Tacha: Because he would not bring those to cases
Franken: This is what bothers me. We spent three days in which he said he did not bring personal convictions to cases, they don't matter. But now, from someone endorsing him, you are saying they do matter.
Franken: This is what I worry about, that we were not allowed to hear any personal convictions
Franken seems to be taking good admissions of Tacha's admission of personal convictions in Gorsuch's concurrence (which she contrasted with his majority opinions)
Franken turns to Calamine -- how do you think he would have ruled on Friedrichs?
Calamine: TransAm opinion short but worth reading carefully. He's interested in re-writing law. Once you pay attention to this decision as a guide and the way he treats the workers' perspective -- including description of remaining in freezing truck as "unpleasant"
Calamine: He makes an analogy with an office computer, instead of freezing in a truck -- shows he looks at this from the boss's perspective
We're concerned about his ability to look at things from a worker's perspective
Franken: This was not about discomfort. He (the driver) had hypothermia and had fallen asleep. The way you freeze to death is that you fall asleep (he got a phone call). The choice was between possibly dying or driving off. This to me says a lot about the man's (presumably now Gorsuch) the man's judgment
Tacha: To the question of personal conviction -- each judge brings to law his or her own intellect, history -- for example, Gorsuch and I disagreed on a case, we read the law quite differently -- three judges appointed by Republican presidents disagreed
Tacha: I ultimately became convinced that I was wrong after SCOTUS reversed me 9-0, but a way to see different perspectives
Kennedy: In one of matters Jaffer mentioned, Obama continued the litigation and made the same argument
Kennedy turns Bressack, first question for her
Kennedy: What was it like being with the judge every day?
Bressack: He is an incredibly caring person, the characteristics of him as robotic miss him, he takes seriously his job and has great sympathy
Kennedy: What's in his heart?
Bressack: He's a very caring man, he takes seriously the choices we make in our lives
Kennedy is giving Bressack softball questions. "Did he ever decide a case on the basis of the litigants' wealth?" "No."
Kennedy: "Did he ever reach decisions that he did not seem to like but thought the law required?" "Absolutely."
Klobuchar turns to Perkins
With the senators coming and going, we are off the usual pattern of seniority that had been established earlier.
Perkins: We do feel vindicated by the recent SCOTUS decision
Perkins: Without an appropriate education, Luke was in a restrictive situation. He could only behave at home or the special education classroom. He lacked the tools to do with his struggles. Now he has a good life. He can interact with peers.
Klobuchar to Calamine: I questioned the nominee a lot of Gutierrez case, his concurrence to his own opinion on Chevron -- can you talk about the uncertainty this would create for safety in your industry?
Calamine: The rule that allows refusal of hazardous work is an agency interpretation of statutes. If court's will not follow Chevron deference, those rights -- which save lives -- could be stripped away
Klobuchar to Massimino: How should SCOTUS approach balance between national security and civil rights?
Massimino: We know from long experience that respect for human rights and dignity is the foundation for peace and security.
Massimino: Gorsuch said no man is above the law. That's important for rule of law. But we know from recent experience that it's not enough. When Bush administration pushed torture, it was already seen as illegal, but lawyers for administration decided the laws against torture allowed torture. So it's not enough to say that no man is above the law because views of the law are different
Massimino: When Gorsuch asked if it would ever be lawful for president to enact torture, he did not answer that question. This is important when we do have a president that asserts such powers
Massimino: I urge you to get clarity from the judge.
All Republican senators present have spoken, so we're sticking with Democrats for now.
Leahy to Jaffer: I asked Gorsuch whether First Amendment imposes a limit on president having religious litmus test to enter country. I meant that as a softball. Gorsuch said currently being litigated so couldn't answer.
Jaffer: This would not be allowed [asked by Leahy], "of course not"
Jaffer: I think the questions asked to Gorsuch were abstract. It's not enough to say no person is above the law. The dispute about torture was not a matter of some people arguing to follow the law, and others to resist the law. Everyone involved claimed to be following the law.
Leahy to Massimino: I'm concerned Gorsuch did not answer questions about his views for DOJ. Should we be concerned?
Massimino: I think you should. This was an important period of time for our democracy. The lawyers were actually in many respects more important than the law, because they were the ones trying to interpret what the law meant. Others were troubled by what was going on and tried to stop it. It does not appear that Gorsuch was one of them.
Leahy to Perkins: We found out yesterday that Gorsuch's application of the IDEA turned down by SCOTUS. What did you think when you heard this?
Perkins: I was very happy they reversed a trend to water down the standards for progress such that they were of minimal practical benefit
Perkins: I appreciated the Chief Justice's words -- "every child should have chance to reach objectives"
To Perkins, yesterday was a good day for your family
Hirono: IDEA is remedial legislation, which should be broadly interpreted to effect its purpose. Do you think Gorsuch had in fact done that?
Perkins: Absolutely not. He did the exact opposite. He took inappropriately narrow precedent and further restricted it.