Senator Lee: A number of my colleagues have expressed concern about maintaining the credibility of the judiciary.
Lee discussing the Trump comments about the judiciary
He is also criticizing Dems for calling SCOTUS "an organ of the Republican Party"
Lee- There is no good reason to make a comment like this. I also find it interesting that in the first two days of this hearing alone, we have heard the independence of Judge Gorsuch and SCOTUS attacked many times
Lee-- We ought to identify disagreement, rather than impugning the character of jurists
I think it's time for the American people to expect more of us when we speak about the Fed Judiciary
We have an independent federal judiciary and it needs to be respecte
d as such-- Lee
Lee: Calls criticism of federal judiciary misguided. Founders put together a system designed to diffuse power among people, avoid accumulation of too much power in one hand
Lee-- we have seen power reaccumulating. Power has been taken away from the American people in 2 ways. States to Washington and unelected bureaucrats
Lee-- it is no coincidence that during the last 70-80 years (time period Lee thinks power has been taken from the people), you've seen the accumulation of power along with wealth
Lee-- as we sit here today, 6/10 wealthiest counties are suburbs of DC
Lee-- the money is here because the power is here, concentrated in the hands of just a few elites
There are people willing to invest a whole lot of money into trying to influence government
This has a whole lot to do with why we've seen the rise of super PACS, people getting behind political causes, giving disproportionate power to the wealthy to influence government
Lee- that should be concerning. Symptom of underlying malady that we've allowed too much power to accumulate here
Few Americans would say they love Super PACS. But we ought to ask ourselves, why is it that they have such an incentive to do this.
Lee-- in a recent op-ed in WashPo, two former colleagues, about the issue of judicial independence. Have you seen the op-ed?
GOrsuch-- I'm aware of it
Lee-- if you were to make a commitment today as to how you might rule on a certain issue or type of case, and if that issue were to subsequently come before SCOTUS and you have been confirmed, isn't it likely that a litigant could file a motion requested your recusal?
Gorsuch-- yes. Thanks Judges Tacha and Henry
Gorsuch-- I would have to face the litigant asking how can you be fair on my case when you've already opined on this issue in the Senate
Lee-- if such a motion were to come forward, that wouldn't be frivolous
Gorsuch-- yes. Doing so would also hurt the independent judiciary. It would be like a campaign promise. The precedence in this area is strong-- names recent judges who declined to offer hints or previews
Lee-- if motion for recusal is granted, could create mischief, suggests some might deliberately ask questions that would result in your non-participation in certain cases
Gorsuch-- I should hope that is never any person's motive
Lee-- I'm not suggesting that it is anyone's motive in this case, but it could become one
Lee-- Longhorn Services Company case. I went back and looked. Longhorn, company involved, prepares wells for fracking
OSHA came and cited the
Company won on one claim, lost on another.
Lee-- Misguided to use this case to suggest that this means you will rule for the big guy
reason 1-- Federal gov is the biggest guy
Reason 2- there were two issues, only one in which the business entity prevailed
Senator Klobuchar talking about children with disabilities.
Klobuchar: I know that you are a judge and must make decisions. I have tried to stay away from asking how you will decide a certain case, but I am asking about your philosophy.
Klobuchar: The Supreme Court this morning uanimously rejected your standard for the amount of benefit that must be offered to children with disabilities.
Klobuchar: Roberts specifically called out your standard in his opinion.
Klobuchar: You said you decided it based on existing precedent in your circuit.
Gorsuch: Over the lunch break, I read the opinion.
She said nine justices disagreed with him, but of course it's only eight.
Gorsuch: A holding is precedent, but a holding is different than dicta. You wrote the decision yourself; the decision on which you relied was in a paragraph along with some other de minimis standard.
Sorry, that was Klobuchar. Klobuchar: you said that the case was what you relied on, but it is dicta in that case.
Gorsuch: I'd have to go back and look at it, but no I wouldn't agree. I recall that 10th Circuit precedent was very clear.