Transcripts For CSPAN2 Final Day Of Gorsuch Confirmation Hearing Focuses On Witness Testimomny 20170327

[inaudible conversations] good morning to everybody who is here, and especially those who are prepared for testimony today. We welcome everybody on what i think will be the final day of judge gorsuch confirmation hearing. Weve already heard todays of impressive testimony from the nominee. I think is shown great command of the law, and i think he has showed a humility with his humble delivery, and i think people learned a lot about not only our political system but our judicial system with whats going on the last three days. Today we will hear from a number of outside witnesses. We will they are from a number of distinguished witnesses, bot in support and in opposition to the nominee. They will all speak to then qualifications to be a Supreme Court justice. Mi i look forward to hearing from all the witnesses today. Let me modify this a little bit because im going to spend maybe 15 minutes at the agriculture community, because the nominee for secretary of agriculture is before the committee and im a member of that committee and i will have somebody else chair. That wont stop the business going on. So thats the only time i should probably be away. Each of our witnesses will have five minutes to make an Opening Statement and then we will proceed to questionings if members have, have questions of the members. We will obviously accommodate that. Now im going no. Do you have opening comments . Im sorry. Im so i do not, mr. Chair. Will go to our first panel who will feature two representatives of the americanl bar association. You may come to the table. Ill start over again. With the Standing Committee on the federal judiciary, Nancy Scott Degan and Shannon Edwards. Nancy deacon is the chair of the American Bar Association Standing Committee on the federal judiciary, and Shannon Edwards is the tenth circuit representative on the American Bar Association standingn the committee of the federal judiciary. Bass and serve as a lead evaluator on the Standing Committees investigation of judge gorsuch. I would like to swear you, if you would let me. I dont know whether we have to stand. I guess we just do it naturally. Do you swear that the testimony you are about to give before this committee will be the truth, the whole truth, nothing but the truth, so help you godra corrects each answered you affirmatively. We would now have you give youre statement, please. H [inaudible] thank you very much. Its a privilege to be here. I am nancy degan from new orleans, and i am very privileged to chair the American Bar Associations Standing Committee on the federal judiciary. And as you indicated, sen senatr cohen joined today by Shannon Edwards from Oklahoma City who is our tenth circuit representative and was the lead evaluator on the Standing Committees investigation of judge gorsuch. The Standing Committee has conducted its independent and comprehensive evaluations of the professional qualifications to the federal bench for the last 60 years plus. The 15 distinguished lawyers who make up our committee come from across the country representing every federal judiciary circuit. They annually volunteer on a pro bono basis hundreds of hours to evaluate nominees to the federal bench. And we focus only on a nominees integrity, professional confidence operatives and judicial temperament. We dont consider their political affiliation,ce. Philosophy or ideology and we do not solicit any information from any nominee with regard to how he might vote on a particular issue or matter that may come before the court. The Standing Committees evaluation of a nomination to the Supreme Court is based upon the premise that a justice must prssess exceptional professional qualifications. All 15 members of the Standing Committee participate in the evaluation of a Supreme Court nominee. Each Standing Committee member reaches out to a wide range of people within his or herer respected circuit who may have information regarding the nominees integrity, professional competence and judicial temperament. Additionally, Reading Groups of scholars and practitioners review the written work of the Supreme Court nominee and advise the Standing Committee of theird findings. The Reading Groups independently evaluate the nominees analytical ability, knowledge of the law, application of fax to law, expertise and harmonizing the body of law and the ability to communicate effectively. The academic Reading Groups thvolved in judge gorsuch evaluation were composed of experts in the fields from the faculties of the university of Pennsylvania Law School and thee Loyola College of law in new orleans. S. The practitioners Reading Group include nationally recognized lawyers who have argued before lae Supreme Court and serve as law clerks two justices on the Supreme Court. These three groups read all of judge gorsuchs published opinions and many of his other writings. During the evaluation of judge gorsuch the Standing Committee members contacted almost 5000 people nationwide to my knowledge of judge gorsuchs professional qualifications, anm these included judges, lawyers, academics and members of the general community. Circuit members then interviewed those who indicated that they had personal knowledge of judge gorsuch to the dealings with him as a judge, colleague, cocounsel, opposing counsel, teacher, Organization Member and even classmates. We followed judge gorsuchs career from his time at Preparatory School to his tenure on the tenth circuit. All interviews were conducted ie confidence to assure Accurate Information and candid assessment here finally, as we do with every evaluation, we conducted a personal interview with judge gorsuch. Ms. Edwards and i met with him on february 27 and question him on a wide variety of topics. After our comprehensive evaluation was complete, our findings were assembled into a detailed confidential written report which included the written report of the academic Reading Groups and the practitioners Reading Group. And this report was approximately 1000 pages long. Each member of the Standing Committee then study that final report and individually evaluated judge gorsuch using three possible rating categori categories, qualified, wellqualified, or not p qualified. To merit a Standing Committee rating of wellqualified, a Supreme Court nominee must be ac preeminent member of the legal profession, have outstanding legal ability, and exceptional breadth of experience, and meet the very highest standards of integrity, i or facial competen, and judicial temperament. The rating of wellqualified is reserved for those found to merit the committees strongest affirmative endorsement. Gest having examined judge gorsuch through this lens, the Standing Committee members unanimously coted that he deserved the wellqualified rating. On march 19 we submitted a written statement further explaining our process and ill rating, and we respectfully request that it be made a part of this committees official record. Thank you. Thank you. Ms. Edwards is not going to say anything is outright . We are pleased to answer any questions that the committee may have. I think i have a couple questions. They are somewhat repetitive of maybe some of the things that youve said, but id like to add that emphasis. But before i do a short statement, i would like to compliment anybody who serves on evaluating these judges at all levels, and probably at the level Supreme Court is much more difficult and elongated, as it probably should be, but i know david brown, des moines iowa who does this with a lot of judges and takes a real seriously. Yes, sir. When you visit with him about the work he does, you almost think its a fulltime job. Hes obviously got to go make money someplace else, so he must have some time to practice law. But he really seems to me like he puts a lot of time into it. Its an honor, sir. Sub for both of you i would come to let you of what you do. As you noted in your testimony, the American Bar Association awarded judge gorsuch its highest rating of wellqualified by unanimous vote. The statement explaining the rating states of this, and you said this already but let me repeat it, the rating of wellqualified is reserved for those found to merit the strongest affirmative endorsement. He in other words, a rating of wellqualified is not given lightly. We do agree with that . Absolutely. Now i just want to mention a few points from the report. Want first, the Standing Committee found that, quote, judge gorsuch enjoys an excellent reputation for integrity, and as a person of outstanding character, end of quote. In fact, one of his colleagues on the bench said, let me quote, i have known and interacted professionally with judge gorsuch since his appointment to the tenth Circuit Court of appeals. In my experience as a judge, i cannot identify a person more a qualified in every sense of the word to serve as an associate justice of the United States Supreme Court. Judge gorsuch would be an invaluable addition to the high court, end of quote. Second, the Committee Found that secojudges professional competence exceeds the high criteria reviewed by the committee. In fact, the Committee Report stated, given the breadth and diversity and strength of the feedback that we received from judges and lawyers of all political persuasions and from so many parts of the profession the committee would have beensoy hardpressed to come to any conclusion other than judge gorsuch has demonstrated professional competence that is exceptionally outstanding. Time and again those with whom he has worked and those who have been involved in cases over which he has presided have applauded his intellect, thoughtful discernment is, andnd written clearly, end of quote. On the judicial temperament, the Committee Found that lawyers and judges alike overwhelmingly praised his judicial temperament. And finally on Judicial Independence the Committee Found, quote, that judge gorsuch believes strongly in the independence of the Judicial Branch of government, and we predict that he will be a strong but respectful voice in protecting it. And one person interviewed for the report stated, quote, in addition to his outstanding academic credentials and brilliant mind, judge gorsuch demeanor and written opinions during his tenure on the tenth circuit demonstrate that he believes unwaveringly in the law and Judicial Independence. In my opinion, he is exceptionally wellqualified to serve as a justice of the Supreme Court of the United States. I wholeheartedly agree with thee American Bar Associations assessment of judge gorsuch, and i one question, but before i do that i think we have two days of about 20 hours total that people had a chance if they were watching to view some of those things that you said about his belief in the rule of law and Judicial Independence. In fact, if theres any one thing that ever in answer to so many questions that somebody wanted either yes or no, what they really got is im going to follow the law, and i believe ig Judicial Independence and following precedent. Now, so i think being a little bit repetitive but this is my last question. Would you describe once again for the committee the scope of review that allowed you to come to these conclusions . And then ill go to senator feinstein. Yes, sir. To merit the Standing Committees rating of wellqualified we found that he was a preeminent member of a legal profession, that he has outstanding legal ability and exceptional breadth of experience, and that he needs the very highest standards of integrity, professional competence and judicial temperament. And we did this in connection with reaching out to those who had personal knowledge about judge gorsuchs integrity, professional competence, and judicial temperament. And we did that by interviewing many people who not only encountered him as a judge, but also as an opposing counsel, ass a cocounsel, as principal depute associate attorney general for the United States, as a private practitioner, as a law clerk for the Supreme Court, and the d. C. Circuit. It and through personal dealings with him, so the scope of our investigation was a deep and broad and involve all 15 members of our Standing Committee in b addition to those 26 professors from those to law schools, and the 14 very well recognized practitioners who have appeared before the United States Supreme Court and to present acted as law clerks. So that is the scope, senator. And as i said before, we do not give the wellqualified rating lightly. And i can assure you that every member of the Standing Committee reviewed intently than 997 pages that were compiled from the interview notes, to the analysis by the law professors and thee practitioners in order to each independently reached that rating on a unanimous basis. Senator cohen if i might add could you turn on your mic . You sure can add. I think for no other reason than all your relatives back home to me or something. [laughing] spend some of them are up pretty early. Mething. Our task was to cast a wide net and authority. So we contacted, make contact with over 5000 individuals. I personally contacted 344, and received comments from 82. So every one of the Committee Members did likewise, and thats what i report as 944 pages long. Now senator feinstein. Thanks very much, mr. Chairman. I want you to know that i very much respect what the american bar does in these events and ive read your reports now forct some 24 years, and very much appreciate your work. Hav let me ask you a question and then i just want to make a comment. Did you review the documents that cover his performance at the department of justice . These are documents that were recently submitted to the committee. When we received our information from the department of justice on which we started our j analysis, what we call that pdq which is actually called the Senate Judiciary question, questionnaire, the responsive to that, we got those on cd rom and we got a stack of materials and there was a supplement. We did not receive the responses that were recently submitted to the committee. I did take a quick look at what that encompassed just from the description on the website of the Senate Judiciary committee and saw that it involved some 170,000 pages. And i sat in some of ms. Edwards and i sat in some of the hearings, and what some of the questions that the Committee Members asked of judge gorsuch, and it appeared from his answers that these materials were prepared in his role as a Principal Deputy associate attorney general, and that he in answering the questions indicated that he was acting as a lawyer. At one point i believe center to come he made asked him about some handwritten note and he said i dont have any independent recollection of that, but if i wrote it is because i got that from my client, he is client being the federal government. We did not have an opportunityty to review those materials. We would base our information on the personal knowledge of those who dealt with judge gorsuch, and if he was acting in his capacity as a lawyer to anyone, that may be protected by we are happy to review that if necessary in order to determine if we need to adjust the rating. But based on what i heard, i dont believe that it would change the opinion of the committee. Ar i appreciate that. And the documents i just want to clear, are not 150,000 pages. The documents im referring to are much smaller in number, maybe a stack like this. But what did indicate are some of his personal thinking on whay subjects of great concern, his namely torture. And in a way i regret i didnt ask more questions. I will do some written questions in that area. I happen to hold the view that q member of this government is held to a different standard than an attorney may be in lifet that if you think something is wrong, you have an obligation to do something about it. Not just say, well, my client wanted, my principal wanted this and so i did it. And we have too much of that in this area. But i also want you to know that i think the work you do is very fine. I read it with care. Let me just say one other thing, and im going to do this because for many of us what has happened this past year has been very has painful. And you have also done an evaluation of judge Merrick Garland, was not given the privilege even of a committee hearing. So i would just like to read some excerpts from your report on him. T his integrity is off the scales page five. Carlin is the best there is. Hes the finest judge ive ever met. Theres no one who is his peer, page five. F judge garland has no weaknesses, page six. He may be the perfect human being, page six. He is unnaturally [laughing] is he is unnaturally blessed with brilliance. Things come to them quickly, page nine. In my opinion there is no better federal judge then chief judge garland, page ten. His integrity is flawless, his competence terrific, page 16. Rl i know no one bar none with more integrity and more commitment to truthfulness and accuracy than judge garland, page 17. The never has been a better candidate than chief judge garland, page 18. I never heard anyone say anything bad about judge h garland, page 18. I read this simply to dispel