Transcripts For CSPAN2 Final Day Of Gorsuch Confirmation Hearing Focuses On Witness Testimony 20170324

Hopefully a republican democrat votes so i can finish. I havent missed a vote since 1993. Thats about 7,900 votes. I dont intend to miss another one. Professor tirly. Thank you members of the Senate Judiciary committee. It is an honor to discuss the nomination of judge neil gorsuch for the United States Supreme Court. I believe the nominee should be extraordinary. I should state at the outset that i do not agree with all of judge gorsuchs legal views, however i believe that judge gorsuch to be exceptional choice for the court. While many focus on replacing the conservative with another conservative, the primary concern should be to replace an intellectual with another intellectual. Judge gorsuch is that type of nominee to have the vigor to sit in the chair of the late antonin scalia. One of the primary complaints regarding past nominees has been lack och writings or opinions. Such individuals can make for good nominees. They do not make for great justices. Judge gorsuch is a refreshing departure from that trend. He has a record of well considered writings both as a judge and as an author so this is not a blind date. We have a very good idea of who judge gorsuch is and the type of justice he will be. In my written testimony i focus on two aspects of the nomination. First i have addressed the criteria often used to evaluate a nominee and i have looked at cases by judge gorsuch with particular emphasis on power and chevron. Every present senator expressed commitment to placing best and brightest on the court though few agree on qualitative measures needed to guarantee that. Historically the record is not encouraging. Our respect for the court blinds us with the fact that justices have ranged. To be blunt we have had more misses than hits. Top candidates are often rejected due to writings and views that might attract opposition. The result is a preference for nominees with clean records that have no public thoughts challenging conventional theories, not even raising interesting ideas. That is not the case with this nominee. Judge gorsuch is actively participated in debating some of the toughest questions of our time. This is in other words a full portfolio of work at the various highest level of analysis. On the basis of all criteria i discussed in my testimony judge gorsuch is a stellar nominee. I realize that many do not welcome a conservative nominee anymore than they welcomed a conservative president. President trump has every right to nominate someone who shares his views. To put it simply, neil gorsuch is as good as it gets and he should not be penalized for engaging in a policy and academic debates of our time. I discussed some of his opinions. There are many. 2,700 or so. The jurisprudence reflects a jurist who crafts his decision closely to the text of a statute and in my view that is no vice for a federal judge. The exception as i talk about is chevron in terms of the consistency of his views with those of Justice Scalia. There we have seen a lot of discussion of cases which i would be happy to go into. The confirmation hearings bring almost a mythical aspect to this process as people try to predict who a justice will be decades in advance. Of course, nobody knows that except the nominee. If history is a judge the nominee doesnt know that. These hearings remind me of judge holmes who is traveling by train when conductor asked for ticket. The conductor says we all know who you are. When you get to your destination just send us the ticket. He responded the problem is where am i going. Most nominees are in the same position as Oliver Wendell holmes. I do not expect judge gorsuch to be a robotic vote for the right of the court. He has shown intellectual curiosity and honesty that will take him across the spectrum. I would simply say we are not looking for the best imitation of Justice Scalia. We are looking for someone who can be intellectual on the court. That person is neil gorsuch who just might eclipse his iconic predecessor. Wont be the same. He will bring something new. In the end what i mostly can say about gorsuchs destination is that while i suppose they have this in common, he will go where his conscious takes him. It might be to the left or right. I cant say with the final term this will be but it will be exciting to watch. It is therefore my honor to recommend the confirmation of the honorable judge neil gorsuch for United States Supreme Court. Thank you. Now mr. Gallagher. Thank you for the opportunity to testify here today on behalf of the sierra club and its members and supporters. The Supreme Court justice holds considerable power over the laws which safe guard the air we breathe and water we drink and the integrity of our democracy. Unfortunately, judge gorsuchs ideology threatens bed rock and environmental law and rights of citizens to fair and equal voice. For these reasons the Sierra Club Opposes judge gorsuchs confirmation to the Supreme Court. Judge gorsuch has displayed consistent willingness to close courthouse doors to citizens while holding them open for corporate interests. Think for a moment of the child from bakersfield, california struggling to breathe as result of oil and gas operations outside her home and school or of the family who might not be able to take their annual camping trip in ohio because of fossil fuel Drilling Operations at that place. Or of the families here in washington, d. C. Who continue to suffer from the led contamination of Drinking Water. I presume that everyone in this room would agree that every single one of these people deserve access to federal courts to remedy the wrongs. Unfortunately, judge gorsuchs writings and judicial records show he would shut courthouse doors on many of these people who want nothing more than to protect their air, water, public lands and families. In 2005 judge gorsuch authored an article entitled liberals and lawsuits where he criticized those who seek to remedy justices in the federal courts when executive branch fails to do its job. While judge gorsuch repeatedly stated that he wishes this article would disappear his record continues to reflect this philosophy as he has denied environmental plaintiffs access to the courts where citizens must jump through multiple hurdles just to get inside judge gorsuchs courtroom corporations have been able to walk right in. Let me cite two examples. In 2013 the sierra club moved to intervene in lawsuit against Forest Service challenging closure of certain trails. Judge gorsuch concluded we should have been excluded. Neither the government, offroad Vehicle Group nor majority of judges objected to our participation in that case. Second, in 2005 a coalition of citizens groups challenged a utah countys attempt to take over Red Rock Wilderness areas managed by bureau of land management. Judge gorsuch ruled that the citizens did not have standing to sue and did not get into the courtroom. In an emphatic dissent, one that echoes my testimony here today stated a citizens right to protest and be heard on federal rules and regulations is ignored. Not only has judge gorsuch limited access to courts he has stated open hostility to the chevron doctrine a long standing precedent that