his personal views at the breakfast table. your personal views have nothing to do with your job as a good job. >> let me ask you about -- do you agree with that decision? >> and, senator, i'd give you the same response. i know people have their views personally about lots of supreme court decisions and about a lot of other things. we're all human beings. i get that. i'm not an algorithm. they haven't yet replaced judges with algorithms, though i think ebay's trying and maybe successfully. we're all human beings. but the judge's job is to put that stuff aside and approach the law as you find it. that's part of the precedent of the ups spror that i'm sworn as a sitting judge to give the full weight and respect to due precedent. >> those two cases were 5-4 decisions. so let me can you about something that was union andthis the only thing controversial about that case was that the obama administration actually tried to convince the supreme court that a bunch of government bureaucrats could tell a church who its minister could be. like i said, that case of 9-0. can you tell me if that case was decided correctly? >> respectfully, senator, i'd give you the same answer. >> those are relatively recent cases. let's talk about cases that have been around for a while. let's look at giddy and wayne wright. it was decided unanimously, a long time ago, 50 years or more, it says a criminal defendant has a right to an appointed attorney if he can't afford one. everyone that watches cop shows tv knows this law. does that make a difference? can you tell me if you agree with the principal of gidian? is it the same answer, the same reason? >> mr. chairman, it's certainly a seminal decision of the united states supreme court, there's no doubt about it. it's a very old decision of the supreme court now. it been reaffirmed a lot of times. so i could talk to you about the factors that a judge and the weight do a precedent but i'm not in a position to tell you whether i personally like or dislike any sm nal precedent of the united states supreme court and it deserves respect on that basis. precedent is kind of like our shared family history as judges. it deserves our respect because it represents our collective which is come. to come in and think that just bass and -- it would be an act of hubris. >> what if i ask you about bush versus gore? >> i know some people in this room have some opinions on that, i'm sure, senator. but as a judge it's a precedent of theins supreme court and it deserves the same respect of or precedent of the united states supreme court when you're coming to it as a judge and it has to be analyzed under the law of precedent. >> well, let's go to a mortgage controversial issue. i think the case that every nominee is thinking about and every case that gets asked about, roe v. wade. can you tell me whether that was decided correctly ? >> i would tell you it was decided and it has been reaffirmed and all the other factors that go into analyzing precedent have to be considered. it is a precedent of the united states supreme court, was reaffirmed in casey in 1992 and several other cases. a good judge will consider it as precedent of the united states court, worthy of treatment like any other. >> what about grist wald, which was decided before roe, the can you tell me your views on grist wald. grist wald involved the right of married couple to use contraceptive devices in the privacy of their own home. it 50 years old. the reliance interests are obvious all factors again, in analyzing precedent. >> i think i'm going to stop questioning and sum up what you and i just talked about, in reso you can't blf. and the or is fairness to future litigants. is that the way you see it? >> it is. if i were to start telling you which were my favorite precedents or least favorite precedents or a viewed in a face that i've already made up my mind there. and i don't want to be that kind of judge i would be. that's what it shouldn't be. if it looks look i'm give hints i think that's the end of the judiciary if judges have to make essentially campaign promises for information and respectfully senator, i haven't done this in the process and i'm not about to start. >> thank you. i'll ra yeed back 8 seconds. >> thank you very much, mr. chair. welcome, judge, and good morning. good to see you again. >> good morning. >> since we're on roe, i wasn't going to begin with this but i well recall the time we spent in my office and we talked about precedent and in my opening remark $ if anything this tup fume the president had said he would appoint someone who would overturf -- you pointed out to me that you viewed purchases in that it added ability to the la could you elaborate on the point you made in my office about that. >> i'd be slighted to, senator. part of the value of precedent -- it has lots of value in and of itself because it is history. but drm nancy of law. we have lots of tools that allow us to narrow the realm of admissible dispute between parties so people can anticipate and organize their affairs. it part of the reason why, we have act finding system and a judicial system that's the envy of the world. and press didn't is a key part of that because as the president pointed out, once a case is settled, that adds to the determi determineantsy issue of the law. we move forward. and, senator, the value of that is the united states supreme court takes certainly like 70 or 08 cas 08 cases a year. that is a tiny fraction of all the disputes in the federal law system. my law clerk tells me it's something like 0001. they're unanimous 40% of the time. >> one other