anybodys thinking that this man was not worthy of thisybody committees hearing. So thank you very much for the work that you have done and its very much appreciated. Thank you, senator. Thanks, mr. Chairman. And i think of judge gorsuch made very clear yesterday and the day before his feelings about the competency of garland as well. The other thing is, maybe when i was talking about david brown, i was trying to complement you all without saying we appreciate your work very much. Y i know you work hard at this, but i know had david brown does it come and i assume ive got some understanding of what you go through, although ive never done it and will never have an opportunity to do it. Ss im going to look right here and then left because anybody on our side that wants to be recognized . Senator graham. Anybody else wants to be recognized on our side okay, but ill get a democrat before you come back to you. Thank you both very much for the work you do. Is it fair to say that the people you called with th a grop beyond the Federalist Society . Yes. I dont think we knew if they were in the Federalist Society are not. I dont know how many members of their are. O would you say he is a mainstream judge . Mited. Well, senator, it depends on what you mean by mainstream. We believe that he meets and exceeds the highest standards oy integrity, professional competence and judicial temperament. T. So if that is mainstream, the answer is yes. Ce lets put it this way. If theres a stream, hes on the quality end of the stream, right . He station in it. There we go. E are you from South Carolina . Im from oklahoma. Close enough. Na . [laughing]g] would you say hes a reasonable judge . Absolutely. Based on the feedback we received. Would you say hes lived a t good life as a person . I will let you answer that. My answer is yes. Did you hear his testimony that he believed that treatmentu act outlawed waterboarding . I cant say that we didnt actually hear that, senator spin i remember hearing that. Okay. So i just want to thank you for the service you provide to theem committee into the country, and i hope people are listening to your evaluation as to judge garland. Avenue said is absolutely true, and i will talk more about the way the process and the senate works but thank you both. You did the committee and the country a great service. Thank you. Its been an honor. Im looking to my left and i didnt say im looking at the left. Anybody over here have a question . I dont. Okay. Then ill go back to senator kennedy. Well, i thought you didnt raise your hand speed and i want to say one thing. Then its your turnspin i will defer to senator hatch. I just want to thank you for the work that you have done. I agree that Merrick Garland is a wonderful person, a very good judge. You i went using personally. I helped him to get through that 19 years ago maybe more than 19 years ago. And that was a problem, no question about it. But now that that is been is resolved, do you see any reason why we should not totally support judge gorsuch . Well, the aba has given judge gorsuch its highest rating, and so that is the most affirmative endorsement for him as we can. So n no, sir. Thats hard to get. I appreciate the really hard work that you folks do, and its a very meaningful to the committee at this time. Thank you. Thank you. Senator blumenthal . No questions. Okay. Now senator kennedy. Thank you, mr. Chairman. Thank you, ms. Deacon and ms. Edwards for all your hard work. I know how exhaustive your analysis is. How many grades are there, the Different Levels of qualification . Three. Qualified, not qualified and wellqualified spirit so basically a, b and f . I will add that some of the people we talked to ask us if there was an extremely wellqualified spirit really . And a . And judge gorsuch received an a . He did. Wellqualified. And how many people contribute to this evaluation . The 15 Committee Members will participate and in addition we had to academic reading teams read all this publish opinions and other writings, and that was about 26 additional lawyers, academics who are experts inddia their fields come in the field that the review. So it was a Securities Law case, a security law expert read those opinions. And additionally, practitioners which include those who regularly appear before the Supreme Court, that was 14 additional pixelated at all that up, if my math is right on with it thats about 55 people or Something Like that. And all very distinguished lawyers and academics. These 55 attorneys are that all republicans . No, sir. Are the all democrats . No, sir. Varied. Big firms, small firms, democrats, republicans. Varied, in fact, we dont even, we dont get into political affiliation, senator. Good for you. Is it a gender Diverse Group . Very gender diverse. Gen thdiverse, every kind of diverse you can imagine. Okay. And it is racially diverse . Yes, sir. You probably dont even ask but in terms of religion, is your sense that it is a diverse . Our sense is but we dont ask that question. Okay. And this group together gave judge gorsuch and a time wellqualified . Yes, sir. All right. And some as to give him and a ,e am i right . Yes. Well, i just want to say for the record, i dont know, ms. Edwards, i just had the pleasure of meeting you today. My dad was from oklahoma. I love oklahoma. Thank you. But i know ms. Degan, and she is one of the most prominent lawyers in louisiana, mr. Chairman. She is an graduate of university of new orleans. Shes an honors graduate of loyola. Shes a former adjunct professor at loyola. She practices law with baker donaldson, one of the premier law firms not just in louisiana but in the world. And i trust her judgment. My experience with ms. Degan has been that she calls a like she sees it. She is joined to today, id be remiss if i didnt recognize, ill call him her lesser half. Lesser half but still c substantial. Half mr. Sid deacon who is another very prominent attorney. He went to tulane law school. He founded his own law firm and he is here today volunteering his time. I know them both well and i trust their judgment. They tell me that judge gorsuch is the best, you can take it to the bank. That you can take it home to mama because its true. And i thank you. Thank you, senator. E i believe that thats the last of the questioning for the committee, for the American Bar Association and for the country. We thank all of the people who participated and will continue to participate in this that you have reported. Thank you very much. Thank you. We will take 30 seconds for staff to give the names of the new people. And i would ask the new people to come and stand behind their chair, and then ill swear you come before you sit down, im going to go ahead and start the introduction anyway. The next panel will be judget Deanell Reece tacha, ms. Massimino, judge henry, jameel jaffer, john kane, mr. Perkins, Leah Bressack and if i pronounce anybodys name wrong, correct me when you testified. I think, i dont think we should im sorry. I thought maybe you were moving properly now. I thought maybe you work here. Okay. You are obviously here, yeah. Okay. Do you swear that the test when you are about to give before this committee will be the truth, the whole truth, and nothing but the truth, so help you god . Ive seen a positive response. So i think, please sit. We never get everybody to honor the fiveminute rule, and i dont expect you to stop in theg middle of a syllable or anything like that, but if you see the red light come on and you can summarize and about 30 seconds or so, it would be very much appreciated because im sure that there will be some questions on some of you, and so we want to move things along but i think im going to do it in the way you seated there from my left to my right, so would you start out, judge tacha . A im pleased to do so. And good morning to the distinguished members of this committee. Its a privilege to appear today to support the nomination of myi former colleague and my friend, neil gorsuch, as an associate justice of the United States Supreme Court. L gorsuc i served with judge gorsuch on United States court of appeals with the tenth circuit and i was privileged actually to be chief judge of that circuit when judge gorsuch was appointed in 2006. In my brief time today i will touch on three aspects of judge gorsuchs qualifications. All of which i consider very, very important for judges at every level in the judiciary. First, judge gorsuch the judge. Judge gorsuch brings to the bench a powerful powerfule gors intellect, combined with a probing an analytical approach to every issue. Int he brings each case the strong commitment to limit his analysis to that case. Its a fax, the records, and the law cited and applicable. He does not use his judicial t role as a vehicle for anything s other than deciding the case before him. A the quote case or controversy requirement for jurisdiction is for judge gorsuch i guiding principle for his judicial role. He is a student of constitutional structure and of the federalist papers, and ithe takes very, very seriously the appropriate roles assigned each of the three branches of government. He is an elegant and accessible writer. In my judicial writing classes i assigned some of his opinions to demonstrate the importance of narrative to every case before the courts. His jurisprudence is informed by textualism, a regionalism andur precedent, but not in a formalistic or rigid way. Only as the lenses through which to seek an appropriate resolution of an issue or a case. Judge gorsuch is a case by case by case judge whose dedication is deserving of litigants and the third branch of government. Second, judge gorsuch the colleague. On a multijudge Appellate Court it is my view that one of the most important characteristics of an effective and efficient court is the level of collegiality among its members. This is not at all about getting along to get along. It is about improving the quality of the work of that court by careful and respectful listening of bearing and divergent views. Anticipatanticipated engaging at internal debate about procedurei and cases, and factoring in and listening to a diverse views of each of the other judges. Judge gorsuch is such a judge. His attention to the views of his colleagues informs his work. He has an acute sense for identifying those circumstancess where reaching consensus is the highest value. And on the other hand, those decision points where personal convention and reason dictate individual judgment and independent decisionmaking conviction. Judge gorsuch believes in the court as an organic and flourishing entity, with the views, the background and the perspective of all the judges on the court are important to the quality of his work. To finally, judge gorsuch the person. Neil gorsuch is my friend. He has been from the day he took his role as my colleague in 2006. 2006. Th i want to say that again and say it advisedly. Because it means something that despite the many differences in our life experience, and our backgrounds, in our educationin and in our interests, judge gorsuch immediately and always affirmed me both as a person and as a colleague. I have watched him with all kinds of people in the courthouse, in social settings, and in the roughandtumble of judicial travel and duties. His unfailingly kind. He is thoughtful and he is empathetic to all people. His is the kind of dignity that reflects the dignity he accords to all people. Judge gorsuch lives according to his values. Pe for him, faith, family, community, nation, and hisfa beloved colorado define who he is. He is for me the Gold Standard in Public Service. So for all these reasons i urged the committee and the full senate to confirm judge neil gorsuch as an associate justice of the United States Supreme Court. Perfect fit. Thank you, mr. Chairman and Ranking Member feinstein, and members of the committee. That honor to be a today as you consider the nomination of judgy neil gorsuch. I speak on behalf of human rights first, an independent Nonpartisan Organization dedicated to advancing American Leadership on human rights. My folks and it is on the dangers that arise when executive branch cleans unfettered authority in the name of National Security. When president s override execu constitutionally mandated checks on their power, they threatenwh fundamental rights, the rule of law and democratic ideals. They also undermine National Security. This is not a hypothetical concern. Indeed now would be an especially palestine to promote to the Supreme Court a judge wouldnt stand up against president ial power grabs. The president has advocated torture and other war crimes banning people because of their faith, debarring refugees without due process and is ine all of this largely while bypassing congress and expressing contempt for judges r and the judiciary itself. So the key question you should ask a judge gorsuch is this. How would you respond in the face of what may be unprecedented threats to basic rights, separation of powers and the rule of law cracks in ourd nearly 40 years, human rights o first has never opposed a judicial nominee and we do not do so today. Nor do we question judges, judge gorsuch credentials. S. Im here simply because his record raises concern that i think you should address before moving forward with his nomination. The stakes are too high to get h this wrong. Our concerns arise from the Public Record of judge gorsuch time at the Justice Department. They fall into three areas, subversion of congressional authority, restricting judicial review, and torture. Bv on all through these issues judge gorsuch is not a blank slate. As a clinical point of the Justice Department he was drunkh when involved in defending the Bush Administrations claim that the president has extraordinaryy power to disregard laws in the name of National Security and that the judiciary either cannot these claims constitute an assault on the integrity of our constitutional order. Not surprisingly there were rejected by the courts. With respect to judge gorsuchs role on congressional authorityi after photographs surfaced in 2000 for showing horrific abuses at abu ghraib, send it in the cane spearheaded act, strengthening the ban on torture which passed the senate with 90 votes. Judge gorsuch pushed for a president ial signing statements saying the president to disregard that law to the extent it conflicted with hisreside authority. Judge gorsuch argued the law was quote, this red as essentially codifying existing interrogation policies, policies that include waterboarding and other forms of torture and abuse by congress specifically intended to prohibit. Second nonjudicial review, judge gorsuch repeal he soughtht legislation that would strip courts of haitis jurisdiction including for people who were tortured or unlawfully detained. He also played a lead role in the litigation strategy in the the president has the power to disregard the Geneva Conventions and that the court are powerless to review that decision. The Supreme Court ultimate rejected these efforts to restrict the right of habeas corpus and deny detainees thee protections of the Geneva Convention in those cases. Third, torture and standing up for human dignity. Some people including political appointees in the Bush Administration like tha and genl counsel of the navy alberto mora, were horrified when you discover that our government had a policy of torturing prisoners and to try to stop it. Judge gorsuch by contrast seems to a devoted his energies to defending it. These were the defining legal debates of our time, and judgede gorsuch was on the wrong side of them. Policies he promoted and defended by literate american ideals and afflicted unnecessary suffering, and he didnt strengthen our security. On the contrary these policieser compromised americas globaln standing, alienated committees who support our countries need to fight terrorism and had our enemies at pr victory. Given this record is essential it you probe judge gorsuchs use on executive power, on torture at the appropriate roles for congress and the judiciary as coequal branches of government. Did his actions at just reflect his legal philosophy or his desire to be a team player . Ns giddy discrete positions of the administration on torture, and if he did why didnt he follow the example of others and speakp out . The senate must get to the bottom of this question because sooner or later, and with his administration is likely to be sooner, the Supreme Court will be called on to protect fundamental rights, Judicial Independence and separation of powers from a president who treats the rule of law as an annoyance rather than the foundation of our democracy. Tr thank you. Judge henry . Thank you, senator hatch, Ranking Member feinstein, member of the committee. Its a pleasure and honor to be here today and i think this committee for its Wonderful Service to the third branch over the years. Im robert had become president and ceo of up on the city university, a former state legislator and a former attorney general of the state of oklahoma. And a former chief judge at net states court of appeals for the tenth circuit. Te i held back or position ofates 19942010, and the last four