Good morning to everybody whose here and especially those who have prepared for testimony today. We welcome everybody on what i think will be the final day of judge gorsuchs confirmation hearing. Weve already heard two days of impressive testimony from the nominee. I think hes shown great command of the law and i think he has showed a humility with his humble delivery and i think people learned a lot about our not only our political system but our judicial system with whats going on the last three days. Today will hear from a number of outside witnesses. Well hear from a number of distinguished witnesses both in support and in opposition to the nominee. They will all speak to the qualifications to be a Supreme Court justice. I look forward from hearing from all the witnesses today. Let me modify this a little bit because im going to spend maybe 15 minutes at the Agriculture Committee because the nominee for secretary of agricultures before that committee and im a member of that committee and ill have somebody else chair. That wont stop the business going on. So thats the only time i should probably be away. Each of our witnesses will have five minutes to make an Opening Statement and then well proceed to questionings if members have have questions of the members, well obviously accommodate that. Now im going oh, no, do you have an opening comment. Im sorry. I just about forgot that. I do not the, mr. Chairman. Now well go to our first panel who will feature two representatives of the American Bar Association. You may come to the table. Ill start over again with the Standing Committee on the federal judiciary nancy deegan and Shannon Edwards. Nancy is the chair of the American Bar Association Standing Committee on the federal judiciary and Shannon Edwards is the tenth circuit representative on the American Bar Association Standing Committee of the federal judiciary and served as a lead evaluator on the Standing Committees investigation of judge gorsuch. I would like to swear you if you would let me. I dont know whether we have to stand, i guess we just do it naturally. Do you swear that the testimony youre about to give before this committee will be the truth, the whole truth and nothing but the truth so help you god . I do. They each answered affirmatively. We will now have you give your statement, please. Thank you very much. Its a privilege to be here. I am nancy deegan from new orleans and tim very privileged to chair the American Bar Associations Standing Committee on the federal judiciary and as you indicated senator, im joined today by Shannon Edwards from Oklahoma City who is our tenth circuit representative and was the lead evaluator on the Standing Committees investigation of judge gorsuch. The Standing Committee has conducted its independent and comprehensive evaluations of the professional qualifications to the federal bench for the last 60 years plus. The 15 distinguished lawyers who make up our committee come from across the country representing every federal judicial circuit. They annually volunteer on a probono basis hundreds of hours to evaluate nominees to the federal bench and we focus solely on nominees integrity, professional competence and judicial temperance. We dont consider a nominees political affiliate, philosophy or ideology and we do not solicit any information with regard to how he might vote on a particular issue or matter that may come before the court. The Standing Committees valuation of the nominee to the Supreme Court is based upon the premises that a justice must possess exceptional professional qualifications. All 15 members of the Standing Committee participate in the evaluation of a Supreme Court nominee. Each Standing Committee member reaches out to a wide range of people within his or her respective circuit who may have information regarding the nominees integrity, professional competence and judicial tem practicement. Reading groups of scholars and practitioners review the written work and advise the Standing Committee of their findings. The Reading Groups independently evaluate the nominees analytical ability, knowledge of the law, application of facts to law, expertise in har mow nizing a body of law and the ability to communicate effectively. The academic Reading Groups involved in judge gorsuchs valuation were composed of experts in their field from the faculty of Pennsylvania Law School and the loyal college of law in new orleans. The practitioners Reading Group included nationally recognized lawyers who have argued before the Supreme Court and served as law clerks to justices on the Supreme Court. These three groups read all of judge gorsuchs published opinions and many of his other writings. During the evaluation of judge gorsuch the Standing Committee members contacted almost 5,000 people nationwide who might have knowledge of judge gorsuchs professional qualifications and these included judges, lawyers, academics and members of the general community. Circuit members then interviewed those who indicated that they had personal knowledge of judge gorsuch through their dealings with him as a judge, colleague, cocounsel, opposing counsel, teacher, Organization Member and even classmate. We followed judge gorsuchs career from his time at prep tri school through his tenure on the tenth circuit. All interviews were conducted in competence to assure Accurate Information and candid assetments. Finally as we do with every evaluation we conducted a personal interview with judge gorsuch. We met with him on february 27th and questioned him on a wide variety of topics. After our comprehensive evaluation was complete, our findings were assembled into a detailed confidential written report which included the written reports of the academic readings groups and the practitioners Reading Groups and this report was approximately a thousand pages long. Each member of the Standing Committee then studied that final report and individually evaluated judge gorsuch using three possible rating categories, qualified, well qualified or not qualified. To merit a Standing Committee rating of well qualified a Supreme Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience and meet the very highest standards of integrity, professional competence and judicial tem perment. The rating of well qualified is reserved for those found to merit the committees strongest affirmative endorsement. Having examined judge gorsuch through this lens the Standing Committee members unanimously voted that he deserved the well qualified rating. On march 19th we submitted a written statement further explaining our process and our rating and we respectfully respect that it be made a part of this committees official record. Thank you. Thank you. Ms. Edwards is not going to say anything is that right . We are pleased to answer any questions that the committee may have. I think i have a couple questions. Theyre somewhat repetitive of maybe some of the things that you said but id like to have that emphasis but before i give a short statement, i would like to compliment anybody who serves on evaluating these judges at all levels and probably at the level of the Supreme Court. Its much more difficult and elongated as it probably should be, but i know david brown, des moines iowa who does this with a lot of judges and takes it real seriously and you almost when you visit with him about the work he does, you almost think its a fulltime job and hes obviously got to go make money someplace else, so he must have some time to practice law, but he really seems to me like he puts a lot of time in to it. Its an honor, sir. So for both of you i would compliment you on what you do. Thank you. As you noted in your testimony, the American Bar Association awarded judge gorsuch its highest rating of well qualified by the unanimous vote. The statement explaining the rating states this and youve said this already but let me repeat it. The rating of well qualified is reserved for those found to merit the committees strongest affirmative endorsement. In other words, a rating of well qualified is not given lightly. Would you agree with that . Absolutely. Okay. Now, i just want to mention a few points from the report. First the Standing Committee found that, quote, judge gorsuch enjoys an excellent reputation for integrity and say person of outstanding character, end of quote. In fact, one of his colleagues on the bench said, let me quote, i have known and interacted professionally with judge gorsuch since his appointment to the tenth Circuit Court of appeals and my experience as a judge i cannot identify any person more qualified in every sense of the word to serve as an associate justice of the United States Supreme Court. Judge gorsuch would be an invaluable addition to the high court, end of quote. Second, the Committee Found that the judges professional competence exceeds the high criteria reviewed by the committee. In fact, the Committee Report stated given the breadth and diversity and strength of the feedback that we received from judges and lawyers of all political persuasions and from so many parts of the profession, the committee would be would have been hard pressed to come to any conclusion other than judge gorsuch has demonstrated professional competence that is exceptionally outstanding time and again, those with whom he has worked and those who have been involved in cases over which he has presided have applauded his intellect, thoughtful discerness and written clarity, end of quote. On the judicial temperament the Committee Found that lawyers and judges alike overwhelmingly praised his judicial temperament and finally on Judicial Independence, the Committee Found, quote, that judge gorsuch believes strongly in the independence of the Judicial Branch of government and we predict that he will be a strong but respectful voice in protecting it. And one person interviewed for the report stated, quote, in addition to his outstanding academic credentials and brilliant mind, judge gorsuchs demeanor and written opinions during his tenure on the tenth circuit demonstrate that he believes unwaveringly in the rule of law and Judicial Independence. In my opinion he is exceptionally well qualified to serve as a justice of the Supreme Court of the United States. I wholeheartedly agree with the American Bar Associations assessment of judge gorsuch and i have one question but before i do that, i think we had two days of about 20 hours total that people had a chance if they were watching to view some of those things that you said about his belief in the rule of law and Judicial Independence. In fact, if theres any one thing that i heard in answer to so many questions that somebody wanted either a yes or no, what they really got is, im going to follow the law and i believe in Judicial Independence and following precedent. Now, so i think being a little bit rep tettive would you describe once again for the committee the scope of review that allowed you to come to these conclusions and then ill go to senator feinstein. Yes, sir. To merit the Standing Committees rating of wellqualified, we found, sir, that he was a preeminent member of the legal profession, that he has outstanding legal ability and exceptional breadth of experience and that he meets the very highest standards of integrity, professional competence and judicial temperament and we did this in connection with reaching out to those who had personal knowledge about judge gorsuchs integrity, professional competence and judicial temperament and we did that by interviewing many people who not only encountered him as a judge but also as an opposing counsel, as a cocounsel, as princip Principal Deputy attorney general for the United States, as a private practitioner as a law clerk for the Supreme Court and the dc circuit and through personal dealings with him, so the scope of our investigation was deep and broad and involved all 15 members of our Standing Committee in addition to those 26 professors from those two law schools and the 14 very well recognized practitioners who have appeared before the United States Supreme Court and who previously acted as law clerks. So that is the scope, senator, and as i said before, we do not give the wellqualified rating lightly and i can assure you that every member of the Standing Committee reviewed intently the 997 pages that were compiled from the interview notes to the analyses by the law professors and the practitioners in order to each independently reach that rating on a unanimous basis. Senator, if i might add would you turn on your mic . You sure can add, i think for no other reasons than your relatives back home ought to hear something. Some of them are up pretty early. We were our task was to early. Our task was to cast a wide net. We made contact with over 5,000 individuals. I personally contacted 344 and received comments from 82. So everyone of the Committee Members did likewise. That is why the report is 944 pages long. Thanks very much, mr. Chairman. I very much respect what the american bar does. I have read the report now and very much appreciate your work. Let me ask you about the question. Did you review the documents that these documents were recently submitted to the committee. Is that right . When we received our information from the department of justice on which we started our analysis, what we call the pdq which is called Senate Judiciary questionnaire, we got a stack of materials and then a supplement. We did not receive the responses that were recently submitted to the committee. I did take a quick look at what that encompasses just from the description on the website of the Senate Judiciary committee and saw it involved some 170,000 pages. I sat in some of the hearings and we heard some of the questions that the Committee Members asked of judge gorsuch. It appeared from his answers that these materials were prepared in his role as a principled deputy associated attorney general. He in answering the questions indicated that he was acting as a lawyer and at one point you may have asked him about some hand written note and he said i dont have independent recollection of that. We did not have an opportunity to review those materials. We would base our information on the personal knowledge of those who dealt with judge gorsuch and if he was acting in his capacity as a lawyer that may be protected by privilege. We are happy to review that if necessary. Based on what i heard i dont believe it would change the opinion of the committee. I appreciate that. The documents i am referring to are much smaller in number, maybe a stack like this. But what they do indicate are some of his personal thinking on subjects of great concern namely torture. In a way i regret i didnt ask more questions. I will do some written questions in that area. I happen to hold the view that a member of this government is held to a different standard than an attorney may be in private life that if you think something is wrong you have an obligation to do something about it and not just say my principle wanted tice a ed this and so i we have too much of that in this area. I also want you to know that i think the work you do is very fine. I read it with care. Let me just say one other thing. Im going to do this because for many of us what has happened this past year has been very painful. You have also done an evaluation of judge garland who was not given the privilege even of a committee hearing. I would like to read excerpts from your report on him. Garlands integrity is off the scales, page five. Garland is the best there is. He is the finest judge i have ever met. He has no weaknesses page six. He may be the perfect human being. He is unnaturally [ laughter ] he is unnaturally blessed with brilliance. Things come to him quickly. In my opinion there is no better federal judge than chief judge garland. Garlands integrity is flawless. His competence terrific. I know no one with more integrity and more commitment to truthfulness and accuracy