Transcripts For CSPAN3 Final Day Of Gorsuch Confirmation Hearing Focuses On Witness Testimomny 20170323

Online cspan. Org. Heres a look back at the proceedings from today. The next panel will be judge taha, ms. Masameno, judge henry, mr. Jaffer, judge cain, mr. Perkins, ms. Bresack and mr. Calamine. If i pronounced anyones name wrong, correct me when you testify. Im sorry, i thought maybe you werent here. Okay. You are obviously here. Okay. Would you do you swear that the testimony youre about to give before this committee will be the truth, the whole truth and nothing but the truth so help you god . I do. Ive seen positive response. So i think please seat and i we never get everybody to honor the five minute rule. If you see the red light come on and you can summarize in about 30 seconds or so, it would be very much appreciated because im sure that there will be some questions of some of you and so we want to move things along, but i think im going to do it in the way youre seated there from my left to my right so would you start out, judge. 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 my former colleague and my friend, neil gorsuch, as an associate justice of the United States Supreme Court. I served with judge gorsuch on the United States court of appeals for the tenth circuit and i was privilege 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, powerful intellect combined with a probing approach to every issue. He brings to each case a strong commitment to limit his analysis to that case. Its facts, the records and the laws krooicited and politicable. He does not use his judicial role for a vehicle for anything other than deciding the case before him. The quote requirement for injur jurisdiction is a guiding principal. Hes a student of the constitution and federalist papers and he takes very, very seriously the appropriate roles assigned to each of the three branches of government. He is an elegant and accessible writer. In my writing classes i assigned some of his opinions to demonstrate the importance of narrative to every case before the courts. He uses originalism and 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 to serving litigants in the third branch of government. Second, judge gorsuch the colleague. On a multi judge Appellate Court it is my view that one of the most important characteristics of an effective and efficient court is the level of co ledgealty. This is not about getting along for getting along. It is about improving the quality of the court by listening to varying views, participating and engaging in robust internal debate about procedures and cases and factoring in and listening to the 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 circumstances where reaching consensus is the highest value and on the other hand those decision points where personal conviction and reason dictate individual judgment and independent decision making. Judge gorsuch believes in the court as an organic and flour h flourishing intenty where the views, background and perspectives of all the judges on the court are important to the quality of his work. 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. I want to say that again and say it advisedly. Because it means something that despite the many differences in our life experience, in our background, in our education 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 rough and tumble of judicial travel and duties. His unfailingly kind. Hes thoughtful and hes empathic to all people. His is the kind of dignity that reflects the dignity he acords to all people. Judge gorsuch lives according to his values. For him faith, family, community, nation and his beloved colorado define who he is. He is for me the Gold Standard in public service. So for all these reasons i urge the committee and the full senate to confirm judge neil gorsuch as an associate justice of the United States Supreme Court. An independent Nonpartisan Organization dedicated to advancing leadership on human rights. My focus is on the dangers that arise when the executive branch claims authority in the name of security. They threaten fundamental rights, the rule of law and democratic ideas and undermine National Security. This is not a hypothetical concern. Indeed now would be an especially perilous time to vote to the Supreme Court a judge that wouldnt stand up against power grabs with the the president has advocated deporting refugees without due process and all of this largely by bypassing congress. How would judge gorsuch respond in the face of threats to rights, separation of pours awed the rule of law . Human rights has never opposed a judicial nominee and we do not do so today, nor do we question judge gorsuchs credentials. Im here because his record raises concerns that i think you should address before moving forward with his nomination. The stakes are too high to get this wrong. Our concerns arise from the Public Record of judge gorsuchs time at the Justice Department. They fall into three areas, subject verb siversion. Judge gorsuch is not a blank slate. He was involved in defending the Bush Administrations claims that the president has the power to disregard laws and the judiciary should not or cannot review such actions. These abuses senator mccain spear headed the detainee ookt. Judge gorsuch pushed for a president ial signing statement saying the president could disregard that law