Live blog of confirmation hearing | March 21, 2017
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The other three heroes Gorsuch mentioned yesterday were Byron White, Anthony Kennedy and Antonin Scalia.
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Durbin: He gave a constitutional command of what he considered the military's racist exclusion orders. And then he raised a question about the Supreme Court in times of war and whether it was up to it.
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Durbin: What do you think about the role of the court challenging the military or the commander in chief? Are we up to it?
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Here is a link to the aforementioned Jackson dissent in Korematsu. www.law.cornell.edu
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Gorsuch: We take it for granted that the government can lose in court. It is a remarkable blessing and a daunting prospect for a judge to have to carry that baton. To do it on the Supreme Court is humbling. I pledge to you to uphold the Constitution and the law at all times.
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Durbin: Back to the frozen trucker case discussed yesterday. A trucker had no heat, it was very cold; dispatcher told him to wait; he waited for hours; finally unhitched his trailer and went to a gas station. Seven different judges took a look at the facts and ruled for Al Madden, the trucker -- except you. Why?
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Gorsuch: This is one of those cases you take home at night. Madden chose to drive away and therefore wasn't protected by the law.
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Durbin and Gorsuch are sparring over the opinion. He was blackballed from trucking, says Durbin. Never got a chance to drive again.
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Here is the 10th Circuit decision, TransAm Trucking, Inc. v. Admin. Review Bd., United States Dep’t of Labor, that
Durbin and Gorsuch are now discussing. www.ca10.uscourts.gov -
Gorsuch: My job is to apply the law as written. The law said he would be protected if he refused to operate. He operated. If Congress passes a law saying that the trucker can choose whether to operate his vehicle, I will be the first to enforce that law. I have been stuck in a snowstorm on a highway in Wyoming.
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[Gorsuch also mentioned the Wyoming snowstorm yesterday.]
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Gorsuch is now referring Durbin to pro-employee rulings of his.
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Durbin: Let's talk about Hobby Lobby. I still struggle with trying to make a corporation into a person.
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Sen. Dick Durbin (D-Ill.) questions Gorsuch.
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Durbin: What I was troubled by, when we are setting out to protect the religious liberties of the Green family [who owned Hobby Lobby}, you made a decision that affected thousands of their female employees.
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Durbin: By taking your position to the next step, your decision affected 60 million people. Did you stop and think about the impact of your decision on the employees?
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Gorsuch: I take every case that comes before me very seriously.
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Gorsuch: Congress passed RFRA because it was dissatisfied with the level of protection that the Court had provided to religious liberties.
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Gorsuch: RFRA had bipartisan support, it is very strict. Says any serious religious belief cannot be abridged by government unless it can satisfy strict scrutiny. I have applied that same law to Muslim prisoners, Native American prisoners, and Little Sisters of the Poor.
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Just an observation from my perch: Gorsuch has had his legs crossed into a relaxed position and hasn’t so much as moved a muscle or tapped a toe throughout his questioning by Durbin.
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Congress didn't define the term "person" in RFRA, says Gorsuch. So a good judge goes to the Dictionary Act.
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Durbin: I don't want to cut you off, but I will be in big trouble.
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Gorsuch is continuing to explain his decision in Hobby Lobby.
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Gorsuch: Congress can change the law - eliminate RFRA altogether, limit to natural persons, lower standard of review. But we did our level best and we were affirmed by the U.S. Supreme Court. It's a dialogue.
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Next up: John Cornyn. Mentions op-ed from Neal Katyal supporting Gorsuch. Apologizes to Katyal if he butchered his name (which he did).
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Cornyn: Does a good judge decide who should win and then work backward?
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Gorsuch: That's the easiest question of the day. No. Corrects himself for misdescribing name of an earlier case.
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Here is the New York Times op-ed by Katyal, "Why Liberals Should Back Neil Gorsuch." Katyal introduced Gorsuch yesterday. www.nytimes.com
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Cornyn: During Bush administration, there was a practice of signing statements that Democrats criticized. Feinstein asked you about signing statement on DTA.
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Cornyn: There were some in Bush administration who wanted a single statement pushing back against limits on presidential power. On the other hand, some like you laid out the case for a more expansive statement.
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Cornyn: You said it would be helpful to have a policy statement as the law is litigated. Would also help to innoculate against criticism of administration in the future.
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Cornyn: You lost that argument, in a sense. The VP's lawyer prevailed.
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Sen. John Cornyn (R-Texas) now speaking with Gorsuch.
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Gorsuch: Your understanding of events is much fresher than mine, but I can't disagree with anything you said.
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Cornyn: You wrote an article about access to affordable justice and have expressed concern about the little guys. And "little gals," I guess.
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Cornyn: Justice has become so expensive that out of reach for people of modest means. Can you expand on your concerns?
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Here is Gorsuch's article, "Access to Affordable Justice," just referenced by Cornyn. law.duke.edu
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Gorsuch: I appreciate the opportunity and venue to talk about these things. I wrote that article with input from a lot of people. My point was threefold, starting with fact that too few people can get to court with legitimate grievances.
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Gorsuch: I teach young people who leave law school unable to afford their own services, hundreds of 1000s of dollars in debt. How do they go to provide legal services?
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Gorsuch: There aren't many professions that get to regulate themselves, but lawyers do. Do all ethical rules help our clients, or do some help us?
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Gorsuch: Why do you need to be a lawyer to help parents seek relief for disabled children?
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Gorsuch: Why can I go to Wal-Mart and get hair, teeth, and eyes taken care of, but not a lawyer for a landlord-tenant dispute?
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