Leahy: Influence comes in different ways. When you became a judge, you were working in DC. I understand there were three very well-qualified female attorneys also on the short list for your job, when a billionaire conservative donor intervened, lobbied White House to appoint you.
[I think Leahy is probably talking about billionaire Phil Anschutz.]
Leahy: Are these concerns?
Gorsuch: A lot of my clients came out of the woodwork to say nice things about me, including Phil Anschutz. I think there's probably one from the gravel pit owner.
Leahy: To which one do you think the White House listened?
Gorsuch: They had probably also seen me in action at the DOJ.
Leahy: Some of these same people probably got you on the short list.
Leahy: Trump has criticized judges who ruled against him. You have to prove you can be an independent judge.
Gorsuch: That is an issue that is actively being litigated.
Leahy: Is a blanket religious test consistent with the First Amendment?
Gorsuch: We have a Free Exercise Clause, but i can't say how I would apply it to a particular case.
Leahy: Would president have the authority to ban all Jews from the US?
Gorsuch: We have a Constitution, it does guarantee free exercise and equal protection of the laws.
Gorsuch: Due process rights extend to undocumented immigrants in this country. I will apply law faithfully. Any law will get a fair and square deal with me.
Leahy: Do you agree that there should not be a religious test, e.g., to serve in military?
Gorsuch: Would be inappropriate. Against the law.
Gorsuch: In addition to free exercise clause and equal protection guarantee, we also have RFRA, which Sen. Hatch mentioned.
RFRA imposes an even higher standard on the government than the First Amendment when it comes to religious discrimination.
Leahy: There is a legitimate concern. I hear stories about "no catholics need apply" from my grandparents. I am sure Senator Feinstein can speak about her religion. Trump promised a Muslim ban, still has call on website for shutdown of Muslims entering the United States. Congressman said best thing president can do to protect ban is to make sure Gorsuch is on the court before it gets there.
Gorsuch: A lot of people say a lot of silly things.
Gorsuch: He has no idea how I would rule, and I am not going to tell you.
[The "I am not going to tell you" was phrased much more diplomatically than my summary.]
Leahy: Are president's national security determinations are reviewable by courts?
Gorsuch: No man is above the law.
Gorsuch: As a judge, I apply the law, and the law is Youngstown Steel by Justice Robert Jackson.
Leahy: I wrote a paper on that.
Gorsuch: Jackson was a fierce advocate of executive power, but then he became a judge. Youngstown analysis of presidential power in foreign affairs has three categories: (1) president acting with congressional support, at his greatest strength; (2) when Congress and president disagree, president at lowest strength; (3) when Congress is silent.
Leahy: Trump is advocate of torture, has advocated more than waterboarding.
Leahy: Considering that Congress has passed a law on torture, what controls?
Gorsuch: We have a convention on torture and implementing legislation; Detainee Treatment Act; and Eighth Amendment.
Gorsuch: no man is above the law.
Leahy: President Bush's warrantless surveillance program resulted in illegal collection of 1000s of Americans' communications. DOJ lawyer John Yoo justified on ground that Congress cannot infringe president's inherent power to conduct national security searches. Do you believe that program was justified?
Gorsuch: As a judge, before I try to decide a question like that, I'd want briefs and arguments. Would not want to offer an off-the-cuff opinion.
Leahy: If Congress passed a law on surveillance, president said he would violate; does he have that power.
Gorsuch: no man is above the law
Leahy: Returning to some of the materials from Gorsuch's DOJ days. You gave Bush advice re signing statement.
Gorsuch: When I got to DOJ, the department and the president were willing to work with Congress to try to establish regime to govern operations at Gitmo. My role was as a lawyer overseeing litigation filed against the government. I was not a policymaker.
Leahy: Were you involved in Hamdan v. Rumsfeld?
Gorsuch: To the extent I was involved in providing advice as a lawyer about Detainee Treatment Act, I am sure yes.
Leahy: You have read Shelby County v. Holder. Which side would you have voted with?
Gorsuch: I admire the various ways . . . you would be a formidable companion in the courtroom.
Leahy: Senator Feinstein said don't let it go to your head.
Leahy: I'm just a lawyer from a small town.