question. >> sure. >> do you view roe as having super precedent? >> well, senator, super precedent -- >> in numbers -- >> it has been reaffirmed many times i can say that, yes. >> yes, dozens. >> just to reference what's happening on the rye side of your screen, president trump is meeting after his meeting with republicans in the house. he gave brief remarks to a camera outside saying he believes he'll have the votes. we'll get much more about the substance to his remarks to republicans. here he comes about to round the corner where the cameras are. >> when i became chairperson in twine, we took all the detainees and looked at them in a six-year study. >> looked at every view and put in a 7,000 page report, 42,000 footnotes, documenting, there are no conclusions, just facts. that 7,000 panel report has remained classified. i have read it. we have put out a 450-page summary which is public and in that summary we indicate that those cases the administration spelled out were torture proof operative were simply not so. it's my hope that that report will be declassified so the american people can actually see. i wanted to ask you some questions along these lines. it's my understanding that the set of talking points were prepared for a press conference for the attorney on november 22nd, 2005. they ask whether aggressive interrogation techniques employed by the administration yielded any valuable information, end quote. and in the margin next to this question you hand wrote one word "yes." what information did you have that the bush administration's aggressive interrogation techniques were effective? i'm happy to share the documents with you. i'll take this many out of my binder. let me just hold up the answer and we'll get you the documents. let me do the next question. in december 2005 after the passage of the detainee treatment act, you advocated that president bush should issue a signing statement to accompany the law. in an e-mail you sent to steven bradbury and others, you said the signing statement would, and i quote, this is your quote, help inoculate against the potential of having the administration criticized some time in the future for not making sufficient changes in interrogation policy in light of the mccain portion of the amendment. this statement clearly and in a formal way would be hard to dispute later, puts down a marker to the effect that mccain is best read as essentially codifying existing interrogation policies, end quote. to be clear, the context was that earlier in 2005, the justice department's legal counsel concluded that cia's interrogation tactics like waterboarding and sleep d deprivation did not amount to cruel treatment. i read your e maim as an advocation of these teniques. is that true a doesn't tha mean when you wrote this e-mail you were condoning water dboardg as lawful? >> i don't feel comfortable commenting on documents that aren't if front of me. but i can say this -- >> my staff has the documents here. they can bring them down to you right now. >> thank you. that would be wonderful. i'll put aside this part and i'll go on to the next subject. is that all right? i want you to look at the documents. >> i'd like to just know what i'm talking about. my recollection generally i can from 12 years ago -- >> eric, bring him the documents, please. >> thank you, eric. my recollection generally working on the detainee treatment act was at that time after rasule was issued by the supreme court there was a lot of habeas competitions come in from guantanamo bay, some brought by my friend neal cotshell and there was a efforty some on capitol hill to try and provide a regime for therocessing of those claims in a way that would conform with the youngstown ideal of congress and the president acting together in unison. that senator mccain and graham put together an argument that not on was torture unsearaccept by u.s. law. -- >> i know from the documents that you worked on the graham effort. for example, a self-assessment that you wrote said that you, quote, helped coordinate the legislative effort on the graham amendment within d.o.j. and in consultation with d.o.d. and others. >> that's absolutely right, senator. i sure did and i'm proud of it because we managed to come up with a bipartisan bill that i think passed this body with over 80 or meaybe 0990 votes, i don' remember, that, one, confirmed this country's commitment to avoid cruel and unusual punishment and on how guantanamo detainees should be -- >> except the conclusion that we come away with is that when the bill on the mccain amendment was about to be voted on, you forwarded press articles explaining what having these two provisions together mant. that w -- maer -- meant. that was the mccain amendment and the graham amendment, which would bar habeas, in other words, a detainee could not use the habeas corpus right to file in a court of law and challenge their conditions of detention. so that was looked at as offsetting mccain and preventing habeas corpus as being used and of course was turned over by the court. >> senator, you're absolutely right that it was eventually litigated, as all these things are. it was a bipartisan effort and it was between the department of defense -- department of defense wanted congressional approval for something so that they knew what the rules would be. they were desperate to have some congressional involvement and investment in this process. and as a lawyer, that's all i was, i was a lawyer for a client, right, i was advising them on how to go about doing that legally in conjunction with senator graham's office and others. and it was