G: Something like 5000 criminal statutes, hundreds of thousands in federal registry. Madison warned about world in which written law lacking, or we have a paper blizzard, so prosecutor can pick charges with impunity and the people don't have notice. Aristotle was right -- we're looking for a golden mean.
C: Asks about regulatory explosion. G: Don't know about explosion, but it's a fact of life.
Crapo thanks Gorsuch for being willing to step up and do this service. Is it true Justice White spent 90 minutes? Thank you.
Now Crapo submits various statements in support of Gorsuch for the record.
Senator Marie Hirono from Hawaii now speaks. In ten hours, you have provided us less than previous nominees. How should we divine what you would bring to the court?
Hirono: I see more of the steady march of the Roberts Court of corporations over individuals.
H: I hope for some reassurance that you will be a justice for all Americans.
H: Longhorn v. Perez, you overruled a decision about worker safety, making a distinction between a floor hole and a floor opening. The judge in dissent -- a Bush appointee -- said false distinction that unimportant for ruling against factory.
G: As you indicated, I was not the author of that opinion. I don't have a dog in the hunt when it comes to holes and openings when it comes to floors. But OSHA does, and it distinguishes between them.
H interrupts. In that case you overruled the agency, which did not make that distinction.
G: There are different consequences for hole or opening, as I recall.
G: The question was whether they had been provided notice. I agreed with my colleague that OSHA can't change charge in middle of distinction.
H: That law was for the purpose of worker safety. You had said before that you do look to purpose of law, so I'm not sure why you ruled how you did.
H: Earlier you discussed the trucking case with Sen. Franken, gave driver an impossible decision -- keeping job or endangering health. In your dissent, you dismissed idea that law should take in account the intent and purposes.
G: The statute protected individuals who refused to operate a motor vehicle. He operated the vehicle. I'm relieved to know he was fine, but the statute is about refusal to operate.
H: I think you could have interpreted the refusal to operate the vehicle as the one with the hitched trailer. If judges will work this hard to strain text of the law, that makes it pretty tough for any laws passed by Congress to really protect workers.
H: In Citizens United, the court adopted a narrow rule about quid-pro-quo corruption. This has unleashed a flood of corporate money in campaigns. What stops a foreign country from funding money through its American subsidiary, like a Russian oligarch?
G: I have ruled in plenty of employment cases of ruling for the employee, even overturning the district court. I'd be happy to talk about any of them.
H: Well I'm not. I didn't ask about those. Can we return to campaign finance [Hirono more impatient with Gorsuch than we've seen from some others.]
H: You're saying Citizens United leaves open to Congress to prohibit foreign companies from financing in elections?
G: Citizens United left open many possible campaign finance restrictions. This was just about one law.
H: If Congress passed a law prohibiting foreign corporations funding through middle men, would you sustain that law?
G: Making promises like that is not what a good judge does. I don't prejudge cases.
H: The sheer volume of speech drowns out individual voices. I'm considered about billionaires. Given that you've volunteered for GOP elections, were you ever concerned about unfettered monies entering campaigns?
G: My first election was age 9 -- Hirno interrupts: I'm sorry, I have only 18 minutes left. Was there ever a time you were concerned about unfettered monies?
G: I have lots of concerns, but I'm now a judge.
H now moves to Hobby Lobby dissent by Ginsburg, joined by the two other women on the court.
H: How much did you consider the significant need of the 23,000 employees for Hobby Lobby, many of whom were women working paycheck to paycheck for health care they needed.
G: I considered this question very carefully. RFRA goes above and beyond First A, in judgment by this Congress. It can eliminate any of the statutory steps.
H: You wrote a concurring opinion on this case. It could be deemed an expansion of the plaintiff's rights in that case. What are the limits on what a corporation may claim as a relief in justifying denial of healthcare for employees?
G: The sincerity of the belief was undisputed by government in our court. That was not an issue. Are there limits to how far a statute goes? Government may force substantial burden on religious belief if can prove compelling interest and that the policy is narrowly tailored in this burden -- this is strict scrutiny, the highest level of review.
H: My question is more about the sincerely held belief. That may have not been an issue in this case, even though there was some evidence that the beliefs were scientifically not valid. Would you go beyond sincerity to see if there is really a basis for this belief?
G: You're asking that as I as a judge would say a belief is scientifically invalid? H: And therefore could not be sincerely held? G: I have actually ruled against sincerely belief.
H: In 1942, Fred Korematsu opposed forced interment of Japanese Americans in WWII. SCOTUS ruled against him.
SCOTUS has never overruled Korematsu.
H: This has joined short list of most regretable decisions in court's history.
H: If court were to consider restrictions on citizens of certain Middle Eastern ancestry, would Korematsu be precedent to consider?
Hirono: After referencing Hamdan case, moves onto recent immigration executive order. Do you believe some executive actions are outside review?
Gorsuch: What I admire about system of justice is that any person can bring claim?
Hirono: So is your answer that there is no executive action not reviewable?
Gorsuch: A lawsuit could be brought, but we would have to follow process.
Hirono: Advisor has said Trump's national security judgments "will not be questioned." You do not agree?
Gorsuch: Same answer. Beauty of our system is that anyone can bring complaint to court.
Hirono: The person who nominated you does not have much respect for judges or courts. He has belated those who do not rubber-stamp his views.
Submit Event
