[inaudible conversations] [inaudible conversations] >> i will aggregate the recess, but i want to explain something. the vote that we thought would get done by 1:10, the first one will not end until about 1:20, so i will have a chance to get through the testimony, and then if we have hopefully a republican democrat vote over here i can finish voting. if you wonder about the importance i haven't missed a vote since 199 1993 so that is t 7900 without missing a vote and i do not intend to miss another one. professor? >> thank you, chairman grassley and members of the committee. it is an honor to appear before you today to discuss the nomination for the supreme court. i believe a nominee should be j extraordinary to merit the distinction of being one of nine on the highest court. i should state at the outset i do not agree with all of judge gorsuch's illegal abuse however i believe him to be an exceptional choice for the court. while many focused on replacing the conservative with another conservative, the primary concern should be to replace an intellectual with another intellectual. judge gorsuch is precisely that kind of nomine money that has te intellectual reach to sit in the chair of the late antonin scalia. vigor .. to sit in the chair of the late antonin scalia. one of the primary complaints regarding past nominees has been lack och writings or opinions. such individuals can make for good nominees. they do not make for great justices. judge gorsuch is a refreshing departure from that trend. he has a record of well considered writings both as a judge and as an author so this is not a blind date. we have a very good idea of who judge gorsuch is and the type of justice he will be. in my wri >> in my testimony i focused on two aspects of the nomination. first, i just the criteria usedh to evaluate nominee and i have looked at the cases by judge gore search on separation of powers, agency review and chevron. every president senator has placed the best and brightest on the court although few would agree on the measures to guarantee that. historically the is not encouraging. our respect from towering figures to virtual nonentities. to be blunt, we have had moree mrs. then hits when it has come to plymouth on the court. top candidates are rejected due to writings and views that might attract opposition.e resul the result is a preference for nominees with clean records that have no public thoughts challenging theories, not even racing justin ideas. raising that is not the case with this nominee.h judge a2 has debated some of thg toughest questions of our times. on the basis of other criteria discussed in my testimony, judge gorsuch is a stellar nominee.e. i realize many do not welcome a conservative nominee i could conservative president. however president trump has every right to nominate someone who shares his views. to put it simply, we'll gorsuch is as good as it gets and he should not be penalized for engaging in a policy of academid debates of our time. my written testimony i discuss some of his opinions, their money, 2700 or so. the jurisprudence reflects, not surprisingly crafting a decisi decision, and in my view that is no vice for federal judge.s the exception is i talk about a chevron in terms of their we seem discussion of cases which i'd be happy to go into the hearings bring a mythical aspect to the process who a justice will be decades in advance. nobody knows that. except the nominee and if history is any judge even that. it reminds me of a story of a supreme court justice oliver wendell holmes who was traveling by train when i conduct rest in first ticket. he looks in all of his pockets and he finally stopped and said don't worry about it. we all know who you are. when you get to the destination send us the ticket. he said my dear man the problem is a my ticket the problem is, where my going. most nominees are in the same position. not quite sure where they're going. i do not expect george gorsuch to be a robotic vote. he is an intellectual curiosity and honesty that will take him across the ideological spectrum. in conclusion i would say, were not looking for the best imitation or facsimile or justice scalia, were looking for someone who can be in intellectual on the court in his own right. that person, in my view, is indeed milk or such who might eclipse the iconic predecessor. he will bring something new. in the end what i can say about a2's destination is that, i suppose they have this in common, he'll go where his conscious takes in. but he will follow his conscious. i cannot say what the final will be but it will be exciting to w watch. therefore it's my honor to recommend the confirmation of the honorable judge neil gorsuch for the united states supreme court. >> jimmy grassley, thank you for the opportunity to testify on behalf of the sierra club and 2.8 million members and supporters nationwide. court the supreme court justice hope hours over the laws of the air we breathe in water we drink in the integrity of our democracy. unfortunately judge gorsuch's ideology -- for these reasonnd l this sierra club opposes his confirmation to the supreme court. judge gorsuch has close the courthouse doors to citizens while holding them open for corporate interests.perations think for a moment of the child in bakersfield, california struggling to breathe as a result of the oil and gas operations outside her home and school. of the family who might not be take daniel camping trip to the national forest in ohio because of fossil fuel drilling b operations at that place. where the families in washington, d.c. who suffer from the lead contamination of their drinking water. i presume everyone in the room would agree that every one of these people deserves access to the federal courts to remedy the wrongs.y the unfortunately, his records show that he would shut the courthouse doors on many of these people who want nothing more than to protect their air,, water, public lands and families. j in 2005, he offered an article in the national review entitled liberals in lawsuits where he criticized those who seek to remedy justices in the federal court when the executive branch fails to do his job. he has repeatedly stated he wishes the national review article would disappear, his judicial record continues to reject this philosophy as he is denied access to the courts. h citizens must jump through insurmountable hurdles just to get inside his courtroom corporations have been able to walk in. in 2013, the sierra club moved to intervene on a vehicle group challenging the closure of certain force trails. the court granted us intervention but the judge dissented concluding we should have been excluded from the case. neither the government, nor the majority of judges objected tofr our participation in the case. second, in 2005, citizens group including the wilderness society in the sierra club challenged af attempt to take over wilderness areas managed by the bureau of land management by claiming their county highways. the judge ruled they do not have standing to sue and didn't get into the courtroom. an emphatic dissent, one that echoes my testimony today.mp the judge of the tenth circuit stated quote, a citizen's right to be protested and heard is ignored.limite not only has judge gorsuch have limited access to the courts, he has stated open hostility to the chevron doctrine. that ensures scientific and can't take ideas respected as we implement clean air and clean water regulations. it ensures the law on the books are carried out using the best available science. here's the most troubling issue. the judge's opinion that chevron difference violates the constitution echoes the current white houses extreme demagoguery. one month ago steve bannon give a speech to the conservative action conference and he professed a white house priority is the deconstruction of thehat state. the budget cut for epa was the next hammer to fall. sadly, the judge's ideology will further this agenda. hamstring the epa's ability tonight safeguards anda incentivize polluters at every turn forcing judges to second-guessed agency scientists. in closing, we stand at a precedence in history. how will we deal with climate disruption, how will we leave as safe and livable future for children? america cannot afford another appointment who favors corporatg interest leads to the degradation of the environment and our democracy. this is why the suit sierra club respectfully opposes. >> chairman grassley, on behalf of the national federation of independent business monitored to testify. in support of a combination of judge neil gorsuch to be an associate justice of the united states supreme court. where the nations leading small business advocacy organization with hundreds of thousands of members across the country in every industry and sector. every as the lead plaintiff in this historic challenge to the affordable care act, and if i be understands firsthand the first team one justice can have on the ability of small businesses to own, operate and grow their business. after reviewing the articles, decisions and public statements we are pleased to see a judge who applies the text of the law and the original meaning of thaw text of the time it became law rather than changing it to fit his personal views and preferences.rs specifically, small businesses have three qualities that he's brought to the bench. he has a deep respect for the separation of powers and he has shown a willingness to tackle the difficult legal issues of the day, head on. judge gorsuch is not known for using ambiguous or broad language that fails to settle the question before him. rather, his decisions provide meaningful direction for district court judges as well as a businesses and ordinary individuals who might be affected by the law moving be forward. mov like the larger counterparts come small business owners want to need certainty. any bright line, easy to understand legal standards. small businesses don't know what's expected of them, what the rules of the game are, they might be hesitant to undertake actions that would otherwise help their business grow.y judge gorsuch take seriously to provide that clarity wherever possible. he also has demonstrated helso s truly respects and seeks to protect the separation of powere among the branches of government. imp this is concerned because were concerned about oc is the rising tide of regulation promulgated by unelected bureaucrats. this trend contravenes the fundamental principle that only congress is the elected and politically accountable legislative branch should bel able to and change statutoryryce anw. when it comes to regulation small businesses bear a bear disproportionate amount of the burden compared to their counterparts. that's not surprising since itit is a small business owner who is charged with understanding new regulations, filling out paperwork and ensuring the businesses in compliance with new and changing mandates. the uncertainty caused byainty regulation negatively affects am small business owner's ability to plan for future growth. for small business, the business of regulation has been exasperated by the broad business federal courts give to federal agencies and their interpretations of statutess passed by congress. to this known as chevron deference has led to breakdown of the con system of checks and balances. therefore we welcome his concurring opinion last year and gutierrez encouraging the supreme court to revisit the chevron doctrine. my written testimony i referenced three cases where the doctrine has caused serious harm to small businesses. for example in arlington versus the fcc the supreme court found that courts must do for to an agency's interpretation of its own statutory authority. by extending deference to agency determination of its own jurisdiction the court set a a dangerous precedence. o with minimal traditional overstate.re by advocating responsibility to determine the scope the court signaled that agencies may insure it into the affairs of states and businesses with impunity, as long as actions are justified as reasonable to the slightest degree. a constitutional system of ouverning and separation off powers doctrine play a role in empowering the vitality of small businesses in the united states. when the systems the roads there's an adverse impact on small business and our nation's economy. small businesses have an important stake who fills justice antonin scalia see. we are pleased to support the nomination of judge neil gorsu gorsuch. >> thank you. >> think you are next witness is the former deputy assistant attorney general for solar specialized. >> thank you for inviting me to speak today. i'm an attorney with more than 20 years experience implementing the laws protecting the rights of