Gorsuch: It was a close call, 5-4.
Graham: That just proves that 5 people can be wrong.
Graham: There will be more legislation regarding the role of the government in collecting information. But there's a difference between the law of war and domestic criminal law. The law of war is about winning the war.
Gorsuch: There are rules about that too.
Graham: We are fighting an enemy who has no rules, but I don't want to be like them. The strongest thing we can do is to stand up and follow the rules.
Graham: There will be more litigation. There are no bad guys when it comes to challenging precedent.
Graham: Let's talk about Roe v. Wade. What is the holding?
Gorsuch: A woman has a right to an abortion. It developed a trimester scheme in Roe.
Graham: The court said there is a right to privacy with which government cannot interfere in first trimester, but government has more of an interest in later trimesters.
Gorsuch: Viability, rather than timing, became more of a touchstone in Casey.
Graham: is viability different now than in 1992, when Casey was issued?
Gorsuch demurs. I am not a scientist, he says.
Graham: I have legislation indicating that, at 20 weeks, unborn child feels pain and state has interest in protecting child against that.
Graham: We are going to have a debate in Congress about whether we want to change the law to give an unborn child protection against excruciating pain. If you operate at 20 weeks, you have to give anesthesia. My theory -- let's look at it the other way, should you allow abortion on demand then?
Graham: You don't have to say a word. Just letting everyone know that if this legislation passes it will be challenged. You will read the briefs, look at the facts, and make a decision.
Gorsuch: I can promise you no more than that, and i guarantee no less than that.
Graham: About what's happening with Trump in the country. Whether you like him or not, he is the president. But you have said he is not above the law.
Graham: You said a law banning Muslims from military would be illegal?
Graham: So if we have laws on the books that prevent waterboarding, can you agree DTA prevents waterboarding?
Graham: In case Trump is watching, (1) you did a good job picking Gorsuch; (2) if you start waterboarding people you may be impeached.
Gorsuch: Congress has impeachment power!
Graham: Thank you, I think you are a man of the law. Quite frankly I was worried about whom he would pick. Maybe somebody on TV! I didn't agree with Obama, but I understand why he picked Kagan and Sotomayor and the same should go here.
We are now in recess until 12:45. Mark Walsh may have some more insights, but we are otherwise going to take a quick break.
While the hearing was underway Tuesday, across the street from the Hart Senate Office Building, the Third Branch of government continued business as usual. The Supreme Court was packed in both the bar and public sections for oral arguments in two cases: Microsoft v. Baker, about class cerification; and Impression Products v. Lexmark International, a patent case.
First up, though, the court issued three opinions: Manuel v. City of Joliet, a Fourth Amendment case; SCA Hygiene Products v. First Quality Baby Products, a patent case about “laches”; and National Labor Relations Board v. SW General Inc., about executive branch vacancies.
There were a couple of interesting moments with the opinion delivery this morning. In announcing the decision in the SCA Hygiene Products, Justice Samuel Alito said, “This case concerns an issue that I’m sure is on the everyone’s mind”—then noting it was about the equitable defense of laches. “Though maybe it’s of interest to the patent lawyers who are here for the second case [for argument].”
Later, after Chief Justice John Roberts summarized his opinion for the court in SW General, which sided against the position President Obama’s administration had taken on temporary appointments (and which Republican administrations have taken as well), he said: “There is a thoughtful dissent, which I suspect the government will find persausive. But the ruling of the court is otherwise.”
Gorsuch has just re-entered the hearing room, accompanied by his wife and former senator Kelly Ayotte, who is his "sherpa" during the process.
Senator Durbin is up next. You helped draft a provision stripping the courts of jurisdiction over detainee habeas petitions, he says, which was struck down in Hamdan.
Gorsuch: Senators McCain and Graham drafted the bill, with input from DOD, DOJ, and others. I was one voice among a great many. Hamdan held that DTA didn't apply retroactively; several years later, the court came back around in Boumediene.
Durbin: What I am driving at is McCain section w/r/to cruel treatment. You said in your email you wanted a signing statement to the effect that McCain section was essentially codifying existing practice.
Many of the senators are still missing. Looks like it's just Grassley, Durbin, and Whitehouse who are present.
Gorsuch: Sorry -- I haven't read it because i was scarfing down a sandwich during the break.
Durbin: I am trying to get this leap from your memory of this email. Problem is that when you were talking about signing statement and waterboarding was still happening and you wanted to codify existing practice. We are going to have to resolve during second round of questioning.
Durbin reading Steve King statement re "you cannot rebuild your civilization with someone else's babies."
Durbin: Reaction to that statement was overwhelming.
Durbin: What is your reaction?
Gorsuch: I can talk about my record. When someone alleges that a sentencing judge made impermissible statements about ethnicity, my colleagues and I removed that judge from the case. Citing other cases re access to justice.
Gorsuch: Trying to make our civil litigation system cheaper and faster. Also found representation in 10th Circuit of death-row inmates was unacceptable, try to do something about it.