Marshall: Originalism could get rid of one-person, one-vote; Brown, the Air Force; protections of women
Marshall: This suggests that originalists know in their hearts that originalism is at odds with who we are as a nation and that originalism can be used to reach certain results. Originalism is a doctrine of false promises.
Marshall: Text and history are important, but not controlling.
Tim Meyer is up now, starts again on promoting Gorsuch's character
Meyer is a former clerk himself
We already heard from one former clerk earlier today as well
Meyer: I could not have hoped for a better mentor than Judge Gorsuch.
Meyer: I didn't really learn to write until I worked for the judge.
Meyer: Even non-lawyers, the judge taught us, should be able to understand the case and why it came out as it did
Meyer: The written word is the primary medium through which judges communicate
Meyer: Gorsuch insisted that each petition read a written decision -- although most judges often summarily dismiss indigent petitions
Meyer: I looked at the Endrew F opinion. The court admitted that the "more than de minimis" standard actually comes from the SCOTUS.
Sandy Phillips, a registered Republican, gun-owner, and Texan -- also a mother who lost a child in the Aurora shooting.
Phillips is now citing gun violence statistics.
Phillips: I use the word "slaughtered" because the killer used a weapon produced by the military for use on a battlefield. He purchased this over the internet without even showing his driver's license.
Phillips: When we sued, the case was thrown out under a gun-lobby backed standard.
Phillips was just describing with considerable details the very steps before, during, and right after the Aurora shooting. The room was entirely silent. Every reporter had stopped typing away.
A third former law clerk now up, Jamil Jaffer
Jaffer: The kind of judge that Ms. Phillips would want on the bench
Jaffer: He's a judge's judge who does not rule based on his own feelings
Jaffer: He cares deeply about people -- family, friends, the parties before him
Jaffer is now describing cases in which Gorsuch ruled "for the little guy"
This question -- Gorsuch ruling for the "big guy" or the "little guy" -- has been present throughout the hearing.
Jaffer: In case after case after case, he has been fair. You've heard about a very small number of cases in which he did not rule for a worker. But that's the minority.
Coons up first, to Warbelow: Gorsuch repeatedly said he respects precedent. Can originalism protect the freedoms the SCOTUS has now recognized for LGBTQ individuals under due process clause of 14th A?
Warbelow: It would press the pause button at a critical time.
Warbelow; LGBTQ individuals strangers to law in 18th c. Under originalism, that could always be the place
Warbelow: The role of the court is to recognize how minorities are disadvantaged by the tyranny of the majority.
Coons to Miller: Lots of promises in campaigns by Trump about whom he might nominate, with allusions to Roe v. Wade. In what ways could the court limit access to reproductive care without overturning Roe?
Miller: I'm concerned about his ability to put aside his beliefs and rule in a fair-minded way. Even with Roe being stable, there are lots of ways to restrict care, eg, waiting times. This means a right exists on paper, but without actual access.
Coons: What about courts?
Miller: In WWH v. Hellerstedt, we were able to show that the legislatures went too far.
Hatch up now, to Smith (from Becket): Thank you for your work defending on our first freedom, religious freedom.
Hatch: In your practice, the most frequent use of RFRA and RLUIPA is not for corporations, but individuals. First, do any of Gorsuch's decisions go beyond interpreting statutes enacted them? Second, how critical is it to faithfully interpret and apply statute like these, even when controversial?
Smith: First, I've looked at Gorsuch's opinions in which he has interpreted RFRA and RLUIPA. HIs jurisprudence very clearly shows that he understands the limits of these statutes and the balancing tests Congress put into them. He has found for and against the religious parties.
Hobby Lobby and Little Sisters showed that there actually was no conflict between religious freedom and government interests.
Smith: Gorsuch once thrown out an insincere creation of church to cover drug scheme.
Smith: Gorsuch has forced government to really prove its case when making burdens, but that he has also applied tests to religious litigants as well
Smith: Many of our clients are religious minorities -- now she is discussing case in which government went undercover to get precious eagle feathers from Native Americans
Smith: Under case involved accommodation by Army for beard and turban for a Sikh man
Franken: Thank you, Ms. Phillips, for your testimony. [Ms. Phillips notes that the gentleman next to her, Jaffer, does not speak for her or her daughter; he had said Gorsuch is the type of judge she should want.]
Franken now turns to Clarke about Shelby County.
Franken: I'm not sure people appreciate just how quickly some of the states previously covered by preclearance reacted.
Franken: N.C. legislators had already teed up an ID bill and pushed for it within hours of the decision. [Franken outlines more of the fast-paced moves to passage of this bill.]