Transcripts For CSPAN2 Discussion Focuses On Supreme Court Nominee Neil Gorsuch 20170307

So i guess well get started as folks continue to wander this from class in from class. Im joy bernstein, i direct the Supreme Court institute here at georgetown, and on behalf of our executive director and assistant director, we are, were happy to welcome all of you here to what promises to be a very interesting discussion of the pending nomination to the u. S. Supreme court. Ill introduce our moderator, adam liptak, who is a Supreme Court correspondent for what i like to call the new york times, purveyor of genuine news. [laughter] and he will introduce our other panelists ask take it away. Thank you, i just call it the failing new york times. [laughter] so we promised you an engaging round table of experts. The expertise real and the engaging, well find out. [laughter] im going to introduce the panelists and then talk a little bit about the format and then get underway. To my right is shay def relates sky whos a partner be at jones day where im guessing he now wanders the hallways. Hes a graduate of Harvard Law School, a form per law clerk of Justice Scalia and has argued numerous cases before the Supreme Court. To his right is caroline fredrickson, president of the american constitution society. Shes a graduate of Columbia Law School ands has worked also at the aclu, and they were all profromchoice america. Then Kristine Lucius whos a graduate of georgetown law and has served most recently as . Yea. Yea. [laughter] as chief counsel of the Judiciary Committee spending a last ten years working for Patrick Leahy in a variety of counsel roles, and this that capacity, she was actively involved in the processes for half the current occupants of the court. Its an even number. Roberts, alito, sotomayor is and kagan. Next down the line is ed whelan, ethics and Public Policy center. Hes a graduate of Harvard Law School and also is a former law clerk to Justice Scalia. And finally, elizabeth wydra, president of the Constitutional Accountability Center. Elizabeth is a graduate of Yale Law School and used to work at the Quinn Emanuel firm. What id like to do is not have the traditional kind of panel where people give little ten minute be canned speeches, but have or many of an interactive conversation, its such a lively topic. And ive urged people not to wait for questions from me, but if they hear things they want to react to, to jump in. I think well have three little chapters, one kind of backward looking at earlier con fir be mission hearings and the garland confirmation and ask whether that casts a shadow over the gorsuch nomination, a more substantial conversation about judge gorsuch himself and then maybe look forward a little bit to what the court would look like if judge gorsuch is confirmed and what other vacancies are on the horizon. Id like to start with kristine who has looked at the past several con fir haitians and just give us the briefest of overview of how these last four worked, whether they were distinctive characteristickings among them or whether they were all more or less the same where the nominee received some amount of critique from the opposition party, some amount of negative votes but fairly smoothly sailed onto the court and whether the garland experience changes things at all. Thank you so much. Its great to be back here at georgetown. When i walked in this afternoon, i had this deja vu feeling of having not done by fed courts reading yet [laughter] hopefully, my flick speaking will public speaking will get easier. I actually worked on the past six nominees to the Supreme Court, four of whom were confirmed, thats how i view it. We worked very hard on Harriet Miers nomination before she withdrew. Her hearing was scheduled x there were some really interesting moments in that. And then last year the Merrick Garland. Com nation. So to nomination. So to answer one of your questions, i do think that the experience of last year which included Merrick Garland, but there were also many ore unique things with what happened with regard to the process and Supreme Court nominees in 2016 i do think that is going to have an impact on how people consider Supreme Court nominee going forward. It really was something ive never predicted. I worked for senator leahy for more than 14 years, and i think even he, the most senior senator serving this the u. S. Senate, was surprised at all the Different Things that happened in 2016, one of which, one of the biggest moments of which was the majority leader announcing that no consideration would be given to the president s nominee to the Supreme Court. So of the four that went through, you know, there were some unpredictable moments. I wouldnt say that any Supreme Court process is necessarily predictable. These are real people who have interesting backgrounds, theres a lot of attention, and more and more so theres a lot of hundred that gets involved and advocacy groups for and against. Each senator his his or has his or her own standard to how they consider nominees, but senator leahy would often remark that the Supreme Court hearingsings are this rare public moment where people Pay Attention to the Supreme Court in a different way. Its the most transparent time, its a time to make sure the American People understand how the Supreme Court decisions affect their everyday lives. You know, we lawyers care a great deal about the court, and we though the minutiae of whos filing an amicus brief, but thats not how most americans follow the third branch. So those public hearings that are coming later this month are really an important moment, and in each of the four that i worked on, i was really impressed by how seriously the senators took the process and how seriously the nominees took the process of preparing for the public hearings, of taking it very serious hi and then coming seriously and then coming to their decisions. But as you noted with the confirmation votes, there was serious opposition for all four of the most recent confirmations. They were not confirmed 990 as they may have been in a previous generation because, frankly, this is just been more focus from the political branches on the importance of each individual who serves on the one branch thats supposed to be above politics. So i do think that in none of the four would i have said it was a cake walk. I think that each one presented its own challenges for the mom three and for the people nominee and for the people trying to learn what was really behind the nominee. Elizabeth, let me ask you about judge garland who didnt get a hearing. Maybe a twopart question. Anything wrong with that . Did that violate any legal or other norm . And does it cast a shadow . Should we think about judge gorsuch differently in light of what happened to judge garland . Thank you, adam. First, before i get to those two questions which are great, i just want to thank everyone for being here and thank the sponsors for inviting me. I spent two wonderful years as georgetown as a Teaching Fellow supervising attorney, so its really great to be back. I think the answer to your first question about did what happened to judge, chief judge Merrick Garland violate constitutional norms or other institutional norms, absolutely. You know, i think there are, as kristine said, Important Reasons to consider the Supreme Court at least aspirationally above politics. You know, chief Justice Roberts has repeatedly said that he doesnt consider the court to do their work as democrats and republicans, but rather, as justices who surely have their ideologies, but they dont view themselves as political in the same way, and its detrimental to the court to view them in the aim way. I certainly agree with that. We certainly dont want them to, and i agree with chief Justice Roberts on that point. You know, here you had almost a full year left in president obamas term, he put forth this nominee who even republican senators said is the person that they would hope obama would pick but, you know, he wont k and then he did. [laughter] and Merrick Garland is someone who would have easily gotten bipartisan support if he had been ever put through the process properly. And i think that that is certainly not the way, simply saying were not going to consider this president s nominee when he has a full term left in his term, hes under the constitution president up until the last day of his term. Maybe we might have a slightly different conversation if it was a week before he was out of office, but we had an entire year heft this his term, and the important business of the Supreme Court to consider, you know, i thought we needed nine justices then, i still think we need nine justices. Some people think liberals are going to change their mind now, no, im not. I do think its important. So the fact that the senate, to me, did not fulfill what i consider to be their proper advise and consent role under the constitution after the president full filled his right to put forth a nominee and a really incredible nominee at that, i think both flouted constitutional norms as well as institutional norms that are are breaken down in the senate broken down in the senate, unfortunately. I guess that leads me to your second question, whether that casts a shadow over gorsuch. It certainly does for some participants in the process. And i can certainly see why people would view it as a stolen seat. My feeling is i want to take advantage of the moment, this rare moment to talk about the Supreme Court, the meaning of the constitution this a moment