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.
Gorsuch: A number of circuits have come to the same conclusion. Court took this case because there was a circuit split. That's what the Court does.
Klobuchar: I do understand that. She tries to interrupt.
Gorsuch keeps talking. Klobuchar: it was 9-0. [Although, as Molly points out, it was 8-0.]
That was me, but no worries.
Klobuchar is impatient. My position is that the case on which you say you relied was dicta; the Third Circuit case said "de minimis," but you added the word "merely."
Sorry, Mark! But a great catch nonetheless. The type is very small!
Klobuchar is using an analogy to a gas tank and the difference between "de minimis" and "merely de minimis."
Klobuchar: In some of the opinions we talked about yesterday, you did a separate concurrence. But you didn't here . . . .
Gorsuch: I have written for families under IDEA, I have written decisions against. In each case, it has been based on my assessment of the facts and the law.
Gorsuch: This was unanimous. To suggest that it is somehow out of the mainstream is wrong -- look at the other judges on my panel. One appointed by a Democrat president.
Klobuchar: They aren't up for Supreme Court justice. You are.
Klobuchar: We will disagree. [Gorsuch offers to explain.]
Klobuchar doesn't give him the opening. I have no other way to learn about your judicial philosophy.
In 2015, you wanted to revive the non-delegation doctrine, says Klobuchar. Means Congress can't delegate powers to agencies. Feels to me that you pick some types of cases to go broadly, but not in other kinds of cases. I am just trying to figure out what's going on.
Gorsuch: I always try to stick to the text. Sometimes the Tenth Circuit will adopt standards from other circuits.
Gorsuch: No need to reinvent the wheel.
Gorsuch: It is part of precedent. Judges are doing their level best to determine the law.
Klobuchar: Do you want to comment at all on the non-delegation doctrine?
Gorsuch: Yes. Case involved sex offender registration and notification act. Case gave the attorney general discretion to write the law. An odd place to delegate authority.
Klobuchar: Is there a way to get there without pulling out this doctrine that hasn't been used since the 1930s?
Gorsuch: It was a point raised by Ginsburg, among others.
Klobuchar: Let's return to originalism. You agree that text is not always taken literally -- e.g., we can have a woman president. But then we got to United States v. Virginia, re women at VMI. You say you can get to the same result through radical original meaning.
Klobuchar: What I thought was interesting there was that Ginsburg's opinion in VMI case had nothing to do with original public meaning. When you have to decide cases dealing with social issues, aren't you just relying on intervening decisions of non-originalist judges? Ginsburg is not an originalist . . . .
Gorsuch is slightly confused by the question. [He may not be the only one.] But says the answer is precedent. I am not writing on a blank slate.
Klobuchar: When you get to the highest court in the land, Judge Posner says you sometimes ground decisions in other factors, such as morals.
Gorsuch: Has not been my experiences. My experiences watching Justice White, Justice Kennedy, other justices -- doing their level best to apply the law.
Gorsuch: I will concede that there isn't a foreordained answer. But judges still looking only at legal materials, leaving the rest of the stuff behind.
Klobuchar: These decisions that we have talked about don't feel that way.
[Gorsuch is still looking very relaxed.]
Klobuchar: Code of conduct applies to every judge except the Supreme Court justices. So if you are confirmed, need to be as transparent as possible, which includes cameras in the courtroom and code of conduct.
Senator Ted Cruz up next. Congratulates Gorsuch on making it through "the gauntlet" with "flying colors."
Cruz: We have heard my Democratic colleagues criticize attacks on the judiciary.
Cruz: What position do you hold?
Gorsuch: I am a judge on the 10th Circuit.
Cruz is quoting Nancy Pelosi (also read by Lindsey Graham, I believe) criticizing Gorsuch.
Now Cruz is reading statements by various Democratic senators.
Gorsuch just appears to have had his eyes closed for a long stretch.
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