this is under the constitution and a to give more muscular protections to Supreme Court precedent. He also issued a couple of libel opinions which i might come back to later. He generally ruled for the libel plaintiff. A very thoughtful judge who understands the importance of free participation, marketplace of ideas, not allowing the government to draw distinctions between speakers. He is batting 1000 in my mind because i agree with all of his decisions. [applause] i think judge gorsuchs record shows him to be an eminently worthy successor to in myscalia prayed book, that is about the highest praise i can offer. LikeJustice Scalia Justice Scalia, he is a brilliant jurist and original contextual judge. He thinks through issues very deeply as mike discussed. He writes with clarity and verve. I think all these talents promise to give him an outsized impact on future generations of lawyers and judges. I will address specifically his record on religious liberty. It is a very impressive record as well well as can as against a hyper expansive reading of the establishment would marginalize religion and deny our religious heritage. The case i would like to begin with starting with religious liberty and free exercise issues is a case called yellow bear versus lampert. Let me emphasize that in discussing judge gorsuch is record on free exercise issues, i am really talking about cases involving one of two statutes, the freedom act and in yellow bear, religious landse and institutionalized persons act known by the ugly shorthand of our luba arlupa. Has had anyieve he cases directly under the free exercise clause. As we discussed this, largely the result of Employment Division versus smith, the scalia opinion in 1990 and eliminating a lot of such claims and congresses protection protects protecting religious liberty. Yellow bear, the name might , heest andrew yellow bear is a native american imprisoned in wyoming. A member of the northern tribe and arapahoe practitioner of the native american religion. Is as to his sweat lodge form of religious exercise in his tradition. By his account, it involves a physical and spiritual cleansing. He saw to access as a prisoner to the present existing sweat lodge. The prison said it would be unduly burdensome in large part because of the protection he needed against other prisoners. They granted for the prison and judge gorsuch reversed and remanded holding the resin or. Indeed that mr. Yellow bear had lupa,ctions that underar protections that had not been shown and provided. You look at this opinion and you see a meticulous marching through of all of the elements of the law. That it emphasize extends to state prisoners the same standard of protection of religiousliberty of freedom restoration act gives all persons against federal governmental law. So you can understand i think it is fair to understand the cases together with the other cases just to see how judge gorsuch goes about interpreting the statutory protections. What we see in yellow bear, where he addresses every single element and says you know, the prison did not meet its burden of showing it had this compelling interest in denying access to the sweat lodge back to the trial court to work do this and see if mr. Ella bear is entitled to relief. I start with the somewhat obscure case because there has been a lot more focus on more high profile cases like his votes on hobby lobby. Some from the other side said he was indulging his own personal preferences there in hobby lobby. Instead, i see what i think what you see from the yellow no. Ling is he is carefully scrutinizing the text and applying it neutrally. That is exactly what we see in the hobby lobby case and the Little Sisters case that i will turn to now. I think you all know of hobby lobby from the Supreme Court ruling. But a particular hobby lobby case went through the 10th circuit and the 10th of circuit as a that hobby lobby closely Held Corporation was a capable of the exercise of religion within the meeting of the religious freedom restoration act. There was a closely held Family Business with a Christian Mission as defined in its governing principles. The Supreme Court agreed with the 10th circuit by a sevento vote. There were only twoustices who i think wrongly took the view that for profit status as a corporation somehow categorically deprives entities of being persons capable of the exercise of religion under riffraf. Joined thech majority of the opinion on that and a plurality of opinion that concluded that hobby lobby was entitled to a preliminary injunction. A separatete concurrence explaining the individuals of hobby lobby had enforceable rights under this in their individual capacities. They presented an intelligent discussion of the whole question of complicity and obligation on the part of judges to accept religious believers own judgment as to what is or is not improper complicity. Limitinge judges themselves merely to the question of whether the religious adherence are sincere or not. And we also see this in the yellow bear case where judge gorsuch only understands the Supreme Courts precedents making clear it is no business of the government to secondguess or try to redefine a persons religious police. And second guessing redefining is exactly what so many judges on the other side of hobby lobby did. Oh, what saying your believe it really is something other than what you say it is an somehow that is not effective for these reasons. Again, judge gorsuch did not go that route. Lobbyhe question of hobby is whether the contraceptive mandate under obamacare requiring an employer to provide help plants that include contraceptive drugs and devices infringes on the religious object of employers that to being complicit in contraceptives in some cases and drugs in devices and the case of some other employers. Many on the other side are judge to present gorsuchs vote here as though it is a direct statement of his view on abortion or contraception. No. He is enforcing the statute that congress by overwhelming numbers enacted and he is saying that it means what it says. Exactly as he said in yellow bear. Little sisters of the poor, just last year, im sorry, in 2015 he joined a powerful dissent in that case, again from rehearing en banc. A panel in the 10th sort ruled an accommodation