people with disabilities. i have serious concerns aboutplv the acceptance of the civilgorsc disabilities loss on the basic principles of disabilities rights. people with disabilities have long experience the soft bigotry of low expectations. unfortunately judge gorsuch takes these in spite of congress is bipartisan attempt to dismantle prejudices through federal disability rights law. his decisions on the education of our children with disabilities are troubling. not just for their devastating human consequences for their divisiveness of the law established by congress. the individuals with disabilities act or ida requires public schools to ensure free, appropriate public education for each student with a disability. in the case you heard about earlier judge gorsuch read the ida to require an education that is morally mirrored to minimus. that appears nowhere in the statutory or supreme court precedent. he adopted the standard requiring education benefits to be meaningful. in spite of it being appropriate and despite of the repeated updates of ida calling for high educational standards for children with disabilities.chool yet he substituted his own opinion for that of three decision-makers who had found that luke's school did not provide an appropriate or meaningful educational benefit. nor did tenth circuit precedent require standard. forgf a judge, decision tois overrule the findings of three courts that ignores -- is deeply troubling. lutes records show that he was feeling and over 75% of the goals in his plan.il the parents in this countrycess would find a 25% success rate to be appropriate or meaningful for their child with or without a disability. yet judge gorsuch found that 25% success was a passing grade. a little over a year after the plange in placement, luke made significant progress in the goal his prior school had failed in. it was judge gorsuch's that word to minimus in this case. yesterday the supreme court explicitly and unanimouslysterdy rejected his merely more than to minimus standard. the court found in requiring an appropriate education congressman when it said. the court stated when all said and done a student offered an st educational program from year-to-year can hardly be said unfortunately it is likely to late for many of the children with disabilities in colorado, kansas, new mexico, utah and wyoming to be subjected to thess soft bigotry for nearly ten years his other ida opinions have shifted standards of review and created legal minefields to undermine the education rights of students with disabilities. his opinions of the rights with adults with disabilities reflect rather than challenge whatenge congress enacted in disability rights law. they passed ada to open doors to workplace people with disabilities. the 2010 he had not play with ee multiple sclerosis did not have a disability because she was able to work. he made the holding in despite of the ada and the ada amendments act of 2008 or congress may clear that the ada provides and has always provided protection to people with ms and disabilities not to find catch-22 like as an inability to work. >> federal disability laws are intended to address not just blatant discriminatory but the ways the employment processes buildings have been designed in ways that exclude people with disabilities. this is the basis for the ada requirement, a reasonablethis i accommodation. a professor requested a slight extension of her leave time to return to work when her experience with h1n1, and now brick that could've risked her life. the university allowed one year sabbatical for the professors but george gorsuch insisted they could only extend her leave ife she was already entitled to such a sabbatical. the ada asked not just if aetna play with a disability was offered which was contracted tos but also something more, ao o reasonable accommodation is available. he suggested congress was wrong. and that leave of over six months was inherently unreasonable no matter what other employees were given.yees you may believe a judge's role is to protect the dignity of alp people and especially those of disempower minority groups or you might believe that a judge's role is to remain faithful to the clear intent of congress.'s either way his opinions and disability rights issues do not meet that standard. >> you talk about the confirmation process for a long time. some of my democratic friends have been saying that the only way to find out what they need to know about judge in cases that will come before the supreme court. your testimony is very different you will insist that we have a very good idea of who the judges of the type of justice he will be. do you agree with me that the results the fitness of the supreme court nomination when e referred to knowing what type oe judge when i was referring is referring to the fact that he is a well-known jurisprudence. he shares that distinction as ae nominee with the man he replaced. that's one of the reasons he might have a lasting legacy. the reason is he is a rarity. he actually change the court more than a changed him because he came to the court with a clear understanding of his jurisprudence. when i look at judge corsets, i see someone that is going to follow his conscious. he's not to be predictable. not robotic, i think that view will take him to the left and right of the spectrum.the what we know is he's a textual list.. i don't think that's a vice. he but what his opinion shows whmeone with an intense intellectual curiosity and intense independence. what we have in judge gorsuch someone who wasn't a separatist ring not participating in these debates. >> the suggestions made in the n hearing with the executive exece branches in the law is just another way of the regulation in general. one democratic senator saidti without chevron agencies would not have the authority to address problems at all. hav do you agree with that characterization? >> no. t i sit share his view on chevrone we come to two different places politically. how you view chevron depends on if you view from a constitutional standpoint or an administrative law standpoint.ai i think i share his view looking up through the lens of a constitutional standpoint. chevron is troubling because it tends to serve a traditional role of the court and usurper role of the spotty. i also don't think the suggestion that if chevron was set aside that all of rome would burn. i think the judgment good point we set out what to think of people think is going to happeny if we don't chevron. will be in the same position we were before which was in a bad position.ll you had the skidmore case where justice jackson said look, weas have to respect agency opinions. we have to give them great to weight. the api itself in seven oh six said that you have to defer to that.ere there's not a clipper that people are talking about. what it does is moving away from chevron's get the courts more involved in agency decision-making and also to give more authority back to the body where think it should rest. >> i agree with you. wit we also talk about the court decisions i really appreciate your response and your comments because i think they provide an important perspective on thisspi issue my democratic colleagues to focus only on which party wins or loses or which advanced on the decision of an individuae case with clarity about the law and that's why you have such a high price for his approach in my view is that the law, not tht judge should determine the outcome of these cases in the broader impact, dear group that. >> the separation of powers is important because coming here before you is where my members, small business owners would have the greatest impact. the you're in the light of day with the true public discourse about what the law should be. they're not going to be in every courtroom in the country theyro need to know that once you the law the regulations issued that is appropriate within that framework, it's a law they can rely on. do that certainty is the only way to do business. certainty is a critical component of a small business owners to operate their business. >> may i ask unanimous consentno that the 2017 report entitled election money resulted from supreme court rulings in a marcs committee with money and politics in a 2017 report titled money and politics in the supreme court, fourth and finally a 2015 report entitled raking the business cycle. by transforming the supreme court approach to money and politics will be entered into the record.we i appreciate that you are here in the work that has been done to shed light on the problem about the money and politics and special-interest groups. we have unusual circumstance of president trump originallylycirm outsourced the creation of the list from which judge gore switch was selected to a pair of well-known, right right winged interest group. and then the notification to judge corsets that he describes in his description of the des selection process. the open sentence is on or about december 2, 2016 i was contacted by leonard leo who is the head of those same special-interest groups then it's been reported in the news that the white house outsourced the politicale campaign on behalf of judge gorsuch to those interest groups, and indeed we have seen reports of a 10 million-dollar political campaign to try to influence the senate in his favor through front group. we don't know who the real donors are. it's dark money behind that operation. was the same group that spent the equivalent amount of money trying to disrupt the nomination of judge merrick garland. finally, we have the colorado reporting on the friendship and appears as patron in the request a billionaire who was also a very big political spender. all of that, i think causes concern to some of us that although the talk may be about olympian detachment, the actual operation of getting judge gorsuch before us has been special-interest dark money politics. i like to ask you to react too that. >> thank you. i think you are right to express concern about this. the same way the american people including 91% of president trump's own voters have of pre expressed concern about the role of the supreme court in expanding our big-money system. judge gorsuch had the opportunity over the past couple of days to distance himself from the entire problem of citizens united, the spoken outin expansively in terms of the influence of the wealthy millions millionaires and billionaires, to even some of the more narrow concerns.li is particularly concerned in your exchange with the judge when you gave him an opportunity to talk about something that hik predecessor, one of his great northstar switches the importance of disclosure. instead of saying clearly that there is a public interest in ir knowing who is spending millions of dollars to buy influence with our politicians, he was quite evasive. in fact, to my dismay here is the idea that disclosure speech suggested that the $650 million in secret money from society's most powerful witches were seen would be in the same loving as the leaders in the naacp case. if you don't mind, i want toheir read one sentence from what senator scully i'm sorry, justice scalia said about the importance of disclosure which gives us a sense that he might even be parting with scully on this important piece. there are laws against threats and intimidation and harsh reiticism.m. short of action is a pricecritia people have been willing to play for self-governance. requiring people to stand up in public for their political acts fosters civic courage without which democracy is doomed. >> my time is expired. thank you.nk >> thank you senator white house and you for filling in when i had to go vote. professor while many try to argue that original is a severely conservative, others have said a ritualism have beeni described to by others.udges something at the harvard law school, for example onceem described the late discuss hugo black is a liberal us. would you believe a ritualism is not by itself, ideologically political in nature? >> yes, i would. if i may give an example or two, it is absolutely true much of the interest in a ritualism at the beginning was generated by critics of war and court decisions. original is on has been associated with conservatives to some extent. a ritualism is the idea that we are going to enforce the original meaning of the united states constitution. the united states constitution has implications that both conservatives and progressives, both democrats and republicans can welcome.e. let me give an example that relates to the question we have been discussing. the rights of corporations. justice thomas and his opinion, in the mcdonald case says that incorporation of the bill of rights can only be justified under the privileges