when the American Public is really paying attention more than we often do. So, you know, from my per spective, i want to engage in that fight and talk about it and not just talk about judge garland and what happened the him, to sort of talk about this nominee and these hearings. I can only say i do wish judge garland got his chance to have a hearing even if the republican senators wanted the vote him down. I feel like if hed been able to have the hearing, that would have been much better for the American People in the process. Ed, same question to you. Were any norms violated . I take it i know your answer, but even assuming so, should it have any impact on how judge gore such is handles . Go to rsuch is handled . Well, this have been some facts conspicuously missing. Unlike the previous four, indeed, the previous six Supreme Court confirmations, last year was the first anytime a long time in which you had a president of one party making a nomination to a senate controlled by the opposite party. Thats exactly the configuration thats going to invite maximum conflict. When you add this that happened in an Election Year, when you add in that was scalias seat, when you had in that threatens to transform the court, it really should come as no surprise to anyone what happened. Indeed, i would argue that what happened has been baked into the process at least since 1992 when thensenate Judiciary Committee chairman joe biden threatened exactly the same thing this a carefully prepared floor speech that he delivered, i believe, in june of 1992 basically saying the be a vacancy were to arise, president bush should to not make a nomination before the election. Again in 2007, mid 2007 some 15 or 16 months before the 2008 election, Chuck Schumer said that absent extraordinary circumstances, no vacancy that would arise would be filled. President obamas former white house counsel, kathy rumler, has candidly acknowledged if the situation would have been reversed, she would have recommended exactly the strategy that Senate Republicans took, and oof got to think that that would have been the obvious option, the lead option for any Senate Democrats, again, if the situation had been reversed. Now, i want to distinguish between the argument that elizabeth has made so far about constitutional norms and a much more expansive, aggressive, clearly wrong argument that some folks have made about a supposed constitutional duty. Not talking here about norms which can be rather vague and can invite dispute over what exactly were talking about. But there are some 350 law professors who signed a letter claiming that the constitution requires the senate to have a hearing and a timely vote on a Supreme Court nomination. A remarkable proposition. Now, i should say 350 law professors is a fraction of those who opposed senator sessions confirmation, so its as note bl how many folks, i suppose, didnt join this and how many have made clear they dont agree with it. But still, to have 350 law professors including a couple luminaries claim that the constitution speaks to this question is really remarkable. If you look at the appointments clause of article ii, section two, first of all, it governs the president. Secondly, it says simply that the President Shall nominate and by and with the advice and consent of the senate shall appoint a whole range of offices, all of the senateconfirmed offices are governed by the same appointments clause. So if youre going to make an argument about what the senates duty is here, you better be ready to apply it to all the officers under this appointments clause. As it happens, it says nothing about how the senate shall exercise its troll the process and, indeed, the constitution elsewhere confers plenary power on the senate to make and follow its own rules. And we know that on thousands of occasions throughout Senate History the senate has killed nominees by inaction. Again, nominees who are subject to the same appointments clause, includes a small number of Supreme Court nominees. So i think the argument that some law professors have made and are still making and at least one senator, jeff merkley, is insisting on that the constitution imposes a duty here on senators is simply absurd. I dont know if anyone here wants to actually defend argument or whether we can assume anyone here is actually going to embrace that. When it comes to norm, look, the senate the constitution realizes the confirmation process is inherently political. As expert Michael Gerhart said recently, this is there are no rules here. Things are governed by politics. To be sure, there are practice ares that have developed over time, ask i think we can all agree in recent decades youve seen the clash intensify. And my modest point here is that you had a convergence of forces last year including especially this Senate Majority held by one party when the president of the opposite party was making a nomination and including the Election Year that fully explain what happened. And it really shouldnt be a surprise to anyone. Now, will this cast a shadow over what happens here . Look, this is a fully political process, its therefore entirely proper for people to think i dont like what happened politically last year, so im going to try to get some sort of payback this year. Thats the nature of politics. I do think, though, this stolen seat rhetoric is incendiary and irresponsible, its some people have said that Justice Gorsuch would be an illegitimate justice. Many folks are using the same sort of rhetoric that they decried candidate trump for using. So, look, if you want to make the case that you think that for political reasons republicans acted badly this not confirming Merrick Garland and, therefore, there should be some sort of payback, thats perfectly find be p. I respect Merrick Garland, i have never said a bad thing about him, i have deep respect for his character. You know, his one drawback is, you know, hes a judicial liberal and would have transformed the court, but im not going to say anything bad about Merrick Garland, the man or the judge. That said, the republicans announced their strategy from the very beginning, and i do think that merrick forwardland would not have been garland would not have been nominated but for the announcement of that strategy in the first place. Frankly, once they did that too, it was impossible once you adopt that strategy to walk away from it. That would have been political suicide. I think the strategy was the right one. Obviously, it paid off, or seems to have paid off bigger than most people expected, but in any event, i think it was entirely foreseeable and, again, i dare say democrats would have done exactly the same thing was its been baked into the process thousand for 25 years. Caroline, i see from your body language that there are some things youd like to respond to. I have so many things. First of all, i think we need to put some actual facts on the table, real facts about what has happened. Ever since the senate has been doing hearings, they held hearings for Supreme Court nomineeses since 1917. So to say that this was unprecedented, not to give merrick forwardland a hearing, is putting it mildly what about before you had okay, but what about before 1916 . Actually, theres a whole period responsible and incendiary, let caroline talk. You filibustered for ten minutes, so now i get my chance. [laughter] interesting wrd. Before we have Nuclear Option up here. [laughter] i actually would argue that what happened this past year and the immediate announcement by senator mcconnell that there would be no consideration of any nominee by president obama put the court on track to have its most serious, the most serious damage done to its reputation that has happened since the bush v. Gore case. I think it was terribly destructive to constitutional norms, and we dont have to get into a discussion about whether theres an absolute dictate from the constitution to have a hearing, but the fact of the matter is hearings have been held, the senate has actually held hearings. The cost to judge garland is obviously great, but cost to the country was so much greater, and the statements by the republicans, and i think even, ed, when you say that it worked, i find that really, really troubling. It does really put, i think, in an even more clear fashion be how politicized the republicans made the court in that process. As you referred, this was the scalia seat. Since when does a Supreme Court justice own a seat after hes passed . At which point do we say that the court these to have a new these of to have a new person need to have a new person replace the one whos passed . I wonder why when Justice Thurgood marshall left the cows court, Clarence Thomas was actually his replacement. I wish wed had a marshall seat [laughter] be we didnt. Because thats not how the process works. If Justice Kennedy retires january 2nd of 2020, will we now say, oops, thats it . Sorry, thats for the American Public to decide . Were not filling that seat . Thats just not how its been done in the past. But i ask you, i would say would you commit to that . Im happy to answer that, and i think theres been a lot of misunderstanding to the Senate Republican position last year which, again, was dictated by a Republican Senate and democratic president since the 1900s. If there is a vacancy in the next Election Year with a Republican Senate and a republican president , the clear response from me would be get moving. So so we dont lose sight of the actual nominee, im going to pivot away from garland although