Gorsuch: No one in the process, from start to nomination, asked me for any commitments or promises about how I would rule in any kind of case.
Grassley: And that's the way it should be.
Grassley: Extracting commitments during the confirmation process is exactly what would undermine your independence as a judge. Let's talk about precedent.
Gorsuch wrote a book on precedent with 12 co-authors with a variety of views, from Bill Pryor of 11th Circuit, who was also on Trump's shortlist, to Diane Wood, who was reportedly on Obama's shortlist.
Grassley: Once a case is decided, it takes on the force of precedent, makes for an easy case in the future.
Grassley: But you have also suggested that it may sometimes be appropriate to revisit precedent when it has become a "precedential island" surrounded by a sea of contrary law.
Grassley: All of us would agree that Brown v. Board of Education, overruling "separate but equal" in education, is the textbook example. What is your approach to Supreme Court precednent?
Gorsuch: If I might go back to promises, for starters, I have offered no promises on how I would rule in any cases to anyone.
Gorsuch: I don't make promises because everyone wants a fair judge.
Gorsuch: One of the features to decide a case is precedent. We don't go reinventing the wheel every day.
We have an entire law about precedent. Precedent about precedent, if you will. And that's what the book is about.
Justice Breyer wrote the foreword to book. It makes an excellent doorstop, says Gorsuch.
Age of precedent, reliance interest built up around precedent, has it been reaffirmed over the years, workability, what is the doctrine around the precedent -- these are all important factors to consider when examining any precedent. Start with a heavy presumption in favor of precedent.
Alexander Hamilton said one important feature of judges, if they are to have life tenure, is to be bound by strict rules and precedent.
Side note: opinions should be coming down soon. We won't be able to live-blog about them this morning, but we will tweet (@scotusblog) and cover on the blog.
[I think this was the first Hamilton reference for today. Hamilton made many appearances yesterday.]
Grassley: As a lower court judge you are bound not only by Supreme Court precedent but also your own court's. As a Supreme Court justice, though, you would have to decide when to revisit existing precedent?
Gorsuch: It's the same analysis.
Grassley: This is my 14th Supreme Court hearing, so I have a pretty good idea about what questions you will be asked.
Even if they don't ask you directly, says Grassley. They will ask you about old cases, and whether they were correctly decided.
They know that you can't answer, but they will ask anyway, says Grassley.
Quoting from Ginsburg at her hearing, calls it the "Ginsburg standard." Grassley says making promises and giving hints undermines a justice's independence.
So let me ask you about a couple of Supreme Court cases. In Heller, Court says Second Amendment protects a right to bear arms.
Gorsuch: Heller is a precedent of the Supreme Court, no need to approach that question anew. My personal views belong over here (i.e., to the side). Neal Katyal says that what he wants is a fair judge. That's what I wanted as a lawyer.
Part of being a good judge is coming in and taking precedent as it stands, without regard to your personal views.
Grassley: Asking about campaign finance case Citizens United.
Gorsuch: Same response. I know people have their views. We are all human beings. I am not an algorithm. A judge's job is to put that stuff aside and approach the law as you find it.
Grassley: Those 2 cases were 5-4 decisions.
Let's talk about Hosanna Tabor, a 9-0 decision in which the court went against the Obama administration on a church's right to tell the government who is a minister.
Grassley: Let's talk about older cases. Gideon v. Wainwright -- right to an appointed attorney for criminal attorney who can't afford one. Do you agree with the principle of Gideon.
Gorsuch: It's a very seminal and very old decision, reaffirmed many times, lots of reliance interests. I can talk to you about the factors that a good judge considers, but I am not going to tell you what I think. It is not relevant to my job.
Precedent is kind of like our shared family history as judges, says Gorsuch. It deserves our respect.
Grassley: What about Bush v. Gore?
Gorsuch: I know people in this room have opinions about that. But it's a precedent of the Supreme Court and deserves the same respect when you are coming to it as a judge.
Let's go to a more controversial issue, says Grassley. Roe v. Wade. Was it decided correctly?
Gorsuch: Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed, reliance interests are important, have to consider other factors. A good judge will consider precedent worthy of treatment of precedent like any other.
Grassley: What about Griswold v. CT, on right to privacy?
Gorsuch: It is now 50 years old. Involved right of married couples to use contraception in own home. Reliance interests, has been reaffirmed.
Grassley: To sum up, w/r/to precedent: There are two reasons why you can't give your opinion. First is independence and the other is fairness to future litigants. Is that how you see it?
Gorsuch: Yes. If I start telling you my views, I would be tipping my hand and suggesting to litigants that I have already made up their minds.
Independence problem: If it looks like I am giving hints about how I might rule, that's the beginning of the end of an independent judiciary.
Next up, Senator Dianne Feinstein of California. As long as we're talking about Roe, I recall that we talked about precedent in my office.
If anything has "super-precedent," Roe does, says Feinstein. Here's why it is a concern: Trump said he would appoint someone to overturn Roe.
You said you view precedent in a serious way, says Feinstein, because it adds stability to hte law. Can you elaborate?