[sorry I'm not as fast as Amy!! thanks for sticking around]
Whitehouse-- thanks Grassley for chairing committee.
Whitehouse-- Judge Gorsuch, this is the last time you will probably ever think about me, unless things change dramatically for me [laughter]
Whitehouse-- I was elected to the Senate in 2006, for the 1st three years I was here, there was constant Republican activity on climate change in the Senate. Republican pres candidate has climate change policy
Whitehouse-- names climate change bills proposed or sponsored by Republicans, legislative process was going forward. CItizens United decided in 2010. Fossil fuel industry supported that decision and since then there has not been a single piece of comprehensive legislation with a Republican cosponsor about carbon emissions
Whitehouse-- Keep in mind as you go forward, that in my view, Citizens United allowed powerful special interests to squash public debate
Doesn't ask him to weigh in
Whitehouse-- Now wants to discuss juries. A number of SCOTUS cases have limited access to jury trials
Whitehouse-- to me, the civil jury matters quite a lot. Founders took it seriously. Hamilton (!) calls it a pinnacle of what we needed
Whitehouse-- I would urge that as you consider cases that chip away at the civil jury access that regular Americans have, particularly when they involved big corporations like in arbitration and class action cases. Are you sensitive to the civil jury trial?
Gorsuch-- I have talked a lot about the 7th amendment a lot here, I believe in the civil jury. I spent a lot of time in the trial trenches of the law. I saw the value of the jury system
Whitehouse-- The last thing I want to ask you has to do with an email you sent in Feb 2006
Whitehouse-- About AG Gonzales's testimony that was called misleading, you emailed "I think the AG is doing a really nice job today, he is running circles around the committee members"
Whitehouse-- when did you come to realize this testimony was inaccurate
Gorsuch-- I don't have a recollection of the email, someone showed it to me this morning. To my knowledge I did not have any classified info at that time. I worked from public materials as a speechwriter
Whitehouse-- do you recall what you knew that day or at the time that you were preparing the AG's testimony?
Gorsuch-- fair question, and my recollection sitting here, I found out when everybody else did
Whitehouse yields back him time
Sasse up-- Can we talk about 9th amendment?
Gorsuch-- won't construe meaning since SCOTUS hasn't said much on it
Sasse- Bork called it an inkblot that can be ignored. Any precedent we need to know about as the 9th amendment comes through courts?
Sasse-- How do we know whether some power that hasn't been enumerated if it belongs to the states or the people?
Gorsuch-- we've talked a lot about federalism here. The people are sovereign.
Sasse- is there any precedent on 10th amendment that might affect the 9th?
Klobuchar-- I have been waiting for two days to talk about antitrust.
Klobuchar-- you are an expert, you have taught on this. Lee and I lead that subcommittee. We have seen people struggling to afford things, once way to bring prices down is to enforce antitrust laws, increases innovation...
Klobuchar-- we are living in an unprecedented wave of mergers
Klobuchar-- the President commented about a major merger over at the DOJ and in another merger actually met with the CEOs involved
Klobuchar-- You have taught antitrust, although the Supreme Court has not reviewed the facts of a merger in a long time. Have the courts made antitrust cases too difficult?
Gorsuch-- I try to expose my students to all views so they can make up their own minds
Klobuchar-- what happens if courts make antitrust enforcement too difficult?
Gorsuch-- that yields higher prices and lower output, loss of production. These are real problems. It was the original regulatory machine and it is still vital
Klobuchar-- Regarding pay for delay pharma agreements, in which pharma asks generic companies to hold off on making their drugs, which increases prices
Klobuchar-- how do you describe this case to your students?
Gorsuch-- it's a great case, I teach from it. Supreme Court said that the rule of reason applies
Gorsuch-- the Court was leery about making per se rules in this area
Klobuchar-- I also noticed you assigned DOJ report and FTC's response on monopolization. Which agency had a better reading on this?
Gorsuch-- I teach both sides in my class...
Klobuchar-- so you dont want to weigh in on this debate?
Gorsuch-- there is no way I'm weighing in!
Discussing refusal to deal cases, Gorsuch said they are fun cases