years of my service i was a colleague of judge gorsuch. Based on my personal experience working with him and my maintained contact to circuit conferences, correspondence and judicial gatherings ive had today to speak in support of his nomination. In federalist 78, and in this one that would be alexander hamilton, describe the nature and virtues of the federal judiciary. As the least Dangerous Branch would have to either sword nor prayers care would have to be taken to protect its vital independence. Permanency in office would be required both to promote independence and to allow for the mastery of the voluminous strict rules and precedents, in hamiltons words. The granting of purpose and importance of integrity in the long and laborious study required the mass of the dutyra scrap lead hamilton whose startr greatly has ascended up late, to observe, that can be but you will have sufficient skill to qualify for this nation of the judge because of why the committee is of course gathered today. O fortunately you have before you a candidate that i believe are Judicial Branches architect hamilton would warmly embrace, and not just because they both attended lumbee. As one who served with the neil gorsuch, decided cases with them, travel and dined with him, discuss our Families Together including the menagerie is his daughter segmenting over the years, agreed and discrete with him i can attest to his truly remarkable intellect, his often demonstrate integrity, his mastery of hamiltons rules and precedents, and is fine judicial temperament and collegiality are i believe the subject of intellect speaks for itself and needs a summary mentioned in his augustdegree from columbia and harvard law school, is marshall scholarship to oxford, andd operations with Justice Stevens brier, the result and a doctorate of philosophy degree at his corpus of work which includes Outstanding Service awards from the state department, from the treatment foundation, scholarly writings, some 900 opinions that lawyers have described as straightforward, learned, well reasoned. Deserving special mention is the love judicial precedents. This book which judge gorsuch joined with bryan garner, and several distinguished circuit judges quite diverse backgrounds to develop a remarkable work of legal scholarship. All of these eminent judicial coauthors of different political and occupational background produce a single volume written with a single voice and no signed section. As to integrity, ive never found his integrity to be in question. His career has subjected himself to various reviews of his Public Service that he served as a law clerk to two Supreme Court justices, the late Justice Byron white, highly esteemed judicial figure in the tenth circuit with the courthouse is named for him, and that just because of his football records by the way, as was clicked a justice kennedy. This committee has reviewed him before as a circuit judge. All of this speaks to his mastery of the law. L of he has some unique qualifications though it in the tenth circuit when a lot of cases from the Great American west. We have our cases involving our nativnative american nations, cs involving land and water that important. His experience in these areas will be helpful to the court. I will skip judicial temperament as discussed in my remarks. I am running low on time and want to talk about one thing that is especially important to me when judge gorsuch and judge were in santa fe hearing cases one summit, they were very distressed by the quality of judicial, quality of legal representation of those charged with the most difficult cases that federal judges must deal with, kb is a Death Penalty cases. Because of that concern, and i have to say that most of the cases come from oklahoma, and r barbosa adequately doing the job. Judge gorsuch volunteered, they came to the circuit. They created seminars, they brought the circuit and to hear cases. They met with his lawyers and helped them, trained them and it had, one lawyer defense lawyer said instrumental affect in improving the efficacy of this most important area. Thank you. Thank you judge. Mr. Jaffer . Chairman grassley, rankingea member feinstein, members of the committee. Thank you for inviting me to testify. I dont think this committee has any task more important than the one its been engaged in thisas week. If judge gorsuch is confirmed he will likely play a key role in shaping american law and societi for two or three decades or more. I think its clear that judge gorsuch as a professional competence to serve on the court. Ri i agree with ms. Massiminono though that judge gorsuch service and the Budget Administration raises important questions about his views on executive power and the rule of the judiciary in this sphere of nations goody. At the time judge gorsuch served in the Justice Department, the Bush Administration was advancing extremely broad claims of executive power. In the service of unlawful policies relating toof surveillance, detention, military prosecution and interrogation. Judge gorsuch was closely associated with those claims. It would be a mistake to confirm him without ensuring that he will defend individual rights as willis of the authority of congress and the judiciary in the context of National Security. I want to recognize at the outset that judge gorsuch might approach issues relating to want executive power differently as an associate justice than he did as a Justice Department lawyer. At the Justice Department judge gorsuch was a lawyer with a client. He says he regarded himself as a scribe, or scrivener. With respect i would encourage the committee to bring a degree of skepticism to thatt characterization. E judge gorsuch sought out a highlevel position with the Justice Department in the fall of 2004, just seven just seven months after the publication of the abu ghraib photos and only five months after the Washington Post published one of the torture Programs Foundation documents. That was a memo written by the policy steady interrogation methods would be lawful unless theinflicted the kind of pain ordinarily associated with organ failure or death. It was a chilling document then and there remains an astonishing document today. Its also worth noting that judge gorsuch appears not to registered disagreement with any of the policies that he defended, the other officials did. Nor is there evidence he registered discomfort with any other broad arguments of the Justice Department advanced in support of those policies. Though again others did. The documents provided by the Justice Department suggest that judge gorsuch was comfortable with the policies and with the Bush Administrations defenses of them. It was a challenge is to the policies that troubled him. Senator durbin asked judge gorsuch about an email of which it criticizes lawyers who represented prisoners held at guantanamo. N i thought the answer that judge gorsuch gave to the question was a good one. He said that he regretted having sent the emai email and that te email was quote not his finest moment. I hope you give judge gorsuch and opportunity in his answers for the record to respond more fully to broader concerns relating to the position to advance at the Justice Department. Questions relating to executive power are presented especially sharply today. President trump has issued an executive order banning muslims from six countries from traveling to the United States. He said he will considerut prosecuting u. S. Citizens in the military commissions atai guantanamo. He has promised to intensify surveillance of minority communities inside the United States. If judge gorsuch is confirmed he will be called on to consider the lawfulness of some of those policies. R and his conclusions were far reaching implications for the lives of millions of americans and others, and on the relationship of United States and the rest of the world. So i urge you not to confirm him with a fully exploring his use of executive power. This should not be a partisan issue. We all know that the powers today may be of use tomorrow by a democratic one. The question of the committee should ask is whether judge gorsuch will safeguard individual rights in the separation of powers, whoever occupies the oval office. Thanks again for giving me the opportunity to testify. Thank you. Mr. Kane. Thank you, senator hatch and members of the committee. T i am the only trial judge that is appearing in these hearings. I would like to say, senator, i have no reason for you to remember this, but i appear before you 39 years ago, and i was, i was honored to be her then and im honored to be here now. We are honored to have you. Thank you. Judges are no different fromyou. Anybody else. Like you we have social, political and religious views, whether the product of culture and upbringing on the result of education, predilection or intellectual or philosophical pursuit. To do on the robe, however, is o surrender the freedom to act on those views so that justice may be served. The discipline of deciding irrespective of ones personal beliefs is the essence of judicial integrity. Ve being consciously aware of ones views and setting them aside the start of every case is no easy task, nor should it be. The question for any nominee is, as he or she have the discipline to do that . And decide each case according to the rule of law. I believe judge gorsuch does and his opinions prove it. Lonlong ago i gave up identifyig judges as liberal orntifyi conservative. Because those words seem to mean whatever the user wants. They have no common understanding and provoke no further analysis. However, one might pigeonhole either of us. The fact is judge gorsuch and i share a few of the same social, political or religious views. In evaluating fitness for the bench, the real question is, does the nominee embrace theat discipline of the robe . On to his or her opinions reflect any sort of ideological basis . Is the judge fair . Judge gorsuch is not a monk, but neither is he a missionary or an ideologue. I read a great many appellate opinions from Circuit Courts throughout the United States. To the extent that a judge can be judged by his opinions, the ones written by judge gorsuch tell me a great deal. His are clear, cogent, and mercifully to the point. I have been both affirmed and reversed by him, and each time i thought he was fair and right. He treats the parties in the trial judges rulings with respect. He does not ridicule them or take cheap shots. Nor does he insult or demean other judges who might disagrees with him. His writing is filled with gracn and wit, but does he know the f difference between his personal views and those of the court . Judge gorsuch is the only judge of whom i am aware was written both majority opinions and concurring opinions in the same case. The majority opinions where the opinions of the threejudge court, the concurring opinions were his separate additional perspectives. He has done this at least twice. He knows the difference between speaking for court and for himself. B judge gorsuch judge gorsuchs opinions also make clear his concern for the separation of powers and is keen awareness ofe the judiciaries independence. He has written that legislation belongs to congress, andde adjudication belongs to the courts. O he has disagreed with the late Justice Scalia by suggesting there is far too much sugge adjudicative activity and executive branches Administrative Agency rulings. He has questioned the values of the chevron doctrine, which has search the judiciary should defer to Agency Interpretations of statutes. The chevron doctrine intrude equally upon the authority and prerogatives of the legislative branch. As is often the case, Justice Oliver Wendell Holmes said it best in his decision and lochnei v. New york. Justice holmes wrote, and i quote, that case is decided upon an economic theory which a large part of the country does not entertain. If you were a question whether i with that theory, i shouldf desire to study it further and long for making up my mind. Dy i do not conceive that to be my duty because i strongly believe that my agreement or disagreement has nothing to do with the right of the majority to embody their opinions in law like justice holmes, judge gorsuch and knows that his social, political and religious views have no place on the bench. In embracing the discipline of the robe, declaring, dedicatingp himself to the separation of powers and consistently devoting himself to being fair, judge gorsuch has earned the right to be considered by you for the highest bench in the land. I hope you will judge him with the fairness and integrity with which he himself has served. Int spin thank you, judge kane. Mr. Perkins, turn to you. Mr. Chairman, Ranking Member feinstein, and members of the committee. Rk thank you for the opportunity today to give voice to my son, luke, whose access to an appropriate education was threatened by views of judge neil gorsuch. Meaningful and dignified life was threatened by views of judge gorsuch. Luke was diagnosed with autism in 1996 at age 22 months. Intensive Early Education program taught him letters, numbers and colors but he struggled with speech. He developed restricted diet and erratic sleep cycle. When overwhelmed he would tantrum and often injure himself. His care became too much. His older siblings and hired caregivers helped. It was clear that his Education Program was failing and luke began to and luke began to regress significantly. Teachers rarely enforced in an appropriate behaviors participate in meaningful educational entities. Moreover ,com,com ma his program to address his profound inability to generalize. Look might learn a skill in a particular classroom with one teacher but be unable to perform it in any other setting. While such learning my check up a box on an Education Plan that provided no meaningful benefit. I multiple experts agree he needed an intensive program with Wraparound Services to address his educational needs. We made many unsuccessful attempts to address these deficiencies at the School District. Since the needed services were not available locally, we were like the agonizing option of sending 2000 miles away to special ed school for artistic children in boston. When buchenwald and Boston School at age nine, he was not toilet trained, it only a few foods, could not sleep in a bed, could not eat with utensils and did not interact with his peers. Within months of enrolling in the luke was toilet trained. He ate healthy visit copper utensils. He was sitting calmly in a classroom appears. He participated in her bag entities such as rollerblading. Retread shop and attend church together. This improves life luke was costly despite a comfortable income, with education costs rapidly depleted our reserves. My parents contributed for retirement savings. In 2005 we requested reimbursement for the education under individuals with disabilities education act. A due process hearing, the independent hearing officer found in our favor the decision was upheld by an Administrative Law judge in u. S. District court judge. When the School District appealed to the district, judge gorsuch offered the decision overturning rulings. His legal reasoning that a newtu low standard of education required under idea is merely more than two minutes. Lacking significance or importance so minor as to merit disregard. Judge gorsuch felt an education for my son that was even one more step above insignificant was acceptable. Despite looks and ability to meet three quarters of his educational goals and use any of these skills outside the classroom, education was judged appropriate. That left us only one real option. One of lukes parents would lukes parents would have to move to a School District that would better accommodate the educational main. After much prayer and thought, my wife decided to permanently relocate. The denton School District in knowledge the extraordinary needs allowing him to finish out his time. Now age 22, luke will always be supported in the world that still seems perplexing and threatening to hand but his quality of life after 13 years of appropriate education is vastly better than it would have been otherwise. He cooks and does household chores can shop, work, eat and play in the community and has developed a new passion, legos. Hes uniquely attuned to thego print world. He constructed this particular model this january. His present life would not have an achievable without an appropriate education. Thankfully luke is unaware of the price paid for his education. The financial cost pales in comparison to the sacrifice. His mother separated from her 13yearold daughter. His parents marriage broken. Hes also unaware that the key plays that one judge with this radically restrictive interpretation of law played in the fight for his right to a free and appropriate Public Education. In his 10th circuit ruling, judge gorsuch eviscerated the standard guaranteed ride the idea. His interpretation requires fiscal providing education to a disabled child just about meaningless. His minimalistic interpretatione of federal law and lukes case has been used to deny a Public Education to countless disabled children the 10th circuit over the last