Coons: We'll move on, but still a challenge for me how you interpreted statute, how you extended religious practice to for-profit, how you valued religious exercise over health-care concerns
Coons: Some Western family members, think of Westerns as very independent folks.
Coons: In 2006, you authored book on assisted suicide and euthanasia. I had expected you to conclude that people had right to be let alone. But instead, "the inviolability of human life." What does this mean?
Gorsuch: I would clarify, book does conclude that there is a right to be left alone at the end of life, as in Cruzann. I don't pretend to have any answers. This is a hard question. This is a human problem. We're mortal. Cruzann held people did have right to be left alone, to stop care, go home, die in own bed.
Gorsuch: Question is about having an additional right to have someone kill you, to have doctors assist in this
Gorsuch a moment ago referred to the panel and/or Congress as "this court." "Sorry, that's the old trial lawyer in me," he said, acknowledging being at least a little tired.
Coons: A lot of this rests on whether there is a right to privacy. Do you believe in this?
Gorsuch: Yes. Constitutions does protect privacy. This is most obviously in Fourth Amendment, about search and seizure. Third Amendment -- no quartering of troops. First Amendment -- right to free expression, religious belief, this requires a place, privacy. And 14th Amendment, court has held that liberty prong protects privacy in variety of ways, including right of parents to teach children German at time that was unpopular in country.
Coons: In book, you say "all human beings are intrinsically valuable, and the intentional taking of human life is always wrong." Can you point to any principle of constitutional law that says that?
Gorsuch: I was speaking as a commentator before I became a judge. SCOTUS has held this is a case for states to decide, for people to decide on state level. I agree, as I say in book. My concern as a commentator has to do with equal justice. I am concerned about what legalization might mean among least among us -- disabled, elderly, who might be pressured into early death because cheaper option than hospice care.
Gorsuch: I was contributing to the discussion as a commentator.
Gorsuch now discussing role as advocate for government in case about topic. As judge, very different mindset.
Coons: But when up for SCOTUS, important to know what you perceive as settled precedent. What's your view of the application of Casey's dignity of life language to these issues?
Gorsuch: Personal views have nothing to do with job as judge.
Coons: You have written that legal logic would require governemnt to allow things like sado-masochist killings. Why?
Gorsuch: One argument is libertarian. Applied faithfully to its end, it leads where it leads, as some of the authors of the argument acknowledge. But this isn't the only available argument for legalization by any means.
Grassley has now called a 10 minute recess.
We're getting started now.
Sen. Jeff Flake (R-Ariz.) is now up.
Sen. Grassley just repeated what he told reporters outside the hearing room: That he plans to be home in bed by 9 tonight. But that doesn't mean the hearing will be over by then for the day. He has asked Sen. Thillis to take over at 8 until the first round of all senators is finished.
Flake is going through some joke questions from family members -- ever won tank top under robe? Gorsuch pleads the Fifth.
Flake: How do you get your hands dirty?
Gorsuch: Family loves to ski as family.
Now Gorsuch talking about the solace of fishing for trout, but hasn't answered question about largest one he's ever caught.
Flake now asks about Gorsuch's civic involvement outside courtroom.
Gorsuch: Lot of my free timing teaching or working on the rules committee, past 6-7 years, appointed by the Chief Justice
Gorsuch: Trying to get litigation done cheaper, faster, more sensibly -- a wonderful example of government working
Gorsuch: Called up for jury duty when at Department of Justice.
Franken started laughing, then spoke to explain that he finds these to be odd questions. Flake says he wants to know if Gorsuch has ever been on jury duty.
Gorsuch: Anyone who has been on a jury appreciates the civic function involved. (Got picked despite position)
Gorsuch: Framers disagreed about juries, but he has optimism in the jury system.
Franken now says "that was a great question." "Thanks, Al," Flake responds.
Flake: Tell me about colleagues on 10th Circuit.
Gorsuch: I admire them all. Nicest gift I have gotten in last few years has been well-wishes, but best gift an enormous gift basket for four most recent colleagues (Obama appointees). This touched my heart.
Gorsuch: I served with appointees by Johnson, Nixon, Carter, Reagan, Bush, Clinton, Bush, Obama -- we get along.
Gorsuch: 10th circuit often reputed to be the most collegial circuit in the country, in a real meaningful sense. We listen and respect one another, not just tolerate them.
Flake notes 7 Dem appointees, 5 GOP, but Gorsuch has authored few dissents -- and many of those from GOP appointees.
Flake says this discredits suggestion that Gorsuch's partisan work has bled into his work as a judge. [Again] Flake returns to the 97% unanimous decisions statistics. "This does not sound like an ideologue, that does not sound like someone out of the mainstream."
Flake mentions statement from former law clerk, saying Gorsuch took all clerks to federal prisons. He wanted to see himself and wanted clerks to understand importance of doing justice in every case. "Can you tell me about that experience?"
Gorsuch: Federal criminal law imposes very long sentences. To be a judge complicit in adjudicating criminal cases, I thought I couldn't close my eyes for what the reality is, wanted to see for myself my first year on bench [Gorsuch speaking slowly now]
Gorsuch: Concerned with quality of death-penalty defendant defense on circuit -- credits many now more than himself for putting together training sessions, sought more funds for public defenders.
Flake: We've talked about importance of geographic diversity on court. What's a western perspective? Let me go through a few issues to flush this out. One case, you rejected idea that dormant comerce clause prevents Colorado from setting energy policy. Would you agree that principles of federalism allow states to tinker with policies?
Gorsuch is now going into the case facts. I did write for unanimous panel that there was no constitutional violation.
Flake: Is this consistent with principle of states as laboratories of democracy?
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