Lincoln's advice: Get the books and read, read, read
Durbin: You say that the rules sometimes yield opposite of their intended result: expensive and painful litigation that is itself a form of injustice? Can you think of anything more unjust than being denied access to the courts?
Gorsuch: I think it's a problem when 80% of American College of Trial Lawyers say cases are priced out of court.
Gorsuch describes trial lawyers' group as "the best lawyers in the country. Or at least they think they are." Pause. "Sorry."
Gorsuch: Lawyers make a difference. I believe that firmly.
Cornyn has returned to Gutierrez Brisela v. Lynch, the immigration/ Chevron deference case.
Cornyn: How did deference end up hurting the little guy in that case?
Gorsuch is once again explaining Gutierrez. This man, who had relied on our holding to apply for immediate discretionary relief, was told he had to wait instead. Just seemed like he had the rug pulled out from underneath him, says Gorsuch. It's a matter of due process and fair notice.
Gorsuch is quite passionate about this case.
Gorsuch: We did apply the Chevron test, but I also wrote separately to tee up questions for my bosses. For me, it was a question whether this was consistent with the Administrative Procedure Act. APA entrusts courts to say what the law is.
Gorsuch: We applied Chevron but got to an outcome we can live with. I don't know how I would rule if I were a Supreme Court justice on the question. I would want to keep an open mind, read the briefs. I think about Judge Sentelle (for whom Gorsuch clerked on the D.C. Circuit) who wrote an opinion going one way and then an en banc opinion the other way. I say that's a judge with an open mind, says Gorsuch.
Cornyn: The idea that agencies -- unelected bureaucrats -- have broad authority is troubling to me. If there's one area completely out of control of voters, it's agencies. I hope we can look at reining in the regulatory state.
Cornyn: Let's talk about Establishment Clause. I think we have lost our way.
Cornyn: Talks about case he argued as Texas AG, Santa Fe Independent School District v. Roe, re school's practice of offering prayer/poem/inspirational thought before football game. Court ruled, 6-3, that student-led prayer was unconstitutional.
Cornyn: We don't seem to have many limits on expressions of sex, violence, or crime in public square, but we do when it comes to religion. Can you talk to us about your views?
Cornyn clarifies -- not asking you to prejudge any case here
Gorsuch: I appreciate your thoughts. It's a very difficult area, doctrinally. You have the Free Exercise Clause, on the one hand, and Establishment Clause on the other. Those two are in tension.
Gorsuch: As in so many areas of law, judges have to mediate two competing and important values. The Court has struggled with Establishment Clause jurisprudence to provide consistent and comprehensive test.
Gorsuch: The current test is called the Lemon test: whether intent is to establish religion, whether the effect is to establish religion, and whether there is too much entanglement. Some justices have expressed reservations, but it endures.
Gorsuch: As a lower court judge, it is a bit of a challenge in this area.
Cornyn: Just as one citizen to another, I think it's a morass.
Cornyn: If a judge isn't going to be bound by the text of the Constitution or a law, what will he or she be bound by?
Gorsuch: I hope it isn't what he has for breakfast.
Gorsuch: No better place to start than the text. Maybe here I have to blame Sister Mary Rose Margaret, who taught me how to read and how to diagram a sentence. I used to say I think she could teach a monkey how to read. And I think she did!
Gorsuch: Before I put someone in prison or deny them property, I need to be able to say to them that they should have known.
Gorsuch: I took a jog to the Lincoln Memorial the other morning. Read the second inaugural address. Government by the people, for the people. Wait -- that's the Gettysburg Address. I read them both. It's just a matter of separation of powers. It's not my job to do your job.
Cornyn: Congress votes on the text of the statute, so that must be what you construe.
Gorsuch: It isn't a matter of strict construction, because that sounds like I am putting a finger on the scale.
Presumably, Sister Mary Rose was one of his teachers at Christ the King School, a Roman Catholic school in the Denver area. Gorsuch was raised Catholic but is now an Episcopalian.
Cornyn is done. Up next, Senator Whitehouse. Asking consent to put letter from 100+ groups regarding "troubling money in politics" record, as well as letter from Demos opposing nomination, plus NYT article on Gorsuch ties to billionaire Phil Anschutz.
Whitehouse: Speaking of separation of powers, is appellate court obliged to take findings of fact as lower courts found them? Does that have a separation of powers aspect to it?
Gorsuch: I hadn't thought about that.
Whitehouse: What about the question presented in the Supreme Court?
[I think Whitehouse may be getting at Citizens United, maybe. Not sure where this is going yet.]
Gorsuch: We don't have questions presented. They get to choose.
Whitehouse: That's part of what separation of powers is about.
Gorsuch: We generally refrain from looking at arguments that weren't made.
Whitehouse; Let's talk about "dark money." Are you familiar with that term?
Gorsuch: In the loosest sense.
Whitehouse: What do you know about the campaign that is being run to support your confirmation?
Whitehouse: A group is planning to spend $10 million dollars to support your nomination. That sounds pretty political to me.