ensures integrity is respected. It ensures laws are carried out by career Public Servants using best available science. Here thunderstorm most troubling issue. Judge gorsuchs opinion that it violates the constitution echoes the current white houses extreme antiagency demagoguery. Trump Senior Adviser gave speech in which he professed that white house priority is the deconstruction of the administrative state. Trumps massive budget cut for epa was next hammer to fall. Judge gorsuchs ideology will further this agenda hamstringing the ability to enact safe guards and incentivising to challenge epa forcing federal judges to second guess agency scientists. We now stand at a precipice in history. How we lift up our communities who lack access to clean Drinking Water and clean air . America cannot afford the appointment of yet another justice whose ideology disfavors groups and leads to degradation. Thank you mr. Gallagher. On behalf of the National Federation of independent business i am honored to testify today in support of the nomination of judge neil gorsuch to be an associate justice of the United States Supreme Court. Nfib is leading Small Business Advocacy Organization with hundreds of thousands of members across the country in every industry and sector. As the lead plaintiff in the historic challenge to the Affordable Care act nfib understands firsthand the importance one justice can have on the ability of Small Businesses to own, operate and grow their business. After reviewing judge gorsuchs articles, decisions and public statements we are pleased to see a judge who both applies the actual text of the law and the original meaning of that text at the time it became law rather than changing it to fit his personal views and preferences. Specifically, Small Businesses are encouraged by three qualities judge gorsuch has brought to the bench. His opinions are clear and often provide right line rules. He has a deep respect for the separation of powers and he has shown a willingness to tackle the difficult legal issues of our day head on. Judge gorsuch is not known for using ambiguous or broad language that fails to settle the question before him. Rather his decisions provide meaningful direction for District Court judges as well as businesses and ordinary individuals who may be effected by that law moving forward. Like their larger counter parts, mall Business Owners want and need certainty. They need bright line easy to understand legal standards. If Small Businesses dont know what is expected of them, what the rules of the game are they may be hesitant to undertake actions that otherwise would help their business grow. Judge gorsuch takes seriously his obligation to provide that clarity whenever possible. Judge gorsuch also has demonstrated that he truly respects and seeks to protect the separation of powers among the branches of government. This is important because nfib is concerned about what we see as the rising tide of regulation promulgated by elected bureaucrats. This trend over the last 30 years contra vaccines the fundamental principle that only congress should be able to enact and change statutory law. When it comes to regulations Small Businesses bear a disproportionate amount of Regulatory Burden as compared to larger counter parts. That is not surprising since it is the Small Business owner, not one of a team of compliance officers who is charged with understanding new regulations, filling out required paperwork and insuring the business is in full compliance with new and ever changing federal mandates. The uncertainty caused by future regulation negatively affects a Small Business owners ability to plan for future growth. For Small Business the problem of overregulation has been further exacerbated by the broad deference federal courts give to executive agencies in their interpretations of statutes passed by congress. This judicial deference to executive agencies has led to a break down in our constitutional system of checks and balances. Therefore nfib welcome judge gorsuchs concurring opinion last year encouraging the Supreme Court to revisit the chevron doctrine. In my written testimony i reference three cases where the chevron doctrine has caused serious harm to Small Business. In city of arlington the Supreme Court invoked chevron to find courts must defer to agencys interpretation of its own statutory authority. By extending to determinations the court set a dangerous precedent that encourages of Regulatory Authority with minimal judicial oversight by addicating its responsibility the court signaled that agencies may intrude with impugnity as long as their actions are justified as reasonable to the slightest degree. Our constitutional system of governing and separation of powers doctrine play a large role in empowering vitality. When the system erodes or functions less perfectly there is an adverse impact on Small Business and our nations economy. Small businesses have an important stake in who fills justice antonin scalias seat. Nfib is pleased to support the nomination of judge gorsuch to the u. S. Supreme court. Thank you. Thank you very much. Our next witness is the former Deputy Assistant attorney general. Thank you very much for inviting me to speak today. I am an attorney with more than 20 Years Experience implementing the laws protecting the rights of people with disabilities. I have serious concerns about judge gorsuchs approach to and support of americas disabilities civil rights laws. People with disabilities have long experienced what former president and then candidate george w. Bush called the soft bigotry of low expectations. Unfortunately, judge gorsuch bakes these low expectations into his disability rights jurisprudence in spite of bipartisan attempts to disen mantle such prejudices. Troubling not just for devastating human consequences but for dismissiveness of the law as established by congress. Individuals with disabilities act, education act requires Public Schools to ensure free appropriate Public Education for each student with a disability. In the luke case that you heard about earlier, judge gorsuch read to require only education that is merely more than diminimus. That context is nowhere. Judge gorsuch adopted the standard inspite of statutatory text requiring appropriate Educational Programs and in spite of repeated updates calling for high educational standards for children with disabilities. Yet in luke judge gorsuch substituted his opinion for that of three Decision Makers who found lukes school did not provide appropriate or meaningful education benefit nor did precedent require merely standard. A decision to overrule the findings of three lower courts in a way that ignores statutory text is deeply troubling. Lukes records showed he was failing in over 75 of the goals in his plan. Few parents in this country would find a 25 success rate to be appropriate or meaningful for their child with or without a disability. Yet judge gorsuch found that 25 success was a passing grade for lukes school. Notably a little over a year after the change in his placement as you heard this morning luke made significant progress in the goals that his prior school had failed him. It was judge gorsuchs expectations, not lukes capabilities, that were deminimus. Yesterday