clearly, you know, there are strong views about the impact of that experience going forward. And there seems to be a consensus at least, rightly or wrongly, that this is a deeply politicized process. At the same time, shay, id like you to tell us what the criteria are that the senate should be hooking at. Do those indeed credentials, qualifications and ideology or just two of the three . Clearly, credentials and qualifications. I dont think ideology in sense of any sort of a limit miss test, try litmus test, trying to choose a Supreme Court justice whos going vote in a particular way. Were not trying to replicate Justice Scalia. I think you want to look at the body of work of a nominee and really assess the quality of that perps work that persons work, their legal abilities, their fair mindedness, their commitment to law. And one of the nice things about judge gorsuch for those of us who do these imagines is that if hes confirmed, we can have a lifetime of panels where we can quote his writings was hes so quotable. Just to quote a little bit from what hes written where in a tribute to Justice Scalia, quote perhaps the great project was to remind us of the difference between judges and legislators, to remind us that legislators can appeal to their own moral convictions to reshape the law as they think it should be in the future, but the judges should to none of those things in a democratic society. And i think to me, that captures an ideology that everybody ought to agree that a Supreme Court justice should embody. And i think if you look at the body of judge gorsuchs work on the tenth circuit, his work reflectses that. He is a committed textualist, hes committed to the rule of law. There are absolutely cases in which he has reached results that would be described as conservative, no question. There are also cases where i think or i cant get into his head, but i think he probably didnt like the result that he reached. But that was where the law led him. And in that respect, i think he actually is a lot like Justice Scalia for whom i could give other examples. There are numerous instances in which judge gorsuch ruled against the government, in favor of individual defendants in ways that perhaps, if you think about the facts of those cases, might not have been his preferred outcome. A fair litmus test, and so im just wondering about the fact that you think candidate trump and now President Trump has a rate miss test, and he litmus test, and he chose a nominee. Comes at this from the per spect be i of a private practice lawyer, i think we need nine justices on the court in large part or because many, many of the cases that are decided by the court and that i lit date are not ones lit date are not ones that would rise to the radar screen of anybody in the senate. When i say we, i guess i mean i. Im looking for someone who can do law. And that, to me, is my litmus test. And i think if you do that in some of these more mundane, technical legal cases, that will also lead to good results in some of the Bigger Picture cases. But im thinking more of cases that lawyers like me deal with is and less things that President Trump if i could just add to shays list, i think because out sort of comes out of kristines question, its one of the other important criteria is whether the nominee is independent. I think the litmus test language that was regularly repeated gives, i think, the senators important issue to explore in terms of whether and how the nominee was questioned on his positions, whether he made any commitments, and i think thats something that just, it raises so many questions particularly after sally yates firing and be rumps attacks on and trumps attacks repeatedly on judges to insure that, you know, we have that that is another part of the discussion. Kristine, you seem critical of this notion that people are announcing litmus tests. Are you saying theyre surfacing something that should be kept quiet or didnt exist before . I dont know if it existed before because i didnt work on the selection side of it. But my sensibility about the importance of the up dependence of the court has always supported this view that it isnt something you would brag about and specifically on the campaign trail, both sides. This is not a partisan point, but both sides, i think for the first time, came out and expressed their litt miss test to the roar of crowds. And i agree, id rather there not be a litmus test. I dont think people should be looking for when theyre looking at the Independence Branch of government, the branch thats supposed to be above politics. But i was saddened to see it last year. Well, i may be mistaken, and i dont have the facts at my finger tips, but i had thought litmus test had been pronounced long before by bill clinton and barack obama. And as adams question suggest, whether or not they are announced, its clear that they are applied in the Selection Process. So, look, there is this inherently political process, its wilt into the constitution built into the constitution, and i dont think theres any way to get around that. Now, when we talk about how should the senate act on a Supreme Court confirmation, i think youve seen over the years roughly two different models. One is the deference model, the notion that we simply look to see whether the nominee satisfies certain objective qualifications and maybe is not out of the mainstream, whatever that means. And if the candidate passes those tests, then he or she should be confirmed. The second looks more seriously at judicial philosophy. I think that if you look at the incentives that shape senator to have yall behavior, all other things being equal, senators on both sides would prefer the deference model because, basically, it enables them to go back to their constituents and say look what a reasonable senator i am, i voted for someone that the opposing president nominated. And that is why even after the bork and thomas hearings you saw republicans, you know, roll over and play dead on ginsburg and breyer. Not because they ever expected democrats to reciprocate, but because they saw this as in their narrow electoral selfinterests. Now, what has happened in the meantime, happening first on the democratic side with bork, if not earlier, and then more recently on the republican side is the political basis of both parties have driven their senators to explore and to oppose nominees based on judicial philosophy. It would have been unimaginable to anyone who looked at how Senate Republicans acted in 93 and 94 to think that they would have voted in significant be numbers at all against the first hispanic Supreme Court nominee. But that happened because senators can no longer play this deference game, which again i think is a selfserving game though you can make institutional arguments. But i think were well past a situation where senators of either party are going to be according much deference. To maybe take the one opportunity to agree with ed on this panel [laughter] just kidding. [laughter] ill look you up to see if the stopped clock is right. Well, itll happen again tomorrow. You know, i worked in the senate as well, i worked for senator daschle on judicial momming nations, and it was a very different process particularly for lower court judges. We used to call it the bed check vote, right . Monday night. But even most of the Appellate Court judges, there were a few battles, but by and large, the transformation of the debate around judicial nominations has been profound in a fairly short time, and i think i, i guess i share with kristine some sense of the sadness about that, that it has become so political and so contentious. Maybe theres an important piece of the interest in understanding better the judicial philosophy of judges and maybe the deferential model isnt a perfect one. But, you know, i think weve gone too far perhaps in that direction. Yeah. I think, you know, i certainly share the hope that we could have a better world in the Senate Confirmation process, but i wanted to echo, i think, a little bit of what i think shay was getting at. And i think again as a Supreme Court litigator, this is how i think about my judgeses and justices that i appear before and file briefs in front of, and thats the reason why we dont like litmus tests. Its not just that its, you know, it might be indeed and probably why people cheer when their candidates talk about using a litmus test sure, they do give you a sense of the way that that persons mom three is going to vote on issues that you care about, but we want or judges to be truly independent. We want them, again, even if think about a little bit of a dance, but we certainly want to hold to, i think, this notion that judges, even if they have a philosophy, take a case that comes before them as it comes. The facts in that case, the arguments made in that case, the precedent that exists when you get that case x we want our judges, our justices to recall based on that, not because theyve guaranteed to vote this a certain way in order to get their name put forth. And im saying that generally about why litmus tests arent something i want to encourage whether its, again, we criticized candidate clinton when she did that, weve certainly criticized President Trump for saying over and over and over that he had several explicit litmus tests. The most disturbing is this person would automatically be willing to overrule roe v. Wade when he or she gets on the court if nominated. So thats the problem with litmus test the. And, certainly, you want to look at a potential justices