to the extent it con fliktd with his authority. Judge gorsuch argued the law was read as codifying existing interrogation policies. He also played a lead role in the litigation strategy in the case where the government argued that the president has the power to disregard ge viva decisions. The Supreme Court rejected these efforts and deny protections. Third on torture and standing up for human dignity. Some people, including political appointees in the Bush Administration like the general counsel of the navy were horrified our government had a policy of torturing prisoners. Judge gorsuch seems to have devoted his energies to defending it. These were the defining legal debates of our time and judge gorsuch was on the wrong side of them, policies he promoted and defended violated american ideas and inflicted unnecessary suffering. On the contrary these policies compromised americas global standing and handed our enemies a pr victory. Its session that you probe his views on executive power, torture and the roles for congress and the judiciary. Did his actions at justice reflect his legal philosophy or his desire to be a team player . Did he disagree with positions of the administration on foch yur and if he did why didnt he speak out . The senate must get to the bottom of these questions because sooner or later and with this administration it is likely to be sooner the Supreme Court will be called on to protect fundamental rights and separation of powers from a president who treats the rule of law as an annoyance rather than the foundation of our democracy. Thank you. Judge henry. Thank you. It is a pleasure and honor to be here today and i thank this committee for its Wonderful Service to the third branch over the years. Im president and ceo of Oklahoma City university, a former state legislator and former attorney general and a former chief judge of the United States court of appeals for the tenth circuit. In 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 through circuit conferences, correspondence and judicial gathers, im here today to speak in support of his nomination. Federalist described the nature and virtues of the federal judiciary as the least Dangerous Branch would have neither sword or purse care to protect his vital independence. Permanentsy in office would be requir required. The granting of performance the kbra importance of integrity to observe hence it there can be but few who will have sufficient skill to qualify for a station of judge. This is why the committee is gathered today. Fortunately you have before you a candidate that would warmly m embrace. As one who served with neil, decided cases with him, traveled and dined with him, discussed our families together, agreed and disagreed with him, i can attest to his truly remarkable intellect, his oft demonstrated integrity and his mastery of rules and precedence. I believe the subject of intellect speaks for itself. His honors degree is from columbia and Harvard Law School and oxford. That resulted in a degree and his corpus of work which includes Outstanding Service awards from the state department, trueman foundation. Some 900 opinions that lawyers have described as straightforward deserving special mention is the law of judicial precedent. This book which judge gorsuch joined with brian garner and several distinguished circuit judges of quite diverse backgrounds to develop a remarkable work of legal scholarship. These produced a single volume written with a single voice and no signed sections. As to integrity ive never found neils integrity to be in question. His career has subjected himself to various reviews of his public service. He served as a law clerk to two Supreme Court justices. The late Justice White and justice kennedy. This committee has reviewed him before as a circuit judge. All of this also speaks to neils mastery of the law. He has some unique qualifications though. In the tenth circuit we have cases from the Great American west. We have cases involving our nativeamerican nations and cases involving land and water that are important. His experience will be helpful to the court. I will skip judicial temperament. Im running low on time and i want to talk about one thing that is especially important to me. When judge gorsuch was hearing cases one summer, he was distressed by the quality of legal representation of those charged with the most difficult cases that federal judges must deal with, Death Penalty cases. Because of that concern, and most of the cases come from oklahoma, our bar was not adequately doing the judge. The judges volunteered, they came to the circuit, they created seminars and brought the circuit in to hear cases. They met with these lawyers and helped them, trained them and have had one lawyer defense lawyer said instrumental effect in improving the advocacy of this most important area. Thank you. Mr. Jaffer. Thank you for inviting me to testify. I dont think this committee has any task more important than the one its been engaged in this week. If judge gorsuch is confirmed hell likely play a key role in shaping american law and society for two decades or more. I think its clear that judge gorsuch has the professional competence to sit on the court. I agree that judge gorsuchs service in the Bush Administration raises important questions about his views on executive power and the role of the judiciary in this sphere of National Security. 