B: I hope that when we resume questioning, you can give me somewhat more direct and unequivocal answers in the same way that Roberts, Alito, and Kennedy did to same questions.
Sen. Crapo's first question, "Is it true that John Elway endorsed you?"
Crapo: I appreciate conversation you had about law clerks. I too am one.
Crapo: Some issues keep coming up, I want to get into these core issues.
Crapo: Couple of those are pretty obvious. What is the role of a judge? I have before me the statutory oath before me [now he reads from it]
Crapo: What is your opinion of the role of a justice on SCOTUS?
Gorsuch: Doesn't change from being a judge, it's a more public role, but the job doesn't change and the law is the law
Gorsuch: Discussions about the judiciary miss the fact that judges agree overwhelming on the cases. A fraction of a fraction of cases go to SCOTUS, and even then, the justices are unanimous 40% of the time
Gorsuch: That 40% number has been remarkably steady since WWII. That's a testament to our rule of law. It's human, imperfect, but "sure as hell" better than anything else ever devised
Crapo: Yes, it's critical.
Crapo: The litmus test issue. Did anyone in the nomination process, including president, require of you a commitment as to how you would rule on any issue or case.
Gorsuch: No. If anyone had, I would have walked out of room. [
Said this once before]
Crapo: So you would rule against the president?
Gorsuch: Yes, based on the law and facts of the particular case, and I've done it. I believe my record demonstrates that.
Crapo: I agree with that.
Crapo: There were attempts earlier today to get you involved in politics. I remember when we met that you were quite emphatic that you would not let politics interfere with job.
Gorsuch: I've represented all types. In each case, all I wanted was a judge who didn't decide case based on personal beliefs. I wanted someone to come in, look at the law, facts, and make as neutral and impassioned a judgment as they could -- a human judge. It would help if they were kind, but I'd take a curmudgeon if they were fair.
G: I sleep a lot better the night before argument as judge than as lawyer. I try to be the judge I wanted when I was a lawyer.
C: Tell us your view as precedent for SCOTUS.
G: Precedent is starting point for any good judge. This is our history, our patrimony, wisdom of the ages. It would be foolish for any judge to come in and think he or she knows better than all those who came before -- hubris.
G: As Hamilton said, judges with life tenure need to be bound done by strict rules.
Crapo: Sometimes at SCOTUS precedent is revisited. When is it appropriate?
Gorsuch: Same process as circuit judge for circuit precedent. Start with presumption in favor of history. Look at reliance interests that have formed around it. Look to see if it's been re-affirmed. Quality of original decision. Doctrine that has built up around it. Workability.
C: Not a decision reached lightly?
G: Senator, no decision should be reached lightly.
C: 10th A says powers not delegated or prohibited, are reserved to the states or to the people. Can you discuss?
G: It's part of the Bill of Rights, like the rest. Idea was to emphasize that federal government was one of limited, enumerated powers, not plenary gov of unlimited powers.
C: I agree with that. Many of my constituents believe that has been eroded. The place where authority reserved to the states is a very small place, and federal authority so large.
G: 10th A cases do come before the court. I point you to New York case involving Justice O'Connor to say that there are limits. Also Roberts decision in ACA case about Medicaid expansion and the power of the states there.
C: You have said "elephant in room" is deference to agencies. Can you expand?
[Largely agreeing on everything, Crapo seems to be mainly allowing Gorsuch to give his preferred answers on these topics.]
Gorsuch is giving his answer that there are no reliance and due-notice interests for citizens if an agency can change its interpretation willy-nilly, unlike a court. People can't be sure of what law is.
G: Also concerned about separation of powers. It's up to Congress to overrule SCOTUS on statutory interpretation, not executive branch.
G: Yes, can defer to scientists, other experts, on those issues, but not matters of law.
C: What about the dormant commerce clause/
G: Commerce Clause is in Article I about ability to legislate. We have this sleeping thing over here. It's a product of judicial interpretation, that suggests that even if Congress hasn't regulated commerce in a certain way, states step into this arena.
G (asked about how he feels about doctrine): I keep my feelings separate. I come here with no promises, but one, no agenda, but one, to be as good and faithful a judge as I can be.
C: America fortunate to have someone who strongly holds to that perspective nominated to this critically important position.
C: Back to Hobby Lobby, which went to SCOTUS, resolved 5-4, but of four who dissented, only two felt that issue relating to for-profit corporation was dispositive. Is that right?
G: Yes, other two who dissented did not reach that issue.
C: 7th A right to trial. What are your
thoughts?
G: I believe in juries. I think it's part of our civic engagement that's really valuable. Madison and Hamilton debated this -- bulwark or palladium of liberty? But so difficult for people to get to jury now because of discovery process, etc. I'm not sure if that's a good thing.
C: Relates to access to justice?
G: Yes, when becomes so expensive. Problem on one side that people don't bring good claims. On other side, meritorious claims have to settle because of cost for litigation.
C: Over-criminalization in the law?
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