a bipartisan effort and we put together our best effort. the d.c. circuitupheld it, the supreme court of the united states eventually many, many years later found that the process was insufficient. that's the bumadine case. the question was simply whether they were adequate enough under the suspension clause and that was a close case that divided the court very closely and i respect that decision as a precedent of the united states supreme court no less than any other, senator. >> one last question on this. >> sure. >> when president bush signed the detainee treatment act, he issued a statement that basically said he would only construe the law consistent with his powers as command are er in chief. according to press reports, administration officials confirmed and i quote the president intended to reserve the right to use harsher methods in special situations involving national security, end quote. in other words, the signing statement reflected the president's belief that he had the power to not comply with the law he had just signed. according to e-mails, and this you'll verify, you were involved in preparing that signing statent u advocated for the issuance of the signing statement, that even showed you saying to the top state department lawyer that mayharri myers, the white house counsel, quote, needs to hear from us, otherwise this may wind up going the wrong way. >> senator, i can tell you what i recall. i need to read the e-mail but my loose recollection of something that happened i think 11, 12 years ago, is that there were individuals in maybe the vice president's office who wanted a more aggressive statement along the lines that you described and there were others at the state department who wanted a jnt already si -- gentler signing statement. and my recollection the best i can give it to you without studying the e-mail was that i was in the latter camp. john leveli john bellinger, among others, i would have soeshassociated myse with. i certainly never would have counselled anyone that they could disobey the law. >> i have no reason not to believe you, but if you will read those and then in my second round we'll go back to it. >> sure. >> and i'd be very happy to -- because i think you'll see that we didn't make this up. >> senator, i'm not suggesting you are. and there was a tug of war among parties in the white house. >> i remember that. i wanted to know which side you were on. count me with john bellinger most of the time on these things. that's my recollection. and that waxman would be another one. that's my recollection, senator, sitting here and i'll study these. >> okay. let me ask you a question on wiretapping. ? december of 2005 news broke that president bush had ordered the nsa to intercept the concept of certain communications of americans without a court order outside of the requirements of the foreign intelligence surveillance act known as fisa. you helped prepare the public defense of the program. for example, i draftestimony that you prepared for attorney general gonzalez defending the prog you quote, quote, these authorities are vested in the president and they are inherent in the office. they cannot be diminished or legislated away by other co-equal branches of government. paul clement, president bush's solicitor general found this prom signatures unconvincing and it was removed from the testimony. do you still believe the president has inherent authority -- this is important -- to intercept the communication of americans in the united states that cannot be legislated away by congress in. >> goodness no, senator. >> good. >> and i didn't believe it at the time. what i was serving at the time, as i recall, given my recollection and i'd be happy to review whatever you have before you, is that i was acting in the capacity as a speech writer and taking material produced by the components that were responsible for litigating these issues, including mr. clement, palm clement, dear friend of mine and the office of legal counsel and others and eye sem bling it to put words in together that sounded like english and i think people liked my writing and that was my job. i think i was the scribe. >> ay, let move on. i'd like to go to the heller case. when we met in my office, we discussed the heller decision, which you said you were open to discussing since the case had been decided. at that time you said you thought both the majority opinion written by justice scalia and the deisnscent writt by justice stevens were brilliant examples of originalism where both justices sought to explain the reasoning by looking at the original public meaning of the second amendment. which decision did you agree with and why? >> i do think everything you've just said is accurate. both justice scalia and justice stevens wrote excellent opinions. in that case. i am not here to grade my bo bosses' work. it would be impertinent of me i would expect and i think they would think so. i also think that saying i agree with one or the other would indicate to clients in future cases because it's now a precedent of a united states supreme court. it's the law. whether it's binding or not, it's you law. if i start saying i like an opinion or another opinion -- >> all right, i'll let you off the hook. in d.c.v. heller, the opinion recognized that of course the second amendment was not unlimited, end quote, justice scalia wrote, for example, laws restricting access to guns by the mentally ill or laws forbidding gun possession in schools were consistent with the limited nature of the second amendment. justice scalia also wrote that, quote, weapons that are