page 17. There never has been a better candidate than chief judge garland page 18. I have never heard anyone say anything bad about judge garland. I read this simply to disspell anybodys thinking that this man was not worthy of this committees hearing. Thank you very much for the work that you have done and it is very much appreciated. Thank you, senator. Thanks, mr. Chairman. I think judge gorsuch made clear his feelings about the competency of garland, as well. The other thing is maybe when i was talking about david brown i was trying to compliment you all without saying we appreciate your work very much and know you work hard at this. I know how david brown does it. I assume i have some understanding of what you go through though i have never done it. I will look here and is anybody who wants recognized . I will give a democrat before i come back to you. Thank you both very much for the work you do. Is it fair to say that the people you called was a group beyond Federalists Society . Yes. I dont think we knew if they were in the Federalists Society or not. The odds of all of them being called are pretty limited. Would you say he is a mainstream judge . Well, senator, it depends on what you mean by mainstream. We believe he meets and exceeds the highest standards of integrity, professional competence and judicial temperament. If that is mainstream the answer is yes. If there is a stream he is on the quality end of the stream, right . He is fishing in it. There we go. Are you from South Carolina . Im from oklahoma. Close enough. Would you say he is a reasonable judge . Absolutely based on the feedback we have received. Would you say he has lived a good life as a person . I will let you answer that. My answer is yes. Did you hear his testimony that he believed that the treatment act outlawed waterboarding . We were here yesterday. I cant say that we did actually hear that, senator. I remember hearing that. So i just want to thank you for the service you provide to the committee and to the country. I hope people are listening to your evaluation as to judge garland and everything you said is absolutely true. I will talk more about the way the process in the senate works. Thank you both. You did the committee and the country a Great Service. Thank you. Its been an honor. Im looking to my left and i didnt say im looking at the left. Anybody over here have a question . I dont. I will go back to senator kennedy. I thought you i just want to say one thing. I will defer. I just want to thank you for the work that you have done. I agree that garland is a wonderful person and very good judge. I went to see him personally. I helped him to get through that 19 years ago, maybe more than 19 years ago. And that was a problem, there is no question about it. But now that that has been resolved do you see any reason why we should not totally support judge gorsuch . The aba has given judge gorsuch the highest rating. That is the most affirmative endorsement. I appreciate the really hard work that you folks do. Its very meaningful to the committee at this time. Thank you. Senator blumenthal. Senator kennedy. Thank you for all your hard work. I know how exhaustive your analysis is. How many grades are there, the Different Levels of qualification . Three. Qualified, not qualified and well qualified. Basically a, b and f. I will add that some of the people that we talked to asked us if there is extremely well qualified. An a plus. Judge gorsuch received an a. He did. How many people contribute to this evaluation . 15 Committee Members all participate. In addition we had two academic reading teams read all of his published opinions and other writings. That was about 26 additional lawyers, academics who are experts in their fields that they reviewed. If it was a Securities Law case a Securities Law expert read those opinions. Additionally practitioners which include those who regularly appear before the Supreme Court, that was 14 additional. If you add all that up if my math is up i would say that is about 55 people or Something Like that, all very distinguished lawyers and academics. These 55 attorneys, are they all republicans . No, sir. Are they all democrats . No, sir. Very varied, big firms, small firms, democrats, republicans. In fact, we dont get into political filiations. Good for you. Is it a gender Diverse Group . Very gender diverse. Every kind of diverse you can imagine. And it is racially diverse . Yes, sir. You probably dont ask this question but in terms of religion is your sense that it is diverse . Our sense is but we dont ask that question. And this group together gave judge gorsuch an a . Well qualified . Yes, sir. Some asked to give him an a plus . Yes. I just want to say for the record i dont know ms. Edwards, i just had the pleasure of meeting you today. My dad was from oklahoma. I love oklahoma. Thank you. I know ms. Diegoen. She is one of the most prominent lawyers in louisiana. She is an under graduate graduate of the university of new orleans, an honors graduate at loyola, she practices law with baker donaldson, one of the premiere law firms not just in louisiana but in the world. I trust her judgment. In my experience it has been she calls it like she sees it. She is joined here today, i would be remised if i didnt recognize, i will call him her lesser half, lesser half but still substantial, another very prominent attorney. He went to uno. He went to tulane the law school. He founded his own law firm and he is here today volunteering his time. I know them both well and i trust their judgment. If they tell me that judge gorsuch is the best, you can take it to the bank, you can take it home to mama because it is true. I thank you. Thank you, senator. I believe that that is the last of the questioning for the committee and for the American Bar Association and for the country we thank all of the people who have participated and will continue to participate in this that you have reported. Thank you very much. We will take 30 seconds for staff to give the names of the new people. And i would ask new people to come and stand behind their chair and i will swear you before you sit down. Im going to go ahead and start the introduction anyway. The next panel will be judge taha, ms. Macimino, judge cain, mr. Perkins, and mr. Calamine. If i pr nounce names wrong correct me when you testify. I think i dont think we should im sorry. I thought maybe youre moving properly now. I thought maybe you werent here. You are obviously here. Would you do you swear that the testimony you are about to give before this committee will be the truth, whole truth and nothing but the truth so help you god . I see positive response so i think please sit. We never get everybody to honor the five minute rule. I dont expect you to stop in the middle of a syllable but if you see the red light come on and you can summarize in about 30 seconds or so it would be very much appreciated because im sure there will be some questions of some of you and so we want to move things along. I think im going to do it in the way you are seated my left to my right. Would you start off. I am pleased to do so. Good morning to the distinguished members of this committee. It is a privilege to appear today to support the nomination of my former colleague and my friend neil gorsuch as associate justice of the United States Supreme Court. I served with judge gorsuch on the United States court of appeals for the 10th circuit and i was privileged to be chief judge when judge gorsuch was appointed in 2006. In my brief time today i will touch on three aspects of judge gorsuchs qualifications all of which i consider very, very important for judges at every level. First, judge gorsuch the judge. Judge gorsuch brings to the bench a powerful intellect combined with probing and analytical approach to every issue. He brings to each case a strong commitment to limit his analysis to that case, its facts, the records and the law cited and applicable. He does not use his judicial role as a vehicle for anything other than deciding the case before him. The requirement for jurisdiction is for judge gorsuch a guiding principle for his judicial role. He is a student of constitutional structure and federalist papers and he takes very seriously the appropriate roles assigned to each of the three branches of government. He is an elegant and accessible writer. In my judicial writing classes i assign some of his opinions to demonstrate importance of narrative to every case before the courts. Jurisprudence is informed by textualism, originalism and precedent. Only as the lenses through which to seek an appropriate resolution of an issue or a case, judge gorsuch is a case by case by case judge whose dedication is to serving litigants in the third branch of government. Second judge gorsuch the colleague. On a multi judge Appellate Court it is my view that one of the most important characteristics of an effective and efficient court is the level of collegiality among its members. This is not at all about getting along to get along. It is about improving the quality of the work of that court by careful and respectful listening to varying and divergent views, participating and engaging in robust debate about procedures and factoring in and listening to the diverse views of each of the other judges. Judge gorsuch is such a judge. His attention to the views of his colleagues informs his work. He has an acute sense for identifying those circumstances where reaching consensus is the highest value. And, on the other hand, those decision points where personal conviction and reason dictate individual judgment and independent decision making. Judge gorsuch believes in the court as an organic and flourishing entity where the views, the back grounds and the perspectives of all the judges on the court are important to the quality of his work. Finally, judge gorsuch the person. Neil gorsuch is my friend. He has been from the day he took his role as my colleague in 2006. I want to say that again and say it advisedly because it means something that despite many differences in life experience, in back grounds in education and in interests judge gorsuch immediately and always affirmed me both as a person and as a colleague. I have watched him with all kinds of people in the courthouse, in social settings and in the rough and tumble of judicial travel and duties. He is unfailingly kind. He is thoughtful and he is empathetic to all people. His is the kind of dignity that reflects the dignity he accords to all people. Judge gorsuch lives according to his values. For him faith, family, community, nation and his beloved colorado define who he is. He is for me the Gold Standard in public service. So for all of these reasons i urge the committee and the full senate to confirm judge neil gorsuch as an associate justice of the United States Supreme Court. Perfect. Thank you. Its an honor to be here today as you consider the nomination of judge neil gorsuch. I speak on behalf of human rights First Independent nonpartisan organization. My focus today is on dangers that arrive when executive branch claims unfettered authority. When president s override constitutionally mandated checks they threaten fundamental rights, rule of law and also undermine National Security. This is not a hypothetical concern. Now would be an especially perilous time to promote a judge who wouldnt stand up against president ial power grabs. The president has advocated torture and other war crimes, banning people because of their faith, deporting refugees without due process and done this while by passing congress and expressing contempt for judges. So the key question you should ask of judge gorsuch is this, how would he respond in the face of what may be unprecedented threats of basic rights, separation of powers and the rule of law . In our nearly 40 years human rights first has never opposed a nominee nor do we question judge gorsuchs credentials. I am here simply because his record raises concerns that i think you should address before moving forward with his nomination. The stakes are too high to get this wrong. Our concerns arise from the Public Record of judge gorsuchs time at the Justice Department. They fall into three areas, subversion of Congressional Authority, restricting judicial review and torture. On all issues judge gorsuch is not a blank slate. As political appointee he was directly involved in defending Bush Administrations claims that the president has extraordinary power to disregard laws in the name of National Security and that the judiciary either cannot or should not review such actions. These claims constitute frontal assault. They were rejected by the courts. With respect to judge gorsuchs role on Congressional Authority after photographs surfaced in 2004 showing abuses senator mccain spear headed the detainee treatment act strengthening ban on torture. Judge gorsuch pushed for his president ial signing statement saying president could disregard that law to the extend it conflicted with his authority. Judge gorsuch argued that the law was best read as essentially codifying existing interrogation policies that included waterboarding and other forms of torture and abuse. Judge gorsuch repeatedly sought legislation to strip courts of habeas jurisdiction. The courts are powerless to review that decision. Third on torcture, some people like then General Council of the navy were horrified for having policy of torturing prisoners. Judge gorsuch seems to have devoted his energies to defending it. These were the defining legal debates of our time and judge gorsuch was on the wrong side of them. Policies he promoted and defended violated american ideals and inflicted unnecessary suffering and didnt strengthen our security. These policies compromised americas global standing, alienated communities and handed our enemies a pr victory. Given this record it is essential that you probe judge gorsuchs views on executive power, torture and appropriate roles on congress and co equal branches of government. Did his actions reflect his legal philosophy . Did he disagree with positions on the administration on torture . The senate must get to the bottom of these questions because sooner or later and with this administration it is likely to be sooner, the Supreme Court will be called on to protect fundamental rights, Judicial Independence and separation of powers from a president who treats the rule of law as an annoyance rather than foundation of our democracy. Thank you. Thank you members of the committee. It is a pleasure and honor to be here today. I thank this committee for its Wonderful Service to the third branch over the years. I am president and ceo of Oklahoma City university, former state legislator and former attorney general of state of oklahoma and former chief judge of United States court of appeals for 10th circuit. I held the Court Position from 2004 to 2010 and last four years of my service i was a colleague of judge gorsuch. I am here today to speak in support of his nomination. In federalists 78 and that would be Alexander Hamilton described nature and virtues of federal judiciary as least Dangerous Branch care would have to be taken to protect its vital independence. Permanency in office would be required both to promote independence and to allow for the mastery of the strict rules and precedence. The granting of permits, importance of integrity and long study required to master the judicial craft led hamilton to observe there can be few will have sufficient skill to qualify for this station of the judge. This is why the committee is gathered today. You have before you a candidate that i believe our Judicial Branchs architect would warmly embrace and not just because they both attended columbia. As one who served with neil, decided cases with him, travelled and dined with him, discussed our Families Together including the daughters, agreed and disagreed with him i can attest to his remarkable intellect, his