G: There was mention in interview with Trump about Roe v. Wade. He did not ask for any promises. The president recounted how the campaign went in Colorado. Trump disappointed he had lost there. One of the topics that came up in campaign was abortion, split people evenly, then he moved on to other topics.
B: Did he mention Roe v. Wade?
B: You met with Bannon, others, has anyone else mentioned Roe v. Wade?
B: What about with officials of Heritage Foundation?
G: I have not spoken to anyone that I know of from Heritage in this time.
B: Let me go to a case that bears on president's and advisers' perceptions.
B: Planned Parenthood of Utah v. Herbert. B is now explaining fact in which governor ordered de-funded after set of videos released [about selling fetal tissue]. A 10th Circuit panel restored funding as preliminary matter. Were you on that panel?
B: Any of the parties have to ask for rehearing? Is there a time limit?
B: Time limit is two weeks? Two weeks passed with no request, right? But a judge did?
G: Yes, I did, although this is internal process.
B: The parties were fine with the result, they settled the case, and you asked for the rehearing?
G: No, the parties reached agreement about the preliminary relief, but the case continued.
G: But yes, only I asked for more proceedings. En banc denied, and I dissented.
B: You know that en banc is not favored and normally will not be ordered.
G: Yes, of course, zero to three a year.
B: How many times have you yourself, sua sponte, asked for a rehearing for a case in which you were not a panel?
G: I can't tell you number, but I've done it. 20 percent of en bancs are sua sponte like this.
B: What was the exceptional importance in this case that prompted you to seek this rehearing?
G: I appreciate this question. En banc requests sua sponte happen regularly -- again, 20 percent of en banc.
B: I'm asking you about your reasons. And maybe you don't have a number, but I bet you could provide it. I bet its a tiny fraction of the 2700 cases you've done.
G: I would be happy to consider a reasonable request, but I want to be careful about revealing internal process.
B: Another judge dissented from panel, but not en banc?
G: Yes, he did not see "exceptional circumstances" (as B says the words as well)
G: With an implication of impropriety, I would like to speak. It's all about standards of review. The parties agreed on the law. If governor opposed funding because he opposed abortions, he could not. Uncontested.
G: But, if governor discontinued because he had intentions about unlawful actions, then okay. And district court found that governor's intention was this latter reason. In unusual step, our court reversed findings of district court. To me it is important that we abide by standards of review and don't pick and choose them. I wrote about this case because of the standards of review.
G: The judge you mention who dissented was Democratically appointed. It's because we're neutral judges. There was nothing improper about that case.
B: Do you remember that your dissent was around the time of the campaign?
G: Yes. I will also add that I have revived lawsuit in other case for PP.
B: Precedent important as law, right? G: Yes.
B: And people rely on it, that's a key factor in supporting precedent.
B: Do you agree with Brown v. Board of Education?
G: Brown v. Board corrected an erroneous decision and vindicated dissent that separate but equal is never equal.
G: It is a correct application of the law of precedent.
B: When Roberts was asked this, he said unequivocally, "I do." Do you agree with that?
G: Senator, there's not daylight here. Justice Harlan in Plessy dissent got the original meaning of the 14th A the first time, and it's a stain on the court's history that it took so long to get there.
B: Do you agree with the court's decision in Griswold v. Connecticut?
G: Griswold provided right to married couples in home, and Eisenstadt v. Baird (also asked about by B) extended that to unmarried couples.
B: Do you agree with the result?
G: Same answer -- it's precedent
B: Alito said, "I do agree with the result." I'm asking you for a direct, clear, unequivocal answer.
G: There is an equal protection argument, once Griswold in place, then it follows under equal protection, what's true for married for unmarried, that's EP principles.
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