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 to service frks detention, military prosecution and interrogation. Judge gorsuch was closely associated with those claims. It would be a mistake to confirm him without ensuring he will defend individual rights and 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 executive power differently as an associate justice than he did as a Justice Department lawyer. He was a lawyer with a client. He says he recorded himself as a skrooib. Id end courage the committee to bring a degree of skepticism to that characterization. He sought out a high level position in the Justice Department in the fall of 2004 seven months after the publication of the photos and five months after the Washington Post published one of the foundational documents stating that interrogation methods would be lawful unless they associate the type of pain of organ failure or death. It was a chilling document then and it remains an astonishing document today. Judge gorsuch appears not to have registered disagreement with any of the policies that he defended, though other officials did, nor is there evidence that he registered discomfort with any of the 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. It was challenges to the policies that troubled him. Senator durbin asked judge gorsuch about an email in which he criticized lawyers representing prisoners held at guantanamo. Judge gorsuch said he regretted having sent the email and the email was not his finest moment. I hope youll give judge gorsuch an opportunity in his answers for the record to respond more fully to broader concerns relating to the positions he advanced at the Justice Department. Questions relating to the executive power are presented especially sharply today. President trump has issued an executive order banning muslims from six countries traveling to the United States. He said hell consider prosecuting u. S. Citizens in the military commissions at guantanamo. He promised surveillance of minorities inside the United States. If judge gorsuch is confirmed hell be called on to consider those policies and his conclusions will have far reaching implications in the lives of millions and others in the United States and the rest of the world. I urge you not to confirm him without fully exploring his views of executive power. This should not be a partisan issue. We all know that the powers abused today by a republican president may be abused tomorrow by a democratic one. The question the committee should ask is whether judge gorsuch will safeguard individual rights in the separation of powers, whoever occupies the oval office. Thanks for giving me the opportunity to testify. Thank you. Judge cain. Thank you, senator, and members of the committee. Im the only trial judge is appearing in these hearings. I would like to say, senator, i have no reason for you to remember this, but i appeared before you 39 years ago and i was i was honored to be here then and im honored to be here now. Were honored to have you. Thank you. Judges are no different from anybody else. Like you we have social, political and religious views, whether the product of culture and upbringing or the result of education or instinctual or philosophical pursuit. To don the rob is to be free of those so justice can be served. The issue is the essence of judicial integrity. Being consciously aware of ones views and setting them aside at the start of every case is no easy task nor should it be. The question for any nominee is does 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. Long ago i gave up identifying judges as liberal or conservative because those words seemed to mean whatever the user wants. They have no common understanding and provoke no further analysis. However, one might pigeon hole either of us, the fact is judge gorsuch and i share few of the same social, political or religious views. In evaluating fitness for the bench, the real question is does the nominee embrace the discipline of the robe . Do his or her opinions reflect any sort of ideological basis . Is the judge fair . Judge gorsuch is not a monk, but neet neither is he a missionary. I really 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 to the point. I have been both afirpd 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 disagree with him. His writing is filled with grace and whit, but does he know the difference between his personal views and those of the court . Judge gorsuch is the only judge of whom i am aware who has written both majority opinions and concurring opinions in the same case. The majority opinions were the opinions of the three judge court. The concurring opinions were his separate additional perspectives. He has done this at least twice. He knows the difference between speaking for a court and for himself. Judge gorsuchs opinions also make clear his concern for the separation of powers and his keen awareness of the judiciarys independence. He has written that legislation belongs to congress and adjudication belongs to the courts. He has disagreed with the late Justice Scalia by suggesting there is far too much add jukttive activity in the agency rulings. He has questioned the values of the chevron doctrine which the judiciary should defer to the agency and interpretation of the statutes. It intruds upon the authority of the legislative branch. As is often the case, Justice Oliver