Transcripts For CSPAN3 Final Day Of Gorsuch Confirmation Hea

Hopefully a republican democrat votes so i can finish. I havent missed a vote since 1993. Thats about 7,900 votes. I dont intend to miss another one. Professor tirly. Thank you members of the Senate Judiciary committee. It is an honor to discuss the nomination of judge neil gorsuch for the United States Supreme Court. I believe the nominee should be extraordinary. I should state at the outset that i do not agree with all of judge gorsuchs legal views, however i believe that judge gorsuch to be exceptional choice for the court. While many focus on replacing the conservative with another conservative, the primary concern should be to replace an intellectual with another intellectual. Judge gorsuch is that type of nominee to have the 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 written testimony i focus on two aspects of the nomination. First i have addressed the criteria often used to evaluate a nominee and i have looked at cases by judge gorsuch with particular emphasis on power and chevron. Every present senator expressed commitment to placing best and brightest on the court though few agree on qualitative measures needed to guarantee that. Historically the record is not encouraging. Our respect for the court blinds us with the fact that justices have ranged. To be blunt we have had more misses than hits. Top candidates are often rejected due to writings and views that might attract opposition. The result is a preference for nominees with clean records that have no public thoughts challenging conventional theories, not even raising interesting ideas. That is not the case with this nominee. Judge gorsuch is actively participated in debating some of the toughest questions of our time. This is in other words a full portfolio of work at the various highest level of analysis. On the basis of all criteria i discussed in my testimony judge gorsuch is a stellar nominee. I realize that many do not welcome a conservative nominee anymore than they welcomed a conservative president. President trump has every right to nominate someone who shares his views. To put it simply, neil gorsuch is as good as it gets and he should not be penalized for engaging in a policy and academic debates of our time. I discussed some of his opinions. There are many. 2,700 or so. The jurisprudence reflects a jurist who crafts his decision closely to the text of a statute and in my view that is no vice for a federal judge. The exception as i talk about is chevron in terms of the consistency of his views with those of Justice Scalia. There we have seen a lot of discussion of cases which i would be happy to go into. The confirmation hearings bring almost a mythical aspect to this process as people try to predict who a justice will be decades in advance. Of course, nobody knows that except the nominee. If history is a judge the nominee doesnt know that. These hearings remind me of judge holmes who is traveling by train when conductor asked for ticket. The conductor says we all know who you are. When you get to your destination just send us the ticket. He responded the problem is where am i going. Most nominees are in the same position as Oliver Wendell holmes. I do not expect judge gorsuch to be a robotic vote for the right of the court. He has shown intellectual curiosity and honesty that will take him across the spectrum. I would simply say we are not looking for the best imitation of Justice Scalia. We are looking for someone who can be intellectual on the court. That person is neil gorsuch who just might eclipse his iconic predecessor. Wont be the same. He will bring something new. In the end what i mostly can say about gorsuchs destination is that while i suppose they have this in common, he will go where his conscious takes him. It might be to the left or right. I cant say with the final term this will be but it will be exciting to watch. It is therefore my honor to recommend the confirmation of the honorable judge neil gorsuch for United States Supreme Court. Thank you. Now mr. Gallagher. Thank you for the opportunity to testify here today on behalf of the sierra club and its members and supporters. The Supreme Court justice holds considerable power over the laws which safe guard the air we breathe and water we drink and the integrity of our democracy. Unfortunately, judge gorsuchs ideology threatens bed rock and environmental law and rights of citizens to fair and equal voice. For these reasons the Sierra Club Opposes judge gorsuchs confirmation to the Supreme Court. Judge gorsuch has displayed consistent willingness to close courthouse doors to citizens while holding them open for corporate interests. Think for a moment of the child from bakersfield, california struggling to breathe as result of oil and gas operations outside her home and school or of the family who might not be able to take their annual camping trip in ohio because of fossil fuel Drilling Operations at that place. Or of the families here in washington, d. C. Who continue to suffer from the led contamination of Drinking Water. I presume that everyone in this room would agree that every single one of these people deserve access to federal courts to remedy the wrongs. Unfortunately, judge gorsuchs writings and judicial records show he would shut courthouse doors on many of these people who want nothing more than to protect