integrity, mastery of hamiltons rules and fine judicial temperament. I believe the subject of intellect speaks for itself. His degree from columbia and harvard law school, that resulted in philosophy degree and corpus of work which includes Outstanding Service awards from the state department, from the truman foundation, some 900 opinions that lawyers described as straightforward, well reasoned. Deserving special mention is law of judicial precedent. This book which judge gorsuch joined and several distinguished circuit judges of quite diverse back grounds to develop a remarkable work of legal scholarship. All of these co authored of different political and occupational back grounds produced a single volume written with a single voice and no signed sections. As to integrity i never found neils integrity to be questioned. His career has subjected himself to various reviews of his public service. He served as a law clerk to two Supreme Court justices. The late justice barren white, highly esteemed judicial figure and not just because of his records as well as clerking for justice kennedy. This committee has reviewed him before as a circuit judge. All of this speaks to neils mastery of the law. He has unique qualifications. We have a lot of cases from the Great American west. We have our cases involving our native american nations, cases involving land and water that are important and his experience in these areas will be helpful to the court. I will skip judicial temperament. I am running low on time. I want to talk about one thing especially important to me. When when judge gorsuch were in santa fe hearing cases they were distressed by the quality of legal representation of those charged with the most difficult cases that federal judges must deal with, habeas Death Penalty cases. Because of that concern and i have to say most cases come from oklahoma and our bar was not adequately doing the job. They came to the circuit, they created seminars. They brought the circuit in to hear cases. They met with these lawyers and met them, trained them and had one lawyer said instrumental effect in improving the advocacy of this most important area. Thank you. Thank you, judge. Members of the committee, thank you for inviting me to testify. I dont think this committee has any task more important than the one it has been engaged in this week. If judge gorsuch is confirmed he will likely play a key role in shaping american law and society. I think it is clear that judge gorsuch has the professional competence to service on the court. I agree that judge gorsuchs service in the Bush Administration raises important questions about his views on executive power and role of judiciary. At the time judge gorsuch served in the Justice Department the Bush Administration was advancing extremely broad claims of executive power in the service of unlawful policies related to surveillance, detention and interrogation. Judge gorsuch was closely associated with those claims it would be a mistake to confirm him without assuring he will defend individual rights in the context of National Security. I want to recognize that judge gorsuch might approach issues relating to executive power differently as an associate justice than he did as a Justice Department lawyer. At the Justice Department judge gorsuch was a lawyer with a client and says he regarded himself as a scribe. With respect i encourage the committee to bring a degree of skepticism to that characterization. Judge gorsuch sought out a high level position with the Justice Department in the fall of 2004 just seven months after the publication of the photos and five months after washington post, a memo that interrogation methods would be lawful. It was a chilling document then and remains an astonishing document today. It is also worth noting that judge gorsuch appears not to have registered disagreement with policies he defended nor is there evidence that he registered discomfort with arguments that Justice Department advanced in support of those policies though others did. The documents provided by the Justice Department suggest that judge gorsuch was comfortable with the policies and with the Bush Administrations defenses of them. It was challenges to the policies that troubled him. Senator durbin asked judge gorsuch about an email in which he criticized lawyers who represented prisoners held at guantanamo. I thought the answers judge gorsuch gave was a good one. He said he regretted having sent the email and it was not his finest moment. I hope you will give judge gorsuch an opportunity in his answers for the record to respond more fully to broader concerns relating to the positions of the Justice Department. Questions relating to executive power are presented especially sharply today. President trump has issued an executive order banning muslims from six countries to traveling to the United States. He said he will consider prosecuting u. S. Citizens. He has promised to intensify surveillance of minority communities inside the United States. If judge gorsuch is confirmed he will be called on to consider the lawfulness of some of those policies and conclusions will have far reaching implications for lives of millions of americans and others and on the relationship with the United States with the rest of the world. So i urge you not to confirm him without fully exploring his views of executive power. This should not be a partisan issue. We all know that the powers abused today by republican president may be abused tomorrow by a democratic one. The question is whether judge gorsuch will safe guard individual rights in separation of powers. Thanks again for giving me the opportunity to testify. Thank you. Thank you senator hatch and members of the committee. I am the only trial judge that is appearing in these hearings. I would like to say senator i have no reason for you to remember this, but i appeared before you 39 years ago. I was honored to be here then and i am honored to be here now. We are honored to have you. Thank you. Judges are no different from anybody else. Like you, we have social, political and religious views. Whether the product of culture or upbringing or result of education, intellectual or philosophical pursuit. To don the robe, however, is to surrender the freedom to act on those views so that justice may be served. The discipline of deciding irrespective of ones personal beliefs is the essence of judicial integrity. Being consciously aware of ones views and setting them aside at the start of every case is no easy task nor should it be. The question for any nominee is, does he or she have the discipline to do that and decide each case according to the rule of law . I believe judge gorsuch does and his opinions prove it. Long ago i gave up identifying judges as liberal or conservative because those words seem to mean whatever the user wants. They have no common understanding and provoke no further analysis. However, one might pigeon hole either of us the fact is judge gorsuch and i share few of the same social, political or religious views in evaluating fitness for the bench the real question is does the nominee embrace the discipline of the robe. Do his or her opinions reflect any sort of ideological basis . Is the judge fair . Judge gorsuch is not a monk but neither is he a missionary. I read a great many appellate opinions from Circuit Courts throughout the United States to the extent that a judge can be judged by his opinions the ones written by judge gorsuch tell me a great deal. His are clear, cogent and mercifully to the point. I have been both affirmed and reversed by him. Each time i thought he was fair and right. He treats the parties and the trial judges rulings with respect. He does not ridicule them or take cheap shots nor does he insult or demean other judges who might disagree with him. His writing is filled with grace and wit but does he know the difference between his personal views and those of the court . Judge gorsuch is the only judge of whom i am aware who has written both majority opinions and concurring opinions in the same case. The majority opinions were the opinions of the three judge court. The concurring opinions were his separate additional perspectives. He has done this at least twice. He knows the difference between speaking for a court and for himself. Judge gorsuchs opinions also make clear his concern for the separation of powers and his keen awareness of judiciarys independence. He has written that legislation belongs to congress and ajuddication belongs to the courts. He has disagreed with the late Justice Scalia by suggesting there is far too much activity in the executive branchs Administrative Agency rulings. He has questioned the values of the chevron doctrine which asserts judiciary should different to Agency Interpretation of statutes. It intrudes equally upon authority and prerogatives of legislative branch. As is often the case justice homes said it best in his decision in lockner versus New York Justice holmes wrote the case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether i agreed with that theory i should desire to study it further and long before making up my mind. But i do not concede that to be my duty because i strongly believe that my agreement or disagreement has nothing to do with the right of the majority to embody their opinions in law. Like Justice Holmes judge gorsuch knows his political views have no place on the bench. In embracing the discipline of the robe, dedicating himself to the separation of powers and consistently devoting himself to being fair, judge gorsuch has earned the right to be considered by you for the highest bench in the land. I hope you will judge him with the fairness and integrity with which he himself has served. Thank you judge kane. Mr. Perkins. Mr. Chairman, members of the committee, thank you for the opportunity today to give voice to my son whose access to an appropriate education and thus meaningful and dignified life was threatened by views of judge gorsuch. Luke was diagnosed with autism in 1996 at age 22 months. Intensive Early Education program taught him letters, numbers and colors but he struggled with speech. He developed restricted diet and erratic sleep cycle. When overwhelmed he would tantrum and often injure himself. His care became too much. His older siblings and hired caregivers helped. It was clear that his Education Program was failing and luke began to regress significantly. Teachers were reinforcing inappropriate behaviors and he was not participating in meaningful educational activities. His Program Failed to address profound inability to generalize. He might learn a skill with one teacher but be unable to perform it in any other setting. While such learning might check off box on Education Plan it provided no meaningful benefit. Multiple experts agreed he needed an intensive program with wrap around services to address his educational needs. We made many unsuccessful attempts. Since the needed services were not available locally we were left with agonizing option of sending him 2,000 miles away to a Specialized School in boston. When luke enrolled at age 9 he was not toilet trained, could not sleep in a bed, could not eat with utensils and did not interact with peers. Within months he was toilet trained. He ate healthy foods. He was sitting calmly in a classroom with peers. He participated in Group Activities such as roller blading. When luke visited home we could shop, eat at restaurants and attend church together. This improved life was costly. Despite my comfortable income as a physician his education costs rapidly depleted our reserves. In 2005 we requested reimbursement under the individuals with disabilities education act. At a due process hearing the independent hearing officer found in our favor. The decision was upheld by Administrative Law judge. But when the School District appealed judge gorsuch offered the decision overturning previous rulings legal reasoning set a new low standard of education required as merely more than deminms. Lacking significance or importance, so minor as to merit disregard. Judge gorsuch felt education for my son that was even one small step above insignificant was acceptable. Despite lukes inability to meet three quarters of his educational goals his education was judged appropriate. That left us only one real option, one of which parents would have to move to a School District to better accommodate lukes educational needs. My wife decided to permanently relocate. The School District acknowledged lukes needs allowing him to finish out his time. Now age 22 luke will always need support in a world that still seems perplexing and threatening to him. His quality of life is vastly better than it would have been otherwise. He cooks and does household chores. He is able to shop, work, eat and play in the community. And he has developed a new passion, legos. Lukes mind is uniquely attuned to this plastic brick world. He constructed this particular model this january. His present life would not have been achievable without an appropriate education. Luke is unaware of the price paid for his education. The financial cost pails in comparison to the human sacrifice. His mother separated from 13yearold daughter, parents marriage broken and unaware of key place that one judge played in the fight for his right to a free and appropriate Public Education. In his ruling judge gorsuch evisc rated the educational standard guaranteed. His interpretation requires that a school provide education to a disabled child that is just above meaningless. His minimalistic interpretation of federal law has been used to deny an appropriate Public Education to countless others over the last nine years. Legal philosophy and case law aside such an interpretation clearly fails the common sense test. Why would Congress Pass a law with such a trivial intent and why would a parent settle for education for any of their children regardless of their abilities or challenges . To quote chief Justice Roberts when all is said and done a student offered an Educational Program providing more than progress from year to year can hardly be said to be offered an education at all. On behalf of all children disabled, typical and gifted i urge you to deny confirmation of judge gorsuch to the Supreme Court of the United States. Thank you for providing me this opportunity and i ask that my full statement be included in the record. I look forward to answering questions. We appreciate your testimony. Mr. Chairman, Ranking Member feinstein and other members of the committee. I am deeply honored to have the opportunity to address the committee today and talk about one of my mentors, judge gorsuch. Senator feinstein, i grew up in california where you and senator boxer were my home state senators. There was a time that i believed only females could be senators. Of course, when i left for college i moved to maine which had two women senators so take from that what you will. I served as a law clerk to judge gorsuch from 2009 to 2011. I would like to direct my remarks to how judge gorsuch approaches cases. His commitment to assess each case from all points of view and never make up his mind until every point of view has been considered is the quality i respect most about him. First judge gorsuch is truly independent in deciding cases he doesnt care what politicians or parties want. He only cares what the law says. Never once did politics influence a decision he made. I saw the government win cases. I saw the government lose cases. I saw each private litigant receive the same meticulous analysis of its arguments. Judges like judge gorsuch are keepers of our independent judiciary. Judge gorsuch works together with judges of different points of view to build consensus wherever possible. The judge heard many cases together with other judges whose philosophies differ. The great majority of those cases were decided unanimously and that is no coincidence. It is a