the Supreme Court explicitly rejected judge gorsuchs standard. The court found judge gorsuchs standard mischaracterized the intent and language of congress and Supreme Court precedent. The court found in requiring an appropriate Public Education congress meant what it said. The court stated when all is said and done a student offered an Educational Program providing merely more than minimum progress can hardly be said to have been offered an education at all. Unfortunately, it is likely too late for many children with disabilities in colorado, kansas, new mexico, oklahoma, utah and wyoming who have been subjected to the soft bigotry of expectations for nearly ten years. Judge gorsuchs other idea opinions have shifted standards of review and created legal mine fields of administrative processes to undermine the Education Rights of students with disabilities. And judge gorsuchs opinions on the rights of adults with disabilities also reflect rather than challenge stereotypes that congress enacted in federal disability rejected. Congress passed americans with disabilities act to open doors to the work place for people with disabilities. But judge gorsuch in 2010 held that an employee with multiple shrerose s did not have a disability because she was able to work. He made this holding in spite of both ada and the ada amendments act of 2008 where congress made clear that the ada provides and as always provided protection to people with ms and that disability is not defined catch 22 like as an inability to work. Federal disability laws are intended to address not just latent discrimatory treatment of people with disabilities but the ways the employment processes benefits and buildings have been designed in ways that inherently exclude people with disabilities. This is the basis for ada requirement of reasonable accommodation. In the case of Kansas State University a professor requested slight extension of her leave time to return to work when her campus experienced h 1 n 1 outbreak that could have risked her life. The university routinely allowed one year phsabbaticals for othe but judge gorsuch insisted she could only extend her leave. The ada asked if she was offered what she was entitled to or reasonable accommodation is available. Judge gorsuch ignored that test. Instead he suggested that congress was wrong to require leave as accommodation at all and that leave of over six months was unreasonable no matter what other employees were given. You may believe that a judges role is to protect dignity of all people and especially those of dissempowered minority groups or to remain faithful to clear intent of congress as expressed in statutes. Either way judge gorsuchs opinions in disability rights issues do not meet that standard. Thank you. Senator hatch, do you have questions . Yes. Im sorry. Professor turley. Yes, sir. You have observed and written about the confirmation process for a long time. Some of my democratic friends have been saying that the only way to find out what they need to know about judge gorsuch is to demand what Justice Ginsberg once called hints, forecasts and previews about his future votes or opinions in cases that will come before the Supreme Court. Your testimony is very different. In your written statement you insist that we have a very good idea of who judge gorsuch is and the type of justice he will be. Do you agree with me that results oriented litmus tests based on specific issues are not the best standard for evaluating fitness of the Supreme Court nominee . When i refer to knowing what type of judge this man is i was referring to the fact that he has a well known jurisprudence. He has a well known view of the constitution. He shares that distinction at nominee with the man he would replace. He will have lasting legacy. He changed the court more than it changed him because he came to the court with a clear understanding of his jurisprudence. When i look at judge gorsuch i see someone that quite frankly will follow his conscience. I dont think he will be robotic. I think that view, his view will take him to the left and the right of the spectrum. What we do know is he is textualist. I dont think that is a vice. What his opinions show is someone with intense intellectual curiosity and intense independence. I can think of no better possible nominee. I dont want a blind date. I dont want someone who we know nothing about. What we have in judge gorsuch is someone who wasnt just a pedestrian. He got involved and i respect that. I dont think we should penalize someone for being active in debating these issues. Thats a good point. The suggestion has been made in this hearing the concern about the chevron doctrine which requires deference to executive Branch Agency and interpretations of the law is just another way of opposing regulation in general. One democratic senator said that without chevron the agencies will not have the authority to address problems at all. Do you agree with that characterization . No, i dont. I share judge gorsuchs view on chevron. We come from two different places i think probably politically. I think how you view chevron depends on how you view it from constitutional standpoint or Administrative Law standpoint. I think i share judge gorsuchs view or looking at it through the lens of constitutional standpoint. Chevron is troubling because it does tend to u surp a role of this body. I also dont think that the suggestion that if chevron was set aside that all of rome would burn. I think that judge gorsuch made a very good point when he said what do people think is going to happen if we dont have chevron . What is going to happen is we will be in the same position we were before chevron which wasnt a bad position. You had the case where Justice Jackson said we have to respect agency opinions. We have to give them great weight. The apa itself in section 706 says you have to defer to that. So there is not a cliff here that people are talking about. What it does by moving away from chevron is to give the courts more heavily involved in review of Agency Decision making and also give more authority back to this body where i believe it should rest. I agree with you. We often speak about the impact of Court Decisions on the parties to a specific case and beyond. I really appreciate your response in this area and your comments because i think they provide an important perspective of this issue. Im sure you know from observing this process my democratic colleagues focus only on which party wins or loses or which narrow political interest is advanced by the decision in an individual case. You seem to have a very different take. Your testimony emphasizes more broadly clarity about the law and adherence to basic principles such as separation of powers have the most important impact. That is why you have such high praise for judge gorsuchs approach not only tamaking decisions but on writing opinions and explain those decisions, as well. My view is that the law, not the judge should determine the outcome of individual cases and broader impact of those decisions. Do you agree with that . There was discussion with senator about this which is the separation of powers is important because coming here before you is where my members, Small Business owners, are going to have