Gorsuch: I was trying to point out that they have a long provenance.
Gorsuch: I agree they grow out of due process/liberty component, which Court has interpreted to include a right to privacy. [A very legal answer.]
Gorsuch: All of those are in the line of cases.
Coons: Let's look at Casey, which reaffirmed right to abortion.
Coons: Are you saying that future courts are not bound by central section of Casey?
Coons: It was central to the holdings in Obergefell and Lawrence.
Coons: Is it settled law?
Gorsuch: Casey is settled law. Obergefell and Lawrence also precedent.
Amy took a close look at Gorsuch's views on assisted suicide here. http://www.scotusblog.com/2017/03/gorsuch-euthanasia-assisted-suicide-abortion/
Coons: You said Casey's "mystery of life" passage is persuasive but non-binding.
Gorsuch just said "god bless you" when a spectator sneezed.
Gorsuch: Sometimes you ask which is a binding holding. We have a whole body of case law.
Coons: Because you raise concerns about whether this section of Casey should be relied on, this mystery of life passage is central to Lawrence and Obergefell.
Gorsuch: I think it would be an injustice to Lawrence and Obergefell for me to sit here and try to characterize them in miniature.
Coons: They are precedent and you would regard them as binding and settled law?
Gorsuch: I have written a book about precedent with 11 other judges.
Coons: So if Lawrence and Obergefell are settled law, under what basis or circumstances would they be subject to reconsideration?
Gorsuch: Every precedent is subject to a presumption that it stays.
Gorsuch just mentioned Alexander Hamilton. (Reference #2 today)
Gorsuch: There are a number of factors, they are all outlined in the book.
Coons: Justice White, who was an exceptional football player and jurist and Coloradan, was on the wrong side in Casey and Bowers v. Hardwick (in which Court upheld Texas statute criminalizing consensual sex between same-sex adult couple).
Coons: Bowers overturned in Lawrence. Kennedy said Bowers was not correct when it was decided, not correct now. You clerked for both. Was Kennedy correct?
Gorsuch: That's the law of the Supreme Court. I admire both men. I am not here to say a bad word about either.
Coons: You have also expressed admiration for Scalia, who dissented in both Lawrence and Obergefell. Do you agree with his statement that ruling would call into question many other things?
Gorsuch: That's a dissent.
Gorsuch: I'm not here to spend an undue amount of time defending White. Everyone of us makes mistakes.
Coons: Did White make a mistake?
Gorsuch: It's the law of the Supreme Court. [Lawrence v. Texas]
Gorsuch and Coons are sparring over whether Gorsuch considers Kennedy a judicial hero.
Gorsuch: Don't want anyone to think that I hold Kennedy in anything less than great admiration.
Coons: In Obergefell, Scalia said decision was undermining American democracy. What did you understand him to mean?
Gorsuch: Those are Scalia's views. The law of the land is the Court's holding in Obergefell.
Coons: Your views were expressed in 2005 article called "Liberals N Lawsuits." What did you mean about death-with-dignity and same-sex-marriage advocates being addicted to courtroom?
Gorsuch: Courts need to be non-majoritarian institution.
Coons: Why did you pick those two areas to denigrate?
Gorsuch: I don't mean to denigrate anyone's views. This was before I was a judge. There are some comparative disadvantages to deciding these issues in the courts. Law clerks are not great policy makers.
Coons: Would you agree that overturning Casey would upset reliance interests of same-sex couples, among others?
Coons is asking Gorsuch about a federal civil rights decision in which he participated.
Gorsuch: The language you are quoting is from the US Supreme Court. I think that's significant.
Gorsuch: This case wasn't about a privacy interest, but about pursuing a tort interest. I upheld the right of the family to pursue the police officer for damages under the Constitution.
Sen. Flake up next, asking about precedent
He is asking if a number of cases deserve the respect of precedent-- Hosana Tabor, US v Lopez