reflection of the judges deep respect for the opinions of his colleagues and commitment to craft decisions that benefit from their reasoning. In my experience as a law clerk the judge always pushed me to research all sides of the case questioning reasoning underlying each partys position and giving all arguments exhaustive consideration. That process more or less consumed my life for two years, a cornerstone of how judge gorsuch works and will not accept anything else. There is no question that a Supreme Court justice wields significant power. Having worked closely with judge gorsuch i am competent that a change in title from judge to justice will not change him. His judicial philosophy is based on the idea that the future of country will be decided by elected representatives like members of this committee and not by him. That will never change. On a personal level, some of my fondest memories of my clerkship with judge gorsuch were afternoon runs he led us on. Weaving in and out of city streets i questioned description as jogs when they felt more like a sprint. While it was easy to begin the run discussing cases the true test was whether you would continue to communicate 20 minutes later when most clerks were out of breath. I think of those runs as a metaphor for the experience of working with the judge. In casual conversation chambers the judge wanted to hear about our experiences exploring the colorado outdoors. I remember the morning of quizzing clerks of adventures. One weekend while hiking i found myself within a few feet of a beautiful red fox. And i knew i would are the ace come monday. We all know the saying that you are judged by the company you keep. One of the greatest gift s of clerking for two years with judge gorsuch is my co clerks. Many of the judges clerks whose political views span spectrum travelled to be here for this hearing and we have recommended him as an extraordinary judge. We believe he is a judge of whom all americans would be proud. Mr. Chairman and members of the committee. I am general counsel of the Communications Workers of america. We are a labor Union Representing hundreds of thousands of workers across this country. Thank you very much for the opportunity to testify. Our concern about judge gorsuch ascending to the Supreme Court is about as fundamental as it can get. His Juris Prudence is a threat to working Peoples Health and safety. This hearing has already paid some attention to judge gorsuchs dissent in the trans amtrucking case. That dissent issued seven months ago reveals antiworker bias and features judicial activism that will put workers lives at risk. At issue is a law that protects Truck Drivers who refuse to operate a vehicle out of safety concerns. When driver refused to operate his truck and trailer to keep the truck parked and hitched to a disabled trailer in subzero temperatures while he froze to death waiting hours for help and instead drove his truck to safety he was exercising that right to refuse unsafe operation and could not be fired for it. Only one judge at any level of this case ever dissented from this view, judge gorsuch. He found that when mr. Madden drove his truck to safety he was not refusing to operate his truck. He was operating it and therefore could be fired for disobeying orders. Judge gorsuch said the result he reached might be unkind forcing mr. Madden to choose between dying or losing his job. He contends he is merely applying the unambiguous test of the law to the facts of the case. To reach this result judge gorsuch had to choose one particular definition of the word operate from the dictionary. As it turned out there are multiple definitions of operate in the dictionary. Judge gorsuch chose the definition that allowed him to rewrite the law. After he was done the workers right to refuse to operate would mean only refuse to drive. That is not judicial restraint. And the rewrite of the law in this case leads to absurd deadly results and fewer rights for Truck Drivers. As we know judge gorsuch is no fan of Agency Deference and so we have every reason to expect his judicial activism will narrow other workers rights beyond the surface transportation. Our Union Members are typically not Truck Drivers but rely on other safety laws to protect them on the job like oshas rule allowing us to refuse hazardous work. On a very frequent basis a worker that we represent will identify hazard in the work place and union will stand with him and others to stop the work until the hazard is abated. A few weeks ago one of our technicians in detroit discovered significant asbestos contamination in an underground vault directly below a man hole on a public street. He told his supervisor. His supervisor told him to blow fresh air into the vault which would not only expose his technician to asbestos but expose the public in the street above. So the technician refused to do the hazardous work demanded and he and the public are safer for it. We take these actions knowing the law is on our side. To us health and safety are not as judge gorsuch dismissively puts it generic. The right to refuse hazardous work under the osha act unlike the statute at issue is a product of agencys interpretation of the statute. If judge gorsuch takes a sledgehammer to workers explicit statutatory rights imagine what he may do to rights stemming from Agency Interpretations. Judge gorsuchs dissent in trans am trucking in our view is disqualifying. Ignoring Agency Interpretations, common sense and picking narr narrowest definition to redefine our rights that is not applying the law to the facts. It is a form of judicial activism. It said that our health and safety laws are written in the blood of working people. Please do not allow judge gorsuch to repeal these laws from the highest bench in the land with his brand of judicial activism. We urge the senate to reject this nomination. Thank you very much for your time. I want to thank all of you for being here today and for your testimony. I just have one question. Welcome. You are a great judge. I really appreciate your leadership over the years. This hearing has been somewhat separation of powers being prominent theme throughout this week. This is the first of three aspects of judge gorsuchs qualifications that you describe in your testimony. As you put it, he, quote, takes very serious ly the appropriate roles assigned to each of the three branches of government, unquote. This is a critical principle. They can sometimes seem a tad detached or even cold when the facts of the toughest cases are presented. Im sure you wrestled with this when you were on the 10th circuit. How important is it for a judge to stick to the law even when it means ruling against sympathetic litigants . I appreciate your kindness. I was a part of the 10th circuit and now im working in senator feinsteins native california. I am pleased to be both places. Your question is to the heart of what a judge does. Let me just say in response to mr. Perkins, as a parent and as a human being my heart goes out for the facts that you have laid forward. But as a judge, to your point, senator hatch, the judge must look at the law as he or she sees it at that moment. And in particular in the luke case judge gorsuch was following very long standing precedent. This committee has heard judge gorsuch repeatedly say precedent is important. Precedent stands. It is an important piece of the lens that i refer to that a judge looks at a case through. And to be absolutely specific judge gorsuch was applying precedent that went all the way back to 1982 in the Supreme Court decision of board of education versus so with all of my heart string, and with the family what judge gorsuch was called on to do was to apply that very longstanding Pres Department for our circuit, and let me also say that it was not just our circuit, and i believe it was all but two circuits and all of the rest of the circuits in the nation were following the same standard interpreting the i. D. E. A. And further, i can say with some authority that he was following not as dicta, but as a holding in his case what i wrote in the urban case which he was following, and both, all wrote that the statute as interpreted must be more than de minimis, and so there a lot of discussion, but it is important to know that it was longstanding precedent from a long time back. And now i will say that circuit judges are really glad when the United States Supreme Court clears up circuit conflicts, and so what happened in that case that was issued yesterday was two circuits had chosen one standard and the rest of us had chosen the other standard through longstanding precedent on interpretation of the i. D. E. A. And so, yesterday, the Supreme Court carried out its very important function of clearing up what the standard would be. I have not had time i would have the say, and i have not had time to thoroughly review the opinion from yesterday, but i know for sure that the luke p. Case was based on the urban case that i wrote and it say ths that stands must be more than de minimis. Senator feinstein. Thank you very much, mr. Chairman. Thank you, judge, for making that clear. I think that you made a very cogent statement. I gather that the standard, that the court passed yesterday would have covered mr. Perkins son, is that correct . Well, i will not opine on how the law would be applied to particular facts, but it does appear to me that the tan dard that we had been using has changed. Thank you. Mr. Perkins, i want to thank you forring bei being here. That display is very telling. And one question, when did he do this . He did this in early january of this year. Ironically about two weeks before judge gorsuch was nominate nod the Supreme Court. Well, that is quite amazing, because it is quite a complicated building of the capitol, and very much appreciated, so thank you for being such a good parent, and very much appreciated. I wanted to go to mr. Jafer, if i could, because i feel in remiss, because i wanted to ask the questions yesterday and i didnt have an opportunity to do so. And so let me throw out a question, and ask you, you view on it. And the judge acknowledged that he worked on the graham amendment which sought to eliminate habeas for the guantanamo detainees and he also acknowledged that in december of 05 after the detainee act was passed there were different f factions in the administrations advocating different versions of the signing statement. In an email, judge gorsuch sent to Steven Bradbury and others, and heres what he said, and i quote, and this is on the document, along the lines proposed below would help inoculate against the potential of having the administration criticized some time in the future for not making sufficient changes in interrogation policy in light of the mccain portion of the amendment. This statement clearly and in a formal way that would be hard to dispute later puts down a marker to the effect that the view that mccain is best read as essentially codifying the existing interrogation practices, end quote. This is in in december of 05 five months afs the bradbury memo stressed that waterboarding, stress situations, and position, and sleep deprivation were not appropriate under article 16 in the convention against for chur. My questi torture. And the what to you make of this e. T mail inoculated for being criticized in the future not not makings sufficient changes in the interrogation policy . I think that this is a really important question. So in may of 2005, the office of legal kocounsel wrote memos tha concluded as you mentioned, senator feinstein, that concluded that certain interrogation methods, including waterboarding, did not constitute cruel and human or degrading treatment. My understanding of the email that you quoted is that judge gorsuch believed that the signing statement that the way that the administration should interpret the law is to essentially rad fi those int interrogation methods that the office of Legal Counsel had signed off in may. So one really important question is what did judge gorsuch know about the interrogation methods that the cia was using at the time that he urged that president bush issue a signing statement interpreting the d. T. A. And the way that he ended up interpreting it. It is an important question, and i dont believe that it has been answered yet in this hearing. Thank you, thank you. Thank you very much, mr. Chairman. Senator rand. Well, thank you. I are remember the debate well. Here is what senator mccain said about his amendment that i supported vigorously. The amendment that i am offering is codifying current policy and reaffirms what is soon to be existing law for years. A lot of the administrations stated commitment should require no change in the interrogation or the detention practices, but what it would do is to restore clarity on the simple and the fundamental question, does america treat people inhumanely and my answer is no, and from what i have seen americas answer is always no. That is senator mccains view of what we are trying to do here. And the graham amendment, and i cant remember what the how the bill was passed, but it was overwhelming, and i try to say that the combat tribunal system within the military is the primary way of determining an enemy combatant status, but we would have review of that at the d. C. Court of appeals. The Supreme Court said in a 54 decision that the crst is not a adequate substitute for the habeas, and that is the law of the land today, and we basically redrafted the military commissions act and i feel good about where we are at. Mr. Jaffrey s the Current System is that if you are a alleged to be a enemy combatant, that you are held in a court by habeas . Yes, that is true. And you have to be proven by a preponderance of the evidence to be an enemy combatant. Yes. That is correct. And can you then be held indefinitely. I am not sure, because that is still in court. And there are people at Guantanamo Bay that have been there and left indefinitely. And president obama left them in that status . Yes. And 48 determined too dangerous to release. And so under the Obama Administration those 48 are being held as enemy combatants . Yes. And the as you know, senor to, hundreds were freed and i dont know how many would have been freed under rules that judge gorsuch was proposinging. Yes. And do you know that 30 of the freed have gone back to the fight. I dont believe it is accurate figure, sir. And how Many Americans and others have been killed as a result of those released from Guantanamo Bay . Sir, the well, do you know . No. Well, you cant hold some people without risk without due process, do you agree with that . I agree with that. Are and the safest way is to not let anybody go, but it is not the right way. It is not the way that the Supreme Court has proposed that the law should be. No, the Supreme Court said that they never said that you cant hold them indefinitely, but you have to give them due process. That is true, senator graham. I am all for the due process, and sometimes you make mistake, and so we have been aligned more than people would think, because i dont believe that waterboarding is ever an appropriate technique to get information and i am sure that you agree with that . I do, senator graham, but the question is whether judge gorsuch agreed with that in the time of the Justice Department and my interpretation of the email is that he didnt. And is it fair that judge gorsuch who i interacted with a lot said that waterboarding is illegal in the detainee act and said that before this committee. Yes, i read that and i was pleased to read that. And you know why he said that . He i interacted with him a lot, and he never bought that it was consistent with the geneva convention, and consistent with the law, and some people had that view, but he said before the country that waterboarding is nowle illegal without any question, and i brought up the situation of the current president that if he