Gorsuch: I have enforced all manner of regulations that are lawful, even when I didn't like them.
Hatch: Chevron deference is about how to handle questions of law, on which judges are experts.
Gorsuch is talking about Administrative Procedures Act, making a point similar to what he made yesterday. Courts should take factual findings of scientists very seriously.
Gorsuch: But on questions of law, I have raised questions about whether agencies should be able to make that decision. And I raised them in a case that I had to deal with that affected real people.
Gorsuch: I'm not worried about large corporations, honestly. They have armies of lawyers and lobbyists and can predict what will happen. I am worried about the ordinary people. Talking about immigration case Gutierrez Brisela v. Lynch.
Gorsuch: If the law can change so easily, where is the due process?
Gorsuch: What about the equal protection problems when you allow an agency to pick and choose their targets? The least amongst us, the most vulnerable, the little guy?
Gorsuch: And what about the separation of powers? I thought that judges were supposed to say what the law means.
Hatch: Some of my colleagues have brought up your work at DOJ. Can you describe the responsibilities of the government lawyer a bit more? Especially difference between policy maker and advocate.
Gorsuch: As lawyers we play different roles at different times. I was representing a client.
Gorsuch describes the wide variety of his clients while in private practice, as he did yesterday.
Cabinet officials, etc., are policy makers. I was in litigation capacity, supervising lawsuits involving US as my clients.
Gorsuch: As a judge, you put that aside. You only have one client, the law. You wake up every day and just try to get it right, as best you can. Justice Jackson was fierce advocate, including of executive power. When he became a judge, became one of the fiercest critics of executive power.
Gorsuch: Jackson said a robe changes a man. I have seen it happen to many people.
Hatch: Judges do not work in a vacuum. They must do what they are supposed to do.
Hatch is talking about the structure of government in the Constitution.
Gorsuch: We all have roles to play. When we choose to take up a role in our government, we have to respect the boundaries. It is my job to respect the boundaries of this branch. Judges would make very poor legislators.
Hatch: Sometimes legislators would make very poor legislators.
Gorsuch: I have great respect for this body. I don't share the pessimism. I think Congress still works. For you to do your job, it's important that I don't do your job. I do my job.
Gorsuch: My job is to decide cases. I am okay at that on a good day, but I am never going to be good at your job. We don't run campaigns, and we don't make promises about how we would rule on cases.
Hatch: Shouldn't judges base their decisions on impersonal rules of law, rather than impressions?
Gorsuch: That's not how it actually works. Almost all of our cases in the Tenth Circuit are decided unanimously.
Gorsuch: That's the rule of law in this country. Too few people know how it actually works.
Getting ready for a break. Grassley is just going through administrative issues.
Break is four minutes and 59 seconds. Not five minutes.
Gorsuch is back in the room
Senator Durbin of Illinois is up next.
Durbin is talking about questions. We are trying to figure out what you are really like, in essence. What made your record so attractive to the Heritage Foundation and Federalist Society?
Durbin: I am sure the public is puzzled about why we are spending so much time talking about the frozen truckers.
Durbin: The National Education Association took a close record at your record in special education cases. [Durbin's summary: they didn't like it.]
Durbin is now talking about the Luke P. case, in which Gorsuch ruled against an autistic child. Question was what kind of progress a student needed to make.
Durbin: The educational benefit required by the IDEA only needs to be more than de minimis.
Today, says Durbin, the Supreme Court unanimously reached the opposite conclusion. A "merely more than de minimis" progress, said the court, can hardly be said to be an education at all.
Roberts and the Court said the IDEA demands more, says Durbin.
Durbin: It is a powerful and unanimous decision. Why did you want to lower the bar so low in your earlier decision?
Gorsuch: I just saw the opinion on break.
Gorsuch: Let's start with the original case and move forward. My panel included a Democratic appointee. We were bound by circuit precedent holding that only de minimis benefit required.
Gorsuch got a little impatient when Durbin tried to interrupt him. There are other cases where, unanimously, the court had ruled for children with disabilities under this law.
Gorsuch: I understand the Supreme Court has said that our ruling was incorrect. I will follow the law.
Durbin: In 8 or 10 cases, you ruled against students with disabilities. The difference in this case is about a word. The word that you inserted into the circuit standard in these cases was "merely." You made things worse . . . . Why would you want to add the word "merely" if your hands were tied?
Gorsuch: Following circuit precedent, Democrat colleague, decided unanimously.
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