record, philosophy be, the way he or she uses the constitution, i think thats incredibly important, and i for one would like to see more fulsome answers give, this during hearings. I think its particularly important in this case. We do want to know whether or not it seems in some private considerations judge gorsuch as indicated that he may not be quite as willing or automatically willing to overrule roe v. Wade. Is so squaring those two together, i think, is really important, and i would like to see the hearing process, frankly, get a little more into a judges philosophies on the constitution, because i have a lot of questions about that as well. Can i pick up more a moment on the question of Judicial Independence, because i do think for a president who, i think, values executive power, judge gore such is an interesting choice. And there are at least a couple of things about his record that suggest, in fact, he really will be infeint of the executive. One is he has seriously questioned the whole process of chevron deference. He has questioned the whole notion of deference to agencies on interpreting statutes. Hes questioned the fiction that even Justice Scalia, i think, agreed with at certain points in his tenure that congress intended were agencies to for agencies to fill in gaps in purportedly ambiguous statutes as opposed judges to reading those statutes to mean what they say. He has called into question chevron deference and in that respect potentially significantly limits the power of the executive. Second of all, theres one case i want to talk about briefly. Its called United States v. Nichols, is and it involved a federal law that makes sex offenders register and give notice before they move. And that statute gave the attorney general very Broad Authority to specify, quote, specify the apublic be about of the requirements of the law. Essentially, that is a delegation of power to the attorney general to make sweeping determinations about how the criminal code is going to govern hundreds of thousands of people. And judge gore such struck that down, he wrote that this statute would require the judiciary to endorse the notion that congress may effectively pass off to the prosecutor the job of defining the very crime hes responsible for enforcing. And he did all of this to side with sex offend be pers which he might well have not wanted to do. So when i look at his record, i do see signs that give me a lot of comfort that this is a judge who is going to be independent minded. So, elizabeth, why shouldnt we welcome in the trump era someone who might be opposed to executive power . Yeah, i think, you know, i find this use of the chevron jurisprudence of judge gore such as a support for he will be weve already seen, i would say, from the people that trump has nominated to be the heads of his agencies is that hes not really interested in his agencieses doing a lot whether its rights of transgender students or providing for clean air and clean water through the epa. So the fact that gorsuch might not be deferential to particular trump Agency Actions when he doesnt seem that keen on having the agencies do, basically, their job that they exist for doesnt give me a lot of comfort. What im more interested in is, is he going to be an independent check when President Trump, for example, hypothetically comes up with an unconstitutional religiously discriminatory travel refugee ban. Thats the kind of executive power that im more interested in rather than this Agency Deference point which i think in this particular instance is not particularly good evidence that hed be willing to stand up to the president even to put his name forward. But even generally. You know, i think that a lot of conservatives view getting rid of the chevron doctrine as part of a much broader or plan to dismantle the the administrative state. So given that progressives are generally more in favor to have the work that has been done from the new deal forward to guarantee, make sure that the guarantees of equal protection and equality and justice and civil rights in this country are reality in additioning to all the other social safety nets aspects of health care and environmental protection, that doesnt give me a lot of comfort. The academic view of chevron deference has not been ideological. There have been critics across the board just as there have been supporters. And, again, what youre talking about here how chevron plays out in practice depend on who is rubbing the agencies. Running the agencies. Youre going to be looking at Agency Action one way or the other. The white house is going to be doing things new Agency Action, so im not sure why you dont see judge gorsuchs skepticism of chevron as a plus. I want to i say one thing . You had asked, the question was actually about qualifications or what criteria, and i think an important part of that has been judicial temperament. For as long as i served senator leahy on the senate Judiciary Committee, they talked about judicial temper bement, a portion of which has to do with are they seeking to overturn federal law, respect for precedent. And this that particular case that i think will be talked about a lot, the chevron deference concurrence, i think that there, you know, it is certainly something that i think senators will want to explore, is he trying to dismantle an area of law that has existed for decades. And that goes to whether he has the temperament they want to see in a judge, what kind of agenda does he bring. And when you have the president s chief of staff saying last week that this nominee shares the vision of donald trump, i would imagine that people are going to want to ask what does that mean. So, kristine, if a nominee anticipated skepticism of citizens uted, would you have united, would you have the same concern . Thats not what judicial temper bement is. Its the ability to dispassionately listen to and weigh arguments and not indulge your own policy preferences. I invite all of you to read judge gorsuchs concurring opinion in, i believe, is it gonzalez v [inaudible] youll see that he is, look, this is an immigration case where the immediate consequence of the view that hes advocating is in favor of the applicant for immigration relief. But beyond that, what you see is not someone who is trying to impose his own policy preferences. What you see is a serious discussion of First Principles of separation of powers. So the idea that this concurrence raises concerns about judicial temperament strikes me as entirely backwards. I mean, ill tell you both republican chairmen and democratic chairmen have raised judicial temperament. It was certainly raised when sotomayor was a nominee, alito about super precedent, super duper precedent. I remember that one. [laughter] its not the only definition of temperament, and it strikes me as a slightly unusual one. Met me see if i can clear away some underbrush. Not long before Justice Scalia died, chief Justice Roberts gave a talk up in boston, and he expressed dismay that his three most recent colleagues had gotten a lot of votes against them because they had all of them, he said, before qualified, and thats a all the 123459 should care about. And i think what he meant by qualified are they able lawyers. And i just want to ask the group generally, under that definition of qualified, does judge gorsuch, graduate of columbia and hard lard law school Harvard Law School, doctorate from ox farred be, is he qualified this that sense . Id just say if that were one of the major issues to consider, we would have justice garland. So, you know, id embrace it. I think thats gone by the wayside, though, because that clearly was not considered by the Senate Last Year when president obama nominated Merrick Garland. So garland was qualified, youre not saying gorsuch is unqualified, youre saying thats not the only criteria were looking at anymore. What are the other criteria we should be looking at . Well, i think hes certainly wellcredentialed. I dont think any of us is going to say he doesnt have an impressive resume in terms of credentials. Obviously, thats true. You know, i think that what were talking about a little bit more in the beginning of this discussion about what were looking for in a judge and in some ways comes into play, you know, i want a judge or justice to be someone who is going to be faithful to the law and to the constitution and not be there to pursue a particular political agenda. I think thats true whether its a justice who is appointed by a democratic president or republican president. I understand that elections have consequences, and so theres going to be perhaps if theres a conservative president and puts up someone who is more a more conservative justice, it might not be exactly the person that i as a progress be i might progressive might want to put forth, but you still, i believe, always want to make sure that particular nominee is going to follow the law and and constitution. For example, what i have been looking at, and i will note that Constitutional Accountability Center does not take positions on nominees generally until after the senate Judiciary Committee hearing, so we have not taken a position on judge gorsuch at this point. But we are concerned looking at his muchtouted claim to be an originalist whether he is someone who is going to be as faithful to all parts of the constitution including the amendments that were passed after the civil war that greatly expanded Central Authority to guarantee equality, guaranteed the right to vote free from discrimination on the