decided and i dont believe he will, because of the general mattis to go down the road, that he would be in my view violating the law, and judge gorsuch said no man slash woman is above the law, and so i hope that is some comfort to people that judge gorsuch understands that the purpose of the detainee act was to outlaw waterboarding and other techniques and outlined it for the country that no president can seize the wall seize the law, because of National Security concerns. Ms. Massimino, do you agree we are at war . I do. And this is a complicated endeavor in terms of how you fight the war, because there is no nation state to fight, and no air force to shoot down, and no navy to sink. It is quite complicated. But we have to adhere no values, and also realize that intelligence gathering is an essential ingredient to the war. Yes, it is a very challenging part for us. Thank you, all. You have been a Great Service to the country. Thank you, senator durbin. To follow up on senator grahams questions. At the time of the memo sent by judge gorsuch on this issue in which he said that mccain is existing cod fifying existing policies, i am told that waterboarding was part of the existing policies of this country, is that correct . That is correct. And he could not remember that email nor any details surrounding it, but we clearly through the mccain legislation, which i supported, we clearly wanted to outlaw waterboarding and any cruel or Inhumane Treatment of prisoners and so there was a builtin inkon s inconsistency there. That right. And codifying the are preceding existing procedures including waterboarding and also the mccain amendment would have prohibited waterboarding which is a clear distinction which judge gorsuch because of a variety of circumstances did not directly answer. Yes. And let me move to another issue in, i dont know if it is doctor or mr. Perkin, but thank you for being here, and your touching story about luke and the travels and the journey and all that you have and your family have done to bring him to this point in his life. When judge tahah talked about the 10th circuit standard she left out one word merely. Merely, and im trying to draw an analogy, and maybe not the best one, but when i said that when it comes to hungry children, the law requires you to provide them more than just a little bit of food, that is a lot different than saying when it comes to hungry children, the law requires you the provide them merely more than just a i little bit of food. Difference . One word has made a big difference, and taken de minimis lower and that is the express statement by judge gorsuch which expanded what was the tenth circuit standard when it came to your son, and it is the express phrase merely more than de minimis that the Supreme Court unanimously struck down yesterday saying that means no education at all. When you saw that opinion, what was your reaction that judge gorsuch said that he was just following the 10th circuit precedent . Well, i was devastated. At the time of the opinion came out, luke had been at boston agoshi,and knew what he had accomplished at that time, and all of the progress he had made and to realize that judge gorsuch by this subtle word kraft craft by making a statement that said that he was following precedent, but actually further restricting an already restricted precedent with up fortunately my son in the bulls eye of that decision. It was very hard to take. And mr. Calamine is that the correct way to pronounce it . Yes. Mr. Cal line. And the Committee Members are going to be so excited to know that we spent so much time talking about a frozen truck driver. And we are talking at the Supreme Court and why should we be talking about Alphonse Madden and whether he was facing hyperthermia or frostbite, and whether we are talking about one young man with autism or one truck driver, we are trying to figure out this judge and what makes him tick, and what his values are, and all we can rely on are really important decisions, and not the routine decisions, because they come and go, but the the ones where you have really a moment where you have to make call with the law and the facts that really defines you. Many of the arguments today i have heard over and over, and this is programmatic, and here are the facts and the judge, and case closed, and we know better. And we know better because marek garland is not sitting at the table or wasnt yesterday, and the decision was made that it would be in the ogorsuch that marek would come in an obama appointee and come in to say the same thing, and that is going to tell us that there is more at stake than this robotic application of the law, and there is something much more fundamental here, and i thank you for coming here to speak on behalf of working people. Thank you, mr. Chairman. Thank you very much. Mr. Jeff forth,afer, i want to u have been aware of the article that came out that a judge corroborated judge gorsuchs account that he pushed back against advocates of the waterboarding and other cruel interrogation techniques in the Bush Administration, and are you familiar with that . I am not aware, but i am glad to hear it. If you have an opportunity to ask questions for the record, it would be great to have more information about precisely what he did to push back against the interrogation methods and great to hear fa he dif he did that, would be good to get it on the record. In the emails dated thursday december 29th, at 4 57 p. M. , and it is worth saying that he did not say no changes being made but he used words like sufficient and essentially, and talking about sufficient changes, and whether they essentially codified existing law, and not suggesting that there were no changes at all that were made by the law. Would you dispute that . No, i think that thes another good line of inquiry, and it would be important to ask judge gorsuch, again, of what he knew of the interrogation methods used at the time, and what adjustments he thought that the administration would make as a result of the dt,a and those are important questions that have not been answered. Thank you. And judges tahah and henry, it is good to see you and more comfortable to be standing on this side of the stand and rather than the other side. I am used to seeing you in an elevated position with both of you in robes, so thank you for being here. On the point judge tahah about the use of the word merely and looking at the circuit precedent already demand, and trying to evaluate whether that precedent had been satisfied the use of the word merely as i see it could mean and ordinarily would mean if i am not mistaken that this law does not require everything. It does not require 100 if we are measuring this on the 1 to 100 basis. It requires merely xpercent, and so normally when a judge uses the language, a judge would not be meaning to denigrate or minimize what the law requires, but indicate that the law requires x and nothing beyond x. Would that be how you would normally use that as a judge . That is exactly right. I cant opine, and thank you, senator lee, for the kind words and i cannot opine in the order of the adjective came in the sen tents, but what it does is to define very existing precedent which is our standard more than de minimis. So, yes, how that word was used is probably exactly as you describe u which is there is a standard here, and there is a standard here, and there is a standard here, and this one is the standard that is selected by the circuit and followed the Supreme Court precedent since 1982 1982. As an article iii judge, and powerful judge at one point you were the chief judge of the 10th circuit, it is not your job to write the laws. It definitely it is not, and i will add to that that judge gorsuch is meticulous in that and you will find it throughout the opinions this is not our job. This is kois congress job or t president s job or whatever, and he is so meticulous about the roles of the three branches of government government. In fact, he and i have had these conversation, and one of this things that is not seen, but you understand it in the Committee Work that in an appellant court, there is a lot of back and forth among the judges and the panels and in bank sittings, and i have heard judge gorsuch on many occasions say it is so important for us to be absolutely meticulous about what the role of each of the branches is. As i said in the written comments, he is a student of the federalist papers and of the founding documents, and really believes in that separation of powers. It is that separation of powers that recognizes that in our Constitutional Republic it is the people who are sovereign, and the Peoples Branch is the legislative branch, and that is the branch of the government where there is the most accountability to the people at the most regular intervals. I see that my time has expired. Thank you, judge. Thank you, mr. Chairman. Thank you, chair mman. Mr. Cal mine, you represent a labor union . Yes, sir. Id like to read you from a New York Times news story that relates to the abaaoud case which is a precedent of the Supreme Court that controls when labor unions like yours can charge nonmembers for service they rend er in ter in the coll bargaining process. This is what adam liptack, the writer in the New York Times wrote. In making a minor adjustment in how public unions must issue public notifications about the spending, Justice Alito digressed about the constitutionally of requiring nonmembers of public unions to pay fees on the unions work on their behalf. The abaaoud issue. Justice sotomayor saw what is going on and to cast serious doubt about a longstanding pr precedent is a step that we take only with caution and are resonance and without adversarial determination is unfair and unwise. And end quote of justice sao tome your. And the story continues, michael lee carving a conservative lawyer also saw what was going on and he and the center for individual rights, a libber libertarian judge immediately filed. And he asked the lower courts to rule against his clients. I will interject into the story my own addition that it is a rather unusual behavior for a lawyer. And so, so that his clients could high tail it to the Supreme Court the article continues. Last year, the Justice Alito wrote a second majority opinion attacking the central precedent in the area. A 1975 decision called abaaoud v. Detroit board of education, but the majority in the new case, harris v. Quinn stopped short of overruling abaaoud. And by now, the story in the New York Times continue, and everyone saw what was going on. Readers of todays decision will know that abaaoud does not rank on the majoritys top ten list of the favorite precedents, and that the majority could not restrain itself from saying and saying and saying so Justice Elena kagan wrote in the dissent. And last week, the article continues this is some time ago, the court agreed to hear the case freed ricks v. California education system, and it thus completes the project that alito began in 2012 and that of overruling abaaoud. End of my quotation of the New York Times story, and as we know the freed ricks case did come forward. It was expect ed ed to be a bod blow to unions according to the reporting at the time. The passing of swrus tis scalia p the passing of Justice Scalia put it to 44, and then it came back to the ninth circuit and whose decision was upheld, because it was a tie. And can you react to me as a lawyer who represents a labor union on that series of events and how that makes you think about this particular court and the 54 decisions . Certainly. My concern is based on the quotes that you read from the tim eeses article, and that, there is a project underway to harm workers rights, and project underway to harm workers organizations so that workers dont have the ability to exercise the Bargaining Power that they all have and to win a better deal for themselves at work. The notion that there are signals being sent for cases and rather than wait for the controversy to arise is concern, and it is one of the reasons why in the case of judge gorsuch, theres been a lot of talk about all he has done is apply the law to the facts and in the trans am trucking case. He picked tout narrowest definition in the dictionary for operate, and there were other definitions in the dictionary that could have been chose n an when you saw multiple definitions maybe you should defer to the agency, because they know how the law could work on the ground give n the expertise, but he chose the most narrow definition, and the result was absurd, and the result, if it had carried the day would have made life a little bit more dangerous for Truck Drivers. Kinds of absurd results that you get out of that particular definition, things like, the word operate only means to drive, and if a Trucking Company told a truck driver to go over the speed limit or speed up, go faster, they could sometimes see the trucks on the computer, and see how fast they are going. And the truck driver reports back, and i cant, im in a Construction Zone full of traffic, but the Trucking Company persists and says go faster, that trucker if he went the speed limit complied with the law, and he would be not be protected under judge gorsuchs version of the statute, and he could be fired for going to speed limit, because he is driving, and he would have to complete ly stop the truck on te highway to protect himself for disobeying that order, and you can imagine the traffic that could cause if that is the way that the statute is carried out. And those are the absurd results, and judge gorsuchs dissent is exhibit a of the chevron difference, because instead of the dictionary definition, you need to look at the agency, and see how the experts have decided how this law works in real world. Yes, sir. Thank you, mr. Chairman. Mr. Perkins, i want to first probably Say Something and i dont know if you need to respond or not, but probably, i dont know of anybody on the capitol hill thats actually ratified bills that were sympathetic to families and persons with autism. As speaker of the house, we had our state employees Health Care Plan cover Autism Treatment which includes psychiatric care, and psychological care, and pharmacy care, and adaptive treatment, and if you have studied autism, you know how critically it s and we went against the insurance industrys wishes to include an insurance mandate in North Carolina to do the same thing. And the court case yesterday on the one hand i am happy that it provides other people going through your condition with an option, but in a reality, it is a failure on the part of legislatures. And you live in colorado still . Yes. And the promise me that you will not vote for a Colorado Legislature who wont support a mandate or opportunity scholarships for children with autism, and you dont have to make, and may have broken a law or the rule or whatever, but look, these folk, and there are nine states, and North Carolina is one of them, and we have gone as far or maybe further in some cases than any other. But this is an example of where i am going to be supporting judge gorsuch, and my guess is that judge gorsuch, the individual who separates his jurisprudence job from the personal feelings is just okay with what the Supreme Court did okay yesterday, but in reality, the whole need for that lawsuit is a failure on the part of the states to solve the problem. So in a state like North Carolina you dont have to get into a conflict or lawsuit with the school system, because it is difficult to do and you still have to hire the attorney, and work through all of the complexities and they will push back. So i hope and i am glad that to hear that my colleagues on the ther side of the aisle are all on states that have not done this, but they are okay with the fix that the Supreme Court got, because i will try to move the legislation to make it easier for people like you to get the care that you need. But