nine years. Liberal philosophy and case law aside such an interpretation clearly fails the common mans past. Why would Congress Pass a law with such a trivial intent and why would a parent settle for an education for any of their children regardless of their abilities or challenges. To quote chief Justice Roberts remastered a Supreme Court ruling, when all is said and done from a student offered an Educational Program providing more than de minimis progress from year to year can hardly be said to be offered in education at all. On behalf of all children,be disabled, typical against it, i urge you to deny confirmation of judge neil gorsuch to the Supreme Court of United States. Thank you for providing me this opportunity and i ask my full statement be included in the record. I look forward to answering your questions via or post your questions. Your posting will be included in the record. We will turn toi you. Mr. Chairman, Ranking Member feinstein, other members of the committee. Ran and it dont have the opportunity to address the committee today and talk aboutod what my man mentors, judge gorsuch did senator feinstein, i grew up in california where youe and senator boxer were my home state senators and my fitness to last there was a time on the m signals could be senators. When i left for college and move for college in the domain which also had two senators. I served as a law clerk to judge gorsuch from 2009 to 2011. I think to direct my remarks to how the judge gorsuch approaches cases. S. Each case from all points of view and never make up his mind until every point of view hadll then considered is the quality and respect most about him. First, judge gorsuch is truly independent and deciding cases he doesnt care what politicians or parties won. He only cares what the law says. In two years i worked with him, never once did politics influence the decision he made. I saw the government when casesc i saw the government loot cases. Usually cant receive the sameca meticulous argument. Judges like judge gorsuch are the keepers of our independent judiciary. Second, judge gorsuch works together with judges from all different points of view to build consensus whereverogether possible. In my two years cooking for the judge, the judge heard many cases whose judicial philosophies differ from hands. Yet the great majority of those cases were decided unanimously and that is no coincidence. It is a reflection of the keepers back for the opinions of colleagues and commitment to decisions that benefit from d their reasoning. In my experience as a law clerk, all sides of the case, question ree reasoning underlying each partys position and give all arguments exhaustive positio consideration. They more or less consumed my life for two years and the cornerstone of how judge gorsuch worked anyone except anything else. Third, theres no question that a Supreme Court justice yield nt significant power, but having worked closely, i am confident that a change in title from judge to justice will not change in. Ju the future of the country will be decided by electedlosoph representatives that are members of this committee, not by hand and that will never change. On a personal level, some of my fondest memories of my clerkship at judge gorsuch for the afternoon run to lead us on through denver. Weve been in and out of the city streets i question thee judges description of this city event when today they felt felt much more like a sprint. Both easy to begin around discussing cases that the judge, and they continue to communicate about the case is 20 minutes later when the judge is doing te just fine and the clerks were out of breath. I now think of those runs as a metaphor for the experience of w working with the judge. I strive pushes everyone around him to push harder and reach higher. In casual conversation and the judge always wanted to hear about her experiences exploring the colorado outdoors. I still remember the clerks on their adventures over the weekend. One weekend while hiking in mor Rocky Mountain national park, i found myself than a few feet of the beautiful red fox and i knew i would have it knew i would have it come monday when the quiz occurred on monday morning. We all know the saying that you are judged by the company you keep it one of the greatest gifts of clerking for two years as my coclerk whose humility, intelligence and diligence near the qualities i admire so much about the judge. Many of the judges clerks his whose political views span this had traveled to be here for thiv hearing and we have uniformly recommended him as an extraordinary judge. A we believe he is the judge of home all americans should be ami proud. Mr. Chairman and members of the committee, my name is jodi calamine in the general counsel between vacations worker ofel america. They bring in representing hundreds of thousands of workers across this country. Thank you or the opportunity tor testify. Our concern about judge gorsuch ascending to the Supreme Court is about as fundamental as it can get. His jurisprudence as a threat to working Peoples Health and safety. This Hearing Authority paid some attention to judge gorsuchth ascending the trains and tracking case and that attention is justified. That dissent issued just seven months ago revealed an antiworker bias and features a judicial act this time doubled to mentally put workers lives at risk. At issue is the law that protects structure neighbors who operated vehicle out of safetyo concerns. When they refuse to operate his truck and trailer and the man or his supervisor directed him, which was to keep the truck parks and hates to a disabled trailer in subzero temperatures while he froze to death waiting hours for help and instead finally drove his truck to save it, he was exercising that right for an unsafe operation and could not be fired for it. Only one judge at any level ofof this case ever dissented from this view. Judge gorsuch. He found the mr. Martin drove his truck to safety was not refusing to operate his truck. He was operating it and therefore could be fired for disobeying orders. Judge gorsuch has said the results he reached might be unkind, forcing mr. Martin to choose between dying or losing his job. He contends he is merely applying the unambiguous text o the law to the facts of the case. Far from it to reach this result, judge gorsuch had to choose the definition of thehe wordoperate as it turned out, there are multiple definitions of operate in the dictionary. Judge gorsuch chose the definition that allowed him toef rewrite the law. After he was done, a workers right to refuse to operate would mean only refuse to drive. That is not judicial restraint and the rewrite of the law in this case leads to absurd that the result in fewer rate for truck drivers. As we now, judge gorsuch is no fan of Agency Deference than wee have every reason to expect is judicial activism when there are other Worker Rights beyond the transportation act to transcend tracking. Our Union Members are typically not truck drivers, but rely another safety laws to protect them on the job at oshas rule allowing us to refuse hazardous work. E on a very frequent basis, a worker we represent will identify hazard of the workplace and the union will stand withfy him and others to stop the work until the hazard is debated. Just a few weeks ago, one of our technicians in detroit discovers significant asbestos contamination where he was supposed to do telecom work in an underground vault directly below a manhole on a public street. He told his supervisor. His supervisor repeatedly told him to go fresh air, which would not only expose this technicianw to asbestos body in the air, bun expose the public on the street about as well. The technician refused to do the hazardous for demanded byso t supervisor and he and the public are safer for it. We take these actions knowing the law is on our side. To us, how can save you are not as judge gorsuch pathetic, ephemeral and generic. The right to refuse hazardously work under the osha act unlike the statute and transcend tracking is a product of the Agency Interpretations of the statute. Ag if judge gorsuch takes a sledgehammer to workers explicit statutory right as he did and transcend tracking, imagine what he may do to write agencytutato interpretation, more workers will die on the job. Judge gorsuch dissent in transcend tracking interview is disqualifying. The Current Agency interpretation, legislative purpose, kick in the narrowest one can find in the Oxford English dictionary to redefine our race that is not applying the law to the facts. Its a form of judicial to the activism. Its sad that our health and the laws are written in the blood of working people. Please do not allow judge gorsuch to repeal these laws from the highest land with hisgo judicial activism. We urge the senate to reject this nomination and thank you are you much for your time. Going to thank you all for being here today and for your testimony. I just have one question for you. By the way, welcome. Youre a great judge and our circuit up there and i appreciate your leadership over the years. Judge, this has been judge tacha, a prominent theme throughout this week. This was the first of three aspects of judge gorsuch you describe in your testimony. As you put it, he takes very seriously the appropriate roles assigned to each of the three branches of government, unquote. This is a critical principle, but it can sometimes seem a tad detached or even cold when the toughest cases are presented. Youre in the 10th circuit. How important is it for a judge in 2009, stick to the law even when it means roenick and empathetic litigants. [inaudible] and i appreciate kindness and the full committee and i could say was a part of the 10th circuit and now im working in senator feinstein made of california at pepperdine university. Im pleased to be both places. Your question as to the heart of what a judge does. And let me just say in response to mr. Perkins, my heart goes out for the facts he played that forward. As the judge, to your point, senator hatch, the judge must look at the law as he or she sees fit at that moment. And in particular, judge gorsucr was following very longstanding precedent. This committee has heard judge gorsuch repeatedly say precedences importuned. Precedent stands. Its an important piece that the lens that i referred to as a judge looks a case through. And to be absolutely specific, c and judge gorsuch was a plainbs precedent that when all the way back to 1982 and the Supreme Court decision board of t education rally. On my heartstrings with the family. Soat judge gorsuch was called on to do was apply that very longstanding precedent for our circuit. Let me also say it wasnt just our circuit. I believe it was all but two circuit. All the rest of the circuits in the nation were following the same standard and interpreting the ide eight. Further, i can say with some authority that he was following as the holding in his case what i wrote in the urban case, which he was following and we all wrote that the statute isboth, interpreted must be more than two minutes. So there is a lot of discussion, but its important to know that this would be longstanding precedent from a long time back. Circuit judge is a really glad when the United States Supreme Court clears up the circuit conflicts. So what happened in that caseou that was issued yesterday was to circuits and the rest of us had chosen the other standard through longstanding precedent on interpretation of the idea. So yesterday, the Supreme Court carried out a very important function of clearing out with the standard would be. I have not had time. I have to say, have not had time to thoroughly review the opinion from yesterday, but i know for sure that the case was based on the urban case that i wrote and it said standard must be more than 10 minutes. Senator feinstein. Thank you, mr. Chairman. And thank you, judge for making that clear. I think you made a very cogent a statement. I gather this standard, the court passed yesterday would have covered mr. Perkins then. Is that correct . Well, i will not opine on how the law would he apply to particular facts. N how but it does appear to me that the standard that we have beenut using has changed. Thank you. Mr. Perkins ,com,com ma i went to thank you for being here. That display you presented is very telling. One question when did he do this . He did this in early january of this year. Ironically about two weeks before judge gorsuch was nominated for the Supreme Court. Thats quite amazing. They says quite a building of the capital and very much appreciated. Thank you for being such a good parent, very much appreciated. I want to go to mr. Savoie and if i could. I feel in remiss because i want to ask some of these questions yesterday and didnt have an opportunity to do so. Let me throw out a question ande ask you your view on it. The judge acknowledged that he worked on the graham amendment which sought to eliminate cbs work one time about detainees. And he also acknowledged that in december of 05 after the detainee treatment act washe alo passed, their different factions in the administration advocatine different statement. S in an email, judge gorsuch and to Stephen Bradberry and others. Heres what he said. And i quote. This is in the document. Along the lines proposed below would help inoculate against the potential of having the administration criticized sometime in the future for not making sufficient changes and interrogation policy in light of the mccain portion of the amendment. This statement clearly and in aa formal way that would be hard to dispute later put down a marker to the effect that view that mccain is best read as essentially codifying existing interrogation practices, end quote. Ng now this is in december of 05, nine months after the bread. My mouth had concluded that waterboarding stress positions, sleep deprivation and other techniques were not prohibited by the standard applied under article xvi of the convention against torture. My question to you is what do you make of this email and inoculate against being criticized in the future for not making sufficient changes and interrogation policy. So i think this is a really important question. So in may of 2005, office of inm Legal Counsel wrote memos that concluded as he mentioned, senator feinstein, that concluded that certain interrogation methods, includin waterboarding did not constitute cruel, inhuman or degrading treatment. My understanding of the email that you quoted is that judge gorsuch believed that the way the administration should interpret the law is to ratifyat this interrogation that had that the office of Legal Counsel had signed off on and may. I think one really importantat question is what did judge gorsuch know about the interrogation methods that the cia was moving at this time he urged the president pushed issue a signing statement interpreting the way he ended up interpreting it. Thats a really important question and i dont think its been answered yet in thisit. Hearing. Thank you, thank you for it much, mr. Chairman. Thank you. I remember the debate well. Here is what senator mccain said about his amendment which i supported vigorously. The amendment and operate simpli codifies the was assumed to be existing years. The administration stated equipment should require no change in our interrogation practices. What it would do is restore d clarity on a simple fundamental question does america treat people inhumanely and from all ive seen americas answer has always been no good at what senator mccains view of what we are trying to do here. The graham amendment i cant remember how the bill was passed, but it was overwhelming. What ive tried to do is say th, combat status in the tribunal system within the military would be the primary way of determining an enemy combatant status that have judicial review of that at the d. C. Court of appeals. The Supreme Court said in a decision that the csr t. Is not an adequate substitute for abs and not the law of land that would basically redrafted the commissions act and i feel good about where barak. If you are alleged to be at an j enemy combatant could be hot as such but you can abs hearing or court. Thats right. The government has to prove that you are in fact an enemy combatant to be held . Thats right. You can be held under the law for indefinitely. Is that correct . Im not sure about indefinitely. Thats an issue in the courts. U the people at Guantanamo Bay are held as enemy combatants and theyve been there for years. President obama left him in that status. Some of them, yes. 48 have been determined too dangerous to release. Under the obama administration, they are being held as enemy s combatants. Thats right, senator graham. Hundreds of prisoners have now been freed from guantanamo. I dont know how many were freed under the rules that judge gorsuch was hearing. Jieddo 46 hot and freed . How do you think how Many Americans have been killed and others killed by people releaset at Guantanamo Bay . Senator graham, i dont know the number. How about when they help you here. Youve got to take some risk because you cant hold people without due process. Do you agree with that . I agree with