Is foreign law ever valid precedent?
Gorsuch-- We just discussed this. Could be appropriate during contract disputes for example. But it is generally not useful, we have our own traditions, own precedents, own history
Flake-- We talked yesterday about being from the west. You deal with a lot of issues that don't come up elsewhere like tribal issues. How has dealing with that affected your view of religious liberty? Yellowbear sweat lodge case
Gorsuch-- telling details of Yellowbear case. Prisoner was denied access to existing sweat lodge in prison. They applied RFRA-- no question about sincerity of held beliefs. Found that it was not a burden since the lodge already existed
Continuing, government couldn't come up with good reason to prevent any access to the sweat lodge.
Moved on to technology. How should judges approach issues of new technology.
Gorsuch is describing the facts of US v. Jones, the GPS tracker case. What's a search? The Court went back and looked at the law of trespass.
Constitution can't be less protective of civil liberties now than at the time of the founding, says Gorsuch. That was the basis for US v. Jones.
Flake: How should judges educate themselves about technology.
Gorsuch: New technologies challenge all of us. Guidance from Congress is helpful.
Flake introduces article on Gorsuch and tech policy. Author concludes justices should be able to think critically about how legal theories map into cyberspace.
Flake: If agencies interpret Congress's broad policies and then courts defer to the agency interpretation, then poiicy depends on policy preferences of the agencies.
Gorsuch: Sounds like a reasonable conclusion.
Flake introduces letter from Hispanic Leadership Fund supporting Gorsuch.
Flake: You have mentioned another tech issue -- cameras in the courtroom. It has been presented as educational. Everything we do here should be in open and on tv. I am glad CSPAN is here.
Somehow we have segued to Transam Trucking, but also in the context of cameras in the courtroom. Some cases don't lend themselves to cameras in the courtroom, Flake suggests.
Flake first senator I believe to suggest in the hearing that cameras in courtroom might not be a good idea, asks to pause and consider concerns
Grassley: I am surprised you will be opposed to cameras in the courtroom. You seem so reasonable.
Senator Richard Blumenthal is now up.
Gorsuch is now talking about how he appreciates input from all of the senators.
Blumenthal: As much as there has been some handwringing and some doubt expressed, I think this process is a lot healthier for our democracy than Justice White's 90-minute hearing.
Blumenthal: I didn't know him as well as you, although I saw him at the basketball court occasionally.
Gorsuch: Did you get one of his elbows?
Gorsuch: He enjoyed physical contact. Tells Blumenthal that he might be right that White would have enjoyed the sparring.
Blumenthal wants to talk conflicts of interest and ethics.
Regarding cameras in the courtroom, from what I can tell the 10th circuit doesn't even release audio
Blumenthal and Gorsuch continue to talk ethics/recusal. Blumenthal says important for trust and credibility of the court.
Blumenthal: I want to go back to yesterday's questions about Brown v. Board of Education. You said you agree?
Gorsuch: It is a seminal decision of the Court.
Blumenthal: You said it corrected an erroneous decision, vindicated a dissent that got the original meaning of the Equal Protection Clause right.
Blumenthal: Sounds like you agree with the result?
Gorsuch: You can characterize it however you want. I have said what I have said.
Blumenthal: You won't say you agree it was the right result?
Gorsuch: vindicated correct original meaning of the Fourteenth Amendment.
Blumenthal: Why can't you say you agree with the result?
Gorsuch: Not sure what we are arguing about?
Blumenthal: We aren't arguing.
Gorsuch: It was a seminal decision, corrected erroneous interpretation of law, Plessy v. Ferguson, which is a dark dark stain on our nation's history.
Blumenthal: Chief Justice Roberts agreed with Senator Edward Kennedy that segregation of children was unconstitutional. You said there's no daylight between you and Roberts.
Gorsuch: I don't see any daylight. We are on the same page on Brown.
Blumenthal: Would you say the same about Griswold?
Gorsuch: It was a decision by the Court recognizing the right of married couples to use contraceptive devices.
Blumenthal: Yes, that was its holding. Do you believe it was the right result?
Gorsuch: It is more than 50 years old. Reliance interests are strong, it has been repeatedly reaffirmed. I cannot imagine a state trying to pass a law in this area. I can't imagine the Supreme Court taking a law serious.