Durbin: If that were the case, there would never be a dissent.
Gorsuch: There was no dissent.
Durbin: Let's go back to John Finnis, your adviser at Oxford.
Gorsuch again bristles at the suggestion that Finnis wrote his book.
Durbin: Euthanasia and assisted suicide v. abortion.
Gorsuch: Supreme Court has held that abortion is legal.
Durbin: Do you respect that?
Gorsuch: It is the law of the land.
Durbin: Let me ask you about the Sixth Amendment and Gideon v. Wainwright, holding that criminal defendants who cannot afford an attorney have a right to an appointed attorney. Do you agree that Sixth Amendment right to counsel is fundamental?
Gorsuch: As recognized by the Court in Gideon, yes.
Durbin: In your decisions, you did not find any case in which a defendant received ineffective assistance.
Gorsuch: Before you reverse a conviction or plea deal for ineffective assistance, you have to find both ineffective assistance AND prejudice to the defendant from the ineffective assistance. You often have the first but not the latter.
Durbin: Do you feel there was ineffective assistance in the case of Williams v. Jones, in which Gorsuch dissented?
Gorsuch: I don't recall what I said . . .
Durbin: The facts on ineffective assistance were clear. Was there prejudice? Yes -- a choice between a plea deal or life in prison? [Incredulous.]
Gorsuch: This gentleman had one.
Durbin: That's not the point.
Gorsuch: That was the question.
Durbin: The Supreme Court clearly decided that you were wrong.
Gorsuch: It was 5-4 decision.
Durbin is finished. Next up: Senator John Cornyn of Texas.
Cornyn: How are you doing?
Cornyn: I hope you really will take a look at cameras in the courtroom. A discreetly placed camera would serve a similar educational role and would be enlightening to many. They may find out how boring some of the cases are.
Cornyn: you have participated in 2700 decisions. How many have you been asked about?
Cornyn: We are talking about less than five cases. [Not sure that's actually correct.]
Cornyn: You discussed what the Supreme Court has said about your work, and it's pretty darned good.
Cornyn: Let's talk about today's decision in Endrew F. v. Douglas County School District. You haven't had a chance to read it yet?
Gorsuch: It was handed to me on the way to the bathroom.
If people are going to cherrypick decisions, says Cornyn, when Supreme Court has found no fault with them, strikes me as an indictment of the whole federal judicial system.
Cornyn: If Congress had passed a new law in the IDEA case in the interim, would you have followed it?
Cornyn-- Don't blame judges, let Congress change the law
Cornyn-- Sen. Feinstein made a suggestion that based on an originalist orientation, you would say that 14th amendment applies to men and not to women, was that the question?
Gorsuch-- that was not exactly the question
Cornyn-- When you were a practicing lawyer, or even when you're a judge, people talk about legislative history as though it will provide answers to the questions. Scalia was critical of the use of leg history, or misuse, where statutes were ambiguous
When judges use leg history to find a way to confirm maybe even their own bias or outcome in a case, Scalia was telling us that is dangerous territory.
Cornyn quoting Scalia on legislative history
Cornyn-- would you offer us your views on the appropriate use of legislative history and how the court should review legislation passed by COngress where there is some perceived ambiguity
Gorsuch-- a good judge considers all arguments, read the briefs. There are more or less persuasive arguments to be made. I don't believe it is my job to tell people how to argue their own cases
I would say that it is well known, and i think appropriately so, the law that governs is what this body passes and the President signs. That's all the law, nothing more nothing less, everything else stitched around it is not law