that. The safest ways to never let anybody go, but thats not there right way. At october the Supreme Court has proposed the law would be. They never said you cant hold in about indefinitely. Youve got to do due process. Thats right, senator. Sometimes you make mistakes. Youve been aligned more that most people would think. I dont believe that waterboarding was ever an appropriate technique to gainthb information. Im sure you agree with that. I do, senator graham. The question is whether judge gorsuch agreed with that. My interpretation is the email he didnt. Who i interacted with a lot said that waterboarding is illegal and he said that before this committee. I read that. I was pleased to read that. You know why he said that . I interact with him a lot. Waterboarding was consistent with the Geneva Convention and thats never bought the idea that it was consistent withoutou the law. W. Some people have that view and im here to tell you he said before the country that waterboarding is not a legal without any question. And i brought up the situation of the current president that if he decided and i dont think he will view it be in my view violated the law and judge gorsuch said no man woman is above the law. Violati that gives the treatment act to outlaw waterboarding and otherto techniques be acknowledged foroe the country. No president can just seize the law. Because of National Security concerns alone. Do you agree we are at war . I do. This is a complicatedon endeavor in terms of how you fight a war because theres no nationstate and no air force to shoot down, no navy to sink. At quite complicated. We need to adhere to our values but also realizednavy t intelligence gathering. It is. Its been a huge challenge for us is thank you off very much. Senator durbin. Thanks to the panel. Just to follow up on senator grahams line of questioning at the time that the memo that was sent by judge gorsuch on this issue in which he sad became that the codify and interrogation policies, i am told the waterboarding was part of the existing interrogationpoi policies. Is that correct . Thats correct. He could not permit of the email for details surrounding it, but we clearly do the mccain amendment or the mccain legislation which i supported, we clearly wanted to out waterboarding and any cruel degrading and Inhumane Treatment of prisoners. There is a builtin inconsistency here. The codify existing procedures, which included waterboarding an address that is a signing statement on mccain amendment,th which would have prohibited waterboarding, a clearar distinction in which judge gorsuch because of a variety of circumstances did not answer. Let me move to another issue. Thank you for being here. Thank you for your touching story about luke and his travelk and journey and all that you and your family have done to bring him to this point in this life. Did i pronounce your name correctly . When judge tacha talked about the 10th circuit standard, she left out one word, merely. Im trying to draw an analogy and it may not be the best one. I said when it comes to hum the children, the law requires you to provide them more than just a little bit of food. That is a lot different than saying when it comes to hungry children, the law requires you to provide them nearly more that just a little bit of food. Difference . One word has made a bit of t difference. It has taken to minimus lower. That was the 10th circuit when it came to your sign. It was nearly more than to minimus that the Supreme Court unanimously struck down yesterday that means no education at all. When you saw that opinion, what was your reaction that judge gorsuch said he was justr following 10th circuit . I was devastated. The time the opinion came out,pi look had been a boston hitachi for five and a half years and i knew what he had accomplished in that time. On the progress he had made and to realize that judge gorsuch had by this wordcraft taken that seem to be making the state said it was filing precedent that actually further restrict teen and already strict cressida but unfortunately my son in the bullseye of that decision. It was very hard to take. Mr. Calemine, did i pronounce your name correctly . Mr. Calemine, im sure many of the Committee Members will be cited that we spent so much time talking about a fresen truck driver. What is and what is going on here . Tt were talking about the Supreme Court. Why should be talking about whether hes facing im a 30 yeah hypothermia or frostbite. One young boy coming young man with autism or one truck driver really trying to figure out this judge and what makes him tick and what his values are. G all we can rely on for importan decisions. That routine decisions. They come and go. The ones where you really have a moment where you have to make a call with the law and the facts that really define you. Many of the arguments that youve heard here today over and over in this committee and this is programmatic. Ma heres the law. Heres the facts, heres the judge. Case closed. Ve we know better. We know better because marek ireland is not sitting at the table. The decision was made that it would eat a meal gorsuch for fear that Merrick Garland, andd say exactly the same thing. That really tells us theres more at stake here than just this programmatic robotic application of the law. There is something much more fundamental here. C i thank you for coming and speaking on behalf of working people. Thank you, mr. Chairman. Thank you very much. Mr. Jaffer, i want to find out whether youre familiar with the article by Janis Brenneman talking about the fact that the former Justice Department official John Bellinger collaborated the account to the effect that a pushback against advocates of waterboarding and other cruel interrogation techniques during the Bush Administration. Are you familiar with that . Maxima are the cockpit. Im glad to hear that. If you have the opportunity to ask questions for the record, it would be great to get moreot information about precisely whaw judge gorsuch day to pushback i against these interrogation methods. It would be good to get that on the record. The email that has been rough friends, dated thursday, december 9th 2005 atat 4 57 p. M. , it is worth noting there were no changes being made. Hu he used words like sufficient and essentially, talking about m sufficient changes and whether they essentialessential ly codified existing law, not suggesting there are no changes at all that were made. Would you dispute that . Now, thats another good line of inquiry. It would be important to ask judge gorsuch what he knew of the interrogation methods being used at the time and what adjustments he thought the administration was going to make as a result. T those are important questions that havent yet been answered. I thank you. You. Judges tacha and henry come ita good to see you to see what is more comfortable standing on the side rather than the other side. Im used to seeing you in an elevated position. Thank you for being here. On the point judge tacha about the use of the word merely. But the precedent already demands and are trained to evaluate whether or not the precedent has been satisfied, the use of the word merely as ica could mean and ordinarily would mean if im not mistaken. The spot where everything. It does not require 100 if we measure this on a one to 100 basis. It requires x . When a judge would use such language, the judge would necessarily be meaning to denigrate or minimize what thena lower requires or indicate that the law requires x and nothing beyond acts would that be how you would normally use that as w judge . Thats exactly right. I cant time. Thank you for those kind words. I cant opine what order the adjective that everything came in the same is. But it does is merely defined very existing precedent, which was our standard more than to minimus. So yes, how about word was used is probably exactly as you describe, which was a standard here, a standard here, standard here and the slide is thee standard that is selected by the circuit all those precedent iner 1982. Is an article threejudge, but the chief judge of the 10th circuit, its not your job to write the laws. It definitely is not. Rc ill add to that that judge gorsuch is meticulous in that and find that his opinion this is not our job. This is congress job to the president s job or whatever. He is so meticulous about the roles of the three branches ofs government. In fact, he and i have actuallye had this conversation. One of the things that is not being, although you understand it in an Appellate Court, theres a lot of back and forth among the judges on panels and in bank savings and i have heard judge gorsuch on many occasions say it is so important for us to be absolutely meticulous about s what the role of each of the branches is. As i said in my written comments, and he is a student of the federalist papers and the o founding document and reallyer believes in the separation of power. Separation of powers that recognizes that our constitutional republic, is that people who are sovereign and the Peoples Branch is the legislative branch. Thats the bridge of government where there is the mosts accountability to the people ath the most regular intervals. I see my time is expired. Wh thank you on a judge. Thank you, mr. Chairman. Thank you, mr. Chairman. Mr. Calemine, you represent a live reunion . Yes, sir. I would like to review from your times New York Times news story that relates to the aboud case, which is a precedent of the Supreme Court thate court controls when labor unions like yours can charge nonmembers for services that they render in thu collect the bargaining process. Here is what adam liptak, and the writer in the New York Times wrote. Is in making a minor adjustment to how public units must issue notifications about their political spending, justicenionu alito digress to raise questions about the constitutionality of requiring workers who are not members of public unions to pay fees for the unions work on their behalf. The aboud issue. To cassius out among Senate President , she in a concurrence of the step we historically take with the greatest caution and reticent to do so as the majority does on their own invitation and without adversarial presentation is both unfair and unwise, end quote Justice Sonia sotomayor. Michael carvin, a leading conservative lawyer also saw what was going on. S he and the center for individual rights, a Libertarian Group promptly filed the challenge Justice Alito had sketched out. Indeed, mr. Cardenas the lower courts to against the client. Ill interject into the story my own addition thats a rather unusual behavior for a lawyer. So that his clients could hightail it to the Supreme Court he article continues. Last year Justice Alito wrote a second majority opinion attacking the central precedent in the area, a 1975 decision called aboud versus detroit, bu the majority here is the quick step short of overruling. Right now, according to the New York Times continues, everyone saw what was going on. Readers of todays decision will know that abu does not rank on the majoritys top 10 list of favorite precedent and that the majority could not restrain itself from saying insane and say and so, Justice Elaina Kagan wrote in the sand. Last week, the article continues sometime ago, the court agreed to hear mr. Carvins case friedrichs v. California Education Association may soon complete the project alito began in 2012 that of overruling aboud , and if my quotation of the New York Times story. Ha as we know, the friedrichs case did in fact come forward. It is expected to a body blow to unions by reporting at the time and the passing of justice goyaa put the court said the friedrichs decision came in and went back to the main circuit, whose decision was upheld because it was a tie. Could you react to me as a lawyer who represents a labor union on that series of events and what you have that makes you think about this particular five to four decisions. My concern is based on the quotes you read from the times article. S there is a project underway, a project underway to harm worker organizations that the workers dont have the ability to exercise the Bargaining Power that they all have. And when a better deal for themselves at work. The notion that there are signals being sent for cases rather than waiting for the controversy to arrive is very concerning. Its one of the reasons why in that case judge gorsuch, theres been a lot of talk all he has a done is to apply the law in the devin nunes trucking case. He picked up the narrowest definition in the dictionary for the word operate and how a particular result. There were other definitions in the dictionary that couldve been chosen. Perhaps he should defer to the agency because maybe they know how the law can work effectively on the ground given their expertise. He chose the most narrow definition and the result was absurd and the result is that it carried the day, would have made life a little more dangerous for truck drivers. Have mad the results you get out of that particular definition, things like the words operate, if they told a truck driver to go over the speed limit or speed up, go faster, sometimes they can see the tracks on the computer and see how fast they are going. The truck driver part akamai can. Im in a Construction Zone full of traffic, but the Trucking Company persistence as go faster. If he went the speed limit complied with the law, he would not be protected under judge gorsuch version of that statute. He could be fired for going the speed limit because hes driving. Who would have to completely stop the tracks were disobeyed that order. You could imagine the traffic that could cause if thats the way it was carried out. In fact, i think judge gorsuch exhibit a for why we should havd chevron deference because instead of picking out a dictionary definition, look at the agency and see how they the experts at it carried out how this law works in the real world. As commissary. Thank you, mr. Chairman. Mr. Perkins, i first want to probably just say something. I dont know if youll need to respond or not. I dont know if anybody on capitol hill that is actually ratified those two families and persons with autism as speaker of the house. We had our state employees Health Care Plan cover autism treatment, which included psychiatric care, psychologicalh care, pharmacy care and i know if you studied autism come you d know how those are critically important. I went on against the Insurance Industries wishes to include an insurance mandate in the carolina to do the same thing. The court case yesterday on the one hand, i am happy that it provides other people that are going through your conditions with an option. But in reality its a failing on the part of legislators. You live in colorado still . Promise me you wont vote for a mandate and will support opportunity scholarships forra children with autism. You dont have to may have just broken a law or rule over another. There are nine states in this nation are carolina is one of them. Weve gone about as far or maybe further in some cases than anyny other. But this is an example where ih going to support judge gorsuch. My guess is that the individual thatseparates his jurisprudence job from his personal feelings is just okay with what the Supreme Court did yesterday. In reality, the whole need for the lawsuit is the failure on the part of the state to solve the problem. So in a state like north carolina, you dont have to get into a conflict in a lawsuit with the School System because its still difficult to do. You still have to probably hire an attorney and work through all the complexities. They are going to push back. Im glad to hear that my colleagues on the other side of the aisle, they are okay with that fixed the Supreme Court cant because i will try andhe move legislation to make it easier for people like you to get the care you need. T it is a classic example of legislators had last night i use an analogy that they are scanner and a bear hunter. I wont use my time here. We need to actually scan that they are here, not have the courts do it. I do think that what judge gorsuch was doing was saying fix the problem. He said in sunday night well repeat time and time again to a question here before one of my colleagues on the other side of the aisle. E its not my job to do your job. I think i was a very insightful thing for him to say. In our case, if legislators did their job, you would not be before us today. Your family situation would be better to look would be probably further along. E one other thing i want to tell y you. We may need to get luke to comee to my office because we are putting that same lego model together and my staff arego struggling. Thank you for being here. To give a brief comment, i havee one other question, mr. Chair. I would just like to comment briefly. I would say that congress had wd indeed passed the idea. Just based on my reading of judge gorsuch d just b mr. Perkins, i dont mean to interrupt, but one must, submitted to therecord. Heres the problem in relying od the vagaries to fix the specific problems back in the state. I am already reaching out as a result of that Court Opinion yesterday, saying