supposedly letting religious nonprofit organizations to escape the burden of the mandate. Even though it subjected them to massive fines for refusing to sign their names to a document that plays an instrumental part of providing comfort coverage that they objected to. And i think judge gorsuch got it right and the tenth circuit judges on the other side were essentially redefining what the Little Sisters religious beliefs are or at least what they ought to be. As i indicated. Judge gorsuch does not have y significant rulings that im aware of directly on the free exercise clause. This raises the question of how he would approach issues of the scope of Employment Division versus smith and perhaps even the survival of Employment Division versus smith going forward. We shall see but again i think what you see in the rulings under rifra and alupa is dedication to applying text very carefully. Let me mention a couple of his opinions under the establishment clause. I think what you see here is a justified skepticism on his part of the continued vitality of the Supreme Courts socalled lemon test, that five or six justices or seven, have ridiculed in different ways, but still has managed to seem to survive. That lemon test among other things has an endorsement prong that purports to look how a reasonable observer would regard the action as being challenged on a establishment clause grounds. This reasonable observer fiction in many instances seems to operate as way for a judge to cast on this religious observer his or her own subjective views about things that the judge or justice likes or doesnt like. In other words, its a way of smuggling in the judges own subjectivity under a seemingly neutral or objective test to a reasonable observer. There are two cases judge gorsuch has written powerful dissents en banc, one was a case from 2009 called green versus Haskell County board of commissioners. In that case a tenth Circuit Panel ruled that a countys Ten Commandments display violated the establishment clause. This was some years after the Supreme Court in two rulings on the Ten Commandments displays ruled one way on one and one on the other and in a rather confused way. But the tenth circuit, by a tie vote of 66, failed to grant rehearing. Judge gorsuch wrote a memorable dissent in which he complained that the panels majoritys reasonable observer was not one that got things right but instead was an unreasonable observer who just gets things wrong quote because the panel tells our observer is from a small town where such errors cannot be helped. In another case called american atheist, davenport in 2010, he ridicules gently the application of this reasonable observer test. This was a case where utah a private association of patrolmen to erect large white crosses on public property near the locations of their deaths. In his dissent from denial of rehearing en bankc, he complained the reasonable observer continue continues to be biased, complete with foibles and prone to mistake and observed there it was far from clear the reasonable observer test remain remained appropriate in precedent for establishment clause challenges. So i think what we see here is a judge who recognizes that establishment clause jurisprudence is something of a mess. It doesnt take reading too many opinions in the area to discern that. But also someone who has a depth of insight and knowledge who might help bring order to the area in a way that we all ought to welcome. So with that, i wrap up. [applause] before we open it up for questions to the audience, i want to pose one to the panel. Do you think there are any areas judge gorsuch may find Common Ground with the liberal wing with the Supreme Court and should we be worried about it . Look, i think as law Professor John mcginnis said, there are two types of Supreme Court cases. Those where the court does law and i think he means those where including the liberal justices do law and those where the left goes on to pursue its ideological preferences. In the first area, i think judge gorsuch will find a lot of Common Ground with the left. There were folks on the left who will very much admire his discipline and serious approach to the law. I think hes already earned respect from a number of those justices. Exactly what substantive areas the ght be where if youre asking is there some area where he would join with the left against conservatives, its not obvious to me there are any such areas. The chevron issue that boyden has discussed really cuts across ideological lines. I wouldnt include that but perhaps others have views on that. I think the liberals will define chevron to obama regulations but take a noteably different attitude towards any new regulations coming out of this administration. Its very difficult to give you a checklist of areas where he will agree. Scalia is a pretty good guide on this. Scalia would take the test and structure of the constitution wherever it led whether it produced a liberal or conservative result. He may common cause with liberal on criminal sentenceing, confrontation clause, sometimes a Fourth Amendment search cases because he thought that was what the text structure and history said. He never got any reciprocal sympathetic votes on other issues. Then this whole notion scalia was imposeing his own value because he was a judicial activist, which is a bit ironic because he is the author of this Employment Division versus smith which dramatally limited the protectis of the free exercise clause by senator biden and a host of bipartisan senators erected the rifra to reenact the free exercise clauss that exist existed prior to scalias views. I think what you will see out of gorsuch is somebody who asked the question, what does the law say, not what do i think the law should be and how will a court be perceived and all these other non nontextual issues which produce lawless results. Do you have anything to add . I cant tell precisely from the concurrence i talked about in gutierrez, but the sense of it is that he would probably be pretty tough on cost benefit. And there is grounds to believe that you could you could see some bipartisan action. The leading left of center regulatory scholar is behind the notion of limiting cost benefit as a limiting factor in how regulations are developed. There