the greatest impact. You are in the light of day with a true Public Discourse about what the law should be. They are not going to be in every courtroom in the country and every agency walking the halls. They need to know that once you all enact a law the regulation is issued that is appropriately within that statutory framework, a law they can rely on because that certainty is the only way for them to be able to do business. Certainty is a critical component of Small Business owners ability to operate business. May i ask unanimous consent. Ask that the report resulting from Supreme Court rulings as well as march letter from 109 house members to Ranking Member feinstein urging this committee to question judge gorsuch about money in politics and a 2017 report titled money and politics and the u. S. Supreme court and a 2015 report titled breaking vicious cycle rescuing our democracy and economy by transforming flawed approach to money and politics all be entered into the record. Without objection. Welcome. I appreciate that you are here and the work done to shed some light on the problem of money and politics and the influence that it gives special Interest Groups. We have kind of an unusual circumstance here in that President Trump originally outsourced the creation of the list from which judge gorsuch was selected to a pair of wellknown right wing Interest Groups. And then the notification to judge gorsuch that he describes in his description of the selection process, the opening sentence is on or about december 2, 2016 i was contacted by leonard leo who was the head of one of those same special Interest Groups. Then it has been reported in the news that the white house outsourced the Political Campaign on behalf of judge gorsuch to those Interest Groups and indeed we have seen reports of a 10 million Political Campaign to try to influence the senate in judge gorsuchs favor through a front group. So we dont know who the real donors are. Its dark money that is behind that entire operation. And it was the same front group that spent nearly equivalent amount of money trying to disrupt the nomination of judge garland. And finally we have the colorado reporting on judge gorsuchs friend and appears as patron in quest for 10th circuit seat who is a very big political spender. And all of that i think causes concern to some of us that although the talk may be about olympian detachment, the actual operation of getting judge gorsuch before us has been special interest dark money politics. I would like to ask you to react to that. Thank you senator whitehouse. I think you are right to express concern about this the same way that the American People including 91 of President Trumps own voters have expressed concern about the role of the Supreme Court in expanding our current big money system. Judge gorsuch had the opportunity over the past couple of days to distance himself from the entire problem of Citizens United either spoken out expansively in terms of influence of wealthy millionaires and billionaires to even some of the more narrow concerns. I was particularly concerned in your exchange with the judge when you gave him an opportunity to talk about something that is his predecessors, one of his great north stars which is importance of disclosure in our Campaign Finance system. Instead of saying clearly that there is a Public Interest and knowing who is spending millions of dollars to buy influence with our politicians, he was quite evasive. In fact, to my dismay raised the idea that disclosure chills speech and even suggested that the 650 million in secret money from societys most powerful which is what we have seen since Citizens United will be on the same level as the brave civil rights leaders in the naacp case, people who endured violence, bombings and shootings for their political activism. If you dont mind i want to read one sentence from what senatjus scalia said in doe v reed about the importance of disclosure which gave gives us sense. There are laws against threats and intimidation and Harsh Criticism a price our people have been willing to pay for self governance. Requiring people to stand up in public for their political acts fosters civic courage without which democracy is doomed. My time is expired. Thank you very much. Thank you. Thanks to senator whitehouse and you for filling in when i had to go vote. While many tried to argue that originalism is inherently conservative others pointed out that originalism has been ascribed to by liberal judges and academics, as well. Professor at Harvard Law School once described the late justice black as a liberal originalest. Would you agree that originalism is not by itself political in nature . Yes i would. If i might just give an example or two. Its absolutely true that much of the interest in originalism at the beginning was generated by critics of Court Decisions and originalism has been associated with conservatives to some extent. But originalism is the idea that we are going to enforce the original meaning of the United States constitution and the United States constitution has implications that both conservatives and progressives, both democrats and republicans can welcome. Let me give an example that relates to the question we have just been dusziiscussing, the rs of corporations. Justice thomas in his opinion in the donald case says that incorporation of the bill of rights can only be justified under privileges or immunities clause of United States constitution. The privileges or immunities clause is different than the equal protection clause or due process clause. Those clauses guarantee rights to all persons. The privileges or immunities clause guarantees rights only to citizens. Incorporations are not citizens. This is not a result that corporations will welcome at the state level where the 14th amendment applies, but it is an implication of the original public meaning of the constitution. Thank you. You worked with the judge when he was in private practice and you said you support his nomination to the Supreme Court. Do you think his experience as a trial lawyer would be relevant to his work on the Supreme Court . Yes. I think it is highly relevant. As somebody who was a trial lawyer for many years the judge has Great Respect for the record, Great Respect for the Factual Development whether developed by this body in support of statutes or record created by the parties at trial. I think when you are a trial lawyer and involved you develop that type of Great Respect that is important to really understanding what is going on in the cases to understanding not merely what the principles are but how they are affecting people. I think practical experience as a trial lawyer is something not as common among Supreme Court justices now as it should be. My last question. We have heard a lot during these hearings about the rule of law. We have heard in particular about how its the role of judges to enforce laws as they have been written by the congress. Can you explain why it is important to your clientele, Small Business men and women for judges to interpret statutes according to the text . Because Small Business owners need to know what the rules of the road are, what is expected of them and not have to worry that because of one judges decision a