it is a classic example of the legislators and last night i used the analogy of a bearskin or a bear hunter, and so we need to skin that bear here, and not have the courts do it. I do think that, that what the judge gorsuch was doing was saying, fix the problem. He said in something that i will repeat time and time again to a question here before one of my colleagues on the other side of the aisle, it is not my job to do your job. I think that is a very insightful thing for him to say. In our case, if the legislators did their job, you would not be before us today and your family situation would be better and luke would be further along, and one other thing they want to tell you that we may need to get luke come to my office, because we are actually putting the same lego model together, and our staff are struggling, and thank you for being here. If you have a brief comment, then i have one other question, mr. Chairman. I would just like to comment briefly. I would say that the korcongres had indeed passed the i. D. E. A. And just based on my reading of judge gorsuchs mr. Perkin, and i dont mean to interrupt you, but i want to get one last comment and i may have to submit to the record, but this is the problem with the i. D. E. A. And relying on the vagaries of the i. D. E. A. To fix the problems back in the state. They and i am already reaching out as a result of the Court Opinion yesterday saying how do you actually provide clarity that puts the benefit in the hands or the benefit of the doubt in the hands of the parent . The way that you do this properly is structurally after an i. E. P. And the parents judgment is failing to allow a child in your case to generalize the skills they are learning at school back at home, and how do you grant them the power to just after a year move somewhere else . How do you make sure that the state funding is going to follow the child . How do you make sure that the federal funding follows the child and how do you make sure that the parent doesnt have to go into the courtroom or the arbitrator or all of the other things that they still have to do with the court decision, and how do you get the members here . I am thrilled to hear that we have support on the other side of the aisle . How do you get to us provide more specificity in the i. D. E. A. So that the burden is not on you, and you have your own burden with your beautiful child and you should not have to do t it. It is a failing of congress and it is not a failing in this case of judge gorsuch. I hope that people understand that i am so glad to hear in states none of whom have stepped up to do it, and will go to the states to convince them to do it, because we will solve the problems and i will submit my other questions for the record. Thank you, mr. Perkins. And may i have the opportunity to briefly respond that you offered me. The i. D. E. A. Is not a perfect law, but the fact of the matter is that judge gorsuch in his opinion shrank and minimized the requirements of the i. D. E. A. Such that they trivialize the law, and as the opinion yesterday characterized current law provides much more significant protection to disableded children than judge gorsuchs ruling offer ed. But it does not provide enough, and it is because of a failing of legislators and congressmen and not the courts. Thank you, mr. Perkins. Thank you, mr. Chairman. Judge tahah, in your testimony, you are talking about judge gorsuch as a judge, and you said that his attention to the views of the colleagues informs his work. He has an acute sense of identifying the circumstances im reading from the testimony, where consensus is the highest value, and on the other hand, those decisions were personal conviction and reason dictate individual judgment and independent decisionmaking. Personal conviction. That is about whether consensus should be built on the decision or whether the judge should write independently h either as a concurrence or the dissent or whatever. But he says, you are saying that he takes that what is important to him is what his colleagues believe and also his personal conviction about how he reads the law. His personal conviction about how he reads the law, because basically, what he would not tell us are any of his personal convictions. Because he would not bring those totase case s. I am sorry. This is what bothered me. He said that his personal convictions did not enter into his decisions, and we spent three days here hearing that back over and over and over again, and my personal convictions dont matter. But now from someone who is endorsing him say that they do matter, and this is why i worry about that we were not allowed to hear any personal convictions and yet now i am hearing that those matter a great deal. Senator i could i explain that . May i have more time then . Go ahead. Thank you, mr. Chairman. I belonged to four labor unions before i got here, and it is very important. And fredricks is a very important case. We couldnt get any personal convictions on anything basical basically. What is your, mr. H cal mincalat do you read about in the decisions of what you feel he is going to rule on fredriks . Is what is your . Well, i think that the Transam Trucking dissent is only seven paragraphs long, and i think that it is worth reading it closely, because of what it shows the judicial philosophy to be capable of, which is rewritinging law and not just applying the laws as written by congress, but rewriting it. Thats why one should Pay Attention to that decision as a guide on how he might treat other workers rights laws, a then you Pay Attention to what he says in the decision, and the way he treats the workers perspective in that case. For example, he describes the option that his, that the supervisor gave to the worker to illegally drag the trailer down the highway as being maybe sarcastically offer ed and in other words, he is excusing the bosss outrageous order, and when it comes to describing the option of staying at the truck, and freezing and suffer iing hypothermia, he describes it as merely unpleasant, and im actually adding the word merely there. And he describes it as unpleasant. And he describes and create s a situation in this situation involving an Office Computer and rather than a atruck and freezig to death. That analogy is showing the concerns here which is again from the boss perspective. The hostility toward the worker here . Yes, sir. If you let mr. Maddon drive the truck to safety, the next thing, you will have to drive the truck to the beach is the sense that he gets from it, and so we are concerned about the ability to look at this from the workers perspective. I know that i am out of time, and i want the to say one thing about that which is that this is not, and it was not about discomfort. He had hype therm hypothermia, and he had fallen asleep with hypothermia, and only woke up when his cousin ca called him and the way to freeze to death is that you fall asleep and die. So, he was really given a choice between dying, possibly dying or unhitching that cab and drivinging off and driving off. This says a lot to me about the mans judgment. So, thank you, mr. Chairman, for your indulging. Judge tahah, and i would like for you to take a few minutes to say what you wanted to say and then to senator kennedy do you have a question there, s senator kennedy . Go ahead. Briefly to the question of personal conviction. What i meant there and what perhaps i didnt get clear is that each judge brings to his or her reading of the law their own intellect, and interpretation, and the history and the precedent, and so what, and i will give you an example here, because it is really important. Judge gorsuch and disagreed in a very, very important case. I wont bother you with all of the details, but we read the law, and it happened to be the First Amendment law quite differently. We tried to reach consensus, and we were in lots and lots of conversation, and judge mcconnell was in on this, too, and note that all three of us appointed by republican president s, and we all three had very different views on this very important First Amendment case, and finally it came to the point where where my reading of the law was different from judge gorsuch and judge mcconnells, and i was convinced that i was wrong after the Supreme Court reversed me 90, but it was a wonderful exchange, and a wonderful way to bring different judges perspectives on to the interpretation of the case or the law is. Has been senator kennedy. Thank you, mr. Chairman. Mr. Jafr suggested a few cases that judge for such had worked on at the department of justice and note that in one of the matters the government actually continued the litigation during the Obama Administration, and in fact, file d a sert petition, ad made the same argument as the Bush Administration, and the solicitor general who signed the brief was now Justice Elena kagan serving as the solicitor general, and so i would like to submit the briefs of those petitions of the americans versus the Civil Liberties union. All right. Without objection, it is included. All right. Just because of the nature of our job, my guess is that the person who has been on the panel and the judge who has been around for the shortest amount of time is ms. Bresic, and am i saying that correct ly . Yes. And you joined the judge out of law school. I apologize. I apologized in the Circuit Court of new york, and then went on the law school. And you finished fourth in the class . Yes. At vanderbilt . Yes. And you were the judge about every working day, right . Absolutely. The nature of being the clerk. That is correct. Tell me what he is like. The judge is an incredibly caring person, and i think that sometimes when we read the opinions, and we hear and we get these characterizations of that he is very robotic, that misses the essence of the judge which is that he takes very seriously his job of interpreting the law correctly. And obviously, he has great sympathy for the litigants that appear before him, and deep respect for the litigants, and anyone who has appeared before him, as well as the clerks understand that, so i think that the sense that i had to respect everyone around me was very solidified in that year of clerking, and he is an individual who is not only brilliant, but very humble in the way that he approaches the important task of applying the law to the facts of a particular case, but also clearly understands that the litigants in front of him are real people. Okay. I appreciate that. Okay. Now sh, tell me what he is real like . What is in his haertd . Well, he is a very caring man, and on a personal level, he always wants to know what the clerks are planning to do after their clerkship. He takes seriously the choices that we make, whether we go into the public service, and whether we go into the private sector, and he cares when you have personal events in your life, whether you are getting married, whether you have a kid, and i think that beyond just the intelligent judge, he is an incredible human being. And is he political . Not when we are deciding cases, no. Again, when we approach the cases, we are just looking at the arguments that are being made by the litigants, and the law before us, and the facts of the case, and politics has no place when we are looking agent a case in that way. And did you ever see him decide a case based on one of the litigants wealth or status or power . No. Okay. Did you ever see him approach the case in this is the result i want and now let me figure out how to get there . Or did he approach, let me look at the law and see what the law says, and then that is going to determine who wins the case. The ladder. What he does is to approach the case and looks at the arguments that have been made by the parties and looking at the applicable text whether it is a a contract, statute or the constitution, and then he sincerely takes his task very seriously of attempting to figure out what congress meant by the words of for example a statute or what the parties meant by the words off a contract, and that is how he figures out the result that is required by the case, and not based on the identity of the parties before him, and government or individual litigant. Did he ra read tead the brie give them to you and say, summarize them for me. No, we read the briefs, and then he read the briefs and then we talked about the briefs. So you both read the briefs . Absolutely. Did you ever see him render decisions that he felt the law required, but he was not necessarily happy with the result . Absolutely. I mean the job of a judge is a very difficult job, and i think that sometimes there are sympathetic parties that appear before him, but he takes seri s seriously the oath to apply the law before him, and sometimes that means that are results that not in favor of the sympathetic parties, but it does not mean that he lacks the sympathy, but he takes seriously the oath to apply the law. Thank you. Mr. Chairman. Thank you very much, mr. Chairman. I think that i will start with you, mr. Perkins, thank you for being here and sharing your son lukes experience with us. This was a matter of discussion at the hearing as you heard in light of the Supreme Courts 80 decision rejecting the standard that had been used in your sons case, and that denied him the help that he needed. What did you think when that opinion came out yesterday . How did you feel about it . Well, i guess that the first thing was just i was very happy for andrew eft and his family to go through and have that vindication, and for ourselves, although belatedly, it is that we did feel vindicated and we felt that ultimately when a very similar case made it to the Supreme Court i have been asked to have you speak into the mike please. Okay. When this case was decided, i mean, it we felt in a sense and although indirectly lukes case, and lukes situation was being vindicated. You know, my mom taught second grade until she was 70 years old, and worked a lot with the kids with disabilities in a public school, and as a parent of a son who has benefitted from the i. D. E. A. , could you quickly talk about what the laws mandate which is to help the students achieve quote full participation, independent living and economic selfsufficiency means to your family. It is its huge. Luke without the appropriate education would have, was in a very restricted situation, and he basically lived his life in his house, and in the special needs classroom and school, and that is it. That is the only context that he could be in, and behaviors and lack of tools to deal with his disability really restricted him. And now, he has a, he has a good life. He enjoys what he does. He is able to enjoy and have interaction with the peers and the family, and it is huge difference in his life. Thank you so much. Mr. Calamine, and briefly, because we have little time, and i have questioned the nominee a lot on the gutierrez case, and which is the concurrence that he did to his own opinion, and regarding the chevron doctrine and as you know shonoknow chevr some indeference by agencies. Could you briefly talk about the uncertainty that this would create for safety rules in your industry if this is overturned or workers . Well, as i mentioned earlier the rule that allows us to refuse hazardous work, and allows the hazardous work is a rule that is not specifically in the osha act, but it has been developed through the Agency Interpretations of the statute, and so this creates an opportunity if the courts are not going to be following chevron deference, it is going to create an opportunity to strip away those rights, and those rights as we speak are saving lives right now. That is what is at stake here. Thank you very much. Last, ms. Massimino, thank you so much for being here. You talked about in the written testimony about the importance of checks and balances. The constitutions give the president certain powers as commander in chief, but those powers have the potential