or immunities clause of the united states constitution. the privileges or immunities clause is different than the equal protection clause of the due process clause. the security rights to all. persons. the immunity clause guarantee rights only to citizens. corporations are not citizens. now this is not a result the corporations will welcome at the state level with a 14th amendment applies. but it is an implication of the original public meaning of the constitution. >> you worked with the judge when he was in private practice he kellogg uber. you said you support hise nomination of the supreme court. do you think his experience as a trial lawyer would be relevant to his work on the supreme court? >> i think it's highly relevant. as someone who is a trial orderr for many years, the judge has great respect for the record. great respect for the development, whether that isis developed by the study infa support of the statute or record created by the parties, think when you are a trial lawyer involved in those you develop a great respect critically important to understanding what's going on. to understanding now what the principles of the law are but how they're affecting people and how it lays on the trial court. think practical experience is not as common on our supreme court justices as it should be. >> we have heard a lot of chinese hearings about the rule of law. we've heard in particular about how is the role of judges to enforce laws as they have been written by the congress. can you explain why support to your client tells, small businessmen and women for judges to interpret statutes according to the text? >> small business owners need to know what the rules of the road are. what's expected of them and not worry that because of one judges decision a practice they been doing that was legal one day is now on legal or illegal. that's why small business owners are committed to the way that the separation of powers work.ya legislators legislate in judges tell us with the lawyers. that's why we have so much respect for his work. >> thank you. i you'll back my time. >> we've heard compelling testimony from jeff perkins about his son luke and about the consequences for luke and his family of a judge gorsuch's perspective in the tenth circuit. and the supreme court disagreed with his reasoning. i believe the goal of lawsws passed by congress like the ad ada's access, opportunity and participation. not isolation and segregation.n. i'd be interested, both judge gorsuch and another judge todaye insisted that he was bound by precedent to set the standard under the ada is merely more std than de minimis. are they right? >> i don't believe so.cour the supreme court yesterday indicated it was not correct to approach raleigh as meaning the standard was merely more than d minimus. t rather is meaningful and appropriate. in addition, i looked closely at the urban case that was the case that judges cited on the standard which still do not use the word merely. there's no dispute on whether sufficient services have been provided by this child. there is a dispute about a procedural requirement have been followed whether that failure sn had created a substantive violation. to the extent that there was no argument over whether the free appropriate education have been provided, any argument about what the standard of free appropriate accommodation was. >> if i may come in at 2013 case the sierra club attempted to intervene in the court allowed you to participate. and the judge gorsuch dissented and would not allow participation in the case even though none of the litigants opposed it. in another one they blocked another group, what you think it's important that interest groups like the sierra club be allowed to participate. how do you think judge gorsuch would affect advocates ability to be engaged? >> right now a president trump >>d his advisor, steve banneker threatened to dismantle the epa, and when we have a new administrator, scott pruitt who eviscerated the enforcement, it's critical that citizens be able to enforce environmental ec laws. their citizen supervision's in all major laws.ur who are we going to call? >> thank you. and strickland versus ups, they found that a woman found they testified that he was treated worse than the male coworkers. does the lord require to look at the evidence most favorable to the woman.udge gorga judge gorsuch dissented. can you tell us about the case and what it says about the approach to deciding these opinions? >> i think this strickland case is a good example it just applies lots of facts. here the real issue is that there are a lot of facts when facts are disputed is have the jury decide here, despite evidence discourse gorsuch said no that's not enough the says yes he is applying the law to the facts, but the jury itself would resolve. >> >> senator kennedy. thank >> thank you mr. chairman. >> ms. mcgee, tell me, i listen to your testimony anyway your complaint is in respect to citizens united. >> first while we believe that based on his record in two cases, hobby lobby and another one, that you have a recipe for striking down some of the last remaining protections from bign money.ken he went out of his way. >> i don't mean to interrupt you but i'm in five minutes. >> i understand that. >> do you really expect a nominee for the number united states supreme court whether he or she is nominated bystates sue democratic president to come before the united states judiciary committee and talk about what is good policy or bad policy? >> fortunately he doesn't have to get into policy to just talk about enduring democratic principles. i also think the heritaget endui foundation and the finance reform that have backed his nomination for the court would be surprised to learn that he was ambiguous about citizens united which is one of most important court cases in recents memory and where the recent principles around grandly interpreting the first amendment to give and protect the rights of millionaires and billionaires to spend unlimited amounts was a continuation of a set of ideological jurisprudence. >> understand how you feel about citizens united. i want understand your criticism of judge gorsuch on the supreme court. you are criticizing him for not coming before this body and offering a policy preference in terms of campaign finance and elections in america? >> i'm not criticizing the judge.e.>> i'm saying he had an opportunity to say basic principles about our democracy and upholding and interpretation of the first amendment that were protect the vision of one person, one vote. he was asked about different issues concerning campaign-finance reform, including cases where he went out of his way to writent concurrences on majority opinions that put into doubt his opinions in future cases about issues such as the scrutinyes level of campaign which we believe is a matter of federal law on the possibility of moving into corporations giving directo contributions to candidates. c >> and you prefer to have a nominee who agrees with you? >> i would agree to have a nominee open to considering the facts. we have seen that the facts have shown some of the basic premis premises, independent spending is independent can corrupt, disclosures real have been proven false. >> i'm going to put you down as doubtful on that. >> how do you think judges ought to decide cases? >> i think judges should decide cases based on the long as expressed by congress interpreted by the agencies when applied to the facts in front of them. >> what if they got it wrong? >> there are administrative procedure processes to go through to challenge those. >> to think of parties wealth or status of power should have any effect on the outcome of the case? >> no. thank you, you'll back my time. >> before going back to the nex> panel, your organization promotes small business and regulation has little to do with the success or failure of small business. l what have you seen over the use with regard to decisions by then supreme court or other courts that is impacted the ability of small businesses to succeed? >> over the past several decades we continue to see an increasing regulatory state. in large part that is because of agency deference the courts are untrained courts are giving. we have seen this firsthand with a number of cases we've gotten involved. o i have several reference to mycd testimony where the agency deference in small business owners, the interpretation of the regulation by the agency governance, as a result of small business owners sued in outs millions of dollars. in that case, more importantlynd and probably on the regulatoryry state, small business owners to bear the disproportionate burden of regulation on their business is composed of larger counterparts. spent a primary concern the reason i haven't been able to grow over the past year nine years. that's why were committed and see that judge corset recognizes the races hand to the supreme court said that may be a time when we need to revisit that. we think of as responsible to increasing the state in this country. >> the chevron deference certainly has expressed some skepticism about it. to put it mildly a help. with regard to technology whiche is increasing a percentage in our economy, what we have seendg over the past several years isce you have one administrationainlu whose agency will regulate ae a certain way and a newt administration comes in with a different idea. we just out with the congressional review act as certain regulations a few minutes ago. compl in the next administration might come in with something hifferent. one thing that small and large business cannot stand isma uncertainty moving ahead. with chevron, looking back at the congress to have a more balanced or more predictable application of statutes whichh will govern regulation, is that a better way? >> i do think it's a better way to move beyond chevron. i've been a critic for many years. critical bring on to acts which is a critic of one of these opinions. i thought the judge was right on.or b he received to the people don't realize that brand backs can negate the legal interpretation of a federal court. and he appropriately said that courts interpret the law come up vers's how chevron works. say that they can be the final word. what you are seen in the system is a dangerous shift of the center of gravity. this is a system designed to have three branches heldtri together by pressure in a fixed orbit. we have a rising force branch of agencies. i happen to identify with many of those because they're like me, with advanced degrees, sort of wonky. the fact is we have a fourth branch that is a dangerous change in our system. one were not having a debate over. chevron has field that change. if we did not have chevron we would largely go back to the conditions of cases like skidmore. where the courts gave deference even without chevron. what it would do would allow judges to rule on what the law means. chevron is actually a case that was a victory for judge gorsuch's mother. they're trying to reverse measures put in place by previous democratic administration and useti administrative authority to do that. i would caution those who is suggested this is going to be an apocalyptic moment. what it would do is return us to a position closer to the design of our government. >> thank you.nt my time is up. i believe it's time for thend panel. will go on to the next panel. u thank you for your service. we'll call the next panel. though consist of ms. clark, ms, ms. miller, ms. smith, professor marshall, ms. phillips and professor -- [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] [inaudible] >> resurveyed hand. >> to swear that the testimony you're about to give before the committee will be the truth, the whole truth, nothing but the truth, so help you get? thank you. please be seated. president clark with the lawyers committee of civil rights under law, peter is a partner with the firm with employment practice group and serving a third term. there is the legal director for the human rights campaign. alice is the future in the washington d.c. office.e it 2005 until 2008 she served assistant to the attorneye general. amy miller is the president and ceo and founder of women's health. sir smith is a senior counsel to chief clerk for them. in the for justice alito on the appreme court. professor william marshall is the william rand distinguished professor of law. kim tim -- sandy phillips is the mother of jessica who was tragically killed in 2012 shooting at the aurora colorado movie theater. jamail is a law clerk from 2006 to 2007. he serves as an adjunct professor and director of the homeland security law program at the antonin scalia law school at george mason university. we welcome you to the committeei