Gorsuch: I can tell you no problems living under current rules. Part of the price of service. I don't know what the arguments are, but I will consider it carefully.
Klobuchar: It's pretty straightforward to me, because applies to other judges. You will be, in the words of Hamilton (#6), in the room where it happens.
[Pretty sure those are actually Lin-Manuel Miranda's words.]
Klobuchar: A judge who likes every outcome he reaches is a bad judge. Can you give me an example of a Supreme Court case that you believe was wrongly decided but you will continue to follow as precedent if confirmed?
Gorsuch: You are trying to get me to say which decisions I agree with.
Klobuchar: No, when you were nominated you said you would follow the law. I thought you could come up with an example.
Gorsuch: We just talked about cases in which I didn't necessarily like the outcome.
Klobuchar: We have had other nominees who said they would respect precedent and then overturned it. See, e.g., Citizens United.
Gorsuch: Citizens United did overrule Austin.That's part of the law of precedent that we have talked about.
Klobuchar: You see this as something where there was precedent, but to us it was a major overturning of precedent, and that's a big deal for us. You have suggested you might go further than Citizens United.
Klobuchar: You alone wrote a concurring opinion suggesting that making a political contribution was a fundamental right. Is strict scrutiny the correct standard?
Gorsuch: Welcome the opportunity to clarify.
Klobuchar: I read the case and really understand it. Focus on your concurring opinion, which cited an opinion by Thomas joined by Scalia suggesting that all contribution limits should be subject to strict scrutiny.
Gorsuch is describing case at length.
Klobuchar interrupts Gorsuch: I really did read it. Other judges were happy to decide on a narrow basis, but you wanted to concur. Justice White tried to avoid broad theoretical basis for a decision when a narrow rationale would suffice.
Gorsuch interrupts: Can I answer, because I am almost THERE!
Klobuchar: I am seeing a bit of a pattern.
Klobuchar: If corporations are people, then could they give money directly to campaigns?
Gorsuch: Hobby Lobby had nothing to do with the First Amendment. It was about RFRA.
Klobuchar: So you don't think corporations would have these rights under 1st Amendment?
Gorsuch: Hobby Lobby doesn't say anything at all.
Gorsuch: I am not here to make policy.
Klobuchar: On to Chevron, again. I don't want to talk about the facts of the case. I want to talk about the concurring opinion.
Klobuchar: You say there is an elephant of the room: Supreme Court's cases give enormous power to the agencies. Maybe the time has come to face the behemoth. That sounds like you are suggesting overturning major precedents, when even Scalia liked Chevron?
Gorsuch: All I can do is explain why I was concerned.
Klobuchar: I really do understand the facts. [In response to his discussion of the facts.]
[Klobuchar seems to be getting under his skin a bit.]
Klobuchar: As a justice, if you were to decide to overturn Chevron, would you consider the implications?
Gorsuch: I was just flagging the problem for "my bosses."
Klobuchar: You would be the boss if you were the justice. What rule should replace it? Should we have de novo review?
Gorsuch: We used to have Skidmore deference. We had the administrative state for 50 years. I don't know what all the problems would be. I was thinking about flagging the problem, not being a Supreme Court justice.
There’s a spectator in the gallery decked out in his Calgary Flames hockey jersey. The Flames are visiting the Washington Capitals tonight.
Gorsuch: Again refers to anecdote about Judge Sentelle, for whom he clerked, writing an opinion one way at the beginning of the year and the other way at the end of the year. Shows an open mind, he says.
Klobuchar: Let's talk about originalism. Whether you characterize yourself as an originalist, you have applied originalism.
Klobuchar: Criticism of the principles underlying originalism is not new.
She is reading from McCulloch v. Maryland..
Gorsuch: I agree that the Constitution must endure, will live longer than any of us.
Klobuchar: So you don't realize about adapting to changing affairs?
Gorsuch: I'm trying to answer.
Klobuchar: It's a yes or no.
Gorsuch: Respectfully, it is not.
Gorsuch talking about United States v. Jones, about GPS tracking device on car. This is at least his second reference to Jones and originalism today.
Klobuchar: So when the Constitution refers to "his" or "he" in terms of president, the founders thought a woman could be president?