Cruz: Did the founding fathers anticipate that the Constitution might need updating and did they create a mechanism to do this?
Gorsuch: Yes, by amending the constitution. Has been employed from time to time.
Cruz: And it has worked quite well, I might note.
Cruz wants to talk about the IDEA decision too.
Cruz: Endrew F. originated in the 10th Circuit, but it wasn't your case.
Cruz: My Democratic colleagues have demanded that Gorsuch follow precedent. That's what he did here.
Cruz is now reading the letter of support from lawyers who practice before the Court. Also wants to enter an op-ed from former 10th Circuit judge Michael McConnell.
Cruz entering various letters supporting Gorsuch into the record
Cruz on McConnell op-ed: "kind of justice Americans of all political stripes" should want on the Court. Also an article from the WSJ describing Gorsuch's defense of religious freedom.
And now Cruz is done. Seven minutes early. Al Franken, who is next, offers to use that time.
Franken: I asked you if you had read the investigative series on the use of forced arbitration. Were you able to do so?
Franken: I don't think that most Americans realize that when they sign up for cable TV or cell phone or nursing home contract, they give up their constitutional right to go to court. Forced arbitration clauses restrict Americans' access to justice.
Franken: Businesses use these clauses to force individuals into a privatized justice system.
Franken: In a series of decisions, the Roberts Court effectively reshaped the Federal Arbitration Act into a "permission slip" for businesses to opt out of court system.
Franken: A few years ago my staff heard the story of an elderly man who died of dehydration in a nursing home, family had to go to arbitration for wrongful death claim.
Franken: Fox News tried to force former anchor Gretchen Carlson into arbitration when she sued her former boss for sexual harassment.
Franken, after long wind-up: What was your reaction to the series?
Gorsuch: It made me think about a little bit of history. Arbitration used to be disfavored, b/c they thought everyone should go to trial.
[Franken corrects Gorsuch on when the Federal Arbitration Act was passed. Says it was 1924, not 1925.]
Gorsuch: Congress expressed a preference that people should arbitrate.
Franken: But that was really conceived as two equal parties.
Gorsuch: If Congress doesn't like the FAA, it can change it.
Franken: Are there any circumstances in which you believe the mandatory arbitration clause should not be enforced?
Franken: Here's an example of effect on Minnesota soldier deployed to Camp Anaconda in Iraq.
Franken says he has visited camp four times. I go there and tell a few jokes and I leave quickly.
Franken: Nickname is Camp Mortarconda because it gets hit so often. Service member found out house had been sold because mortgage lender had falsified paperwork.
Franken: Can you guess who bought it when bank foreclosed?
Gorsuch: yes, b/c you have told me before. The bank.
Franken: Soldier tried to file a class action on behalf of other soldiers whose homes had been subjected to foreclosure, but couldn't.
Franken: This is a case where we know the law was violated. To add insult to injury, not only was his home foreclosed on while he was overseas, but he lost his constitutional right to jury trial. Was this fair?
Gorsuch: I am a big believer in the Seventh Amendment and jury trials. Have worked with my colleagues to make litigation cheaper, faster, and more accessible.
Franken: When do the principles of equity and fairness apply? [He is really saying: If this isn't enough, what is?]
Gorsuch points to text of the Act. Did the parties agree to arbitrate?
Franken: We talked about it.
Gorsuch: If you ask me the question, I have to give you the answer.
Gorsuch: If I were the lawyer, I'd argue it was unconscionable.
Franken: Don't you think this is unconscionable?
Gorsuch: I'd have to decide. I'd also ask Congress to revisit the bill.