you have five minutes and you can summarize will proceed after that with five-minute rounds. the school had. >> want to thank the distinguished members of this committee for the opportunity to testify today on behalf of the lawyers committee personal c rights under law or one of the nation's historic nonpartisan civil rights organizations with unique mission of mobilizing lawyers across the country to provide critical pro bono support to advance our work.d fr the supreme court occupies a central place in american p democracy. for african-americans and other minorities the court has been ao crucial form for seeking equalas justice under law. historically, minority groups have looked to the court to vindicate their constitutional and civil rights. we have reviewed this over its record of judge neil gorsuch as we have done for all supreme court nominees.ts we do not believe the record is sufficient to conclude that he mitts our standard, which requires demonstration of a profound respect for the importance of protecting civil rights afforded by theil constitution, and the nation civil rights laws. his views reflect a very narrowed definition of what constitutes a civil rights. his deep skepticism about the skepticism of protecting those rights in a courtroom. our concerns are pronounced with the question of whether he will fairly interpret and apply one of our nation's most important civil rights laws, the voting rights act. . . in 2013 the act was gutted in shelby county beholder. at issue in shelby county were section 5 preclearance provision of the act that helped identify and successfully block hundreds of unconstitutional and discriminatory voting changes. and the section 5 provision -- section 4 provision that determined where the law applied. a closely divided court ruled that section 4 was unconstitutional. a decision which eviscerated the heart of the voting rights act. witnesses have drawn parallels between judge gorsuch and the late justice scalia. during the arguments of justice scalia referred to the renewal as the racial entitlement and that ensured that millions of americans have not merely because the color of their skin they have been deprived of the sacred right of our democracy. what's most troubling about the court and shelby county is the judgment of congress was set aside. in 2006, the congress decided ts renew by a vote of 98-0 by documenting overwhelming evidence with ongoing discrimination against minority voters. it's unclear whether judge gorsuch appreciates the broad enforcement powers under theud 14th and 15th amendment and it is unclear if he brings the awareness of the widespread voting discrimination and suppression that we continue to face today. the right to vote is important and we must understand whether judge gorsuch is committed too interpreting and preserving what remains of the voting rights act.ct equally important are questions concerning the tenure at the u.s. department of justicet between 2005 and 2006 when he occupied the role of deputy g general. at the justice department during that time, i am personally aware of issues that led to the agency's civil rights work. those abuse were substantiated in the inspector general's report that found that the civil rights division's hiring practices and its work violated the federal wall and justice department policy. we must not turn a blind eye to the fact he had some ability overseeing the division at thisv time. the material provided doesn't clarify his involvement or was tarnished the work and integrity of the civil rights division at this time. i urge the senate to seek answers to these important questions. before i conclude, i want to say a brief word about the criminal justice issues. criminal justice concerns remain at the forefront for many latino and minority communities.for man our review shows that he takes n narrow view of the of constitutional rights of defendants particularly under the fourth amendment. >> without objection. >> i speak as one member of the commission on civil rights and not on behalf of. the national clearinghouse on information released to the discrimination and denial of equal protection and theou furtherance of the clearinghouse function with the help of my system. the right but judge gorsuch participated in in the circuit and these opinions relates to title vii, the equal protection clause and other provisions related to civil rights. of the opinions we examined related to civil rights that judge gore such participated in, he was in the the minority of 5% of those cases. in 43 cases he was on a three-judge panel in which two other panel members appointed by presidents of the democratic 4% of the cases he joined in the result. the youthful example of judge gorsuch's mainstream textualism is mindful of the limits of the judiciary is in his dissent versus the administrative review board. they may not discharge an employee that refuses to operate a vehicle where that employee has a reasonable apprehension of bodily harm that the employee may not be discharged if he also takes a vehicle contrary to the vehicle instructions. judge gorsuch applied and noted that the employee in question employne the opposite of the statutory privilege that is he had operated the vehicle not refused to operate it thoroughly the reason the difference and interpretation of the statute yield cases on the civil rights that is consistent with the civil rights norms. judge gorsuch appealed at the cases where there was no evidence that there was a hostile environment and supervisors were standoffish and that doesn't constitute a hostile environment. moreover, the defendant immediately discharged those that made provocative gestures upon the request in the st. mary's medical center in the retaliation claim where there was no evidence that the hospital fire to the plaintiff t for reporting sexually explicit remarks as opposed to firing a plaintiff because they threatened to shoot the coworker. as it pens gorsuch's record shows he takes the issues soberly and fiercely regardless of whether or not the issue at hand may be trivial to some and obscure for the plaintiff is not sympathetic in the societal norms. an example in which he appealed the exercise rights of a v plaintiff that had murdered a little girl which the plaintiff had been denied his right to access a sweat lodge pursuant to his belief. judge gorsuch also noted that protections might be available to the families and they were given the choice of either abiding by their religiousto ind beliefs or saving their business. he approached the civil rights case consistent with the norms in the jurisprudence. his record shows he is a careful and exacting judge who has great respect for the constitutional order, the rule of law and the corresponding limits on judicial authority. he is consistent with mainstream textual interpretation of the governing statute and in addition to that, all his record shows is he will faithfully and carefully applied the la apply o protect the civil rights of allf americans. thank you mr. chairman. >> if you wonder where my colleagues are, there is a those going on right now. chairman grassley will be back and other members will come inre as well. >> on behalf of the human rights campaign, the largest w >>vil-rights advocacy organization i am honored to be here before you today representing nearly 2 million members and supporters nationwide.. unfortunately, i am disappointed that the topic for discussion is president donald trump's nomination to the supreme courtr people are no strangers to the supreme court. we understand the power of the weurt to affirm or deny the most basic rights. they had to be sent to a tarmac in maryland to marry before john died because their home state of ohio refused to allow them a marriage license.o their heartbreak that didn't end there. the state of ohio attempted to erase their marriage by refusing to place jim's name as a surviving spouse on his death certificate. by now the narrow ruling the supreme court validated jim and john's relationship and extended marriage equality nationwide. by his own words, judge gorsuch admitted he would enforcee same-sex couples to pay the price of inequality for decades to come. this is why he cannot be given a lifetime appointment to the supreme court. time and time again, he's employed a dangerous brand of original wisdom that ignores the essential context and values of each case and the lives that they touch. his records and statements are in the mold of justice antonin scalia consistently demeaned and denied the dignity of people from the bench. he is directly questioned the court's recognition of the fundamental rights to personal autonomy that has served as the keystone for multiple cases. he accepted a quote from justice scalia e. quaid and manage the quality to beat the audi and made no effort to distinguish marriage one of the society's most sacred traditions from criminal antisocial behavior. despite the records, his choice to embrace the reasoning is a level of indifference to the community that should be of disqualifying for an individual to be appointed as united states supreme court. during his time on the bench, he ruled against rebecca a transgender woman working for a community college. after being hired for a second term, rebecca began to use the women's restroom. halfway through the semester the school informed her she would have to begin by using the men's restroom based on safety concerns. rebecca was terminated because she refused to subject herself to the dangers of using the men's restroom. false justifications may never be used to their animus. that is what happened in her case. the supreme court justices may be able to discern legitimate government interests them hostile to the vulnerable communities. the other rulings such as hobby lobby while not directly addressing the community have been used to defend discrimination against people. amy stevens is one of these people. after working for a for-profit funeral home for nearly six years, she informed the owner she would be transitioning when she returned to work and wouldrn be dressing consistent in the code. ignoring the strong record, the funeral home owner stripped her of her child that with the belief it is illegal to be transgender. complying with title women ask fowomen maxseven the judge adopa regarding moral culpability which disregards harm to people. if this reasoning is adopted it will undermine our civil rights law allowing pervasive discrimination not only against the lgbtq community that nationwide. they are litigated and debated by groups that would reopen the law. they would be asked for cases such as those that couldases describe to turn away the youth in need.d.hool whether the city of houston employees may be stripped of their spousal benefits or mother is like marissa must be both listed on their daughter's birta certificate. we might not agree with every decision a justice may make but we believe the commitment to reaching impartial judgments based on facts fact, not a polil ideology or bias and they must agree lgbtq people have a fundamental right protected by the constitution and that we as individuals and communities are entitled to equal treatment under the law. we need a justice to recognize the basic equality and shared humanity. judge gorsuch has never met this bar and that is why we oppose the nomination to the supreme court. >> i had to excuse myself to gor to vote. >> it is an honor to be here today and a privilege to testify in support of my friend and sent former colleague. it's been a privilege to watch his career unfold. i had the pleasure of meeting him in 1991 when we both had ouf summer jobs in law school. we worked together since the summer of 91. it may make me the longest person that's known him to testify. of course i was struck by his brilliance and intellect but what was more striking was his character anwith hischaracter ad courtesy and kindness. every day she would walk into work and tell people can ask them how they were doing and ask about their lives and troubles and he would spend so much time on consideration with others. it was almost like it was an unlimited reserve of kindness and good humor. iowa is the beneficiary of this and i am forever grateful for the time he took with me early on in my legal career to spend time counseling me, helping me. it was almost as if he cared as much about my success as he did his own and i was not alone in the way that he treated people. i will be forever thankful for the way that he treated people. he has been driven by his devotion for the country and devotion to public service and he comports himself with deep humility when he comes intoervie public service. i remember the conversations sei about when he was