practice that they had been doing that they thought was perfectly legal one day is now unlegal or illegal. That is why Small Business owners are so committed to the way that the separation of powers works where legislators legislate and judges tell us what the law is. And that is why we have so much respect for judge gorsuchs work. Thank you. I yield back my time. Thank you. Ms. Hill, earlier we heard compelling testimony from jeff perkins about his son luke and about the consequences for luke and his family of judge gorsuchs perspective in his opinion in the 10th circuit and the Supreme Court disagreed with judge gorsuchs reasoning. I believe the goal of laws passed by Congress Like ada is access, opportunity and participation not isolation and segregation. I would be interested both judge gorsuch yesterday and judge taha today insisted that judge gorsuch was bound by precedent both circuit and Supreme Court to set the standard under the idea as more than diminimus. Are they right . I dont believe so. Of course, the Supreme Court yesterday indicated that it was not correct to approach or interpret as meaning that the standard was more than diminimus but for meaningful and appropriate education as Congress Said that it was. I looked more closely at the urban case that was the case that cited that judge gorsuch cited for the diminimus standard which still did not use the word merely. In urban no dispute about whether sufficient services had been provided for this child. There was dispute about whether procedural requirement had been followed and whether that failure created substantive violation. To the extent that there was no argument over whether free appropriate Public Education had been provided any argument about what the standard for free appropriate public accommodation was is largely dicta. In a 2013 case i think new mexico the sierra club attempted to intervene in a case and the Court Allowed you to participate. Judge gorsuch dissented and wouldnt allow even though none of the litigants opposed litiga. Judge gorsuch blocked another group. Why do you think it is important for groups like this to participate and how do you think judge gorsuch would prevent the ability for those. Right now when President Trump and his adviser steve bannon are threatening to dismantle the epa and when we have a new administrator of the epa scott pru whoit eviscerated with the governor of oklahoma it is critical to enforce environmental laws. This body legislated citizens to if we cant get access to court and mr. Trump and mr. Pruitt wont protect our Drinking Water, who are we going to call . Thank you. Ms. Graves in strickland versus us, judge gorsuchs colleagues found a woman had shown enough efd of discrimination based on sex to have a jury rule on her case. The woman had multiple coworkers testify she was treated worse than her male coworkers, though the law required the court to look at the evidence in the light most favorable to the woman, judge gorsuch again descented. Can you tell us more about this case and what it says about judge gorsuchs approach to deciding these opinions . Sure. Thank you, senator coons. I think the strickland case is a good example here of the concern that we have when judge gorsuch said he applies law to facts. Because here the real issue was that there were a lot of facts and these facts were disputed in fact and when facts are disputed, the thing to do is have the jury decide. Have the jury determine and resolve the facts. Here despite a lot of evidence that she should have been able to continue her claim, judge gorsuch said no, no, no, thats not enough. So in that case, thats an example of yes, he was applying the law to the facts but the jury itself is the one who is supposed to resolve the facts. Thank you, ms. Graves. Thank you. Thank you. Senator kennedy. Thank you, mr. Chairman. Ms. Mcgee. Is it mcgee or mcgeehe. Mcgee. Thank you. Tell me, im listening to your testimony about your criticism of judge gorsuch, and Citizens United. Tell me what your complaint is with respect to judge gorsuch and Citizens United, just briefly. Sure, absolutely. First of all, we believe that based on his record in two cases, hobby lobby and riddle v hicken looper that you have a recipe for striking down some of our last remaining protections against big money. He went out of his way in hicken looper i dont mean to interrupt you but ive only got five minutes. I understand that. Do you really expect a nominee of the United States Supreme Court whether he or she is dominate bade democratic president or republican president to come before the Judiciary Committee and talk about what is good policy or bad policy . Fortunately he doesnt have to get into policy to just talk about enduring democratic principles. I also think the heritage foundation, the number of right wing organizations that are antiCampaign Finance reform, that have backed his nomination for the court would be surprised to learn that he was at all ambiguous about about Citizens United which is one of the most Important Court cases in recent memory where all of the principles around grandly interpreting the First Amendment to give and protect the rights of millionaires and billionaires to spend unlimited amounts was just a continuation of a set of ideological jurisprudence that i would be surprised to hear him part from and he didnt when he had the opportunity. I want to understand your criticism of judge gorsuch as a nominee for the United States Supreme Court. Youre criticizing judge gorsuch for not coming before this body and offering a policy preference in terms of Campaign Finance in elections in america . Im not criticizing the judge. I am saying that had an opportunity to say principles about our democracy and upholding our First Amendment that would protect a vifgs one person one vote. He was asked multiple times about many different issues concerning Campaign Finance reform including cases where he went out of his way to right concurrences on majority opinions that put into doubt his opinions in future cases about issues such as the scrutiny level for campaign contributions, which is to date we believe hatter of settled law, and the very possibility of moving into corporations giving direct contributions to candidates based on his concurrence in hobby lobby. You would prefer to have a nominee who agrees with you on those policy issues . I would prefer to have a nominee who was open to considering the facts. We have seen that since Citizens United the facts have shown that some of the basic premises it is actually independent and cant corrupt. The disclosure is real, have been prove len false. Im going to put you down as doubtful on Citizens United. Thank you. Ms. Hill, how do you think they should decide cases . I think judges should decide cases based on the law as express bid congress interpreted by agencies and applied to the fact in front of them. What if they are wrong . If you think partys wellness status of power or eif fekt on the outcome after guest . I yield back. A couple of questions, this is part of tell me your organization promotes Small Business obviously and regulation has a little to do with the success or failure of Small Business. What have you seen over the years with regard to decisions by the Supreme