their air, water, public lands and families. In 2005 judge gorsuch authored an article entitled liberals and lawsuits where he criticized those who seek to remedy justices in the federal courts when executive branch fails to do its job. While judge gorsuch repeatedly stated that he wishes this article would disappear his record continues to reflect this philosophy as he has denied environmental plaintiffs access to the courts where citizens must jump through multiple hurdles just to get inside judge gorsuchs courtroom corporations have been able to walk right in. Let me cite two examples. In 2013 the sierra club moved to intervene in lawsuit against Forest Service challenging closure of certain trails. Judge gorsuch concluded we should have been excluded. Neither the government, offroad Vehicle Group nor majority of judges objected to our participation in that case. Second, in 2005 a coalition of citizens groups challenged a utah countys attempt to take over Red Rock Wilderness areas managed by bureau of land management. Judge gorsuch ruled that the citizens did not have standing to sue and did not get into the courtroom. In an emphatic dissent, one that echoes my testimony here today stated a citizens right to protest and be heard on federal rules and regulations is ignored. Not only has judge gorsuch limited access to courts he has stated open hostility to the chevron doctrine a long standing precedent that ensures integrity is respected. It ensures laws are carried out by career Public Servants using best available science. Here thunderstorm most troubling issue. Judge gorsuchs opinion that it violates the constitution echoes the current white houses extreme antiagency demagoguery. Trump Senior Adviser gave speech in which he professed that white house priority is the deconstruction of the administrative state. Trumps massive budget cut for epa was next hammer to fall. Judge gorsuchs ideology will further this agenda hamstringing the ability to enact safe guards and incentivising to challenge epa forcing federal judges to second guess agency scientists. We now stand at a precipice in history. How we lift up our communities who lack access to clean Drinking Water and clean air . America cannot afford the appointment of yet another justice whose ideology disfavors groups and leads to degradation. Thank you mr. Gallagher. On behalf of the National Federation of independent business i am honored to testify today in support of the nomination of judge neil gorsuch to be an associate justice of the United States Supreme Court. Nfib is leading Small Business Advocacy Organization with hundreds of thousands of members across the country in every industry and sector. As the lead plaintiff in the historic challenge to the Affordable Care act nfib understands firsthand the importance one justice can have on the ability of Small Businesses to own, operate and grow their business. After reviewing judge gorsuchs articles, decisions and public statements we are pleased to see a judge who both applies the actual text of the law and the original meaning of that text at the time it became law rather than changing it to fit his personal views and preferences. Specifically, Small Businesses are encouraged by three qualities judge gorsuch has brought to the bench. His opinions are clear and often provide right line rules. He has a deep respect for the separation of powers and he has shown a willingness to tackle the difficult legal issues of our 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 businesses and ordinary individuals who may be effected by that law moving forward. Like their larger counter parts, mall Business Owners want and need certainty. They need bright line easy to understand legal standards. If Small Businesses dont know what is expected of them, what the rules of the game are they may be hesitant to undertake actions that otherwise would help their business grow. Judge gorsuch takes seriously his obligation to provide that clarity whenever possible. Judge gorsuch also has demonstrated that he truly respects and seeks to protect the separation of powers among the branches of government. This is important because nfib is concerned about what we see as the rising tide of regulation promulgated by elected bureaucrats. This trend over the last 30 years contra vaccines the fundamental principle that only congress should be able to enact and change statutory law. When it comes to regulations Small Businesses bear a disproportionate amount of Regulatory Burden as compared to larger counter parts. That is not surprising since it is the Small Business owner, not one of a team of compliance officers who is charged with understanding new regulations, filling out required paperwork and insuring the business is in full compliance with new and ever changing federal mandates. The uncertainty caused by future regulation negatively affects a Small Business owners ability to plan for future growth. For Small Business the problem of overregulation has been further exacerbated by the broad deference federal courts give to executive agencies in their interpretations of statutes passed by congress. This judicial deference to executive agencies has led to a break down in our constitutional system of checks and balances. Therefore nfib welcome judge gorsuchs concurring opinion last year encouraging the Supreme Court to revisit the chevron