to be abused if they are unchecked. How should the Supreme Court approach in your mind with the background and with human rights, and how should the Supreme Court approach the balance between National Security and civil right, and what does the judges record suggest about how he woulds a ssz the president ial assertions of executive authority . Thank you. It is often said that there needs to be a balance between security and liberty, but we know from the long experience now that respect for human rights, and individual dignity is the foundation of peace and security in the world, and that is the wisdom of the universal declaration of human rights that Eleanor Roosevelt pushed forward and remains true today. I heard judge gorsuch testify the other day that no man is above the law. And that is an important tenet for the democracy, but unfortunately, we know from sad experience fairly recent that is not enough. When the Bush Administration authorized torture and other abuse gamagainst the detainees torture was already a federal crime, and the problem was that the administration and in particular many of the lawyers had a different view of the law. So it is not enough to say that no man is above the law. According to the legal memos that were prepared at that time by a Bush Administration, the lawyers believed that the law against torture a allllowed tor. And this is a sort of the alice in wonderland situation, and this is why the email that s senator feinstein pointed to while mr. Gorsuch was at the Justice Department, one of the most troubling things of the record, because he was basically arguing there that the Bush Administration ought to interpret the mccain amendment, and one of the strongest, and the most bipart sapartisan pie torture that had been codified. And so when judge gorsuch was asked the other day in the hearing whether there were any circumstances in which it would be lawful for a president to authorize torture or to author ize an act that was specifically prohibited through an act of congress, he didnt answer that question. And i think that it is very important, particularly in the environment where we have a president that is asserting these kinds of powers. Each branch of government has to play the role, and it is going to be particularly important that the Supreme Court is wi willing to stand up to executive overreach in the era ra that we are in now, and i urge you to get clarity from judge gorsuch about his specific views in those areas. Thank you very much. Thank you, mr. Chairman. I appreciate all of you being here. I have a question for mr. Jafer. I grew up in a family that believes very strongly in the constitution, and especially the First Amendment. They had a, owned a weekly newspaper that said that right to practice any religion if you want or none that you want is important in the fact that you could say what you want, and important if you are guaranteeing all of that, and you are guaranteed diversity, and you are guarantee diversity, you will guarantee a democracy. But you also have to have an independent judiciary and i asked judge gorsuch to give me a clear answer to basic questions. I asked him whether the First Amendment prohibits the president from imposing a religious litmus test for entry into the country, and i thought that it would be a fairly easy question, and he said that it is currently being litigated and so he could not discuss it. I meant it as a softball. So does the constitutional lou the president to impose a religious litmus test for entry into the United States. Your microphone. Of course not, senator leahy. Does it concern you that he would not answer the question . Well, there is a bigger concern here, and some of the responses that judge gorsuch gave to questions like this including about, and including in response to questions of executive power, i think were very abstract, and it is not enough for example to say that no person is above the law in response the standards for progress such that they were of minimal practical benefit. And because even with these very watered down standards that were part of lukes Education Program, he was only meeting 25 of his objectives, but i really appreciated the fact that he that judge roberts or chief Justice Roberts used words like every child should have the chance to meet challenging objectives. That indeed is the case and when that can happen even a child with a severe disability can make tremendous progress. Thank you very much, thank you very much, mr. Chairman and the senator. Senator thank you mr. Chairman. Thank you all for being here. Mr. Perkins, yesterday was a good day for your family with the Supreme Courts decision. Ida is what i would call remedial legislation meant to protect a class or group of people in this case people with disabilities. And generally remedial legislation not even generally, remedial legislation should be broadly interpreted to effect its purpose, so when you were before judge gorsuch and saw that opinion do you think judge gorsuch did in fact do that . Broadly interpret ida to effect its purpose in your case . Absolutely not. In fact he did the exact opposite, took precedent in light of yesterdays decision was inappropriately narrow and restrictive and further restricted it such that i would wonder why would Congress Even bother if thats really what ida meant. So do you think that if judge gorsuch had looked at the legislative history perhaps of what was behind ida that he may have issued a more expansive ruling than what he than his dissent showed . I would hope so. I know that his picture of what he felt the law said was that a huge distortion of what the actual intent was, so i would have hoped that if he had looked into it some more he might have been able to see that he reached a wrong conclusion and maybe backtracked in his judicial reasoning and come to a more appropriate conclusion. So i understand that youre family had a lot of resources. You are a doctor, you had parents who helped you, you did Different Things to accommodate the needs of your child and im wondering as you sat there before judge gorsuch, knowing that youre family is one of literally thousands, hundreds of thousands in our country who have children who look to the ida for the kind of educational support that they required, what did you think about all the families who dont have the kind of resources that you have and what judge gorsuchs ruling would have done to their ability to do the best for their child with disabilities . Actually that is probably one of the most frequent thought that is we had through this whole Legal Process is just realizing how overwhelmed we were with all the Financial Support Family Support we were blessed with and to think that the people out there, many of my patients think how in the world if they had had luke in their family had they could have done this and having a child with a disability is completely overwhelming and sometimes it may seem impossible. Even for us with our resources, we felt at many times this may be impossible because the law apparently isnt on our side. Thank you. With the brief time that i have left i would like to ask mr. Calamine we have concerns about how judge gorsuch would rule in workers right, and health services, is that a decision you are familiar with . Yes, now that i look back at my notes. A little bit. Fair enough. So he had a dissent there that really disadvantaged these workers who had been illegally denied longer hours and affected their pay and so they had to get another job. Would you share your job on judge gorsuchs dissent and workers rights . Briefly the dissent in that case i believe involved judge gorsuch saying that these hospital workers who had been unlawfully, their hours were reduced unlawfully they went out and got other jobs to try to make up for their loss of income, what judge gorsuch wanted to do in his dissent was detract the money they earn from the a total back pay award, its an example of not recognizing what life is like for somebody working for hourly pay trying to make ends meet. Just going out and getting another job itself is a big problem, you have got new schedules, family issues. My question was do you think on the Supreme Court he would continue to that is the concern. Restrained view of workers rights . Thats the concern we have that the workers are going to receive a fair shake here. Thank you, mr. Chairman. I have one question and then ill turn to senator feinstein and when shes done well bring on the next panel. Judge cain, i get this is the First Time Since 1977 since you have been before this committee, is that right . Thats correct, senator. This is you have been a judge for 40 years, but before that you were a public defender. You were a public defender did you adopt every position of your client . Well, i represented a number of murder defendants and i didnt agree with them on that. So you can represent somebody without agreeing with them just like judge gorsuch when he was in d. O. J. Could also represent his superiors as their consult . Absolutely. Okay. Senator feinstein. Your honor, i would just say this is just my view that for those in government the standard has to be a little bit different. You have to do whats right. And this goes up even to the launching of a nuclear bomb. I asked someone who was in a position once if you thought the president was absolutely wrong in what he was doing would you deny a launch . And the answer was no. And that caused me to think about the obligation that we have as service in government to do whats right as far as we know it. And i think that even affects attorneys who have losses because in this case, lives are a real problem. In any event, i would like just quickly and then to put in the record the Supreme Courts opinion in the idea case. I would like to just quote a few lines, to meet its substantive obligation under idea a school must offer an educational Improvement Plan reasonably calculated to enable to child to make progress appropriate in light of the childs circumstances. The reasonably calculated qualification reflects a recognition of crafting appropriate education requires a prospective judgment by school officials. So i would like to put that in the record if i may mr. Chairman. Without objection so ordered. The second thing in response to my friend and colleague who spoke about the detain ee treatment act senator graham, i was mccains cosponsor on his bill and i would like to read from his statement on the floor on february 13th, 2008. And in this he makes clear that his view of the detain ee treatment outlaws waterboarding, he stated quote i stated that a prohibition on cruel inhumane an degrading treatment outlaws waterboarding and other extreme techniques, end quote so i would ask this statement be part of this record and also the opinion in this case. Without objection, so ordered. Shall i go to senator blumenthal . Yes. Senator blumenthal. Thank you, mr. Chairman. And thanks to the members of the panel for sharing your insights and experience with judge gorsuch. I have a question for mr. Calamine, but others are free to answer it as well. As you know, the importance of our consideration here is not only the results. In fact, even more important the results the judges method of reasoning. His approach to analysis in cases. And, a couple of cases i think are illustrative, ink versus oshrc, judge gorsuch voted to overturn a fine imposed by the department of labor whose failure to properly train a worker actually caused a death in Transam Trucking versus administrative review board. As we all know now from the discussion that took place when he testified here, he vote tod reverse the administrative judge and the department of labor which held that a truck driver had improperly had been improperly fired in violation of federal law. Truck driver abandoned his truck, sub freezing weather when the heater in his cab failed to function and so in essence to save his own life. I wonder if you could comment about the purpose of the laws that he was interpreting here and why you have reservations about his analytical approach, his method of reasoning in approaching these laws, and other cases that have the same affect and i open the same question to others on the panel. Thank you. So the purpose of the laws in the two cases that you just mentioned, the purpose of those laws is to protect Workers Health and safety, and one of the most alarming things about one of those cases is judge gorsuch describing those purposes as a femoral and generic in other words, theres not enough concrete there to allow those purposes to guide how we interpret these laws so instead we turn to things like the Oxford English dictionary, which he did in that particular case. Another concern from compass environmental which is the description of oshas powers being remarkable and in that case the worker had been electrocuted to death and the remarkable power was 5,550 fine on the employer, and that is described as remarkable. And that is a concern because workers in this country rely on that agency and other agencies to enforce their rights every day, and we have come to rely on those interpretations. We want to know what the law is. We dont want the second edition 1989 oxford dictionary pulled out to change the law and thats almost what happened in Transam Trucking, a rewrite of the law. Any other members of the panel . If i might, senator. Sure. Im comfort today hear were not just going to look at the results because obviously hes been on the bench ten years so we are focused on certain cases in which he ruled against, but other panels where he ruled in favor of workers and i believe the approach he applies irrespective of the result is look at the text passed by congress and apply it fairly to the facts before him and i believe it is that process that does not change. Its the results that change obviously of the case before him as applied to the statute. And the reason i asked about the reasoning and analytical approach is precisely the answer that has just been given to regard a Worker Protection statute or the concept of health and safety as a femoral and generic is in my view a gross understatement of the purpose of these laws, which are basic to people who leave their homes in the morning, say goodbye to their families expecting to come home at the end of the day without having been injured, maimed or killed. Thats the purpose of these laws. That purpose is not generic or afemoral. It is urgent and important. And mr. Calimine stated. By the way ive been here seven years, ive never heard any United States senator quote the oxford de oxford dictionary for a term, never. Not once. And judge gorsuch uses it very, very abundantly in his opinions to seek a definition for how he is going to apply a statute. Thats not a real world approach to health and safety and it concerns me and why i asked the question, but its not the result alone. In those cases i was concerned about is it result. He probably has ruled for individuals and weve been throwing around this term the little guy. It doesnt matter whether its a big or little person or group of people, its more the concept of preserving worker safety that is important. Thank you. Thank you, senator blumenthal. Thank you all for your presentation. More importantly for your preparation and for informing the committee. Thank you very much. And will the second panel come, but while the second panel come and please dont sit down until i swear, but i want to inform the swear you in, you mean, youre not just going to swear. Yeah. Here is what i would like to have the members think about. We will not get through this Panel Presentation at 12 25 is when the vote starts so i think we are going with this panel till 12 35 we will recess and i will vote at the end of the first vote and the second immediately and means we probably would reconvene this panel about 1 05, 1 10, and then have the rest of the panel and presentation