are plenty of indications in certain circumstances breyer would join and i wouldnt be surprised to see kagan. I do think that is one area where there can be some Common Ground. Now, we have time for a few questions from the audience. A fuel ground rolls rules. Please wait for the microphone. Please state your name and ask a question. Do not make a speech. Let us start over here down in front. Hi. I was wondering what your thoughts were on gorsuch as applyies to thomas concurrence in department of transportation V American Association of railroads, association of american railroads. This is where thomas split between questions of fact and mixed questions of fact which could be delegated and pure questions of law that couldnt be delegated. Well, i think i said in my brief remarks that, i think hell have thomas as a welcome partner. Theyre not exactly in sync but theyre close enough. I think gorsuch would find thoma approach to that case and two or three others where hes written important dissent, as good starting points for possible reexamination of the whole Administrative State. So as i say, i think thomas is thomas, in a sense, speaking to the right of or to your left, to my right of the scalia clerk, thomas, in a way, was even ahead of scalia on some of the reforms that were talking about here. This is one example. I think were going to see more of that. Its too bad Justice Scalia is not around, because he was as i said, that great mind, in the epa case, involveing t wellknown program of psd, were not going to sit idly by on the on aand watch epa embark discovery is a pretty good indication of blowing the whistle. View, as boyd indicated initial remarks deference in certain circles makes sense if theres been a delegation. I think where chevron bump understand against separation of powers judge gorsuch indicated talking about questions of law. I dont see any reason why from a separation of powers perspective a judge would interpret a statute what it doesnt say because its a reasonable interpretation a politically motivated executive agency endorses particularly since the epa itself says questions of law should be decided by the judiciary, not by the administration. If you do see some change, i think its going to be along the lines of the thomas concurrence, things that strike you as purely legal questions are given no deference. At the admittedly muddier area youre trying to figure out mixed questions of law in fact. Down here. Curt, kirk live levy. Another question about the Administrative State. I would direct it at boyden. Gorsuchkely that judge will be relatively good terms of deference or lack of difference i shoulday to executive agencies. What do you think are the prospects, since he is only one vote, for real change. And i mean beyond getting decisions, something that we can call change to the precedent where perhaps the court no longer cites the chevron deference or when it does, it means something different. But, again, i realize that we cannot out things differently, but again something that we would really see as a titanic shift under gorsuch and perhaps one or two more trump appointees to the court. In a way what this one , opinion signals is a deep skepticism of agency activity. And if its done right and the courts start to may be revise throw some out as a warning to the congress to get back to the basics, i think you could see a real revolution. I think its been a revolution since i have been here. I have been here longer than most of the people in this room. When i first came there were mark up fights in the congress, bitter bitter fights. Whether an amendment was an amendment in the second or third degree. You could argue for 30 sessionin the market with the palminteri parliamentarian. That wasnt the way it used to be in the old days. It might be better if Congress Went back to fiveday workweek rather than threeday workweek. We may have time for mark up sessions. I do think were going to see a massive sea change in the way courts monitor and oversee regulations and the way congress delegates. I can go on forever. But one of one of my friendss mentor was a democrat, named john nagle. And he never would have dreamed of delegating he didnt trust those guys. There were famous letters written by chief aide finnigan. We dont see fin grams coming out of congress. If you give it some time, i think youll see a combination of thomas and gorsuch and some other appointees and some on the bench right now that would work a massive reversion to limited delegations and limited rulings. Think we have time for one more. Josh shepherd. Mr. Whalen, you spoke about the judges view its business the government to secondguess and redefine someones beliefs. So my question is do you anticipate that one of these wedding cases would reach the Supreme Court and how might they grapple with it . An interesting question. I agree that the incredible attacks, the massive fines on folks here to decline an act contrary to their religious conviction is deeply hostile to the american tradition of religious liberty. I think that in these cases the challenge is going to be strongest when there is a creative component to doing wherevider is there could be a First Amendment speech claim thats being presented on some sort of free exercise of religion. Employment division versus smith will limited what could be achieved through free exercise claims although those could be examined more closely. In terms of whats in the pipeline, i see some folks show i see some folks in the room that would know better than i, when i reached the court, do not have a complete handle on this. We have a case in oregon which was argued by one of my guys this week. So lets hope and pray, theres a creative element making a wedding cake to the specifications of a couple. It does involve more than the public accommodation including purchasing a cake off of the shelf. Or can i buy a big mac. Note,that uplifting please join me in thanking our panelists. [applause] ahead of mondays Supreme Court confirmation hearing for judge portion judge gorsuch, cspan caught up with the members of the committee to discuss their approaches to the hearing. Here is for vermont senator pat leahy. Do you remember who the first nominee
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