most useful in military service, m-16 rifles and the like, may be banned, end quote, without infringing on the second amendment. do you agree with that statement, that under the second amendment, wednesdayoapons thatt useful in military service, m-16 rifles and the like may be banned? >> heller makes clear the standard whether we are supposed to apply. the question is whether it a gun in common use for self-defense and that may be subject to reasonable regulation. that's the test as i understand it. there's lots of ongoing tigation about which weapons qualify under those standards and i can't prejudge that litigation. >> i'm just asking you do you agree with his statements yes or no? >> out of -- >> the justice scalia statement. >> whatever's in heller is the law and i follow the law. >> do you agree -- >> it n's not a matter ofs di d disagreeing or not agreeing. it's the law. >> the fourth circuit. judge harvey wilson opened a separate opinion. here's what he said. no one really knows what the right answer is with respect to regulation of firearms. i'm unable to draw from the profound ambiguities, an invitation to courts to preempt this most volatile subjects. disenfranchising the american people on this life-and-death subject would be the greatest and most serious of steps. it is their community, not ours. it is their safety, not ours. it is their lives, not ours. do you have agree with judge wilkinson that the second amendment is ambiguous? if so, should the ambiguity be decided by the courts or by legislatures? >> i'd begin by saying i hold judge wilkinson in high regard. he's a very fine man and a very fine judge. >> can you do yes or no? >> i wish i could. >> i wish you could, too. >> but the supreme court of the united states isn't final because it infallible, as justice jkson reminds us, it's infallible because it final. judge wilkinson had his view and the supreme court has spoken. and heller is the law of the land. and judge wilkinson may disagree with it and i understand that, and he may -- but he will follow the law no less than any other judge in america, i am confident of that. s he's a very fine judge who takes his job seriously. >> okay. i asked you that question on super precedent and let me end with one on workers' rights, if i might. as you know, there have been a number of supreme court cases where the court has made it harder for workers to hold their employers accountable when they have experienced discrimination or be injured on the job and we've discussed that one case, trans am, i think three or four of us. let me give you a short list, d list,ledbetter versus tires. the university of southwest texas medical center v. nasser in 2013, which made it more difficult for employees to prove they'd been retaliated against for reporting discrimination, including based on race, gender, national origin, religion and other factors. vance v. ball which made it more difficult for workers to prove discrimination cims. each of these cases was 5-4 and justice scalia voted with the majority against the employees. president trump has said you are the next scalia. i think it's only fair to ask you do you disagree with any of the majority opinions that judge scalia joined in these cases. if so, which ones do you especially disagree with and why? these have already been decided. >> i understand, senator, but again if i indicate my agreement or disagreement with the past precedent of theins supreme court i'm doing two things that worry me sitting here. the first thing i'm doing is i'm signaling to future litigants that i can't be a fair judge in their case because those issues keep coming up. all of these issues as you point out keep coming pup issues around all of these precedents will continue to be litigated and are hotly litigated. >> then how do we have confidence in you that you won't just be for thing about corporations, that you will be for the little men? this is the question that senator hirono i think so well asked yesterday. you know, those of us i think on both sides care very much about workers' rights. but the record is such that one questions whether the court is capable in its pre co-- present composition would give a worker a fair shot. i just wonder if you would give a worker a fair shot. >> senator, i really appreciate that. i think there is a way to take a look at this question without me prejudging a case. just to finish that thought, i'm concern that i have to look the litigant in the eye in the next case. and if i've prejudged that case, they can look at me and say you're not a fair judge and i got no answer for that, got no answer for that. what i think can give you comfort in this area, i know a case or two has been mentioned yesterday, respectfully, i'd suggest that does not represent the body of my work. i've participated in 2,700 opinions over ten and a half years. and if you want cases where i've ruled for the little guy as well as the big guy, there are plenty of them, senator. the ute indian tribe. >> would you be willing to submit some of them? >> i'm sorry, of course. ute 5 and 6. i point you to the magnesium case, similar pollution case in the salt lake city area. colorado's effort with renewable energy, upheld that. orr versus city of albuquerque involving pregnancy discrimination in the police department in albuquerque. w.d. sports, discrimination claim, casey, energy west, simpson versus c.u., involving young women who had been harassed by the football team, broader, sutton, i can give you a long list. >> that's helpful. we'll find them and we'll read them. >> the bottom line is that i'd like to