basis of race, gender and then with the poll tax amendment, i believe on the basis of economic status. Is so thats what were looking at, and i want a justice of either ideological bent to be someone whos going to be doing that. And i think with judge gorsuch, you know, particularly that hes been touted as an originalist, you know, we want to be sure that his philosophy of the constitution is to follow all of the constitution and not just perhaps those particular parts of it that match his political agenda, and thats something that holds true for either candidate. Ive made a very reasonable argument, ed, so dont go around pretending its someone elses argument just so you can knock it down. She wants a very robust originalist. We with dont have a problem with that. Look, i think elizabeths general point is one i agree with. [inaudible] [laughter] maybe we disagree on what her general point is. Oh, very, very clever, ed. But, look, when she says we want someone faithful to the constitution, that indicates fundamental questions of judicial philosophy as her own followon comments, i think, quite clearly indicated. I dont think its judicial philosophy to believe that the amendments to the constitution are just as much a part of the constitution of course not. No, i certainly agree with that part of your point as well. So, look, under the deference model that senators at times use, you dont even these to look at these, but its entirely reasonable under this oh model for other model for senators to vote based on whether or not they believe the nominee has the sound judicial not my. And that can at the highest level originalism versus the living constitution, it can involve methodologies within originalism. But once you move away from the deference model, how can you fault senators from taking into account judicial philosophy . And, indeed, theres a lot of talk about litmus tests, much of what i agree with. Insofar as hit miss test is a good proxy for judicial philosophy rather than a statement of a result you want in a particular case or political pretty muchs, then it preferences, then it serves a useful role there. And, again, i think everyone has always looked to such measures whether or not they acknowledge it. This happen twice, im going to agree with ed again, so twice in one evening, pretty excellent. And i would say we have moved away from that deferential approach. I think that means that the senate and the senate Judiciary Committee particularly has to spend a lot of time with this nominee in looking into his judicial philosophy and his voluminous record, thousands of decisions in which hes participated in some way. You know, there are a lot of very important questions, and, you know, im just going to highlight one that i hope the senators will pursue. Which is in the hobby lobby case this a concurrence in the tenth Circuit Decision where he talks about how understanding religious belief means that people cant be expected to have what he called complicity in the wrong doing of others. And, you know, i think its a very important question for the senators to explore. What does that mean and how far does that go. To what extent do people with religious beliefs, how do they have to follow the law if they believe it follows, it violates their conscience . Does that come into play around lgbtq issues, around race . Public accommodations . What is the outer limit of that . I think thats a really important and potentially very frightening direction for the law to go. Finish. Well, this is exactly his views there are exactly what Supreme Court precedent has said going back to the thomas review board if not earlier. The basic concept is that it is the individual himself or herself who defineses what his religious beliefs are. No one says that religious beliefs are an absolute [inaudible] thats not what the restoration act says. But in terms of whether, how one defines what illicit complicity is, again, theres a sin iser isty test, but beyond that, you dont have federal judgeses or bureaucrats so, kristine, weve been hearing some questions people might want to pose to judge gorsuch. Wow, thats a tough question. [laughter] is it possible to elicit meaningful information . Valuable, meaningful. [laughter] i do think that Sandra Day Oconnor might have been the first when she was in front of the committee to basically say im not going commit on any issue. And so this is a dance. I do think senate has to respect the fact that a future Supreme Court justice should not be making predictions on any given case. But what they do need to answer to is what they have done in their past, right . So i do think that many of the cases being discussed here will be explored. So certainly, you could imagine cases on the chevron deference case or some, or the hobby lobby decision. And i do think that it is not like a typical interrogation if it were a trial where you can get, you know, a yes or no answer. Its not a political debate, raise your hand, you know, if you believe in a full, robust second amendment. Its not that kind of theater. Because senators do have to understand that the person in front of you needs to, you know, not have committed on every issue. So i think its a challenge. But i do think that you can learn about how they approach it. I think a lot of the things that shay mentioned earlier, im sure, will appear in the nominees opening statement, right . Everyone wants to hear a future justice talk about i dont do what i want to do, i do what the law leads me. Wweve been looking at this, the Constitutional Accountability Center has done this project over the last several years that looks at going back to the burger court the way that the modern era Supreme Court has sided with business over the interest of average working americans and the Roberts Court is the most probusiness court of the modern era. You can find all of the information on our website at theusconstitution. Org but we used the chamber of commerce participation as a proxy for that particular indication of procorporate interest. We are concerned that judge gorsuch might be some further entrenches that tendency of the Roberts Court to back the interests of big business and corporations over the little guy, the workers who come in, theres the frozen trucker case a lot of people talked about what you feel is a somewhat unfortunate label for a case that is real serious. Theres a truck driver who was in freezing conditions in a very unsafe environment and will judge gorsuch read the statute in a way that it dont think chief Justice Roberts wouldve suggested a statute should be read in burwell. So again we have some concerns about whether or not judge gorsuch would entrench that probusiness band. I think perhaps only heightened by the fact that the Business Community has been positively gleeful about his nomination and the fact that they see his nomination and potential ascendance to the bench something that would be incredibly good for the business clients at incredibly good for business. There are going to be sometimes when businesses should prevail. Im not saying that. Obviously, there are cases where that will be true, but when there is a tendency to stretch statutes, to cut outs in arbitration context is where we have seen some most egregious examples in the Roberts Court to favor big business over average working americans, that is definitely that is concerning to us. Can i add a quick note around the trucker kies . Case . I think its important to know that even in the context of employment cases, judge gorsuch has ruled decided in favor of employers repeatedly denying workers rights, splitting decisions even often with republican judges. I say in this particular case what was disturbing, for a texture list to pretty much dismiss the text of the statute and i quote, he will talk about health and safety, he says, the terms in the statute, are ephemeral. Thats not important bits i think its a significant issue, again something i hope the senators will spend some time examining. I must have a texture list he really is spirit let me address some of this. First of all if elizabeth were right that the Roberts Court is the most probusiness court, then it would hardly be surprising the lower court judge basically applied Supreme Court precedent would be ruling in favor of business, if ever met. Second, i have answered case after case the folks on the left have raised. I havent seen anything yet that has been substantial. This frozen trucker skates we havent published a report yet. Yes. Holding your ammunition. This frozen trucker skates i dont have in front of me right now, but the trucker who was fired sued under a whistleblower statute, part of me if i dont get visigoth right but you havent heard anything yet that relates to the text of the law. This was the statute that said if you are ordered to operate your truck in the way that is unsafe, you have some sort of relief available. He did not operate his truck. He abandoned his truck after, by the way, failing to feel it with gas, all the culprit in a that caused the brakes to freeze up. Look, there will be a stretch course which said this person should have been fired but you read this whistleblower statute as though it is the equivalent of enabling the particular body here to micromanage every hiring and firing decision is quite something. If you look at his opinion, i invite you to do that, you will see a very careful texture list analysis speed and i just to say one thing, which is the judges who didnt agree with judge gorsuch come if you look in the