entering public service and they had the ability to do that. he has a keen intellect of course but he holds himself to the highest standard of excellence and you heard him talk about that and many others. he's been eating devoted father and i've watched him for years and fined him to be a man of the highest personal integrity. a commitment to fairness and decency that will serve the supreme court well and i'm anpeful that he is confirmed. thank you. >> chairman grassley, senator feinstein and members of the committee, i am honored to speak with you today. i am the founder and ceo of whole women's health, a group oo clinic to provide comprehensive reproductive services including abortion care. i'm here on behalf of abortion providers, advocates and the people we serve all across the country who deserve access to quality health care delivered with dignity and respect. we are gravely concerned about the nomination of judge gorsuch to the supreme court. in fact, we joined 54 other justice organizations in the letter to the senate opposinglt the nomination. in the clinics we offer holistic care that includes caring for their heart, mind and body. we envision a world where every woman that's decided to end a pregnancy will be respected and where she will have the information she needs and t quality care she deserves. we were the lead plaintiffs in last year's land park supreme court case and we witnessed how the decisions made at the high w court directly impact the lives. i know what happens when politicians find ways to deny the women's constitutional rights and why it is so important to have independent jurists but respect for precedent and the rule of law. will be weighed guaranteed the right to abortion and privacy has been settled for more than four decades and it's been reaffirmed repeatedly by the supreme court. nevertheless, that hasn't stopped legislators across the country from putting up roadblocks in front of those seeking care. more than 330 have been passed. nowhere wher where's the impacte evident than in the state of texas where the antiabortion legislators passed a law that forced over half of the clinic to shut down. it forced women to drive hundreds of miles even across state lines to access the right. in some cases women simply took matters into their own hands. i will never forget the woman that called from south texas after the law went into effect. we told her the clinic was shuttered and she had to drive 250 miles each way to san antonio. she told us there was no way she could take two days off work, find child care and the money to drive that far. she said i will tell you what is in my medicine cabinet and can you please tell me what to use to do my own abortion. in our country where abortion has been legal for more than 40f years, no woman should be forced to take matters into her own hands or feet or criminalization or jail time. we need justices on the bench that oppose unnecessary obstacles to become obstacles. o neil gorsuch isn't that judge. i also remember the woman that called from west texas whereom every clinic had been shut down. she was a single working mother with the children. b we helped raise money for her abortion, child care, transportation and lost wages. by the time she made it to the dallas clinic eight later it was too late for her to have an abortion in the state of texas.r we need judges that support our constitutional rights no matter our zip code. neil gorsuch isn't that judge. last year we took taxis to the supreme court and in its ruling the court called out these and other walls are what they are they create obstacles to care with no medical basis behind them. no women need to know if the rights are on trial they will be decided by justices that are independent and not beholden to an ideological agenda. judge gorsuch referred to answer basic questions on his stance for the rights to privacy yet we know in the planned parenthood case you cited with politicians using misinformation and false claims to the fund for health services. and in the contraception case, he supported the notion that corporations are people.th the positions raised concerns about his ability to be open minded, fair and guided by the constitution and not his own ideology or personal beliefs. your decision on the nomination will have a profound impact on all of your constituent. every one wants someone who has had an abortion and we all want the people we love to be treatel with respect, compassion and dignity. i urge you to keep this in mind as you consider the responsibility of an trustin ena lifetime appointment to the united states supreme court. >> thank you for filling in so we can keep it going. >> thank you mr. chairman. senator feinstein and members of the committee. i am the senior counsel and our firm is dedicated to protecting religious liberty for people. as judge gorsuch has sent him it doesn't just apply to protect popular religious beliefs, it is perhaps its most important work and protecting unpopularrtan religious beliefs vindicating the long-held aspiration to serve as a refuge of religious tolerance. to prepare for the hearing, i have reviewed all cases related to religious liberty in which hs either wrote an opinion or cast a vote. my assessment is judge gorsuch as an associate justice on the supreme court would be committed to protecting this vital freedom. t none of his opinions have ever been reversed by the supreme court.t. in fact every time the court reached the merits and one of these cases, it vindicated his position even when he had dissented. an examination of the cases revealed he is also a remarkabli consensus builder. when he sat together with judges appointed by a democratic president they unanimously agreed with him in 80% of those cases. overall he was part of a unanimous decision almost 90% of the time and when he offered a decision for the course, he produced a decision every singl time, 100%.ec this is a striking record of coalition buildin building in t, justice programs that can be quite contentious. i will focus my remarks on two areas.rudence first, judge gorsuch's cases into the decisions involving the religious freedom restoration act. first, he demonstrated repeatedly he applies the law to protect religious minorities and incarcerated persons, some of the powerless in our society. for example, judge gorsuch at this a case where a native american prison are intereste ra sweat lodge for religioussted purposes. he offered an eloquent opinion which he said, quote, while those convicted of crime in the society lawfully forbid many civil liberties, congress has repeatedly instructed the sincere exercise of religionon shouldn't be among them the absence of a compelling reason. judge gorsuch recognized in the prisopresent context it is, quo, easy for government officials with so much power over inmates lives to deny capriciously oneh more liberty to those that already forfeited so many others. therefore he wrote the government must prove they have a good reason for denying the liberty by offering more thann the governments say so. on this point, justice quoted her confidence in another case. a unanimous supreme court ruledr in favor of a muslim prisoner who's lost to grow a religious beard. in other cases, judge gorsuch voted in favor of a prisoner seeking access to the c religiously required fields and reversed a decision failing to consider a prisoner's request for a kosher diet. second, regarding the cases and hobby lobby the government tried to force religious ministries and businesses to change their health plans in a way that would violate their faith or else pay millions in penalties.f the judge voted in favor of the objectors and the supreme court indicated his position in both cases. some tried to frame them as an irresolvable conflict between religious liberty and women's t rights, but not so. in the case in the supreme court the government can't seeded that it could still allow women to access contraception services on their own exchanges through another program or other insurance plan. it exposed an important truth. no conflict existed between the access for religious liberty. e in closing, he had a consistent record of carefully applying the statutory provisions as well as governing precedents without regard to a particular ideological outcome. the jurisprudence shows an evenhanded application of the principle religious freedom fundamental to freedom and human dignity and protecting the religious rights of others even those with whom we may disagree may lead to greater protections for all of our rights. o thank you. >> thank you very much chair man and members of the committee itt is an honor to appear. my purpose today is to not pass judgment but rather discuss the subject of origina original is n constitutional interpretation. the term is dating back to the 1980s but it's not have only one meeting. at first it was said to be only original intent than it was changed to original public meaning and then it was changed to public meaning abstract to protect the change then it was changed by others to say semantic meaning that might be completely different from the common public understanding. nevertheless, despite what it means and what the theory requires, those that support the theory argue origina original ae should be the governing mode of constitutional interpretation. i first, they suggest that promotes a briton constitution and therefore is consistent in the design but the early courts didn't see it that way. w chief justice john marshall wrote we must never forget it is a constitution we are expounding to endure for ages to come and consequentially to the adapted to the crises of human affairs.n this means constitutional interpretation is to give meaning and substance to the principles over time in new contexts. the fact that they didn't envision this approach also is left of the constitution which is a very broad words such as freedom of speech, equal protection, due process of law. those are not conducive and they likely intended they would be interpreted in the given contexs over time. third, they came from the common tradition understanding that it adapted to the new circumstances and incorrectly suggests it wasy inappropriate to do so because they knew otherwise and finally, they were visionaries. they were not concerned only in addressing the issues of today but they werthe daybut they werh setting forth the principles that guide the future generations. the irony of original is on is that wireless reports to the screamers that demeans the is enterprise because it suggeststs they were more concerned with solving the problems of 1787 and developing the constitution to solve the problems of 2017 >> it also suggests that the theory of limits the ability to insert the political preferences.s at least the way original is on has been practiced by the conservative jurists. for example, there is no other journalist. considered striking down the affirmative-action of the conservative court. the testest of the 14th amendmel protection clause doesn't apply in history during the period showed there were special programs.dicated there it doesn't support citizensow united. they didn't give much credence e and they distrusted them and they were implemented charter. it doesn't support the extended property rights that exist and it's worth noting it was by the constitutional culture. in my arguments i suggested some results that would be troublesome.ght be the idea that there would be no equal protection for women. many originalists won't go back that far. some have gone out of their way to argue brown could be reconciled with other journaliso principles which would be news to those that drafted the amendment in the segregated and schools and would be news to ths court itself and the disavowed that decision. what does this say about th journalism? i think it suggests they know that it is fundamentally at odds witwith vr as who we are as a nd second, it also demonstrates that it can be used to manipulate the results you wantt to get so it doesn't give the fixed meaning that thoseget t support. it is a doctrine of false promise and suggests the framers vision and offers a predictable result. it claims value and neutrality that would have been deployed to achieve the specific results. certainly the is important in the constitutional interpretation but the claim should be controlled only by history and the text is one thab was rejected any team 19. we should learn that lesson. >> mr. chairman and members of the committee thank you for the opportunity to testify. i'm a professor of law and had the honor to work with the judge from 2007 until 2008. i am here to enthusiastically support his nomination to the supreme court. he is a brilliant, fair, principled