convey to you from the bottom of my heart is that i'm a fair judge and i think if you ask people in the tenth circuit is he a fair judge you're going to get the answer that you got yesterday from both senator bennett and senator gardner and from general cotshell and the same answer from senator allard and senator al zard ten years ago. i can't guarantee you more than that but i can promise you absolutely nothing less. >> okay. i have 1:21. let's talk chevron. that's been used, you know, thousands of times and it really perplexes me. olympia snow and i did something that took me 12, 13 years to get to and that is changing the corporate fuel economy standards. and thanks to senator inouye and senator stevens, they put it finally in a commerce bill and passed. so now we are on our way to 54 miles a gallon. here's the point. we could do the rules for the first ten years, but who knew we needed the experts to do them from that point on. so what we said in the legislation was that science would prevail. and that's still the law. it's working. the goal is -- i've read articles that said it will be 54 miles by 2025 if we continue. what is wrong with that? how else could we have done it? >> i'm not aware that anything is wrong with that. >> but what you said is that congress could not legislate by leaving some of the rules up to the science -- >> i appreciate the opportunity to correct in misunderstanding. the case i think you're referring to gutierrez. >> that's correct. >> it involved an undocumented immigrant to this country, okay. and the question was there are two conflicting statutes. one said he could apply for immediate discretionary relief in this country from the attorney general. the second said he had to wait outside the country for ten years. we had a judicial precedent that said the first statute controls. that was the ruling of our court. after that three or four years, i can't remember exactly, the board of immigration appeals in its infinite wisdom says our interpretation is wrong, chevron, you have to undo your precedent, the judicial precedent that this man had relied upon and tha he now had to wait outside the country not just ten years but 13 or 14 because it took them so long to make up their mind. that reminded me when charlie brown's going in to kick the ball and lucy pick it is up at the last second. that struck me as raising serious due process concerns, fair notice and separation of power concerns when an executive bureaucracy can overturn a judicial precedent without an act of congress. that's what the case is about. it suggested respectfully, senator, that under the apa, this body tasked judges to decide legal questions and left to administrative agencies great deference when it comes to fact finding, okay. that's how i read section 706 is fact finding by scientists, biologists, chemists, the experts get great deference from the courts. the only question is who decide what the law is? and can a man like mr. gutierrez, least amongst us, be able to rely on judicial precedence on the books or can he have the ball picked up when he goes in for the kick. >> i've, se exceeded my time. >> you didn't, seed your ti , s your time. i said if you asked your question before the last second, it would be good. i'd like to add into the record a document titled "neil gorsuch how would you vote." "democrats have come up empty trying to find something scandalous that neil gorsuch has said so now they're blaming him for what he won't say, to wit, they want him to declare how he would rule in specific areas of law, questions that every supreme court nominee declines to answer. without objection i enter that in the record. senator hatch. >> thank you, mr. chairman. judges, i said yesterday my goal in this confirmation process is to get an understanding or a handle on your understanding of the proper role of judges in our system of government. you gave an interesting lecture last year at case western about judge scal's legacy. you reminded us, as you put it that legislators may appeal to their own moral convictions and to claims about social utility to shape the laws they think it should be in the future but the judges should do none of these things in a democratic society, unquote. i think that accurately describes justice scalia's view. is that also your own view. >> senator, it is, though i got to confess that lecture was attended by about 20 people and it's got a lot more attention since. >> well, we're making sure it gets some more. and your opinions on the appeals court, you take great care to identify what issues the court may or may not address and one opinion last year, for example, you used phrases such as, quote, it's not our job, unquote and, quote, it simply isn't our business, unquote. what is an appellate court's job in your view? >> it is a limited vital rule in our separated powers. a judge is there to make sure that every person, poor or rich, mighty or meek, gets equal protection of the law. it is chiselled above the supreme court entrance in vermont marble, though i believe the lincoln memorial is made out of colorado marble, and that is a profound and radical promise, that everybody person is protected by our laws equally. in all of human history that may be the most radical promise in all of law. and what it means to me is that when i sit on the bench and someone comes to argue before me, i treat each one of them equally. they doesn't come as rich or poor, big guy or little guy. they come as a person, and i put my ego aside when i put on that robe and i open my mind and i open my heart and i listen. and i tell my clerks