Grassley: Let's talk about legislative history. I also remember my first discussions with Justice Scalia when he was making courtesy visits. Scalia said it shouldn't play any role whatsoever.
Grassley: He adhered to that principle.
Grassley: What weight should judges give to legislative history when interpreting a statute? You have been a judge for 10 years.
About half the Senators are missing right now, but the visitors section is pretty full-- mostly people in suits, no protest shirts so far this morning
Grassley: Discussing criminal case in which Gorsuch participated as a judge.
Grassley: Still discussing the 10th Circuit's ruling in the case. You wrote a separate concurrence to highlight that the precedent on which the court relied should be revisited.
[Gorsuch's separate concurrences were a relatively hot topic yesterday.]
Grassley: You were somewhat critical of the 10th Circuit's reliance on legislative history in that case. Quoting from Gorsuch's concurring opinion at length.
Grassley: When is it appropriate to look to legislative history to interpret statutes?
Gorsuch: A good judge takes seriously everything that you, Congress, do. But that case illustrates some of the issues with legislative history.
Gorsuch is discussing the facts and arguments in the case at length now. As a matter of plain meaning, Gorsuch says, I had to agree with the defendant.
Gorsuch: I thought this was a case where the government had to square its corners. And before you can put a man in jail for several years, the government should have to prove its case. Using legislative history to put a man in prison struck me as a due process/fair notice problem.
Case involved knowing possession of a gun by a felon.
Grassley: You may have just said this, but I want to emphasize. What intersection do you see between notice of what the law requires, legislative history, and the original meaning of the text.
Gorsuch: Notice of what the law requires is key to the rule of law.
Grassley is now talking about whistleblowers and False Claims Act. Calls it the most effective antitrust tool that we have.
Taxpayers have recovered more than $53 million lost to fraud, said Grassley. People in DOJ didn't like it because whistleblowers signaled that they weren't doing their job. Grassley is really into this discussion.
[Gorsuch looks bemused at Grassley's passion as Grassley rails against the Chamber of Commerce's effort to change the FCA.]
Grassley has moved on to standing. There is a Supreme Court case establishing standing for whistleblowers who bring lawsuits. I'm just calling it to your attention. You are familiar with it, says Grassley.
Gorsuch: I am. I have had a couple of cases on whistleblowers in my circuil.
Gorsuch: "The little guy won."
And on that note, Dianne Feinstein is up next.
I have strong feelings, says Feinstein. You don't have to respond.
[But Gorsuch does anyway.]
SCOTUS opinions are coming down right now. We won't be covering them here, but here are the opinions:
This is what I have been trying to convey, says Gorsuch. I am supposed to decide these cases without regard to the people. He wasn't very sympathetic, but the government still had to prove what the law requires. I am just trying to follow the plain words of the law, says Gorsuch. The convicting judge told him that he wasn't a felon. The man is in prison.
Feinstein: That is your view, but it's not my view.
Feinstein: I sent you some documents and I'd like to ask you about the document re torture.
Feinstein: There is no date on the document, but it talks about the McCain and Graham amendments to the Detainee Treatment Act. Look at your notes: have aggressive interrogation techniques yielded any valuable intelligence? Stopped a terrorist attack?
Feinstein: You wrote yes. What information did you have?
Gorsuch: It has been 12 years. My memory is not great.
Feinstein: But you are very young.
Gorsuch: That was the position that the clients were telling us. I was a lawyer.
Feinstein: You actually answered the question, but you had no personal information, just took the position of your client.
Feinstein: It seems to me that people who advise have an obligation to find the truth in these situations.
Feinstein: When we looked into it, we really saw the horrendous nature of what went on.
It's a closed chapter, but it never should have happened, says Feinstein.
Feinstein asking about originalism. You are a self professed originalist. [This is a question from a constituent who is a law school dean.]
Feinstein: Do you agree with Scalia that originalism means no protection for gays and women b/c no protection when drafted?
Gorsuch: A good judge starts with precedent. There are decisions on those topics. It would be a mistake to suggest that originalism turns on secret intentions of the drafters.
Gorsuch: What a good judge strives to do is understand what the words on the page mean.
Doesn't matter that drafters were racists or sexists, because they were. The law protects everyone, says Gorsuch. The original meaning of those words stands. Equal protection of the laws does not mean separate -- it means equal.