jurist and is also the epiphany that eco- epiphany. you will never meet a more charitable public servant. one of the biggest risks a judge takes each year is inviting a few recent law school graduates into his or her chambers. they use clerks as sounding boards for ideas to spot flaws in arguments including their own, and to find and helpuding t analyze precedent. this requires a judge to put quite a bit of faith and he's recent graduates and requires them to invest quite a bit of time in the teaching them to be competent assistance and lawyers and more than that, working side-by-side in close quarters every day for a year or more makes the relationship between the judge especially intimate. they've become the most important mentors young lawyers have. it's not the most important role for judges play but it does provide a window into the temperament and approach to thea law. i couldn't have hoped for a better mentor, and the country couldn't hope for a better teacher for its brightest legal minds. i could say about about how he welcomes his clerks to colorado and how he hosted a birthday party for my 1-year-old son when we didn't know anybody in colorado.. i could talk about his love of being a lawyer and the joy that he takes an argument or his concern for the integrity of the judicial system but i want to f spend my time talking about theo writing. i had been in school for about 21 years and has written thousands of pages including most of the doctoral dissertation but i didn't know how to write until i worke a der the judge. the conversations reading his careful comments on my work i learned the importance ofcarefu clarity. the judge spend hours on the drafts for the paragraph of the opinions. these sentences are the most important. lawyers need to know how they thought they apply to the practice of thfactsof the case. but even nonlawyers should be able to understand the stakes i a basic reason that case came out the way that it did. at the wood against themselvesar deserve an obligation to interpret. i've taken this with me on each stop of the career. writing is important in its own right because the written word is the medium through which judges communicate with the emphasis on writing as part of the broad concern for the dubai begins that seek the protection of the courts. i had the opportunity to observt over and ove over and over again stand at the care that he took o to make sure he evaluated and addressed each of the claims. a number of examples in my testimony about by way of one brief example, the federal courts receive a higher number of petitions and prisoners and for many of them passed byon congress in 1,996 cents a bar to relief. when i worked for him he suggested each receiv received a pretend decision onud his petitn which told me he's entitled to an explanation you understand no matter how far off the mark his claim. many were prepared without the need of counseling and were difficult to understand no matter the judge required the court had a duty to literally ly come through that is to give the benefit of the doubt to those that appear on their own behalf seeking the protection of theo court. the concern also underlines the deep respect for precedent i recall many times he wrote while he may have decided a casese differently, a prior panel on the circuit already addressedhet the questions. and i have a chance to look back at the decision which the supreme court decided yesterday and that case the court y expressly noted the standards is from the earlier tenth circuit i case that stretch for urban until thompson. both of the instances, prisoner litigation, she's ruled on both sides of the issue. he's come out both ways. = important he's advocated for the representation of prisoners that were seeking the protection at disabled students. the belief that access and a fair opportunity to be heard for all is a critical component of the judicial system and with that, i look forward to your questions. >> members of the judiciary committee, thank you for the opportunity to speak with you today.po my name is sammy phillips, i'm a registered republican, gun owner and i live in texas but i now vote a straight democratic ticket. v i am a mother and i am here to speak on my efforts to stop other families from experiencin. my nightmare. i'm here to speak on the gun violence that takes 33,000 american citizens might each year on average, 91 americans are killed each day, eight of whom are children. my daughter jessie was one of them. five years ago this july by beautiful 24-year-old daughter was slaughtered in the colorado- theater massacre along with 11 other beautiful souls. others were wounded many that would shorten their lives. i know them, i know their struggle, i know their pain, both physical and emotional and i understand it. my daughter went to a movie and was slaughtered. i used the word slaughtered because the killer chose to use a wet and designed for the cho battlefield by the military as part of his arsenal and ambushed people that couldn't escape. he was able to purchase for a thousand rounds of high velocity bullets over the internet without even showing his drivers license. these were designed to rip through blood, tissue, seats and walls. when we changed the business practice our case was thrown out and the gun lobby says this was their crowning achievement fromn being sued in civil court and demonized victims to have their day in court. the night she was murdered i was texting with her and we were excited to spend mother and and daughter time. the last thing she wrote was ias can't wait to see you. i wrote back and said i need my baby girl. minutes after that, my phone rang and it was the young man with her for many years but we knew. what i heard on the other end oo the phone changed my life forever. he said there was a shooting in the random. i i asked if he was okay and he said i've been shot twice. at this point i grew alarmed since he was the one calling ani not my jessie. she said i'm sorry. i asked if she okay and he said i tried. i said please tell me she's not dead. and again he said i'm sorry. he's a firefighter and paramedic so i got that moment my daughter was gone and i'm started screaming i'm told but i have little memory of my husband catching me as i collapsed onto the floor. our little girl had been hit sil times. one bullet went through her leg and entered into the other leg making it impossible to escape. three more ripped through her abdomen, one hit her clavicle and shattered it and one that exploded through her left eye leaving a 5-inch hole that blew her brains onto the theater seat, floor and people. i live with that image every day of my life. this preventable pain and suffering of victims andth survivors has changed my life.ti i can no longer remain silent on the sidelines. the second amendment begins with the phrase a well regulated but guns are not well regulated. the lack of strong federal laws by people that shouldn't have been acquired them easily. people like her shooter who shot signs of mental illness that made him dangerous to himself and others was still able to get his hands on military style weapons and over the 4,000 bullets he bought for his attack. since the shooting they've put restrictions on the kind of magazines he used in the past new background checks walls but over the past few years, a small number of extremists have been pushing courts across the country to accept and endorse a radical version of the second amendment that would call into question basic public safety like those in colorado. this is the one that was rejected understanding the second amendment is not unlimited.nd the as a mother and american i believe it is critical that any supreme court justice understands this. cases could make their way to the supreme court in the monthss and years to come. this committee must know. do they believe it has limitst s and recognize it does not override any othert constitutional right like my doo daughter's right to live in a safe community. do they understand as the times change, the law must change to protect communities from gun violence have been recognized as constitutional and necessary. to be confirmed, any suprememe court nominee must answer thesee questions clearly andust convincingly. if not, the public safety is at risk. thank you for the opportunity to speak with you today. >> thank you mr. chairman and tt the committee for having me here today. i want to say obviously a very painful story. i want to say is judge gorsuch, i've known him for 13 years, he is the kind of judge ms. phillips and jesse would want on the bench and that applies the law fairly and evenhandedly to all litigants before him.andedl the kind of judge that doesn't rule based on a policy preference for an outcome but as it is written by this body. o the constitution the framers wrote. he applies the law in the way we want it to be applied, he is the judge's charge. i've known him as a private practice attorney at washington, d.c.. i then followed him to the justice department in ai's different office. i then went with him to the a tenth circuit when he was confirmed to the bench and spend the first four months as he became a judge. i watched him transform to a strong advocate into a passionate advocate for part of the rule of law. he was the kind that cares about people and his family and friends. he feels that the litigants before him feel and applied the law to each and every one of them. today we've heard from a lot of individuals on the panel about what the judge if confirmed may or may not do on the court but why would direct you to is the real record. this isn't a judge in a short period of time on the bench we a can't tell how it is going to be. we can look at the record and determine what kind of judge he is going to be. over the last few days, you've heard about a handful of cases where people feel like he has a role for the little guy. let me tell you about some of the cases. they voted to reverse districtor court and the qualified immunity accused of discriminating against a professor. u the city of albuquerque where they held to female police officers to bring the discrimination claims and reverse bear also. there was the claim all states sweeping a loud to bring a gender bias claim against an airport employee and chapman versus carmike cinemas reversed the district cour district coura female employee to bring a claim against her corporate employer. the vote allowed the female employee to sue. they allowed them t him to purse trial. eisenhower where the judge voted to allow the female court employees to bring claims against a male judge who had sexually harassed her. they voted for the dismissal of the work environment claim. he ruled a female employee can sue the government for discrimination again reversing the district court. in case after case after case hh has applied it his evenhandedly. in the occasional case of three or four day road for the corporate employer but time andy time again, he has ruled for the little guy, the sexually harassed, the disabled, so the notion somehow that he isn't capable of being a fair handed kind of judge mrs. phillips and jesse deserve is wrong. he will be a credit to the nation and this body and should be confirmed swiftly.u, >> i'm going to call on senator coons because he has another assignment. >> i will take a few minutes and ask questions if i might. ms. warbelow, judge gorsuch says he follows precedent and i question the critical casing. he also wrote they should apply the law as it is and looking tod tech, structure and history to decide what they would have understood the law to be. but they just don't look forward, they apply a modern principle to protect the rightht to privacy and marriage. can original as some protect what they now recognized based on the due process law? >> if we pass the pause button at the moment in time when it was within or any single statutl was written, we miss a context how it applies to people's lives. it's not a surprise to anyone in this room that it was a strangee to the law and if we continue to advocate for a view of the constitution that gives stuck in time for kobe will always be strangers to the law and judge gorsuch himself made it clear he thought the community shouldad only have recourse through the e legislature and that marriage equality was not an appropriatee topic for the court and to be left to the legislature's. but the role of the courts is to recognize the populations are often disadvantaged when it comes to the tierney of the majority, and a good justiceheye looks to how people's lives are affected and how the rule of law will apply in the day-to-day. >> there's been a lot of discussion in the course of the hearings from the campaign promise about what