dictionary, it does no one definition in driving but in another definition image control the functioning of in which case and is well precedent dictated this driver should be able to not lose his feet to frostbite. And not lose his job at the same time speaking you spoke of judges. It was a two to one going with a single judge in dissent. Spirit i feel like the odd one out here because i havent read the frozen truckers case. I will go look at that. Ill say that as somebody who litigates business cases before the Roberts Court and before the lower court, its not always that easy to end them. So in that respect i somewhat question the notion this is a sort of reflexively probusiness court. I think what we really want in a judge is somebody who isnt reflexively probusiness but who also is not going to read the statute differently because the facts of the case may be very sympathetic to one side or the other. Most judges probably dont have a huge warm spot in the hearts for businesses. I think a lot of people might very well be sympathetic. They probably should be, to the sort of facts you described in the frozen trucker case. What we ultimately want is somebody is going to be able to disengage from that rather than factory that into the equation and give that text with the thing is its fairest reading. I also think, again this may be my perspective given what i do for a living, but the way our laws are made, a lot of them, while there designed to protect workers in certain situations, are going to take into account series Business Concerns because those interests are represented in congress and are considered by the president. So we have law lost that any situations are not completely onesided that have to be given the best textual reading. I think what we want in a judge is somebody who come even in a very sympathetic sounding case like frozen truckers, is not going to let that sway them from what they think is the right reading of the statute spirit i want to country questioned in 10 minutes or so, but first i want to quit cover to forwardlooking topics. One is whats going to happen on the course of nomination . Is or any prospect this nomination gets defeated . My own take his democrats need to figure out they want to lose it. Its a very important strategic decision. I think theyre struggling with this now. One question is whether they decide to try to filibuster, which case they could trigger abolition of the filibuster. Making it so much easier for President Trump to fill any later vacancies. This is the path that i hope is taken. So the alternative of course is to not filibuster and let a handful of their very vulnerable red state democrats vote for judge gorsuch, maybe try to keep the margin below 60 so it sort of seems like its a filibuster threat for the next time around. Again i think theyre really struggling with this. Looking at the statements, you see a lot of dissent within the ranks. I think i judge gorsuch does at the hearing, how likable he appears, how appealing will have a real impact on which way Senate Democrats go. But again they face a challenge that the best option and the worst option both involve going down the same road for a distance, that is a filibuster road. And then diverging. Is that right, the choices on how to lose . I mean, it is certainly a challenge. I mean, i think historically filibusters of Supreme Court nominees are practically nonexistent. In any way that is sustainable. I think there will be a 60vote margin required, and i think there will be a lengthy debate. Whether the democrats will decide to extend their filibuster long enough to provoke the Nuclear Option, i agree that their wrestling with that right now. Christine may be closer to all this and the rest of us spirit to be clear iv of networked atl on this nomination specifically but based on once i have worked on i think its too early to make that determination. What happens in this phase in the process is document production. Dozens of law firms, the nominee submitted a question it up and had to submit an amended questionnaire and i think his pub in the process of amending it further. The chair and ranking have requested additional documents that were not covered innocent questionnaire that he filled out specifically ready to his time at the Justice Department. I know about this from press reports, and then there was a recent followed by the ranking member, specifically also related to his time at the Justice Department. So they sent a letter to the bush president ial library. Theyve also sent letters to attorney general sessions, because in the questionnaire the nominee didnt really explain what cases he was working on while he was Principal Deputy in the associate attorney generals office. So i dont know what the endgame indicator is. Ill just too at this point in the process, theres a lot still unknown and then the hearing itself, theres some unpredictability about how they go. I think anyone trying to deem it out before then is diminishing how important those two things are. If you give people a process argument, theyre more likely, likely to oppose him. So if there ar thinks that prove or people feel jammed, senators dont respond well to that. So i think that the process things that happen before the hearing and as part of the debate will shape what happens in terms of the vote. Do you want in one courtesy calls the nominee makes to just what every standard make a lick of difference . I think senators are real people and the respond to the real person nominee in front of them and that might explain why several people refuse to meet with Merrick Garland. Im sorry, i agree with you. Look, senators become a senators in part because they like to be liked by people. Some of them actually like people as well, and so its more difficult to speak harshly about someone with whom you that a pleasant conversation. Seems like a decent guy and maybe he held your dog as what happened with one of the senators, or met his family. I do think at some level these meetings make, depending how they go, can cut in favor of the nominee. I think like a description of human nature and when the process works thats true. But we are not going through the guy you want to have a beer with or, the person you want to ski down a doubleclick black diamod with. A double Black Diamond the likability question something no, probably a lot in the hearing. He is someone who people like and him, but thats a really the point. I really like ed. You might be surprised by that. Its all odds, i really do like that. Im not sure i would support them for Supreme Court justice although i will not tell them until after hearing. Thats not really the point. But it does indenting something that people talk about a lot and i think perhaps thats probably what in addition to not one to meet with judge garland, people probably did not want to have a hearing for judge garland because he is one of the nicest people you would ever meet. I think thats just not the right thing even though it is something people will focus on the lot speed but i agree with the likability isnt the point. I do think though that one thing you can gauge by talking to somebody, tickled by talking to them about legal issues, are they good listener . Are you willing to consider what youre saying . Do the respond to your ideas respectfully . Thats something i think is important, not only for the lawyers who had experience of arguing before a judge but also because of what it does say about the person openmindedness and independence. I would help that the process before the senate is geared not towards just figure out is a someone you would like to have a beer with, but is this someone you think will be a good judge in that respect. I think judge gorsuch will impress in that way, but we will see. So youre suggesting whether the nominee has empathy . Openmindedness. Look, this is a political process and whether or not a particular center values likability itself in the process, hes going to be factoring in how this nominee will play publicly so he or she can sort out the political costs of support or opposition. Again, i think affability how he comes across as a significant part of the confirmation process spirit there is at least a school of thought the judge gorsuch if it succeeds replaces scalia, conservative for conservative, fundamental dynamics of the court doesnt change. The big change if it is one if one of the three older justices, candy, ginsburg or prior retired spirits of our last question before turned to the audience, and help my Summer Travel planning, are we going to have another vacancy . No. No. Well, thank you. I can get on the horn with a travel agent spirit this year you mean . June, yeah. I would say probably not, but i wasnt sure whether donald trump at the state of the union, or whatever we call it, the speech last night, was offering an ambassadorship to Justice Kennedy. And it sure seems that of short list is composed of kennedy clerks. Well, i think in the actual shortlist includes other folks. All right. Im sure you have, we have covered a lot of territory. Im sure you have questions for the panelists. There are microphones come if you dont mind standing. Thank you as young women hi, carolyn because young women wwere actually im sure you knw very concerned about our individual liberties and reproductive freedom, especially keeping in mind judge gorsuch is defense of hobby lobby. So if you look at this point but independent rolling on religion and even privacy are at stake and how can you believe judge gorsuch will truly