holmes said it best in his decision in lockner versus new york. The case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether i agreed with that theory, i should desire to study it further and long before making up my mind, but 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 knows that his social, political and religious views have no place on the bench. In embracing the discipline of the robe, declaring dedicating 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. Thank you, judge cain. Mr. Perkins, ill turn to you. Mr. Chairman, members of the committee, thank you for the opportunity today to give voice to my son luke, whose access to an appropriate education and a meaningful and dignified life was threatened by the decisions of judge gorsuch. He was diagnosed with autism at 22 months. An intensive Education Program taught him letters, colors and numbe numbers, but he struggled with sleep. When overwhelmed he would tantrum and injure himself. His care became too much for my wife and me alone. His older siblings and hired caregivers helped. My parents moved closer to help. Teachers were reinforcing inappropriate behaviors and he was not participating in meaningful educational activities. More over his Program Failed to address his profound inability to generalize. He might learn a skill in a particular classroom with one teach teacher, but unable to perform it in any other setting. While such learning might check off a box on an educational plan it provided no meaningful benefit. Experts agreed he needed an intensive program to address his educational needs. We made many unsuccessful attempts to had these deficie y deficiencies in the School District. We were left with the agonizing option of sending him 2,000 mile away to a Specialized School for Autistic School in boston. When luke enrolled at age nine he was not toilet trained, could not sleep in a bed and did not interact with his peers. Within months of enrolling, luke was toilet trained. He ate Healthy Foods with proper you continue sills. He was sitting calmly in a classroom and participated in group activities. When luke visited home we could shop and eat and attend church together. Despite my comfortable income as a physician his education costs depleted our reserves. My parents contributed from their retirement savings. We requested reimburse for lukes education. A hearing officer found in our favor. The decision was upheld by an Administrative Law judge and u. S. District court judge, but when the School District appealed to the tenth circuit judge gorsuch overturned these rulings. His legal reasoning set a new low standard of education required as merely more than deminous, lacking significance or importance, so minor as to merit disregard. Judge gorsuch felt an education from my son that was even be one small step above insignificant was acceptable. Dispute lukes ability to use these skills outside the classroom his education was deemed appropriate. One of lukes parents would have to move to a School District that would better accommodate lukes school needs. My wife decided to relocate. Thankfully the School District allowed him to finish out his time. Now age 22 luke will always need support in a world that still seems threatening to him but his quality of life after 13 years is better than it would have been otherwise. He cooks and does household chores and able to shop, work, eat and play in the community. And he has developed a new passion, legos. Lukes mind is atuned to this plastic brick world. He con instructed this particular model this january. His present life would not vn been achievable without an appropriate education. Thankfully luke is unaware of the price paid for his education. The financial cost pales in comparison to the human sacrifice. His mother separated from her 13yearold daughter. His parents marriage broken. He is unaware of the key place that one judge with his radically restrictive interpretation of law played in the fight to a free and appropriate public education. In his tenth circuit ruling judge gorsuch evas rated the educational standard guaranteed. His interpretation requires that a School Provides an education to a disabled child just above meaningless. His interpretation of federal law has been used to deny an appropriate education to countless other children over the last nine years. Such an interpretation fails the common sense test. Why would Congress Pass a law with such a trifl intent and why would a parent settle for an education for their children regardless of challenges. When all is said and done a student offered an Educational Program providing more than just progress from year to year can hardly be said to be offered an education at all. On behalf of all children, i urge you to deny confirmation of judge naueil gorsuch to the Supreme Court of the United States. Thank you for providing manage he this opportunity and i ask that my full statement be included in the record. We appreciate your testimony. I grew up in california where you and senator boxer with my home state senators and my family still laughs when there was a time that i believed only females could be senators. I moved to maine which had two women senators so take from that what you will. I served as a law clerk to judge gorsuch from 2009 to you 2011. Id like to address my remarks to how judge gorsuch approaches cases. To never make up his mind until every point of view has been considered is the quality i respect most about him. First judge gorsuch is truly independent. In deciding cases he doesnt care what parties want. Never once did politics influence a decision he made. I saw the government win and loss cases. I saw each private litigant receive the same analysis of its arguments. 