kind of justice he might nominate through questioning judge gorsuch this week and the judge potential over ruling seems to be in the distance of the hearings. i am concerned however there is many ways the courts could and would limit access to health care without over ruling roe. and as you heard in my questioning, i had questions about his standard of complicity and the consequences would be. in what ways could the court limit access to reproductive care without overturning and what does the urge to sa say tou about how he might approach the cases. >> i'm very concerned about his record and ability to set aside the belief and two rule in a fair-minded way. what we have seen is 330 laws have been passed to restrict access to abortion services even being stable we have seen the wading period and requirements that close the physical plants and really women with undue burden having to travel hundreds of miles and then have a lot of obstacles so what we have is a situation where it exists on abper but the ability to access it -- you are talking about legislators acting. why isn't that appropriate andal what is the court's role in its? >> we brought to the supreme court the ability to show legislators went too far and you can't just pass them to block people's access. they need to be substantiated by medical facts and evidence and it put an undue burden on the ability to access rights to privacy as guaranteed. >> i would like to thank you both and appreciate your consideration an opportunity to talk about the legitimate concerns in right to privac andy and its impact on people's liv lives. >> i want to thank you for your work defending the first religious freedom. as you know i'm one of the authors of the act. they make it difficult and in your organization for men and women. the testimony is perhaps its most important work and vindicating the aspiration to serve as a refuge of religious tolerance. in hobby lobby, the clerk concorde it can apply to a corporation. if you are the little guy if yot will but we have heard so much about the rest of the, the powerless. i have two questions about the record in this area. do any of his positions or opinions go beyond interpreting statutes the way the congress is implementing those intended and how critical is it to interpret statutes like these when it might be contra -- controversi controversial. >> are there any decisions thatt go beyond the correctstion is interpretation and judge gorsuch's ten years on the bench. i look at the opinions where he has interpreted the statute as you mentioned and i think that his jurisprudence shows hehe lit understands the balancing act congress put into these issues and he found in favor of the religious parties sometimes buto also against religious litigants in other cases. cases. hobby lobby and little sister are two examples he was in favor and found there was a substantial burden on the religious exercise in those cases and the government ultimately conceded that they have alternative ways to meet their interest without forcingir religious objectors to violate their faith and to show there is no conflict between religious liberties and women's rights but there's other cases where he has held they were insincere. there was one case i spoke about in my written testimony where a couple set up a fake church and they sought protection for the drug running and judge gorsuch said that as an. that' the ability to require the government over the last few days to prove its case and show it has a justification for whata it's doing with the ability to recognize the limit shows he has a thoughtful approach to apply the statute as he has done overy the last ten years on the circuit and as you know, senat senator, it's been used tod t protect religious minorities around the country. i'm thinking of the pastor at a native american church in texas and the government created operation powwow wen when underr they invaded the religious circle to confiscate = others. it was because i might add the hobby lobby decision the court h cited he was able to get them back and use them i in houston s religious ceremonies and it was also who helped another of the clients to ask of the army to give a accommodation. fai eventually they were willing to change the regulations are now all can faithfully serve in the army and not havarmy and not har faith in doing so. i appreciate the question and i think it is an important point that we make that they protect religious minorities around the country and do this work ofdom. religious freedom. >> thank you for your testimony honoring your daughter. so sorry for your loss. >> i appreciate that and i would also like to ask senator grassley if he would make note in the record the gentleman next to me does not speak for me or t my daughter. >> we accept that. >> thank you for being here today. i would like to talk about voting rights. judge gorsuch and i discussed jg yesterday the decision that gutted the preclearance provision of the voting rights act required certain states from engaging in discriminatoryyhisto practices to get the federalctit government approval for making changes to the voting law. shelby county struck down the provisioaprovision that determih states were covered bybyovision preclearance. i'm not sure that people fully appreciate how quickly some of the states previously covered reacted. let's look at north carolina. it was issued in 2013. legislators already have a bill in anticipation of the ruling. they indicated it would start to move and if they approved a package of restrictions two days later. no membenovember voted for the . the house approved the bill later that same day and they signed on august 12. section two remained in place but where they stopped the measures before they could doce any harm section number to a loud to challenge restrictions after they had been an active soaeven though they targeted african-americans with almost surgical decision the circuit event strike down the law until july 29, 2016. j that means some of the restrictions were on the books for years and for the challenge to work its way through the court in the meantime these restrictions kept people from t voting. according to a legal defense fund, hundreds of voters were not counted in the primary election because north carolina had the same to be thrown out if they were cast at the wrong polling place so i've mentioneds this. i wanted to know if he was bothered by the consequences and he said section two was still available. in the time it is to bring one of those challenges, people are robbed of their right to vote. he told me voting is as. fundamental right and i know that but it didn't answer my question. i was not reassured by my conversation. i understand he can't weigh in on certain policies or proposals but as a judge that makes decisions on the facts and onho the wall alone i think that it's important to know whether he takes proper measures and the fact of the matter is it was not adequate on its own. do you agree? >> section two is not an adequate substitute for the protections that had long been a provided in the voting rights act. this is an important area to th focus on. it's the most sacred of civil rights in our democracy, and i listened to judge gorsuch yesterday in response to youres. question he asked for his view about the statement where he referenced it as a racial entitlements, and he refused to disavow that statement or distanced himself and i find that deeply troubling. i believe the nation needs justice on the highest court who appreciate the right to vote is central in our democracy andndrh understand and appreciate that remains under attack. you pointed to the example in north carolina and sadly we have seen the floodgates open up all across the country since the ruling in shelby county versus holder. texas is another example on the day the court issued its ruling it couldn't claim the photo id requirement on the day that went went into effect is disenfranchised legitimately registered voters that were without one of the forms of the qualifying id. i listened intently and carefully to the response to questions on the right to vote and the voting rights act and remained incredibly dissatisfied. again, the nation deserves someone who will take the bench and understand grave challenges arising under the act and other controversies will come before the court and we need someone who will be prepared to ensure what remains is fairly interpreted and applied. >> may i ask consent, by the way, ask consent that the legal defense and education fundoting report entitled to be entered into the record?pl >> without objection that willk be entered in >> thank you mr. chairman i do not have any questions. >> in my beginning to pronounce your name right? >> i think that you have been doing okay so far. we made it very plain. it's very difficult to prove the effect under section two. >> it is difficult but we are seeing states and localities that not only have a discriminatory effect on the protected minority groups that the purpose. we believe that it was adopted to disenfranchise the elderly and students. very >> you argued the shelby county case and people were concerned about what happened after the court eliminated section five and some 13 states and maybe more are passing those thats kin sosenfranchised voters. i know that you were listening to testimon the testimony yested the day before. he founded women's health and i kind year for that -- i commend you for that. in the hobby lobby case there are thousands of employees and. there are thousands of hobby lobby employees whose rights to contraceptive coverage was given no consideration at all.sider it is indicative of where the judge would be on issues relating to the right to choose. whether it is contraception, all abortion services everything and i don't think we can be setide a aside. it's to restrict the rights of the vulnerable americans. what did the supreme court have madthan what it was in the following cases? know, senator >> virginia v. the unitedd stats states? so basically it is a philosophy or approach that conservatives used. >> it took hold in the court so that might give a little bit of a sense of the direction. there was a discussion in one of the most important cases decided by the court in the last 100 years yet th the cases were striking down the traditions of section five as very weak and there was an article in the review that pointed out the notion of equal dignity that the court relied on in that case so yes it has been selectively used and i will point out in the cases like the affirmative-action when the originalist decision would uphold, they slid away from that decision. >> i just want to express my profound sorrow for ms. phillips. >> thank you for being here and testify in. >> senator kennedy, do you have any questions? >> i think i understand your unr position. i went to your website and it is a well put together a website and this is an issue that divides many americans. would you ever support a nominee that did not agree with you?>> >> whether the nominee agrees with me isn't the issue isse whether they can uphold the precedent. >> i'm sorry to interrupt, but they do not give me much time. what did you ever support a nominee to the supreme court who would declare in front of the wo united states senate on the judiciary that he or she supported roe v. wade? >> i think that's what we have seen him do -- >> i'm asking what you ever support a nominee that would do that?'t >> i'm trying to answer the question. we have seen and acknowledged is exists. >> i'm not asking about judge gorsuch. i'm probably not being clear. would you support any nominee for the united states supremee court who didn't come beforefo this panel and say i support roe v. wade? >> i believe it is precedent anl important for the justices to uphold the precedent. >> is that a guest? >> yes it is. >> and that is your right as an american you can believe what you want.ht i do have to ask this made theeo charge that they decide cases on the basis of personal policyid preferences and that is a pretts serious charge. what is your basis for saying that? >> i'm concerned he won't be able to set aside his personal beliefs and rule independently. >> i have seen him in the hobbyc lobby case i think that he ruled in favor of the big guy. i tend to side with the little gal and i think they were set aside in favor of big business. >> do you think judges ought to decide cases based on the identity of the party cracks you said you always support the little ones.es. >> women's rights were set aside in favor of a larger corporatioo and the hobby lobby case. >> what is the evidence for saying that? for making the statement about the judges in that case?t the >> i think the personal and religious beliefs got in the way of objectivity when women tried to access healthcare. >> you spend a year with judge gorsuch. you saw him when he was tired and under pressure and when he saw his spouse.