and yet one more i believe one more panel after that. So do you swear that the testimony you are about to give before this committee will be the truth, the whole truth and nothing but the truth to help you god. I do by all . Im going to do something that i forgot to do and it was very wrong of my not doing it. I didnt say anything about the last panel individually, jeff lamp kin is a Founding Partner of lamp kin, and clerk for justice oconner, and heather demoss, professor lawrence slocum, a water house professor law, georgetown, fa tima president elect for the National Womens law center. Professor Jonathan Turly is on tv all the time. It doesnt say that here, but i can say it. J. B. And Maurice Shapiro Public Interest law, George Washington u. Pat gallagher is director of vierm environmental law program, karen harnen the frederation of Small Business legal center. And eve hill with brown, gold stein, levy, served as the deputy from 20112017. We will start there and go until we see how this vote goes. Thank you, mr. Chairman. Ranking member feinstein members of the committee. Since working for judge gorsuch. Ive had the opportunity to argue 23 cases before the court. First under less waxman, and later ted olson, president bushs. Ive known neil gorsuch, neil as ive always known him as a colleague and friend 20 years. My wife has known him longer because she went to law school with him. I like to think i after his time at oxford. I think i may have edited the first brief he ever wrote as a young lawyer. I understand he has improved since then, and can tell senator sass he never used the word bigly in a brief. It was clear to all of us that he was not only smart, thoughtful and a great writer but he had great judgment. In both literal and figurative sense he had gray hair from the beginning of his career. But i want to speak to you more than just his legal acumen. I want to speak to you about his kindness, compassion, generosity as a person, and why those are integral to who he is and what to expect from the bench. Since i got to know neil many years ago hes been one of my dearest friends. We both have two daughters. Hes always been there to listen, to advice, commiserate about the trials of the often difficult project of being a parent. I have vivid memories standing in his backyard after becoming a judge talking about what seemed to me to be a very difficult moment. As we spoke we scooped up horse manure as his pet goat nibbles tried to ram the judge. I honestly never understood what they found in that goat. His daughters were always so sweet to my children even though my kids were considerably younger. I remember neil and his kids repeatedly leading my kids through lives adventures whether trying on skis or hats at the department store. If something happens to me and my wife, neil stands in line to inherit my kids. People say if you want a friends in washington get a dog. Those people dont know neil gorsuch. He is a kind, decent person. So why does that matter to this body as considering his nomination . As a former colleague of mine from the Solicitor Generals Office told me if you have someone that good of a person it means he listens, truly hears, can be persuaded that is the most central attribute for the Supreme Court. The calendar is countless, it is called the hearing list, its the chance for people to be heard when the chief justice calls each case he says we will hear argument in case number and then gives the case number and case name. The key words are hear argument. I know everybody who appears before judge neil gorsuch will be heard regardless of the nature of their position or controvert. It will place an extraordinary listening, it may come from a different angle or insight born of different experiences. Ive heard a lot of speculation over the last few days and months about how judge gorsuch might rule on this matter, or that, i dont know, these are often really hard cases. Thats why they get to the Supreme Court because theyre hard because the judges disagree. But i do know that judge gorsuch will struggle with those hard cases, immerse himself in law, in context, in the record and the briefs and arguments, he will listen to litigants, colleagues, to history and experience and less sons and decide the cases based on where those things lead him at the end of the case based on the force of the better argument not based on a preexisting intuition that may predate the cases beginning. That i believe is what we should all hope for from our judges or justices that when you consider a democrat like me or republican, if the senate wlo f believes that as well i believe judge gorsuch should be confirmed. Miss mcgee. Thank you so much for the privilege of testifying here today. My name is Heather Mcgee and im the president of demose, working for america where we all have an equal say in our democracy and equal chance in our economy. Whats at stake is not just the Critical Issues that you have heard about over the past few days but the way that we the people make decisions about all of the issues that we faces a a nation and whose voices are heard in that process. Judge neil gorsuch has the potential to be the deciding vote big money corrupting our politics completely. His troubling record requires us to reject his nominee to the Supreme Court. Three basic points today. First the way we fund our campaigns in the u. S. Enables wealthy individuals to translate directly into political power, second the Supreme Courts activism in striking down safeguards is what has brought us to this perilous place in our history, nearly nine out of ten americans have lost so much faith in our system they think a total overhaul is needed. Senators, we are near a breaking point. Nine out of ten. Its hard to imagine things getting worse. And yet the prospect of a lifetime seat for judge gorsuch has given us a glimpse. Fortunately there is an overwhelming bipartisan consensus regarding prodemocracy reforms even though neil gorsuch is far outside that. Your constituents want you to stand up to big money and your vote on this pivotal Supreme Court seat will be one of the best chances you will ever have to do so. Leading political scientists have concluded our government now resembles a plutocracy, more than 100 million were pumped into elections who wins elections what issues get attention from elected officials they say that he who pays the piper calls the tune, so they are skewed towards the wealthy and away from working class family and people of color who remain massively under represented among top donors and in the hauls of power. The role of the Supreme Court in creating this crisis cant be emphasized enough. Last week demose released a report how much money was responsible for nearly half the big money spent. Still, its not too late to reverse course. The roberts courts Campaign Finance rulings have been 54 decisions about the basic assumptions about politics have been proven false, the socalled independent expenditures are therefore cant be corrupting and disclosure laws would be effective. With a Supreme Court that was responsive to the facts rather than ideology we could end the super pac that is the Court Created an begin to restore our democracy, but judge neil gorsuch would have been in with the majority in Citizens United it puts him to the right of scalia and of the question of money and politics would take us further down the roberts courts extreme path. Hes had two directly relevant cases in hoby lobby riddle v hicken looper, hashest review, a check more than constitutional protection than the court has consistently offered for our most precious right to vote. He was given the opportunity to distance himself from one of most unpopular cases in American History and failed to do so. Thankfully outside of the beltway this is not a partisan issue at all. 91 of President Trumps own voters thought it was important that he appoint someone to the Supreme Court who would be open to limiting big money in politics. 70 of republicans say that congress should reject any nominee who quote will help the wealthy and privileged wield too much power in our elections. The American People are demanding change to a political system that favors the already wealthy and well connected so we urge you to vote against judge gorsuchs nomination and tell your constituents you did so because over big money. I thank you. Thank you. Thank you, ranking senator, and senator feinstein i voted for you and my concerns and aspect of judge gorsuchs philosophy originalism. Over the course of this hearing i think we have learned several things about originalism and some things i think still might be cleared up. What is originalism . It consists of three basic ideas. The first idea is that the meaning of the constitution should be its original public meaning. The meaning of the words and phrases context to we the people. The second idea is that meaning is fixed, not that the law is fixed, but that the meaning of the words is fixed. At the time theyre written. And the final idea is that that original public meaning should constrain what judges do. That judges, the president , the members of this body are all bound by the original public meaning of the constitution. Over the course of the past three days weve learned other things. We have learned that there are a number of myths about originalism, and i think those myths for the most part have been cleared up. Originalism does not ask the question what would madison do . A very silly question when we try to apply the constitution to modern circumstances. Weve learned that the words of the constitution can be adapted to new circumstances. At the time the constitution was adopted california did not exist. It was not a state, but we have no problem concluding that nonetheless california is now a state and entitled to two senators in this body. Weve learned that brown v board one of the most important decisions in the history of the Supreme Court is not inconsistent with the original meaning of the constitution. As judge mcconnell demonstrated in 1995, brown v. Board was required by the original meaning of the constitution. And weve learned this very clearly that originalism is not inconsistent with precedent. What i would like to say today most importantly is that originalism is in the mainstream of american jurisprudence, because throughout our history for the most part with some important exceptions the Supreme Court has been an Originalist Court but it is in the mainstream for another reason, originalism can and should be endorsed by both democrats and republicans by progressives and conservatives. This point is important to me personally. Im not a conservative. Im not a libertarian, im not a republican, but i do believe in originalism. Why is that . Its because im convinced that giving power to judges to override the constitution to impose their own vision of constitutional law is dangerous for everyone. If youre a democrat and you know that the next justice to the United States Supreme Court will be appointed by a republican president and confirmed by a Republican Senate would you prefer that an originalist like judge gorsuch be appointed or would you prefer a conservative justice whos a living constitutionalist, who believes that their values are an appropriate ground for modifying or overriding the constitutional text . Theres a final reason that originalism is in the mainstream. The Supreme Court has never claimed the right to override the constitution. There are cases where the Supreme Court did in fact depart from original meaning, but in all of those cases the Supreme Court either strained to make its decision consistent with the text or ignored the text all together. I support judge gorsuchs nomination because he is an originalist. Thank you, professor. Miss graves. Thank you senator Ranking Member feinstein and the committee. I am Senior Vice President for program and president elect of the National Womens law center. Since 1972 the center has been involved virtually every major effort to secure and defend womens legal rights. I thank you for your invitation to testify today and ask that my full written testimony be submitted. Over the past few days judge gorsuch has talked a lot about how he follow it is law rather than his personal views or his feelings and that he applies the law to facts, but a review of his record shows that time and again his approach to the law gives the benefit of the doubt to employers, to politicians, to other powerful entities rather than the vulnerable individuals who rely on the law for protection. In time and again, this approach disadvantages women. If you take the case of betty pin kerrton, judge kbors ch dismissed her gorsuch dismissed her case all of two months was unreasonable. She had to listen to her boss ask her about her breast size, and they only become a pattern of harassment as they add up overtime. If she complained too early under title seven she would have no claim and waiting two months under judge gorsuchs approach, again she had no claim. This is an approach that ignores the work place reality that is the law is designed to address and the very nature of work place harassment. If you take the hobby lobby case which they challenged the Affordable Care act Birth Control benefit which provides Birth Control without cost sharing, access to contraception means for women the ability to plan their lives, to plan their futures and the Birth Control benefit relieves women of a steep financial burden, which can run as high as 1,000 in up front costs, judge gorsuch joined the tenth Circuit Holding under the freedom restoration act under the Affordable Care act including and especially extreme holding that promoting gender equality in public health, the very goals of the Birth Control benefit were not compelling government interests. His concurring opinion was stunning in its refusal to even acknowledge the Health Impact and the financial burden on women who would lose Insurance Coverage under his approach. Ultimately the case reached the Supreme Court and unlike the decisions joined in written by judge gorsuch the Supreme Court instructed that as a part of rift ras balancing task courts must consider the impact on women. His record also shows hostility to the constitutions protections of the most personal and intimate decisions which is the basis of the right to Birth Control an right to abortion, yesterday judge gorsuch declined whether it was correctly decided. He refused to answer key questions about other areas of the law that apply to womens lives, when he was questions about letters from former student that is claim he had suggested companies can and should ask women and only women about their pregnancy plans and their family plans even in explaining this incident, judge gorsuch shockingly refused to acknowledge that such behavior would violate title seven, and to be clear, statements like these are wildly at odds with the very letter and the very purpose of title seven and the family medical leave act. Finally, we reviewed judge gorsuchs record against a highly unusual backdrop including promises made by President Trump that his nominee would overturn roe automatically and by the federalist society, a really highly unusual occurrence to say the least. When you put these extraordinary promises together with the judges record and anything to provide anything but platitude to this committee, theres only one possible conclusion and its that judge gorsuch should not be confirmed. Thank you miss graves and to the remaining witnesses on the panel and the members of the committee, we are about half way through a vote and we are all going to need to take a recess to go vote, so what we will do is also give a few extra minutes to the recess so folks can get a bite to eat if they can. Do we have two votes . Ill be back here about 1 10 to take up the gavel again. Committee is in recess
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