be an independent justice . Thank you for your question. I think that is certainly something that needs to be addressed at the hearing, because specific to your question, two of the at least three litmus tests that trump repeated over and over, one was being willing to overturn roe v. Wade. The second is to have a view of religious liberty that as trump said in one interview would represent christians fairly. Obviously we dont want our justices on the bench to represent anyone other than representing the law and the constitution, and certainly people of all faiths or no faith at constitutional rights, and that should be vindicated by justices on the Supreme Court. So you know, look, judge gorsuch is his own man with a context in which he was nominated raises really serious questions when you have these particular litmus test data in a way that donald trump said them. I think that there are real serious questions about that that hope are addressed at the hearings. Spirit i would just like to follow up on that, and i think judge gorsuch himself is not ruled on abortion directly, but he has set a few things about the decision i think will be explored in hearing, at least i hope so. Where he suggests that casey is in sort of a robust affirmation of row, but instead is really just stare decisis. When, in fact, theres quite a lot of discussion about womens autonomy and liberty interests in that decision, but i think i reading it narrowly, it makes it less potent, gives it less of a strong Constitutional Foundation because i think thats an area where i really hope the senators will, that they will explore because i think that certainly from my point of view would be extraordinarily negative direction for the logic of spirit i seem to be heard lots of litmus test from people opposing litmus tests pick it just seems the real objection to real litmus test is, particular litmus test they dont like. I may have missed part of your question but i think judge gorsuch position on hobby lobby was plainly correct. Im not like something on the fact that the Supreme Court affirmed it by apply for vote. Actually 72 on the court of corporations or persons capable of exercising liberty under the religious freedom act. I believe the analysis into opinion is clearly textually faithful to the religious freedom restoration act. Its the context in which controversy arose that has caused people to i think, some people take a distorted view of that. I dont see anything as record that raises any concerns about his independence which, of course, we dont want, we shouldnt want judges or justices who are independent of the constitution. We are talking about folks instead who judge the, read the laws neutrally and independent of Political Considerations. Again, i think his record demonstrates that he is a judge like that. Yes, sir. You foreshadowed by question which was how and on the subject of casey come visit discussion of litmus test reminded me of two separate opinions, Justice Blackmun independent of Justice Scalia in casey where Justice Blackmun essentially more or less called for consideration of things like litmus tests by invoking the fact he was about to retire and that he hoped his replacement was someone who would defend the right for abortion to as Justice Scalia pointed out, the court more or less gets left alone by Political Considerations when people presume the court is doing lawyers work. When it is deciding very massive questions of Public Policy that dont have clear nexus to the text of the constitution, it becomes the very political battle that it is. Judge thomas at the time some people opposing litmus test currently, that doesnt seem to be the traditional position of certainly people who defend those decisions. So im curious as to why your views known about lisp missed tests the spring litmus tests are what they are asked thank you spirit i think my views have always remained the same. I cant speak for anyone else or certainly the way that someone might have sent it in your own views. Clearly, some people at us all from the fact candidates of both parties talk about lisp missed tests pick out there with respect to your question about litmus test. Particular context of casey. Part of the reason that i object to the calculation of us want a litmus test that just something that goes our way and set of the way that we disagree with, so his document upholding roe v. Wade versus tracking it down, is that i want a justice follow the constitution. And when i and my colleagues looked at the text of the constitution and we filed briefs, including elastic terms Abortion Case can we think there is clearly protected by the constitution are right for a woman to choose whether or not to have an abortion. That doesnt mean that certainly they cant be people who say that they would advocate against abortion, but i think you cannot say its not protected in the constitution. Thats not a litmus test. Thats the way the constitutional text and history points us to. I wouldnt want someone to do anything other than follow the constitution in the case but i clearly disagree with ed and many others im sure im what the constitution says in the case. Thats what i feel that particular way. I think that if there is very strong nexus to the constitution, indeed the 14th amendment in particular as we argued in a brief requires that. The biggest factor i think in the escalation of the judicial confirmation in recent decades has been roe, and it is continued existence. Obviously there are other cases. Look, folks on both sides are going to see certain cases that the objective on the other side. They may be right. Its human nature obviously to take more offense at the other sides wrongdoings that ones own. But if youre really interested in lowering the temperature for judicial confirmation in the long run, what you ought to want is for donald trump to get three more vacancies after this one, get roe put into, whats the phrase, the dustbin of history. Restored to the political processes where the matter belongs and move on from there. So in recent days weve seen some questions about deference to the judiciary. We started seein to drink the tp campaign with a questioning of federal judge being able to be impartial in the case because of his heritage and with continued to see some signs. Chief Justice Roberts i guess for a dozen years, is that right, into the Roberts Court and chief Justice Roberts has said repeatedly what a miracle the rule of law is and how important it is for him to carry on that legacy, we dont have martial law in the streets, where people actually listen to judges and do what judges said he had to do, they disagree. I guess my question is, in the situation where we had a purely political fight over an otherwise qualified nominee who never was even given a chance to have a hearing, now have another nominee who is very different in many respects. Why should the public trust the judiciary . Why should the public and even if we say its one step removed, even if judge gorsuch could be fair and impartial, why should the public trust the judiciary because of the way the politicians are using the judiciary as a puppet . Will look, i think abstracting from the particular situation this is an attention that appears in the constitution. You have inevitably political method of selecting judges, yet we expect that people selected by that method too often, say, fundraisers for senators or others, we expect them to be above and beyond politics. Traditionally, the best guarantee of that has been the traditional understanding of judging as itself distinct from politics, as not involving looking to whats in your heart to decide what the law means, as president obama does notorious empathy standard stated. But instead can understand that the judicial craft, the intellectual discipline, that there are rules that apply to that, and once you move from lawyer to judge, youre engaged in a very different enterprise. What has happened in recent decades is the collapse of this understanding of the role of judging. This collapse has been abetted by law schools throughout the country, including this one. Its very, very difficult when you have that collapse to speed it do you think the public ever truly understands the judiciary as an independent, nonpolitical branch . What they really see are the politicians pushing these if i could just jump in we could spend hold another panel talking about how political irregulars and is an text alyssa and how selfserving it is. In any case, for most judges this doesnt really, most of the judiciaries selected in such a public or political way and i think christine and ed and i work in the senate, unit, see a lot of, saw a lot of different proceedings in the way it senators engage with the white house and the Selection Process that they go through in the states. A lot of judges are coming off the state courts or magistrates, and there is much less politicization. Theres more than there used to be unfortunately, but it think as a result i think most peoples experience, except for the one time every summer years when theres a Supreme Court vacancy, is with judges in the normal kind of situation who are not enveloped in a situation. So i think thats why people tend to continue to have some Great Respect for the judiciary than the political branch. I think it has been eroded. Last year did really eroded. The obstruction in the senate was a very damaging episode stick i think your question is a good one. The publics confidence in the third branch to be independent affects their