Court or other courts that has impacted the ability of Small Business to succeed . Right. Well that has been really over last several decades we continue to see an increasing regulatory state and in large part that is because of Agency Deference that courts are giving to agencies. The chevron doctrine. And we have seen this firsthand with the number of cases this dh weve gotten involved. And i have several referenced and my testimony where because of that Agency Deference, Small Business owners, the interpretation of the regulation by the agency dwoferns and as a result of Small Business owner is sued and out millions of dollars in one case. The wahlberg case that i talk about here. But more importantly and more broadly on the regulatory state generally, Small Business owners do bear the dispro portionsate burden of regulation on their business as compared to the larger counter parts. Its been a primary concern. The reason they havent been able to grow over the past nine years and so we are that is why we are so committed and so encouraged to see that judge gorsuch recognizes as he said in his testimony, raised his hand to the Supreme Court and said, look, chevron deference this may be a time where we need to revisit that. We do think it is responsible for increasing the regulatory state in this country. Thank you. I would like your thoughts on that similar theme. The receive ron deference, certainly judge gorsuch has expressed an indifference about it but mildly i hopecreceive ro certainly judge gorsuch has expressed an indifference about it but mildly i hopehreceive ro certainly judge gorsuch has expressed an indifference about it but mildly i hopeereceive ro certainly judge gorsuch has expressed an indifference about it but mildly i hopevreceive ro certainly judge gorsuch has expressed an indifference about it but mildly i hopeoreceive ro, certainly judge gorsuch has expressed an indifference about it but mildly i hopenreceive ro deference, certainly judge gorsuch has expressed an indifference about it but mildly i hopeeceive ron deference, certainly judge gorsuch has expressed an indifference about it but mildly i hopeceive ron d certainly judgeive ronive ron d. What we have seen over past several years is one administration whose agencies will regulate in a certain way the new administration comes in with a completely different idea. We just dealt with a Congressional Review Act on certain tech regulations, internet regulations a few minutes go on the floor. Then the next administration might come in with something completely different. One thing that Small Business and Large Business any business cannot stand is uncertainty moving ahead. With chevron deference, looking back from congress to have maybe a more balanced or more predictable application of statutes which will govern regulation, is that a better way . What do you say . I do think it is a bet ater y it move beyond chevron. Ive been a critic. Chevron for years. More so of brand x which is one of these opinions. I thought the judge was right on on that one. He raised the issue. A lot of people dont realize that an agency can negate the legal interpretation after federal court and he appropriately said, you know, i thought that courts interpret the law after mar before i versus madison. Thats how chevron works the marbury of the state saying they can be the final word. Madison. Thats how chevron works the marbury of the state saying they can be the final word. I think you are seeing a tri par tied system with three branches held together. Inverse pressure in a fixed orbit that madison set. We have this Administrative Branch of agencies. I identify with many in those areas because they are dweebs like me. They are wonky. But we have a further branch that is a dangerous change in our system. One we arent having a debate over and chevron fueled that change. And you can largely go back to the conditions of cases like skid more where courts gave a lot of deference. You have the epa which would require deference. Also, appropos of your question it is a victory for judge gorsuchs mother and a vikt rif republicans trying to reverse maeb urs that were put into place. And democratic demonstration and using Administrative Authority to do that. So i would caution those that if suggested that this is going to be and to return this to a position closer to the design of our government. Thank you. My time is up and i believe the time for the panel. We will go on to the next panel. Thank you for your service. We will call up the next panel. You want to set the name plates. Consist of ms. Clark, ms. Krirsin al. Ms. Fisher. Ms. Miller. Professional marshal. Professor mayor. Ms. Phillips an professor jafer. If you could please stand and raise your right arm. Do you swear that the testimony you are about to give before the committee will be the truth, the whole truth, and nothing but the truth so help you god . I coudo. Thank you. Please be seated. Kristin clark is president of the Lawyers Committee for civil rights under law. Peter kirenaw is partner with the firm, ben itch Labor Employment Practice Group and is serving his third term on the u. S. Commission for civil rights. Sarah warblow is legal direct for human rights campaign. Alice fisher is partner in a washington, d. C. Office and a member of the firms executive committee from 2005 to 2008 will she served as assistant attorney general in charge of the division at the department of justice. Amy miller is found of whole womens health. Sarah smith is Senior Council at beckett she clerked for judge alito on Third Circuit court of appeals for Clarence Thomas and for justice aalito. Tim meyer is former law clerk for judge gorsuch from 2007 to 2008. He is now professor of law and enterpri enterpri enterprise scholar at vanderbilt law school. Sandy phillips is mother of jessica gowin, tragically killed in the 2012 shooting at aurora, colorado movie theater. Jamil was a law clerk for goe gorsuch from 2006 to 2007 he is now director of law firm at scalia law firm at george mason university. Thank you for your testimony. It will be five minutes each. We will proceed of that with fiveminute rounds. Go ahead, ms. Clark. Good afternoon. I want to thank the distinguished members of this committee for the opportunity to testify today on behalf of the Lawyers Committee for civil rights under law. We we have the unique mission of mobilizing lawyers across the world for pro bono to advance our work. For africanamericans and other minorities, the court has been a crucial forum for seeking equal justice under law. Historically minority groups have looked to the court to vindicate their constitutional and civil rights. We have reviewed the civil rights record of judge neil gorsuchs. We have done for all Supreme Court nominees for the last several decades. We do not believe the record is sufficient to conclude he meets our standard which requires demonstration after profound respect for the importance of protecting civil rights afforded by the constitution and the nations civil rights laws. Judge gorsuchs views have a very narrow definition of what are civil rights. Our concerns are especially pronounced with respect to the question of whether he will fairly interpret and apply one of our nations most important civil