Gorsuch: Precedent has value in itself as our history. But also an instrumental value: It adds to the determinacy of law. We have lots of tools that allow us to narrow the dispute between parties.
Gorsuch: Part of why the rule of law works so well in the U.S. As Grassley pointed out, once a case is settled, it adds to the determinacy of the law.
The value of that is that the Supreme Court takes 70-80 cases per year. That is a tiny fraction of all of the disputes in the U.S. And the justices are unanimous on cases that have divided the lower courts 40% of the time.
Feinstein: Do you view Roe as a "super-precedent"?
Gorsuch: It has been reaffirmed many times.
Feinstein: Let's go back to 2005, when you were in Department of Justice. Intelligence committee was informed in 2006 about enhanced interrogation techniques, we were given a "very soft view."
Feinstein: In 2009, we took all of the major detainees and looked at them in a 6-year study analyzing every cable and email and more than 100 interviews and compiling a 7000-page report. That report is classified, but I have read it, and we released a summary.
Feinstein: Cases in which administration said torture produced good intelligence were not so. It is my understanding that the talking points prepared for press conference in 2005 asked whether "aggressive interrogation techniques" yielded valuable information. In the margin, you handwrote one word: Yes.
Feinstein: What info did you have that aggressive interrogation techniques were effective?
Gorsuch: It has been a long time. I don't recall the document.
Feinstein: We can show you.
Next Feinstein question: AFter passage of Detainee Treatment Act, you advocated a presidential signing statement to accompany the law to help "innoculate against the potential of having the administration criticized" for not making sufficient changes in the future.
Feinstein: I read your email as advocating a continuation of interrogation techniques; were you condoning waterboarding as lawful?
Gorsuch: I want to see the email.
Feinstein: We will show you. I want you to look at the documents.
Gorsuch: My recollection generally working on the Detainee Treatment Act was that, at that time, after the court's decision in Rasul v. Bush, there were a lot of habeas petitions from Gitmo.
Gorsuch: There was an effort by some in the administration to try to provide a regime for the processing of those claims to have Congress and president acting together.
Gorsuch: McCain and Graham put together legislation to make clear that torture and cruel/degrading treatment unlawful under U.S. law.
Gorsuch: We managed to come up with bipartisan bill, which I'm proud of, to reaffirm our country's commitment to prevent cruel treatment and create a regime for treatment of claims by Gitmo detainees.
Feinstein: Except that the conclusion that we take away is that, when McCain amendment was about to be voted on, you forwarded press articles explaining what having these two provisions together meant.
Feinstein: A detainee could not use the habeas right to file in a court of law and challenge conditions of detention.
Gorsuch: you are right that it was eventually litigated, as all these things are. It was a bipartisan effort. I was a lawyer for a client advising them how to go about things legally. We put together our best effort. The D.C. Circuit upheld it. The Supreme Court, many years later, found the process insufficient in Boumediene v. Bush.
Gorsuch. Question was whether the processes were adequate enough under the Suspension Clause. I respect it as precedent.
Feinstein: When Bush signed DTA, issued a signing statement saying he would construe consistent with his powers as commander in chief. Intended to reserve right to use harsher treatment in national security scenarios?
Feinstein: According to emails, you were involved in preparing that signing statement.
Gorsuch: I can tell you what I recall. My loose recollection is that there were individuals, maybe in VP's office, who wanted a more aggressive signing statement, while others wanted a gentler one.
Gorsuch: My recollection is that I was in the latter [gentler] camp. I don't know what was in Bush's head when he signed it. I would never have counseled anyone that they could disobey the law.
Feinstein is sounding a little impatient.
Gorsuch: There was a tug of war.
Feinstein: I am sure of that. I wanted to know which side you are on.
Gorsuch: Count me on the John Bellinger [gentler] side on most things.
Feinstein moving on to wiretapping.. You helped to prepare public defense of wiretapping program. You wrote: These authorities are vested in the president and inherent in the office. Paul Clement found this proposition unconvincing and it was removed.
Gorsuch: I didn't believe that president had that authority at the time. I was acting as a speechwriter, taking material produced by the components responsible for litigating, Office of Legal Counsel, and others, to put words together that sound like English. I think people like my writing.
Feinstein: I'd like to go to the DC v. Heller case, which you said you were open to discussing b/c it had been decided. You said both majority and dissent were brilliant examples of originalism.
Feinstein: Which did you agree with and why?
Gorsuch: Everything you just said is accurate. Both Scalia and Stevens wrote excellent opinions, but I am not here to grade my bosses' work, so to speak. It's binding. But I also worry that agreeing with one or the other will indicate to litigants . . .
Feinstein: In Heller, even Scalia indicated that restrictions on weapons best used for military service survive constitutional muster. Do you agree?
Gorsuch: Heller outlines the test, there's lots of ongoing litigation about which weapons qualify.
Feinstein: Do you agree with Scalia?
Gorsuch: Not a matter of agreeing or disagreeing. It's a matter of the law.
Feinstein: In the 4th Circuit, Judge J. Harvie Wilkinson said no one really knows what the right answer is w/r/to regulation of firearms.
Feinstein: Do you agree that the Second Amendment is ambiguous and, if so, who decides?