doctrine. In my written testimony i reference three cases where the chevron doctrine has caused serious harm to Small Business. In city of arlington the Supreme Court invoked chevron to find courts must defer to agencys interpretation of its own statutory authority. By extending to determinations the court set a dangerous precedent that encourages of Regulatory Authority with minimal judicial oversight by addicating its responsibility the court signaled that agencies may intrude with impugnity as long as their actions are justified as reasonable to the slightest degree. Our constitutional system of governing and separation of powers doctrine play a large role in empowering vitality. When the system erodes or functions less perfectly there is an adverse impact on Small Business and our nations economy. Small businesses have an important stake in who fills justice antonin scalias seat. Nfib is pleased to support the nomination of judge gorsuch to the u. S. Supreme court. Thank you. Thank you very much. Our next witness is the former Deputy Assistant attorney general. Thank you very much for inviting me to speak today. I am an attorney with more than 20 Years Experience implementing the laws protecting the rights of people with disabilities. I have serious concerns about judge gorsuchs approach to and support of americas disabilities civil rights laws. People with disabilities have long experienced what former president and then candidate george w. Bush called the soft bigotry of low expectations. Unfortunately, judge gorsuch bakes these low expectations into his disability rights jurisprudence in spite of bipartisan attempts to disen mantle such prejudices. Troubling not just for devastating human consequences but for dismissiveness of the law as established by congress. Individuals with disabilities act, education act requires Public Schools to ensure free appropriate Public Education for each student with a disability. In the luke case that you heard about earlier, judge gorsuch read to require only education that is merely more than diminimus. That context is nowhere. Judge gorsuch adopted the standard inspite of statutatory text requiring appropriate Educational Programs and in spite of repeated updates calling for high educational standards for children with disabilities. Yet in luke judge gorsuch substituted his opinion for that of three Decision Makers who found lukes school did not provide appropriate or meaningful education benefit nor did precedent require merely standard. A decision to overrule the findings of three lower courts in a way that ignores statutory text is deeply troubling. Lukes records showed he was failing in over 75 of the goals in his plan. Few parents in this country 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 for lukes school. Notably a little over a year after the change in his placement as you heard this morning luke made significant progress in the goals that his prior school had failed him. It was judge gorsuchs expectations, not lukes capabilities, that were deminimus. Yesterday the Supreme Court explicitly rejected judge gorsuchs standard. The court found judge gorsuchs standard mischaracterized the intent and language of congress and Supreme Court precedent. The court found in requiring an appropriate Public Education congress meant what it said. The court stated when all is said and done a student offered an Educational Program providing merely more than minimum progress can hardly be said to have been offered an education at all. Unfortunately, it is likely too late for many children with disabilities in colorado, kansas, new mexico, oklahoma, utah and wyoming who have been subjected to the soft bigotry of expectations for nearly ten years. Judge gorsuchs other idea opinions have shifted standards of review and created legal mine fields of administrative processes to undermine the Education Rights of students with disabilities. And judge gorsuchs opinions on the rights of adults with disabilities also reflect rather than challenge stereotypes that congress enacted in federal disability rejected. Congress passed americans with disabilities act to open doors to the work place for people with disabilities. But judge gorsuch in 2010 held that an employee with multiple shrerose s did not have a disability because she was able to work. He made this holding in spite of both ada and the ada amendments act of 2008 where congress made clear that the ada provides and as always provided protection to people with ms and that disability is not defined catch 22 like as an inability to work. Federal disability laws are intended to address not just latent discrimatory treatment of people with disabilities but the ways the employment processes benefits and buildings have been designed in ways that inherently exclude people with disabilities. This is the basis for ada requirement of reasonable accommodation. In the case of Kansas State University a professor requested slight extension of her leave time to return to work when her campus experienced h 1 n 1 outbreak that could have risked her life. The university routinely allowed one year phsabbaticals for othe but judge gorsuch insisted she could only extend her leave. The ada asked if she was offered what she was entitled to or reasonable accommodation is available. Judge gorsuch ignored that test. Instead he suggested that congress was wrong to require l