Flake: Out West, split estates -- mineral, water, land rights -- common. Have you seen this?
Gorsuch: [laughs] Yes. Comes from Homesteaders Act in Congress (largely). Very complicated stuff [Gorsuch raises voice]
Flake: Is that a perspective that you think would be useful on SCOTUS?
Gorsuch: I think that's a question for this body to decide.
Flake: Presence of Indian tribes can make things complicated in legal sense
Flake: What have you ruled on in this regard?
Gorsuch: I've had a number of tribal cases. Tribes are sovereign nations. Our constitutional order gives this body (Congress) lots of power for dealing with these sovereigns. Out west there are all sorts of arrangements -- reservations, also ancient pueblos, also allotments. Variations throughout west.
Gorsuch: As a judge, try to administer law fairly and without respect to persons. Look to cases with Ute Indian Tribe, also Fletcher, involving Osage Nation in Oklahoma. I've tried to treat all persons fairly.
Flake: My supposition -- you won't say this -- is that this is a useful perspective.
Flake: Separation of powers and Chevron. Chevron didn't come out of nowhere. There had been rogue judges legislating from bench. Now the pendulum has swung too far in the other direction.
Gorsuch: Those are policy considerations. As a judge, my job to interpret law. I don't see Chevron as a liberal or conservative issue. When decided, largely seen as conservative for advantaging the holders of political reins.
Flake: Second Amendment. You've been asked about precedent for Roe v. Wade. What about Heller?
Gorsuch: All precedent of the SCOTUS deserves the respect of precedent. That's quite a lot. It's an anchor of the law.
Flake: Let me close with religious liberty. Will not ask you about your beliefs, but can you speak about the role of faith generally, especially on judiciary?
Gorsuch: One of the wonders of our constitutional order is the First Amendment and the right of free exercise. Not many countries as pluralistic as ours. We're not founded on culture or religion but that all voices are heard and all faiths are welcome. Quite an experiment 200 years ago, still today.
Gorsuch: It's a pluralistic commitment we have in this country.
We're now waiting briefly for Sen. Dick Blumenthal (D-Conn.) to return from voting.
Gorsuch taking opportunity to greet some guests. Franken has gone over to Flake and now both are laughing, perhaps about their earlier exchange about questions.
Grassley is now going home. He says his bedtime is 9pm.
Blumenthal is now speaking. He is asking about Gorsuch's line about the "elephant in the room." Do you remember who in my office I told you is the elephant in the room? Gorsuch says no. DJT.
Blumenthal: Trump's comments about judges, calling one who ruled against him in travel ban case a "so-called judge", and another one blaming judges, if act of terrorism would occur, and in campaign, criticizing fairness of Mexican-American judge -- this makes Trump elephant in room. What did the president mean when he used word so-called judge?
Gorsuch: You would have to ask him.
Blumenthal: What if he called you a so called judge?
Gorsuch: I care about the independence of the judiciary. Judges have to be tough. You get called lots of names, all over the place. We need to accept some criticism, with humility. It makes us stronger and better.
Gorsuch: Jefferson didn't like Marbury v. Madison and he didn't mind saying so. Presidents have also tried to pack court. This is our constitutional history.
Gorsuch: When you attack motives of a judge -- senator, I know the men and women of the judiciary, the sacrifices they make -- I know them and how decent they are, and when anyone criticizes the honesty, integrity, the motives of a federal judge, I find that disheartening and demoralizing, because I know the truth.
Blumenthal: Anyone, including the president?
Blumenthal: Isn't so-called judge language an attack on judiciary?
Gorsuch: I've said what I believe I can ethically say.
Blumenthal: Maybe you can share with the president
what that wise old judge said to you?
Gorsuch: "
The rule of law, whether the government can lose in its own courts and accept the judgment of those courts."
Blumenthal: Was the president doing that?
Gorsuch: I've gone as far as I may go.
Blumenthal: I'm looking for the same kind of expression of outrage that I felt as an officer of the court (I am still one) because of that attack. Hamilton (again!) said court is least dangerous branch -- neither purse nor sword, but respect. But when president attacks brethren of judiciary, he attacks you, he undermines bedrock of democracy, which is the respect of the courts.
Blumenthal: You made reference earlier to judges having to take insults. My guess is that if a litigant used that language, you might motion for contempt of court.
Gorsuch: My record is that when such language used, a judge spoke about ethnicity in sentencing, we replaced him.
Gorsuch: The independence of the judiciary is in my bones.
Blumenthal: I will return to this topic. As you well know also, judges have no way to defend themselves. This is why I believe we and DOJ should have been more vigorous in coming to defense of judges, even though DOJ loser. More is at stake here. It is respect and integrity for courts.
Blumenthal: Another reason Trump is elephant in room, because he established several litmus tests. In third debate, promise his nominee would overturn Roe v. Wade, "that will happen automatically in my opinion because I am putting pro-life justices on the court." Are you familiar?
Blumenthal: Are you familiar with other instances in which he has said similar things? "I am pro-life, the judges will be pro-life." (B gives multiple examples, including one in which Trump calls this a "
litmus test.")
Gorsuch: I can't say I'm aware of each of those statements, but I know there was a lot of discussion about litmus tests by many during the campaign.
B: Well, these statements are by president.
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