how do youte. Provide clarity that puts the benefit in the hands of the parent. The way you do this properly as structurally after the parents judgment to generalize and after you grant them the power in just a year move somewhere else. How do you make sure that the state funding follows the child . How do you make sure thatt federal funding follows thechil . Child. How do you make sure the parent doesnt have to go into a court room for an arbitrator for all the other thinks theyll still have to do with the decision. How do you get the numbers here . Im thrilled to hear that where such support support on the other side of the aisle. The idea is so that the burden is not on you. You have your own burden with your beautiful child. You shouldnt have to do it. Its a failing of congress. Not a failing in this case of judge gorsuch to i hope that people understand im so glad to hear in states, none of whom have stepped up and done it are prepared to go with me to the states and commit them to do it because we can solve the problem and i will send my other questions for the record. They offered me to brieflya respond. The idea is not a perfect law, but the fact of the matter is judge gorsuch in his opinion strength and minimize the requirements of the idea such that they trivialize this blog. As the opinion yesterday characterized current law, provides much more significantct protection to disabled children didnt judge gorsuch ruling offered. But it doesnt provide enough benefit of legislators. Is thank you, mr. Perkins. Thank you, mr. Chairman. Judge tacha, in your testimony, you are talking about judge gorsuch as a judge and he said his attention to the views of his colleagues in arms his work. He has an acute sense of identifying the serpents dance is work incentives is the highest value. En and on the other hand, does decision for personal conviction and dictate individual judgmentn and independent decisionmaking. Personal conviction. Is about whether it should be built on the decision to ask a judge should write independently as a concurrence or dissent or whatever. But he says he takes what is important to him is that his colleagues believe, but also his personal conviction. About how he reads the law. Personal conviction about how he reads the law. Would basically he wouldnt tell us or any of his first conviction. You would not bring us tosonl cases. Im sorry. This is what bothered me is that he says his personal convictions didnt enter into his decision and we spent three days here ane staring at over and over again. My personal convictions dont matter. But now from someone whos endorsing him say that they do matter. This is what i worry about, that we were not allowed to hear any personal convictions and get now i am hearing those matter of great deal. Senator, could i explain that . May i have more time . Go ahead. Thank you, mr. Chairman. I belong to for labor unions before i got here. Its really important. Friedrichs is an important case. We couldnt get any personal convictions on anythingportan basically. What is here, mr. Calemine, what is your read from what you see from his decision on how you feel he will rule on friedrichs . I think this devin nunes tracking dissent is only seven paragraphs long. I think it is worth reading it closely because of what it shows his judicial philosophy being capable of, which is rewriting law, not just applying the laws written by congress, butut rewriting it. That is why one should Pay Attention to that decision is how he might treat other workers pause and then Pay Attention to what he says in that decision and the way he treats thehe say workers event mac case. Si for example, he described the option that the supervisor gave to the worker to a legally drive the trailer down the highway as being maybe sarcastically offered. In other words, hes excusing the bosses outrageous order. When it comes to describing the option of staying at the trackur and freezing, sufferingng hypothermia, he describes that as merely unpleasant. Im adding the word merely fair. He describes it as unpleasant. And he describes creates an analogy for this situation involving an Office Computer rather than a track and freezing to death. That analogy i believe shows a bit about what the real concerns are here, which again is from a process perspective. Hostility to the worker year. Yes, sir. If you mr. Man tried to strike to save the time of the next thing ill have to let him drive the truck to the beach. So we are concerned about his t ability to look at things from a workers perspective. I know im out of time. I just want to say one thing about that, which is that this wasnt about this comfort. He had hypothermia. He had fallen asleep with hypothermia, but only with spoken up when his cousin called him. And the way you freeze to death is you fall asleep and die. So he was really given a choice between dying, possibly dying or im hitching my cat and driving off. This says to me a lot about the mans judgment. So thank you, mr. Chairman. R. Ai judge tacha, take a fewg. Minutes to say what you want to say and to say and i will go to senator kennedy. You have questions, senator kennedy . Go ahead. Just very briefly to personal conviction, what i meant there and perhaps what i didnt get clear is each judge brings his or her reading of the law, their own intellect, their own interpretation, their history, and so, im going to give you an example year because its reallg important. Judge gorsuch and i disagreed in a very, very important case. I wont bother you with all the details. But we read the law. It happened to be a First Amendment law quite differently. We tried to reach consensus. We were in lots and lots of conversations. Judge mcconnell was on this of to. And out, all three of us appointed by republican president s whom we all three had very different views on this with a First Amendment case. Finally, it came to the point where my reading of the law was different from judge gorsuch and judge mcconnell. Now, i ultimately became convinced that i was wrong after the Supreme Court reversed me. Rn they were it was a Wonderful Exchange and a wonderful way tod bring different judgesl perspective on to the interpretation of whatever the case that the law was. Senator kennedy. Thank you, mr. Chairman. Mr. Jaffer mentioned a few cases worked on at the department of justice. I know one of those monitors the government continued the the d litigation during the obama administration. Litiga. The obama administration, and in fact, file d a sert petition, ad made the same argument as the Bush Administration, and the solicitor general who signed the brief was now Justice Elena kagan serving as the solicitor general, and so i would like to submit the briefs of those petitions of the americans versus the Civil Liberties just because of the nature of our job, my guess is the person on this panel who has been around the judge that most in the shortest period of time is ms. Bressack. Am i saying your name right . I believe you joined the judge right out of law school. [inaudible] eichler in Southern District of new york and then went and clerked for the judge. I ap youve finished vanderbilt law school, first in your class . I was. You are with the judge probably about every working day, right . Absolutely. Just the nature of being a clerk. Thats correct. Tell me what he is like. The judge is an incredibly caring person. I think sometimes when we read his opinions and we hear, and we get these characterizations that is very robotic, i think that this is the essence of the he judge, which is he takes very certainly his job ofs interpreting the law correctly. He also has great sympathy for the litigants that appear before him and his deep respect for the litigants. I think anyone who has appeared before him as well as his clerks understand that. I think the sense that i do respect everyone around me i think was really solidified in the year of cooking. Hes an individual who is not only brilliant but very humble in the way he approaches his important task of applying law to the facts of a particular case, but also clearly understand the litigants in front of him are real people speak i appreciate all that. Tell me what he is really like. Well in his heart. Hes a very caring man. I think that on a personal level he always wants to know what his clerks are planning to do after their clerkship. He takes very seriously thee choices we make when we go into Public Service, whether we go into the private sector. He cares when your personal events in your life, whether you get married, whether he had the kid. Nts in i think beyond just the intelligent judge come hes just an incredible human being. Busy political . Ible not when we are deciding cases, no. I mean, again, when we approach in cases where just look at the arguments that are being made by the litigants, the lobby force and the facts of the case. Politics has no place when we are looking at a case in that white. He did you ever see him decided case based on what are thehe litigants wealth or status or power . No. De okay. Did you ever see him approach the case in terms of heres the result i want, theyll let me figure out how to get there . Or did he approach it from let me look at the law and see what the law says, and then that will determine who wins the case . The latter. What he does is he approaches the case, he looks of the arguments that they made by the parties. He looks at the applicable text, rather if the contract, statute or constitution and then he sincerely takes his test graciously of attempted to figure out what congress meant by the words of for example, a statute with apartment by the words come by the words of the contract. Thats how he figures out the results that is required by the case, not a base on the identity of the parties before him, government or individual litigants. Did he read the briefs are given to you and say summarize them for me . No. We read the briefs and then he read the briefs and then we talked about the briefs spirit so you both did . Th absolutely. E did you ever see him rendery decisions that he felt the law required but he wasnt essentially happy with the result . Absolutely. I mean, the job of a judge is very difficult job. I think sometimes are very sympathetic parties that appear before them, but he takes very seriously his oath to apply the law before the big sometimesiest that means results that are not in favor of very sympathetic parties but that doesnt mean he lacks sympathy for them. He simply takes seriously his oath to apply the law. Thank you, ms. Bressack. Thank you, mr. Chairman. Thank you very much, mr. Chairman. I think i will just up with you, mr. Perkins. Thank you so much for being here and for sharing your son luke, explained for the third this was a matter of discussion spectatoring as you probably heard in light of the Supreme Courts decision rejecting the standard that had been used in your sons case and that denied him the help that he needed. Ons what did you think when that opinion came out yesterday . How did you feel about it . I guess the first thing was just i was very happy for andrew and his family, having gone through what they went through, to openly have vindication. Vithink for ourselves, although belatedly we did feel vindicated. We felt that ultimately went a very similar case ive been asked to have you speak into the mic. Felt tul okay. When this case was decided, i mean, we felt innocent although indirectly lukes case and lukes situation was being felt vindicated. My mom taught second great until she was 70 and worked a lot with kids with disabilities in public school. And as a parent of a son who has benefited from iga, could you quickly talk about what the laws mandate which are still studentw achieve quote full participation, independent living and economic selfsufficiency, means to your family . Nd its huge. Luke without an appropriate education would have, was in a very restricted situation. He basically lived his life in his house and in a specialneeds classroom in school, that would say. That was only context he could be in. And behaviors and black of tools to do with his disability really restricted him. Now he has, he has a good life. He enjoys what he does. He is able to get joy out ofhat interaction with peers, with his family. Its a huge difference in his life. Ly think so much. Mr. Calemine, again, briefly with little time, i have questions nominate a lot on the case which is the concurrence that he did to his own opinion regarding the chevron doctrine and as you know chevron allowed some deference to administrative decisions by agencies. Could you just briefly talk about how the uncertainty this would create for safety rules io your industry, if this was overturned . As i mentioned earlier, the role that allows us to refuse hazardous work, to do hazardousn work, is a role that isntdous explicitly in the osha act. Its been developed through a misinterpretation of the statute. So this creates an opportunity if the courts are not going to follow chevron deference it creates an opportunity just strip those kinds of rights away. Those rights as we speak are saving lives right now. Thats whats at stake here. Thank you very much. Is last, ms. Massimino, thank you so much for being here. He talked about your written testimony about the importance of checks and balances. The constitution gives the president certain powers as commanderinchief but those powers have the potential to be abused if they are unchecked. Ut how should the Supreme Court approach in your mind with the background with human rights, how should the Supreme Court approach the balance between National Security and civil rights . And what does the judges records suggest about how he would assess president ial assertions of executive authority . And you. Its often said that the needs to be a balance between security and liberty, but we know from long experience now that respect for human rights and individual dignity is the foundation of peace and security in the world. That was the wisdom of the universal declaration of human rights that Eleanor Roosevelt pushed forward, and remains true today. Ive heard judge gorsuch testify the other day that no man is above the law. Thats an important tenet for our democracy. But unfortunately we know from sad experience fairly recent that thats not enough. When the Bush Administration authorized torture and other abuse against detainees, torture was already a federal crime. And the problem was that theeesn administration, and in particular meaning of its lawyers, had a different view of the law. Its not enough to say that no man is above the law. According to the legal memos that were prepared at that time by the Bush Administration,thatr lawyers believed that the lawd a against torture allowed torture. This is sort of an alice in wonderland kind of situation that were in. And thats what i find that email that senator feinstein pointed to from mr. Gorsuch was at the Justice Department, one of the most troubling things about his record. He was basically arguing theret that the Bush Administration to interpret the mccain amendment, that was one of the strongest and most bipartisan pieces of antitorture legislation at this body has ever enacted, as actuall codifying and legalizing torture, rather than prohibiting it. When he was asked when judge gorsuch which asked the other day in the hearing whether any circumstances in which it would be lawful for a president to authorize torture or to authorize an act that was specifically prohibited through an act of congress, he didnt answer that question. And i think its very important, particularly in this environment where we have a president that is asserting these kinds of powers. Each branch of government has to play its role, it is going to be particularly important that the Supreme Court is willing to stand up to executive overreach in the era that were in now. So i urge you to really get clarity from judge gorsuch about his specific views on those issues. Thank you very much. Thank you, mr. Chairman. And i appreciate all of you t being here. I have a question for mr. Jaffer. Mr. Jaffer. I grew up in a family that believes very strongly in the constitution, especially the First Amendment. Only a small weekly newspaper, then a printing business. The right to practice any religion you want or none if you want. You could say what you want. Its important if you guarantee all that come you guarantee adversity, guarantee adversity, you guarantee a democracy. So but you also have to have independent judiciary. I asked judge gorsuch to give me a clear answer to the basic questions that i asked him whether the First Amendments. Prohibits the president from imposing a religious litmus test, and entry into this country. I thought it would be a fairly easy question. He says it is currently being litigated so i couldnt discusst it. I meant it as a softball. So does a causa evolved the a present to it impose a litmus test for entry into the United States . Of course not, senator leahy. And as a concern if he wouldnt answer the question . I think theres a bigger concern here. Some of the responses that judge gorsuch gave to questions like this, including about, including