ability to serve the function under the constitutional democracy, right . So your point is a very good one in terms of making sure the American People understand the importance of it and it also extends what people were so dismayed at attacking a sitting federal judge. Let me follow up on that point because its an interesting point. President trump said some very harsh things during the campaign about judge curiel and that about the judges involved in the travel ban case, and there was a sense in which it seem that judge gorsuch was distancing himself from those remarks. They know some question whether the distance was adequate because at a topic that ought to be explored further . Im sure it will be. Obviously senders can raise whatever questions they want. Im guessing thats going to be one that will be common. What answer would you hope he gives . Whats the exact phrasing of the question quick look, i think the way the present of a nominated you seems to launch personal attacks on judges with whose opinions he disagreed. Is that a good way to run a system . Someone who has criticized then candidate and President Trumps statements about judges, i regret he has made those pics look, i think its important to distinguish Judicial Independence from judicial supremacy. I do not think judges are beyond criticism. I dont think, but i do think its important that especially members of the executive branch and the legislative branch engage in partisan do so responsibly and carefully. I dont think twitter is particularly wellsuited to this sort of criticism thats called for. I think there ought to be respectful consideration of the judges opinions which, again, after respectful consideration at maybe if i do say this is all wrong. I doubt very much that the particular manner in which it was handled was designed to be very effective. So i have my real concerns there. Look, i would hope that, you know, judge gorsuch would say both that judges, judicial rulings, shouldnt be made political football for no reason at all, but also the judges and the rulings are not beyond criticism. The criticism was based on the fact that this particular judge, judge curiel, his parents had come to mexico im not defending that at all. It is beyond, certainly criticizing somebodys ruling if you disagree the basis on which they rule is one thing. To say theyre incompetent to real because of their ethnicity i think just took it so beyond what we have seen in political discourse i think was pretty shocking speed and i see two more questioners and we have time for two more questions. Spirit my question is related to that. Excellent segue. In response to the things that trump tweeted about judge robart, judge gorsuch up and said its disheartening and it is demoralizing. Did you feel that that was actually a display of his Judicial Independence . There are other people are saying maybe it is sort of stages so it gets gets covered to democratics so they can say he wasnt able to criticize present company im interested in whether the panel thinks that was a display of independence or just a weight ws covered . You said earlier, you cant get inside his head. Who knows . Certainly a question that has been raised, but i dont know what the basis would be for that. That is something that brings both question together can should be addressed at the hearing. I do think its appropriate to ask adam did a very nice formation of the question that could be asked because you write those reports came out and then there seemed to be some contrary statement from gorsuchs sherpa that it wasnt talked about those specific comments but that any criticism of the bench is disheartening. I think thats what that something that i would really like to hear him give a vigorous defense of the impartial, fair, independent judiciary at his hearing. There have been some suggestions i think again by kelly ayotte that its improper for a judge to comment on those statements that threaten the independence of the federal judiciary, because of the canon of conduct for lower court judges, doesnt apply to Supreme Court justices, cannot comment or to not engage in political activity. The first i dont think that independent, fair, impartial judiciary should be considered a political question. If you do that some concerns about that. And even more to the point, the first canon of judicial conduct is through your own action promote the Public Confidence in a fair and impartial independent judiciary. I do find that a reason to not engage with that question at the hearing and i in fact hope that it is something that will be discussed there. I have a feeling that in a mock hearing, the socalled motherboards, judge gorsuch is as we speak formulating the correct answer. You can look at any nominee is given the last several decades, and asked welcome wasnt really sincere . Was at something designed to advance confirmation . How are you going to parse that . I just think its an unanswerable question speaking lets take one last question. My question relates to the increase politicization of the nomination process. Earlier today you expressed sympathy at least if not outright glee at the possible of the Nuclear Option being deployed, and multiple justices being confirmed and tipping the balance of the court. But im wondering if you have any trepidation about what the next stage in the process might look like . Theres debate today about whether or not the longterm filibuster will have hearings for Merrick Garland was unprecedented but that the democrats have interpreted it. What might happen if, say, the filibuster is limited for Supreme Court nominee and 2020 democrats regain complete control of the government, is at something that you personally feel worried about or that theres any concerned about among Senate Republicans or among conservatives or among everyone about what this process might continue to look like, if he continues to escalate . Let me try to answer that question. Its a bit complicated. In one respect if you actually are interested in getting confirmation as quickly as possible, you want to get rid of the filibuster because of the filibuster is a minority tool that can block confirmations. And again when the Senate Democrats eliminated the filibuster for lower Court Nominees and for executive branch nominees in november 2013, newspapers reported at the time if you only read and they didnt go for Supreme Court nominees, is because Abortion Group said dont do it now. Lets wait until were in the middle of the bow and theres benefits to us. You asked the question am i concerned that if the filibuster disappears that it will help a future democratic president with a majority Democratic Senate tax the short answer to that is no. Im happy to, obviously the rule would play the same under that situation. I would say to my conservative friends that Senate Republicans will never filibuster. But he put a slightly different. [laughter] no no democratic president will ever nominate someone who is so politically toxic that Senate Republicans would ever dream of filibustering that nominee. It simply wont happen. You are not going to have the next democratic president nominate if you can get by any of dozens of objectively qualified candidates with the views on the issues that may not differ very much spin what about escalation . What about the nine justices on the court thats not constitutionally prescribed . What about the next democratic president went full fdr . Thats a good question. Look, i think that, that escalation is as likely as to happen, whatever percentage that is, irrespective of what happens with the filibuster in this context. All right. Thank you. Please join in thinking let me introduce dory to you. I just want to thank all of you because this was a really interesting and delightful program. And it really exemplifies what the institution strives for which is to all points of view expressed in a respectful and mutually affectionate way. I do appreciate that. We have a reception out in the atrium, in the auditorium, and we hope you will all join us in there. And i want to thank you in particular, adam, for doing an awesome job as the moderator. [applause] [inaudible conversations] [inaudible conversations] [inaudible conversations] Supreme Court nominee neil gorsuch confirmation hearing began march 20 and are expected to last three or four days. Senate Judiciary Committee members will question judge gorsuch starting on march 21. Watch live live coverage on the cspan networks and we will reenter our coverage in prime time. This weekend cspan2s booktv is live from the tucson festival of books with two days of Panel Discussions and author interviews. To a President Trumps nominees for the Justice Department will testify at a confirmation hearing. Rod rosenstein phenomena to be Deputy Attorney general and rachel brand is the president choice for associate attorney general overseeing Civil Justice as well as federal and local law enforcement. Live coverage at 10 a. M. Eastern on cspan. On cspan3 Ukraine Foreign minister will join diplomats from five other central and Eastern European nations to testify about russian influence in europe. That is live at 2 15 p. M. Eastern. You can watch online at cspan. Oronline atcspan. Org ore cspan radio app. Officials from the Veterans Affairs department and the mayo clinic testified about efforts to promote opioid abuse by patients of Veterans Health care facilities and about the fast and sale of drugs for employees of the this subcommittee hearing is chaired by congressman bergman of michigan