Live blog of confirmation hearing | March 22, 2017
3rd & 7 37yd
3rd & 7 37yd
B
S
O
close
close

-





-
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: 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.
-
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.
-
Feinstein is putting materials in the record. I am not a lawyer, she says. She is less enthusiastic about the felon-in-possession case that Grassley just discussed. He was a felon with a gun, she says. His probation instructed him not to carry a weapon.
-
I have strong feelings, says Feinstein. You don't have to respond.
-
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.
-
Czyzewski v. Jevic Holding Corp www.supremecourt.gov -
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: 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.
-
Second SCOTUS opinion today is Star Athletica v. Varsity Brands: www.supremecourt.gov