that their very first and most important job is to tell me i am wrong and sp persuade me i'm wrong. and if they manage to do that, i tell them their next job is to manage to persuade me i'm wrong again because i want to make sure i leave no stone unturned. i have one client, and it's the law. it's a great privilege. and i go listen to the arguments of the lawyers. i don't treat them as cat's paws. they're not there to be toyed with. i treat them as respected colleagues who have lived with the argument, studied the cases, who know the law better than i do. i might actually learn cerinly om them. o with the questions i want answered and i sit and listen to my colleagues. i can't tell you how many times in the tenth circuit, i go through that whole process, i go to conference, i think i know my mind and then one of my colleagues, harris heart was here yesterday, he's often the one, there are plenty of others who say something absolutely brilliant. changes my mind. and that's the judicial process and that's the role i see for the appellate judge. >> well, thank you, that's a very good explanation. we held a confirmation hearing for justice soto mayor in 2009. chuck schumer praised the judge that she puts the rule of law above neil gorsuch everything else, adheres carefully to the text of statutes even when doing so results in rulings that go against so-called sympathetic litigants unquote. do you agree that your duty as a judge is to follow the law, even when it requires running against sympathetic litigants? >> yes, senator. i can't tell you when i go home and take off the robe i'm a human being that i don't think about some of those cases but my job is to apply the law as fairly as can be without regard to persons. that's my oath. there's not a law on the book that you love, that i love, i'm sure of a. b but my job is to apply the love, not to write the law. >> in my opening remarks, isk that this letter be included. the signers were of all parties and ideologies and represented many different faiths, lifestyles and views. they all support strongly -- strongly support your nomination. the letter said that you personify a disinterested fill osfully that respects judicial modesty combined with compass n compassionate appreciation of the lives impacted by your decisions. now how can you do both? senator, i'm just a person. i remember how hard it is to be a lawyer. i remember what it was like to represent clients who had problems. i told my kids when they asked me what my job was when i was young, it was to help people with their problems. and as a judge i have to resolve their problems. one of the hard things about being a judge is that somebody has to win and somebody has to lose. you make half the people unhappy 100% of the time. that's the job description. but you have to believe in something higher than yourself. i believe in the rule of law in this country and i believe it has been a calling to be part of it and an honor. >> the fourth amendment protects the right to be free from, quote, unreasonable seizures and searches, unquote. it was written in the late 18th century when the tools used by law enforcement to investigate crime and monitor suspects were radically different than they are today. in your view how should a judge approach interpreting and applying constitutional provisions like the fourth amendment in cases where the technology and/or methods at issue were obviously not even imagined by the founders? >> may i offer an example, senator, i think might be helpful? >> seweure. >> i take united states versus jones, recent case from the united states sport involving whether police officers might attach a gps tracking advice to a car. modern technology. how do you apply the original constitution written 200 years uuuuuuuuuuuuuuuuuuuuuuu technology is obviously different. so the technology changes but the principles don't. and it can't be the state that the united states constitution is any less protective of the people's liberties today than it was the day it was drafted. >> you authored the opinion in mesh works versus toyota sales and this applied principles from earlier cases involving photography to determine the intellectual property for digital modelling, a new medium. how should judges approach intellectual properties with new technology? should they confine themselves to new -- should they create new case that that better addresses the technological landscape? >> well, it a similar sort of question. we look back, we find what the law was at the time, the original understanding, if you will, and we make analogies to our current circumstance. we judges love analogies. we work with analogies. and that's how law making through the judicial process happens. that's proper judicial decision making. it is a very different thing if you want to create a revolution and change the area. that's for this body to do, to interpret the law to original understanding and apply it to current sicircumstances. in mesh work that's what we did, looked at case law and applied it to digital media. same principles from the beginning of the copy right act, just applied to a new medium. >> several of your writings have called into question the so-called chevron doctrine that's been raised here already. most americans probably wonder why a supreme court nominee would talk about a gas station but the concept of chevron is very straight forward. it kcommands federal judges to confer to an agency's interpretation of the law. in feffect this deference allowd unelected, unaccountable bureaucrats to rewrite the law. any middle schooler, however, should be