>> he he works pretty hard. >> i never saw him bring his policy preferences into the chambers. >> did you ever see him walk in and say oka don't show me the bs we will look at those later. let's do research on who the lat parties are. >> that never happens. he pays attention. >> is there ever a case based on the litigants while? >> i worked with them for about 14 months. do you ever see him in 14 months decide a case based on the status or power or succumb to political pressure? do you ever see them sit downver and say okay i decided this many cases for the little guy and this many for the big guy is that the approach? >> absolutely not. >> i'm out of time.k >> senator blumenthal is next but i'm hoping if no one else comes then i will ask my questions. first of all, there is nothing anyone can say to ease your pain or close the hurt. i know from having worked with families at san diego and others around connecticut and the country how needlessly you suffer as a result of gun violence and all i can do is play more than saying anything i will continue to work as hard and as long as possible for the commonsense measures to drop gun violence in this country. >> you know you are my hero and the work that you are doing iny connecticut the whole country should look to as the leadership you have given to emulate throughout the country so thank you. >> i appreciate those comments but much more importantly, i appreciate the work that you are doing day in and day out and i know every day as you said so eloquently at the opening, the work that you do remind few of your loss and all i can do is stand here in all and admiration of what you are doing. that's probably the reason i asked yesterday about this topic and about his reading in the decision which my view perfectly allowed the measures to stop gu violence including stopping the kind of weapon that was used to kill your daughter. they failed to stop the sale of such weapons in the commonsense measures like universal background checks are absolutel reprehensible. i was just a pointed in my response to me when i asked these questions because he failed to agree with me in my reading of the statute and used the same kind of disclaimer thad he did in response to numerous other questions he would end answer. i think a person's stance on these issues as a matter of core beliefs and principal value is that a judge brings to the bencb no matter how objective and impartial he or she may be, every judge has a flesh human being and i was looking at what is in his heart as one of my colleagues, so i just want to thank you for being here today and for giving a face and a giv voice to this profoundly important american issue. >> i am honored. >> thank you. i want to thank you for that great for that you are doing and the service that you provide every day. as you may know, yesterday when i asked the judge about brown v. board of education, he said in n effect that result was correct and he agreed with it but he wasn't willing to say the same about the cases underlined in the constitutional right to privacy which underlines the work you do every day. it's not just the results of the cases. it's the constitutional principle underlying. why is the right to privacy so important for people facing the very personal private decisions that they do in coming to your clinic and why are the apprehensions about that right so hurtful? >> i'm very thankful for your support. i can't get over the fact candidate and president of trump has been clear that there was a litmus test for the nomination and in addition to that, we haven't seen him affirm his support. the women's right to privacy is a fundamental right for us to realize our full humanity and participate in society as equal citizens we have to be able toll control our reproduction via contraception and sometimes nee access to safe abortion care and i think that is a fundamental right that has been approved and reaffirmed for over 40 years. >> i want to thank all of the>> members of the panel for being l here today. this is an important proceeding for the nation, and you make a great contribution. i have three questions i want to ask and i would like to have my time starts now but i would like to yield a few seconds to senator kennedy because he asked for that. >> i will be lightning fast if it is coming out of your time. >> did you need to speak for anybody today other than your self? >> >> i wanted to apologize i didn't mean to speak on behalf of her or her family. >> i didn't take it that way but i appreciate you clearing up thk record. >> i bet he thinks if i ask a question that's because he hasn't spoken with me lately that i dbuti do have a question. you watched the last two days of testimony. a lot of it is focused on judge gorsuch's record on civil rights and i would like to focus first on the cases but he decided alleging discrimination on the basis of race. what conclusions can you draw from his record in this area? >> the conclusions are when it comes to the application of the law, judge gorsuch is precise and an applicant of the law toto the fed and if you are looking for an outcome driven judge, he will apply the statutory text as it is written. that is your judge.ry text >> is smith, while hobby lobby seems to get the most attention, judge gorsuch has applied federal law protecting religious freedom specifically that used in the act. i think you referred to thathat already. for example, could you tell us t bit and then i think you already mentioned this but say it again for the benefit of responding and then i think it is going to show depending on your response they've applied the statutes to protect americans of all faiths. >> thank you very much, mr. chairman. so, yes, the first case that you mentioned haseeb against calbone. that was a case, i think that demonstrates what a fair judge, judge gorsuch is. he was on that panel and they had a pro se prisoner bring this claim for a religiously required diet. and it was a muslim prisoner. and the panel decided that there would be potentially some merit to some of the claims that he had brought. and so the panel decided that they were going to appoint council in that case. so they appointed council so that this muslim prisoner would have the benefit aftof a real lawyer who knew what he was doing to argue his case effectively before the court. they extended the briefing schedules so they had more time to really dig deeply into these claims. and ultimately that panel decided that this muslim prisoner was due a religiously required diet under the religious land use and persons act and judge gorsuch agreed with that decision the court. and then in yellow bear, the case that i discussed in my opening statement, a very significant case involving native american prisoner who had claimed that he was being denied access to a sweat lodge which was essential to his religious practice being a northern arappawho native american. judge gorsuch in a unanimous opinion wrote an eloquent opinion saying prisoners are are denied so many things in prison but religious exercise should not be one of them. he went on to find that government had not proven its case. that they had not shown that they add compelling reason to deny him access to this sweat lodge. and so again in that case, the little guy, the native american prisoner, prevailed in that case. and i think boemg of these are really important cases to show that judge gorsuch applies federal statutes as congress has written them to protect the religious liberty of in these two cases, a muslim prisoner and native american prisoner. >> thank you very much. now mr. meyer, my last question, since you worked with him for a year, i think you can touch on this issue. what does he look to get out of advocates for oral argument? have you ever known him to change his mind in a case during oral argument? >> thank you, senator. oral argument is incredibly important to the judge. it is the basic notion that litigants should have fair opportunity to be heard. and yes, i have seen the judge change miss mind based on oral arguments. briefs are full argument but oral argument gives you a chance to interact and pose questions to counsel that they may not have presented this their brief. i've seen something shaped by exchanges in questions with counsel. his preparation for oral argument is incredible. the amount of -- the number of hours he devotes to the briefs and then thinking through all of the issues in the briefs and background research, is really -- is really incredible. a huge amount of time. >> okay. senator, blumenthal, i was told you would like to ask one more question. >> i have one more brief question. >> go ahead. >> please proceed. >> professor marshal, i was struck on your testimony by reference to brown versus board of education. and as you will note, in my discussion with ms. miller, i mentioned distinction that there was in judge gorsuch's comments on the privacy cases versus brown in a way that he acknowledged that privacy cases were decisions of the court, and he declined to say whether or not he thought they were correct and brown versus board of education which he said in effect was correctly decided. so my question is, when i saw the reference to brown, it reminded me of a question i did not have time to raise yesterday with judge gorsuch, which is whether brown versus board of education is somehow distinguishable because it is an originalist case. i don't believe it is. but you are the professor. so let me ask you. >> no, it's not an originalist case. least if it was it would be a surprise to the framers and drafters of the 14th amendment and segry gated schools in the district of columbia. a surprises to who wrote and signed on to the brown case. they looked for an originalist and specifically questioned information and whether it was supported by originalism and were told no but they decided anyway. some originalists try to get there. the reason they try to get there is because of how difficult it would be to say we have a tie y theory of the constitution that doesn't support brown versus education. but my answer would be the problem isn't with brown versus education. the problem is with the theory that if honestly applied didn't get there. >> just by way of historical enlightment, it has been a while since i looked at history, chief justice warren asked justice frankfurter to find an originalist justification for brown. he went to one of his law clerks, i think alexander bickell who wrote about it subsequently and bickell couldn't find anything, frankfurter couldn't find anything and warren said well we will reach the result anyway, we will write the opinion without an originalist justification. am i roughly correct in that? >> you are absolutely correct. >> thank you. i'm sorry, i'm not in your law school class. >> i think you could teach it. >> if you want to review -- or a view of a farmer of that discussion, i would say that you very clearly say that it's not erid originalist, gorsuch said that it wasn't, and i think you backed up what he said. because he said yesterday that he didn't consider that part of -- or that can you call him an originalist at least on that point. okay, i want to thank you. >> thank you, mr. chairman for your courtesy and being able to answer the question. >> it is my opportunity for the third time today to thank the panel for participating. i know it takes a lot of work for time to be here. your presentation and preparation. and it is all part of a very important part that congress thank god doesn't get involved in very often because we have continuity on the supreme court but it is important for all of the testimony. thank you for that. and for the benefit of the committee, i said earlier this week so this shouldn't come as surprise, questions for the record are due by tomorrow at 5:00 p.m. the record will also remain open until tomorrow at 5:00 p.m. the hearing is now adjourned. thank you, all. hearts go out te who are lost. now on the subject i wish to speak about this morning at length, and that is judge gorsuch. well, mr. president, i've had the opportunity these past three days to watch judge neil gorsuch in the judiciary committee, to review his credentials and record on the tenth circuit, and before that. i would particularly like to recognize the outstanding work done by every democratic member of the judiciary committee. they were just outstanding in questioning judge gorsuch despite his lack of candor and desire to answer. and i'd like

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