a response to chris about executive power, i think where i think were very abstract. I dont think its enough, for example, to say no person is above the law in response to question about the youngstown is framework. The dispute ten years ago over torture was not a dispute between people on one side you said we should follow the law, and on the other side people said we should follow the law. Everybody claimed the following the law, including the Bush Administration officials authorize torture. So really im hoping in questions for the record the committee will be able to get judge gorsuch to speak more specifically about the role he envisions for the judiciary in the context of National Security. Hope springs eternal, but dont hope too much. I was thinking what ms. Massimino, some of my italian background. An italian mother, you would think i could pronounce that correctly. You raised action of the Justice Department. And im very concerned that he declined to answer any questions regarding his role there, what is use, documents indicate the Bush Administration justify torture, indefinite detention, warrantless surveillance. Should we be concerned about that work . I think you should. And that treat of time in our history was so important to our democracy. We talk a lot here about the law, but it turned out that the lawyers were actually in many respects even more important than the law. Because they were the ones who were trying to interpret what the law meant. And there were other people at that time, government lawyers, who were extremely troubled when they found out what was going on and they tried to stop it. And from the record that we have, it does not appear that judge gorsuch was one of them. Its a great expansion of executive power that many of us questioned then. In my remaining time, i know mrw about the story of luke. I hate to have been in your shoes but i think i wouldve felt the same way. We found out yesterday judge gorsuch application of the individuals with disabilities education act was turned down as, by the u. S. Supreme court. They said the standards are markedly more demanding than the standards that judge gorsuch cratered in your sons case. How did you feel, what did you think when you heard the Supreme Court . I was very happy that they reversed a trend that clearly judge gorsuch in the tenth circuit had been part of to water down the standards for progress such that they were of minimal practical benefit. Because even, even with these very watereddown standards that were part of lukes Education Program, he was only meeting 25 of his objectives, but i really appreciate the fact that judge roberts or chief Justice Roberts used words like every child should have the chance to meet challenging objectives. That indeed is the case. And when that can happen even a child with severe disabilities can make tremendous progress. Thank you very much. Thank you, mr. Chairman. And i think that the center from hawaii. Senator hirono. Thank you, mr. Chairman. Thank you all for being here. Mr. Perkins, yesterday was a b good day for your family with the Supreme Courts decision. I. D. E. A. Is what i would call remedial legislation meant to protect a class or group of people come in this case people with disabilities, and generally remedial legislation, not even generally bee. Remedial jenness nation should be broadly interpreted, broadlyy interpreted to affect its purpose. So when you were before judge gorsuch and you saw that opinion, do you think judge gorsuch did in fact, do that, a broadly interpret i. D. E. A. To affect his purpose in your sons case . Absolutely not. In fact, he did the exact opposite. He took precedent that frankly in light of yesterday decision was already inappropriately narrow our restrictive, and further restricted that interpretation such that it really wondered why would Congress Even bother if thats boally what i. D. E. A. Met. Meant. So do you think if judge gorsuch had looked at the legislativethk history perhaps of what was behind i. D. E. A. , that he may have issued a more expansive ruling than what his dissent showed . I would hope so. I know that his picture of what he felt the law said was that, a huge distortion of what the actual intent was. As so i wouldve hoped if youd look into some or he mightve been able to see that it reached the wrong conclusion and maybe backtracked in his judicialed reasoning, and come to a more appropriate conclusion. Tr i understand that your family had a lot of resources. You are a doctor. You have bear to help you. You d two Different Things to accommodate the needs of your child. Im wondering whether as you sat there before judge gorsuch, and knowing that your family is one of literally thousands, hundreds of thousands in our country whoe have children who look to the i. D. E. A. For the kind of educational support that theysut required, what did you think about all the families who dont have the kind of resources that you have and what judge gorsuchs ruling would have done to their ability to do the best for their child with disabilities . For actually that is probably one of the most frequent thoughts that we had through this whole d legal process, is just realizing how overwhelmed we were with als other resources, financial, Family Support resources that we are blessed with, we were overwhelmed. And to think that the people out there, i mean, many of my patients, i think how when the world if they had at luke in the family could they have done this . Patien and its come having a child with a severe disability is completely overwhelming, and sometimes it may seem impossible. W even for us with our resources,t we felt at many times that this may be impossible because the law apparently isnt on our side. Thank you. With the brief time i have left i would like to ask for calamine, we have concerns mr. Calemine, we have concerns that judge gorsuch would rule in cases with workers rights and unions. Is that a decision youre familiar with . Yes. R familiar enough. The little bit. You have a dissent thatat really disadvantaged these workers had been illegally died longer hours and it affected their pay so they had to get another job. Would you share your thoughts on judge gorsuchs dissent and his overall judicial record on workers rights . Really briefly. The dissent in that case involved i believe judge gorsuci saying that these hospital workers who had been unlawfully, that i was a been reduced unlawfully, they went up and gow other jobs to try to make up for the loss of income. Hey what judge gorsuch wanted to do in his dissent was to subtract the money that they earned from the outside jobs from the total backpay award, which met, it m doesnt recognize, its an example of not recognizing what life is like for somebody working for hourly pay tried to make ends meet. Just going out and getting another job itself is a biging problem. You have new schedules, family issues spew my question really was what you think that on the Supreme Court he would continue to that is the concern we have, that the workers perspective isnt going to see a fair shake. Thank you, mr. Chairman. T i have one question and i will turn to send he it to feinstein, and when she is done we will bring on the next panel. And judge kane, i bet this is the First Time Since 1977 since youve been before this committee, is that right . Thats correct, senator. This is, youve been a judgee for 40 years, but before that you were a public defender. When youre a public defender did you adopt every position of your client . I represented a number of murder defendants and i didnt agree with them on that. [laughing]re you can represent somebodyy without agreeing with them, just like judge gorsuch when he was just doj could, could also represent his superiors as theis counsel . Absolutely. Senator feinstein. Your honor, i would just say this is just my view, that for those in government, the standard has to be a little bit different. You have to do whats right. And this goes up even to the launching of a nuclear bomb. I asked someone who is in a position wants if you thought the president was absolutely wrong in what he was doing, would you deny a launch . And answer was no. And that caused me to think about the obligation that we have as service in government to do whats right, as far as we know it. And i think that even affects attorneys who have losses. Because in this case, lives are a real problem. In any event, i would like just quickly, and then to put in the record the Supreme Courts opinion in the i. D. E. A. Case. Rd i like to just quote a few lines. I would to meet its obligation under i. D. E. A. , school must offer an educational improvement plan, reasonably calculated to enable the child to make progress appropriate in light of the childs circumstances. The reasonably calculated qualification reflectsthe recognition that crafting an appropriate program of education requires a prospective judgment by school officials. I would like to put that in the record, if i may, mr. Chairman. Without objection, so ordered. The second thing in response to my friend and colleague whoes spoke about the detainee treatment act, senator graham. I was the cosponsor on his bill, and i would like to read from his statement on the floor on february 13, 2008. And in this he makes clear that is a view of the detainee treatment act in 2005 outlawed waterboarding. He says and i quote, i stated during the passage of that law that if a reading of the prohibition on cruel, inhumane and degrading treatment outlawst waterboarding and other extreme techniques, and of quote. I would ask that this statement be part of the record, and also the opinion of this case. S without objection, soecord ordered. Now chaco to senator blumenthal . Yes. Senator blumenthal. Thank you, mr. Chairman. And thanks to members of the panel for sharing your insights and experience with judge gorsuch. I have a question for mr. Calemine, but others are free to answer it as well. As you know, the importance of our consideration here is not only the result, in fact, even more important, the results, the judges method of reasoning is approach to analysis in cases. S. And a couple of cases i think are illustrative encompassed environment judge gorsuch voted to overturn the fine that was imposed by the department of labor against the company is silly to properly train a worker actually caused a death in trans am trucking versus administrative review board. A as with all know now from discussion that took place when he testified he come he voted to reverse the judgment of both and administered judge and the department of labor which held that a truck driver had improperly, had been improperly fired in violation of federal law. Truck driver abandoned his truck in subfreezing weather when the heat in his cap failed to function, and did so in essence to save his own life. I wonder if you could comment about the purpose of the laws that he was interpreting here, and why you have reservations about his analytical approach, his method of reaching these laws and other cases that had the same effect. And i opened this in question to others on the panel. Thank you. So the purpose of the law in the two cases that you just mentioned, the purpose of those laws is to protect Workers Health and safety. One of the most alarming thingsa about, one of those cases is judge gorsuch describing those purposes as ephemeral and generic. Hose in other words, theres not enough concrete there to alloww, those purposes to guide how we interpret these laws. So instead we turn to things like the Oxford English dictionary, which he did in that particular case. Another concern from the other case is his description of oshas power as being remarkable. And in that case the worker had been electrocuted to death and the remarkable power imposed by osha was 5550. 5550. Just a 5500 fine on the employer, and that is described as remarkable. That is a concern because workers in this country rely on that agency and other agencies to enforce the rights everyday. And weve come to rely on those interpretations we want to know what the law is the we dont want the second edition, 1989 Oxford English dictionary to solely be pulled out to change that law, and thats what almost happened in trans am trucking, a rewrite of the law. Any of the members of the panel . If i might, senator. Im comforted to the justices would note that were not going to just look at the results of cases in judging judge gorsuch. because hes been on the bench for tenure so were focused on certain cases in which he may have ruled against certain workers but there are number of other decisions that have lead the panel, the committee is aware of where he rolled in favor of workers. I believe the approach he applies in all of those cases irrespective of the result is to look at the text as passed by congress and applied fairly to the facts before him. I believe its that process that does not change pickets the results that change based on obviously the facts of the case before him as applied to the statute. The reason i asked about theh reasoning and analytical approach is precisely the answer that is just been given, to regard a Worker Protection statute or the concept of health and safety as ephemeral and generic, is, in my view, a gross understatement of the purpose of these laws which are basic to people who leave their homes in the morning, say goodbye to thee families, expected to come home at the end of the day without having been injured, maimed or killed. Thats the purpose of thesehe laws. That purpose is not generic or ephemeral. He it is urgent and important, and mr. Calemine i think well stated the reservation i had based on his use of that language. And by the way, ive been here for seven years. Ive never heard any United States senator quote the oxford dictionary for the meaning of a term. Never. Not once. And yet judge gorsuch uses it very, very abundantly in his opinions to seek a definition for how he is going to apply a statute. Thats not a realworld approach to health and safety. It concerns me, and thats why ask the question, but its not the result alone. In those cases i was concerned about the result. He probably has rule for c individuals and weve been throwing around this term the little guy pick it doesnt matter whether its a big or little person or a group of people. Its more the concept of preserving workers safety that g is important. Thank you. You bet. Thank you, senator blumenthal. Thank you all for yourur presentation. More importantly for your preparation and for informing the committee. Thank you very much. Y and will the second panel . But while the second panel come, please sit about until i swear. But i want to inform the members speeders youre not just going to swear. Swearingin. [laughing] heres what i would like to have the members think about. We will not get through this Panel Presentation at 12 25 is when the vote starts a think we will go with this panel until 12 35, and then we will recess and i will vote at the end of the first vote, and then vote ow the second vote immediately. So that means we will probably reconvene this panel about 1 10 and then we will have the rest of the Panel Presentation and the questions and then we have yet one more panel. I believe one more panel afterhp that. [inaudible conversations] [inaudible conversations] do you swear that the testimony youre about to give before this committee will be the truth, the whole truth, nothing but the truth, so help you god . Thank you. Im going to do something that i forgot to do and it was very wrong of my not doing it. I didnt do anything about the last panel individually. Not jeff lamken is a Founding Partner of mololamken, and the court for Justice Oconnor. Heather mcghee is president of demos. Professor lawrence solum, Carmack Waterhouse professor of law. Fatima goss graves, Senior Vice President for program and president elect of the National Womens law center. Professor Jonathan Turley is on tv all the time. That doesnt say that here, but i can say it. Is a jb and Maurice Shapiro professor of Public Interest law, George Washington university. Pat gallagher is director of environmental law program, sierra club. Karen harned is executive director of the National Federation of independent business Small Business legal center. And eve hill is partner withre Brown Goldstein levy. She proves he served as deputy l assistant attorney general for the Civil Rights Division from 20112017. We will start there and we will go until we see how this vote goes. Thank you, mr. Chairman, Ranking Member feinstein, member of the committee for the opportunity to speak to you about judge gorsuch. Since clerking for Justice Oconnor in 1992 ive had thebe honor of argument 23 cases before the u. S. Supreme court. Many of those as an assistant to the solicitor general first under waxman who was president clintons solicitor general than later under ted olson who is president bushs ive known neip gorsuch as a colleague and different for more than 20 years. My wife was here today has known an even longer because she went to law school with him. I like to think i helped recruit him after his Supreme Court clerkship. I think i may have edited