able to see how chevron is inconsistent with the basic duty of judges under the constitution. as you probably know, i'm a chevron skeptic and have led the fight to overturn this legislatively with my separation of powers act. i introduced this bill last congress with the support of several colleagues on this commtee andill soon reintroduceit. it chose its title for a reason. reexamining chevron is not about being anti-or pro regulation. rather it's about restoring the constitutional allocation of powers between the three branches. it's about maintaining fidelity to the laws passed by congress and the exact bounds of authority granted to regulatory agencies and it about ensuring that the bureaucracy abide by the law, no matter what its policy -- when the supreme court said in marbury versus madison that it is emphatically the province and duty of the judicial department to say what the law is unquote. >> marbury versus madison is the cornerstone of the law in this country. i don't know anybody who wants to go back and reconsider that. i hope not. >> i feel the same way. last weeks "new york times" reported that you are, quote, no friend of the little guy, unquote. we've had that come up time and again in these proceedings in the last couple days. harvard law school professor noah feldman, who does call himself a liberal, wte an opinion piece on the subject that appeared last week on bloomberg.com. he opens this way, quote, i don't know who decided that the democratic critique of a u.s. supreme court nominee, judge neil gorsuch, would be that he doesn't side with the little guy. it's a truly terrible idea." mr. chairman, i ask that this column by professor feldman be placed in the record at this point. >> without objection. so ordered. >> some of your critics question whether you have a solid track record of judicial independence and objectsivity. in particular they question whether you would stand up to the current president if he were to exceed his authority under the constitution and laws congress has enacted. so, mr. chairman, i ask con isn't to place in the record an essay i wrote that appeared at scotus blog.com. >> without objection. so ordered. >> who would you respond to that type of criticism? >> senator, a good judge didn't give a wit about politics or the political implications of his or her decision, decide where the law takes him or her fearlessly. i walk past every day a bus to byron white in my course. my courthouse is named for byron white. and when i do that, i think about his absolute determination just to get it right no matter where it took him. he said it's a job. you do your very best and you go home. that's how i approach things. if you look at my record, senator, i think it demonstrates at according to my law clerks, when i do dissent, which is very rarely, i do so in equal numbers by judges who happen to be appointed by democrats and who happen to be appointed by republicans and i hate to use those words and they're all just to me judges. i don't think of them that way. my decisions have been independent regardless of who i'm agreeing or disagreeing with. have i ruled against the government? my goodness, ask the lawyers in colorado. i give them a pretty hard time. i make this many scaquare their corners. i point you to ruling for the accused, the least amongst us against the government. >> in 2005 you wrote an op-ed piece in "national review" in which i criticized the reliance on the courts by litigants seeking to achieve policy results they could not achieve through the political process. there was a consensus that courts are not the appropriate place to make policy. now you are criticized for that same common sense idea. and i want to give you a chance to respond. how does relying on courts to make policy undermine bothlegit the federal judiciary. >> again, it goes to our separation of powers. judges would make very poor legislators. we're not equipped for it. we're not responsive to the people, can't elect us, can't get rid of us. you're stuck with us. we don'tave t opportunity to talk to people, to have hearings like this one in places look this. i'm permitted four law clerks for one year at a time, right out of law school. it's an crowd that replenishes itself every year. if you were to make laws, i don't think you'd design a system where you'd let three older people with four young law clerks straight out of law school legislate for a country of 320 million. that's just not how anyone would design the railroad. those are some of the problems i say, senator. with all respect to my law clerks. i love them very much. they're look family but they're not the same as your staffs and the investigative powers you have. >> well, they're lucky to be with you is all i can say. in that national review piece, you pointed out some liberal policies that lawyers have sought to achieve through litigation. some of your critics have tried to turn this into one of those gotcha moments, claiming that your real qualm was with those policies that were liberal, not that this were achieved through litigation. again, i'm going to give officer chance -- give you a chance to respond. >> in that article, i'd say a couple of things about it, first as i pointed out and i believe the courts are a very important place for the vindication of civil rights and for minorities. it's a place where unpopular voices get heard the same as popular voices. in a democracy and the legislature, majorities win. that's not the case in courts. the best argument should prevail. so they play an important

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