rights laws, the Voting Rights act. In 2013 the act was gutted in Shelby County beholder. At issue in Shelby County were section 5 preclearance provision of the act that helped identify and successfully block hundreds of unconstitutional and discriminatory voting changes. And the section 5 provision section 4 provision that determined where the law applied. A closely divided court ruled that section 4 was unconstitutional. A decision which eviscerated the heart of the Voting Rights act. Witnesses have drawn parallels between judge gorsuch and the late Justice Scalia. During oral arguments in Shelby County Justice Scalia referred to congresss renewal of the Voting Rights to quote perpetuation of racial entitlement. That was a startling perspective on a law that has ensured millions of american citizens have not, merely because of the color of their skin, been unlawfully deprived of the most sacred right in our democracy. What is most troubling about the case in Shelby County is the consideration of court was set aside. In 2006 section 5 was renewed bay vote of 980 after overwhelming evidence of discrimination against minority voters. It is unclear whether judge gorsuch appreciates congresss broaden forcement powers under the 14th and 15th amendments and unclear whether he brings awareness of the widespread voting discrimination and voters suppression that we continue to face today. The right to vote is too important. We must understand where judge gorsuch whether judge gorsuch is committed to fairly interpreting and preserving what remains of Voting Rights act. Equally important are questions concerning judge gorsuchs tenure at the u. S. Department of justice between 2 005 and 2006. When he occupied the role of Principal Deputy associate attorney general. As a career attorney at the Civil Rights Division of the Justice Department during that time, i am personally aware of what led to the self rights work. Those views were substantiated in a july 2008 inspector generals report which found that politicization of the Civil Rights Division hiring practices and its work violated federal law, and Justice Department policy. We must not turn a blind eye to the fact that judge gorsuch had some responsibility for overseeing the division during this time. The materials provided by judge gorsuch together with his Senate Questionnaire do not clarify the extent of his involvement in the significant problems that tarnished the work and integrity of the Civil Rights Division at this time. Oi urge t i urge the senate to find the answers to these questiones. Before i finish i want to say a brief word on judge gorsuchs criminal justice issues. This remains at the forefront for many africanamerican, latino and minority communities. Our review shows that he takes an unusually narrow view of the Constitutional Rights of defendants particularly under the fourth amendment. Judge gorsuch has also shown extreme difference to Police Officers in Excessive Force decisions. We have seen intensifying efforts to restrict the rights of minority voters, unconstitutional policing practices, risings and a phobia, religious initll ra religious intolerance and other circumstances that make clear the fragile state of our democracy. Our nation deserves a Supreme Court justice who will interpret the constitution and civil rights laws in a way that recognizes that discrimination is both ongoing and a threat to democracy. And who is committed to ensuring equal justice under law for all americans. Based on the record to date, i am not able to support the nomination of judge gorsuch to the Supreme Court today. I respectfully request that the Lawyers Committee for civil rights under laws report on the nomination of judge gorsuch and accompanying letter signed by more than 100 of our Board Members expressing concern regarding the nomination be entered into the record. Without objection. Thank you. Thank you, ms. Clark. Mr. Kirsenaw. Thank you. Im i speak as one member of the commission on civil rights, not necessarily on behalf of the commission as a whole. The u. S. Commission on civil rights was established pursuant to 1957 act and to act as National Clearing house for information related to discrimination and equal protection and in furtherance of the Clearing House function and with the help of my assistant i have reviewed the nearly 200 cases related civil rights that judge gorsuch authored or participated in. Of the opinions we examined related to civil rights that judge gore such participated in, he was in the the minority of 5 of those cases. In 43 cases he was on a threejudge panel in which two other Panel Members appointed by president s of the Democratic Party and in 94 of those cases he joined majority opinion or concurred in the result. A useful example of judge gorsuchs mainstream texturalism, is his descent in trans am trucking versus administrative review board where a majority of the panel found that a statutory provision that provided that an employer may not discharge an employee who refuses to operate a vehicle where that employee has a reasonable apprehension of serious bodily harm actually meant that the employee may not be discharged if he operates the vehicle contrary to employee instructions. Judge gorsuch applied the plain text of the statute in a very precise manner and noted that employee in question had done the opposite of the stat foruto privilege. That is he operated the vehicle, not refused to operate the vehicle. His deference to precedent and interpretation to governing statutes yields cases and record on civil rights thats consistent with prevailing civil rights. For example carrera verustyson foods. Judge gorsuch held up in a hostile Sexual Harassment case where there was no evidence that there was a hostile environment. The evidence proffered was that supervisors were standoffish. That standing alone does not constitute a hostile environment. Moreover the defendant immediately discharged the employees who made provocative gestures and transferred plaintiff upon request. And this this the st. Marys medical center, there was a retailation claim where there was no evidence that hospital had fired the plaintiff for reporting sexually explicit remarks made by a coworkers as opposed to firing plaintiff because the plaintiff had threatened to shoot such coworker. As pertaining to religious discrimination cases. Judge gorsuch takes it soberly and seriously regardless of whether or not the issue at hand may be trivial to some, may be obscure or the plaintiff is unsympathetic or beliefs may be at odds with societal norms. An example is yellow bear versus lamper. Judge gorsuch held the rights of an unsympathetic plaintiff where a little girl was murdered which plaintiff had been denied his right to access a sweat lodge pursuant to religious beliefs. Judge gorsuch also noted that protections might be available to individuals and families given the hobsons choice of either abiding by religious beliefs or saving their business. And judge gorsuchs approach to civil rights cases is consistent with the norms in this jurisprudence. His record shows that he is a caref careful and exacting judge who has Great Respect for the constitutional order, rule of law, rule of congress and corresponding limits on judicial authority. He