the first brief he ever wrote as a young lawyer. I understand he has improved since then. I can tell senator sasse he never once used the word vaguely and a brief period of cores from outside it was always clear to all of us that he was not only smart and thoughtful and a great writer but it great judgment. And both literal and figured since he had gray hair from the beginning of his career. But i want to speak to you about something other than judge gorsuchs legal acumen. I want to speak you about his kindness, his compassion, his generosity of spirit as a person, and why those values are integral to who he is and what we should expect of him from the bench. Since i first got to know neil many years ago is been one of my dearest friends. We both have two daughters, is a bit older than mine, and is always been there for me to listen, to advise, to commiserate about the trials and travails of it off with typical project of the event. I have vivid memories of standhe in his backyard and call about after he became a judge talking about what didnt seem to me about a very difficult moment. As he spoke we scooped up horse manure while his family pet goat nibbles tried to ram the judge. I also never said what they saw in that goat. His kindness rested throughout his family excluding the goat of course. His daughters were always so sweet to my children. Even though my kids were considerably younger. I remember neil and his kids repeatedly leaving one of my kids to one of life adventures by the hand whether tried to balance on skis or trying on hardhats in the department store. If something happens to me and my wife, neil stands in line to inherit my children. Some people say if you want a friend in washington, get a dog. Those people never got to knowwi neil gorsuch, his wife louise or his family. Simply put, judge gorsuch is a decent and kind person. So why does that matter to this body as it is considering his nomination . As a former colleague of mine from the solicitor General Office told me, if youre someone who is that good a a person, it means he listens. It means he truly hears, it m means he can be persuaded. That is to my mind the most essential attribute for a Supreme Court justice. The court has an argument calendar with a printed list of cases that is called the hearin list. Its the chance for people to be heard. When the chief justice calls each case he says we will hear argument in case number, and then he gives the case number and the tasting. The keywords are hear the argument, not just have argument but here it. I know everyone who enters before judge gorsuch will be heard. Genuinely heard, regardless of who they are, who the represent, deposition or the nature of the controversy. His kindness and his mentally making place an extraordinary value on listen to the lord, to his colleagues and to those whose backgrounds differ from his own, they come at met from a different angle or insight or different experiences. Ive heard a lot of speculation over the last few days anden months about a judge gorsuches. Might rule on this matter or the other. I dont know how we might rule. I dont think he knows. These are often really hard cases. T thats why they get to theont Supreme Court, because theyre hard because judges disagree. What i do know judge gorsuch will struggle with those hard cases. He will immerse himself in the law come in president come in the context, in the record come into breeze and the arguments. He will listen to the litigants, listen to his colleagues, to his to come to experience and he will decide the cases based on where those things leading at the end of the case based on tht force of the better argument, not based on a preexisting intuition that may predate the cases beginning. That i believe is precisely what we should all hope for from our judges and justices. Thats true when you consider yourself a democrat like me orr republican, or an independent or if the senate blazer that as i believe judge gorsuch should be confirmed. Thank you ms. Mcghee. Chairman grassley, Ranking Member feinstein, members of the committee, thank you so much for the privilege of testifying here today. My name is Heather Mcghee and on the present of the most, Public Policy organization working for an america where all have an equal say in our democracy and an equal chance in our economy. Whats at stake is not just the Critical Issues that youve heard about over the past fewkes days but the way that we the people make decisions about allb of the issues that we face as a nation, and whose voices are a heard in the process. Judge neil gorsuch has the potential to be the deciding vote to destroy the few remaining safeguards against bigmoney, corrupting our politics completely. His troubling record on money and politics requires this committee to reject his nomination to the u. S. Supremepo court pick id like to make three basic points today. S first, that the way we find our campaigns in the u. S. Enables wealthy individuals and institutions to take the economic might and translate that drug into political power. Second, the Supreme Court activism in striking down democratically enacted safeguards is what has broughtr, us to this perilous place in ous history. In the worlds oldest democracy, nearly nine out of ten americans have lost so much faith in our system that they think a total overall is needed. Senators, we are near the breaking point. Nine out of ten. Its hard to imagine things getting worse, and at the prospect of a lifetime seat for judge gorsuch has given us a glimpse. Fortunately there is an overwhelming bipartisan consensus supporting prodemocracy reforms, even though neil gorsuch is far outside of that consensus. Your constituents want you to stand up to bigmoney and your vote on the pivotal Supreme Court seat will be one of the best chances you will ever happen to do so. Nces leading political scientist have concluded our governmentt resembles a plutocracy more than a representative democracy. Just 25 individuals pumped more than 600 million into last years election. Less than 1 of the population provides the vast majority of the funds that determines who runs for office, who wins elections and what issues get attention from elected officials. They say that he who pays the piper calls the tune, and so of course our Public Policies are skewed towards the wealthy and away from workingclass families and people of color who remain massively underrepresented among top donors and in the halls of power. The role of the Supreme Court in creating this crisis cant be emphasized enough. Last week, demos release report document how much extra money has flowed into politics because of Supreme Court rulings striking down Campaign Finance laws. We set in the 26 election cycle Court Decision responsible for nearly half of all the big money spent. Still, its not too late to reverse course the Roberts Court campaignfinance rulings have been 54 decisions in which the majorities basic assumptions about politics have been proven false. Including the idea that socalled independent expenditures are actually independent of candidates and,n therefore, cant be corrupting and that disclosure laws would be effective. With a Supreme Court that was be responsive to the facts rather than ideologies, we could end the soup packs of the court and begin to restore our democracy. C but judge neil gorsuch wouldve been with the majority in Citizens United. His Overall Record puts into the right of scalia and on the question of money in politics he would take us even further down the Roberts Courts extreme path. Judge gorsuch has had to directly relevant cases. In hobby lobby he voted to expand First Amendment rights for corporations building on Citizens United troubling logic. He went out of his way to signal openness to applying the harshest possible standard of review to Campaign Contribution limits, which would deem a wealthy donors check with the more constitutional protection and the court has consistently offered by most precious right, to vote. Judge gorsuch was given an opportunity in this room to distance himself from one of the most unpopular court cases in american history, and he failed to do so. Thankfully, outside of the beltway this is not a partisan issue at all. 91 of President Trumps own voters thought it was important that he appoint someone to the Supreme Court who would be openn to limiting big money in politics. 70 of republicans say that congress should reject any nominee who quote will help the wealthy and the privileged wield too much power in our elections. The American People are demanding change to a political system that favors the already wealthy and wellconnected. So we urge you to vote against judge gorsuchs nomination and to tell your constituents that a key reason you did so as to stand with them over big money. They will thank you, and i thank you. Thank you very much. Professor solomon. Thank you very much, senator, Ranking Member feinstein. I voted for you in 1992, and its a pleasure to appear before you today. My statement concerns an aspect of judge course of his judicial philosophy, regionalism. Over the course of this hearing i think weve learned out several things about our regionalism and there still some things i think that might be cleared up. What is a regionalism collectsss it consists of three basic ideas a regionalism cracks. The meaning of the constitution should be its original public meaning. The meaning of the words and phrases in context to we the people. The second idea is that that meaning is fixed, not that the law is fixed, but that the meaning of the words is fixed. At the time they are written. The final idea is that that original public meaning should strain what judges do, that judges, the president , the members of this august body aret all bound by the original public meaning of the constitution. Over the course of the past three days weve learned some other things but we learn that there are a number of myths about a originalism and i think those myths have for the most part been cleared up. A originalism does not ask the question what would madison do, a very silly question when we try to apply the constitution tn modern circumstances. We have learned that the words of the constitution can be adapted to new circumstances. At the time the constitution was adopted, california did not exist. It was not a state, but we havec no problem concluding that a nonetheless, california is now a state and entitled to two senators in this body. A weve learned that brown v. Board, one of the most important decisions in the history of the Supreme Court, is not inconsistent with the original meaning of the constitution. As judge mcconnell demonstrated in 1995, brown v. Board was required by the original meaning of the constitution. And weve learned this very clearly that a originalism is not inconsistent with precedent. What id like to say today most importantly, is that a originalism is in the mainstream of american jurisprudence. A originalism in the mainstream of american jurisprudence becaue throughout our history for the most part with some important exceptions, the Supreme Court t has been an originalist court. But a originalism is in the mainstream for another reason. Originalism can and should be endorsed by both democrats and republicans, by progressives and conservatives. This point is important to me personally. I am not a conservative. I am not a libertarian. Im not a republican, but i do believe in a originalism. Why is that . Its because im convinced that giving power to judges, to override the constitution, to impose their own vision ofes constitutional law is dangerousv for everyone. If you are a democrat and you know that the next justice of the court will be appointed by a republican president , and confirmed by a republican senate, would you prefer that an originalist like judge gorsuch be appointed, or would you prefer i conservative justice whos a living constitutionalist, he believes that their values are an appropriate ground for modifying or overwriting the constitutional text. Theres a final reason that originalism is in the mainstream. The Supreme Court has never claimed the right to override the constitution. Theres cases where the Supreme Court did in fact, depart from original meaning. But in all of those cases the Supreme Court either strained to make its decision consistent with the text, or ignored the text altogether. I support judge gorsuchs nomination because he is an originalist. Thank you, professor. Thank you, senator, Ranking Member feinstein, and the committee. My name is fatima goss graves and im Senior Vice President for programs and president elect of the National Womens law center. Vice en since 1972 the center has been involved in virtually every major effort to secure and defend womens legal rights. I thank you for your invitation to testify today and asked that my full written testimony be submitted. Over the past few days, judge gorsuch has talked a lot about how he follows the law rather than his personal views or his feelings and that he applies the laws to fax. But a review of his record shows that time and again his approach to the law gives the benefit of the doubt to employers, to politicians, the other powerful entities rather than the vulnerable individuals who rely on the law for protection. And time again this approach disadvantages women. If you take the case of betty pinkerton, and administered assistant sexualharassment claim was dismissed, judge gorsuch ruled against ms. Pinkerton on the grounds that her failure to report the harassment she faced for all of two months was unreasonable. During that period she had to listen to her boss ask about heo breast size, ask about her sexual habits, and under title vii these sorts of remarks only become a pattern of harassment as they add up over time. If she complained to early under title vii she would have no claim. And waiting two months underev judge gorsuch approach, again, she had no claim. This is an approach that ignores the workplace realities that the law is designed to address, and the very nature of workplaceddrs harassment. Or if you take the hobby lobby case in which a corporation challenged the Affordable Care act birthcontrol benefit which requires Health Insurance plans to provide birthcontrol without costsharing. Access to contraception means for women the ability to plan their lives, to plan their futures. And the birthcontrol benefit relieves women of a steep financial burden which can runtr as high as 1000 in upfront costs. Judge gorsuch joined the tenth h Circuit Holding under the religious freedom restoration act that an employer is religious belief can overwrite and please write to birthcontrol under the Affordable Care act, including and especially extreme holding that promoting gender equality in public health, the very goals of the birthcontrol benefit, were not compelling government interest. His concurring opinion wasco stunning in his refusal to even acknowledge the Health Impact and the financial burden on women who would lose Insurance Coverage under his approach. Ultimately, the case reached the Supreme Court, and unlike the decisions joined and written byy judge gorsuch, the Supreme Court instructed that as a part of balancing test courts must consider the impact on women. Judge gorsuch record also shows hostility to constitutions protections of the most personal and intimate decisions which is the basis for the right to birthcontrol and the right toti abortion. Yesterday judge gorsuch declined to say whether roe v. Wade was correctly decided, merely acknowledging that it is actually president of the court. He refused to answer key key question about other areas of the law that accord to womens lives when his question about letter from former students who claim that they had come that it suggested companies cant and should ask women and other women about the pregnancy plans andte the family plans, even in explaining this incident, judge Gorsuch Shockley refused to acknowledge that such behavior would violate title vii. And to be clear, Statement Like these are widely at odds with the very letter and the very purpose of title vii in the family medical leave act. Finally, we reviewed judge gorsuchs record against the highly unusual backdrop, including promises made by President Trump that his nomineo would overturn roe v. Wade automatically and would be selected from a list apart by the Heritage Foundation and by the Federalist Society. It really highly unusual occurrence to say the least. When you put these extraordinary comments together with the judges record and his refusal to provide anything but platitudes about his judicial philosophy to this committee, there is only one possible conclusion, and it is that judge gorsuch should not be confirmed. Thank you. And to the remaining witnesses on the panel and the members of the committee, we are about halfway through a vote and we need to take a recess to go vote. We are all going to need to take a recess to go vote, so what we will do is also give a few extra minutes to the recess so folks can get a bite to eat if they can. Do we have two votes . Ill be back here about 1 10 to take up the gavel again. Committee is in recess