is consistent with mainstream tex actual interpretation of the governing statutes and all of his records show he will faithfully and carefully apply the law to protect the civil rights of allamericans. Thank you, mr. Chairman. Thank you. If you are wondering where my colleagues are, there is a vote going on right now. Soon other members will go as well. Thank you. On behalf of the human rights campaign, the largest advocacy org ney n iization for lesbian, gay, bisexual, transgender and queer people. We represent nearly 2 million supporters nationwide. Unfortunately, im disappointed that the topic for discussion is President Trumps nominee to the Supreme Court, mr. Neil gorsuch. Lbgqt people are no strangers to the Supreme Court. We understand the power of the court to affirm or deny our most basic rights. Jim obbergofel had to be air flighted to tarmac to get married because their home state of ohio refused to allow them a marriage license. Their heart break didnt end on that maryland tarmac. The state of ohio attempted to erase their marriage by refusing to place jims name as surviving spouse on johns death certificate. By narrow 54 ruling the Supreme Court validated jim and johns relationsh relationship and extended Marriage Equality nationwide. By his own words judge gorsuch admitted he would have forced samesex couples to pay the price of inequality for decades to come. This is why judge gorsuch cannot be given a lifetime appointment to the Supreme Court. Time and time again, judge gorsuch employed a dangerous brand of originalism. Judge gorsuch has directly questioned the courts recognition of the fundamental right to personal autonomy that has served as the keystone for multiple lbgtq cases. Equating marriage eequal it to beastality and made no effort to distinguish marriage, one of our societys most sacred traditiones from anticriminal social behavior. Despite records that judge gorsuch is friends with lbgtq people, his choice to embrace this line of reasoning has a level of indeference to the lbgtq community that should be disqualifying for an individual to be appointed to the United States Supreme Court. During his time on the bench, judge gorsuch ruled against jessica castle, a transgender Woman Working at a college. She began to use the womens rest room. Half way through the semester the school informed her she would have to begin using the mens rest room based on safety concerns. Rebecca was terminated because she refused to subject herself to the dangers of using a mens rest room. As Justice Kennedy made clear in roemer versus evans, false justifications may never be used to cloak bare an i muss. Thats what happened in rebeccas case. I muss. Thats what happened in rebeccas case. Muss. Thats what happened in rebeccas case. Judge gorsuchs other rulings such as hobby lobby have been used to blatantly defend discrimination against lbgtq people. Amy stephens is one of these people. After working for a for profit funeral home for nearly six do you have an idea what the changes were that they had to come through in that agreement . Throughout the day we heard about the Freedom Caucus and the tuesday group, what were some the appeasements that had to be made . Thats right. You mentioned the tuesday group, the republican moderates. House Freedom Caucus about 3 dozen or so conservative lawmakers. One of the changes was keep in place a tax for upperincome easterners of. 9 that they were going to initially repeal, thats going to remain in place for another six years and that will bring in extra funding for the legislation. On the other end of the spectrum, conservatives want the lower of cost of health care and they believe a way to do is to eliminate the obamacare essential benefits, that include options within health care that are covered under, maternity, pediatric services, substance abuse. Those under the changes would be excluded, eliminated as part of the legislation. Those two changes they believe will draw in additional votes, but as i said at the outset here, its not entirely clear whether they have the votes and my conversations with the majority leaders office, they will be putting pressure on the holdout between the now and tomorrow and they will put the vote on the floor and see if it passes. You mentioned some of the procedural steps democrats can take, what are those if they do decide to take their steps . I think they may. They are in the minority and theres not much that they can do. They can resolutions and i expect that theyll do things like that. They may have one opportunity to amend the bill which is called a motion to recommit where they can put something on the floor to try to force the vote on an issue that puts republicans in a political corner, i will expect theyll do that as well. They are in the minority. They have the power to basically slow things down in the house but they really because of the minority status dont have the power to block anything. But theyre not going to help republicans with this. Its one of the reasons why its difficult to get this across the finish line. Democrats want nothing to repeal ing obamacare. They are not cooperate by supplying one single vote. It is all in the republicans which is why you have seen the struggle bare out in the last couple of days, trying to get the republicans in a row. They have a 21seat majority in the house. They can lose 21 seats and still, 21 votes, excuse me, and still pass the bill. Thats a pretty big number but the house Freedom Caucus who are, you know, very much oppose to this. More than 3 dozen of them, so theyve got to get a lot of those folks on board in order for this to pass without losing moderates on the other side of the spectrum. Its been a tough balancing act. They have done all they can do and this is the best they can get in terms of getting any repeal measure out of congress and the president is ready to move on if hes not going to get this deal and thats the way they layed it out for republicans tonight. We will continue to follow your reporting, susan, at susanferrechio at twitter. Thank you very much. [inaudible conversations] and we spoke with reporter susa p ferrechio. House leaders had plan to work on the bill yesterday. Significant number of Freedom Caucus couldnt get approved. Craft rules for debate for debating the measure, the debate on the house expected to start early when the chamber gavels in at 9 00 eastern this morning. He will leave obamacare in place. President Trump Officials meeting with House Republican conference said the president is done negotiating over the legislation which was said to come up for a vote yesterday but it was delayed. House rules committee specially get underway in a couple of moments, live coverage on cspan2. [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] while we wait for the House Rules Committee to gather here this morning, friday morning, the u. S. Senate yesterday is actually today not in session. The senate gaveled out. Repealing fcc rule Data Collection by internet providers. You can watch the senate live by cspan2. When they return, they are back on monday at 3 00 p. M. Eastern. [inaudible conversations] [inaudible conversations] good morning, rules committee will come to order and welcome back to the rules committee. Today the le