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 wherever possible. In my two years clerking for the judge the judge heard many cases together with other judges whose philosophies differ from his and those cases were decided unanimously and that is no convin coincidence. In my experience as a law clerk, the judge always pushed me to research all sides of a case, question the reasoning underlying each partys position and give all arguments exhaustive consideration. That process more or less con seemed my life for two years. Its a corner stone of how judge gorsuch works and he wont accept anything else. Third, theres no question that a Supreme Court justice wields significant power, but having worked closely with judge gorsuch i am confident that a change in title will not change him. His philosophy is that the future of this country will be decided by representatives of this country and not him. On a personal level, some of my fondest memories of my clerkship with judge gorsuch were the afternoon runs he led us on through denver. Weaving in and out of the city streets i questioned the judges description of these events as jogs when they felt like a sprint. While it was easy to begin the run discussing the cases with the judge the true intent was could you communicate 20 minutes later when the judge was fine and the clerks were out of bret breath. I think of those runs as met fau fors for working with the judge. His drive pushes everyone him to try harder and reach higher. The judge wanted to hear about our experiences exploring the colorado outdoors. I remember quizzing clerks on their adventures over the weekend. One weekend while hiking i found myself a few feet of the beautiful red fox and i knew i would have the ace on monday. We know the saying you are judged by the company you keep. One of the greatest gifts of clerking for two years for judge gorsuch is my coclerks whose intelligence mirror the qualities i admire so much about the judge. Many of the judges clerks whose political views span the spectrum have traveled to be here for this hearing and we have uniformly recommended him as an extraordinary judge. We believe he is a judge of whom all americans would be proud. Im General Council of the Communications Workers of america. We represent hundreds of thousands of workers across this country. Thank you very much for the opportunity to testify. Our concern about judge gorsuch ascending to the Supreme Court is about as fundamental as it can get. His injured prudence is a threat to working Peoples Health and safety. This hearing has already paid some attention to judge gorsuchs des cents in the trucking case and that attention is justified. That dissent issued seven months ago reveals an antiworker bias and features a judicial activism that will put workers lives at risk. In issue is a law that protects Truck Drivers who refuse to operate a vehicle out of safety concerns. When driver madden refused to operate his truck and trailer in the manner his supervisor directed him which was to keep the truck parked and hitched to a disabled trailer while he froze to death and instead finally drove his truck to safety, he was exercising that right to refuse an unsafe operation and could not be fired for it. Only one judge at any level of this case ever dissented from this view, judge gorsuch. He found that when mr. Madden drove his truck to safety, he was not refusing to operate his truck, he was operating it, and therefore could be fired for disodi disowe baying orders. He said his decision may be unkind forcing mr. Madden to choose between dying and losing his job. Far from it. To reach this result judge gorsuch had to choose one particular definition of the word operate from the diction y dictionary. As it turned out there are multiple definitions much operate in the dictionary. Judge gorsuch chose the definition to allow him to rewrite the law. A workers right to operate would mean only refuse to drive. Thats not judicial restraint and the rewrite of the law in this case leads to absurd deadly results and fewer rights for Truck Drivers. As we know, judge gorsuchs is no fan of agency defrps our Union Members are typically not Truck Drivers, but rely on other safety laws to protect them on the job like oshas rule allowing us to refuse hazardous work. On a very frequent basis a worker we represent will identify a hazard in the workplace and the union will stand with him and others to stop the work until the hazard is abated. Just a few weeks ago one of our technicians in detroit discovered significant asbestos contamination where he was supposed to do work understood the street. He told his supervisor. His supervisor repeatedly told him to blow fresh air into the vault, which would not only expose this technician to asbestos floating in the air, but expose the public on the street above as well. So the technician refused to do the hazardous work and he and the public are safer for it. We take these actions knowing the laws on our side. To us health and safety are not as judge gorsuch dismissively puts it generic. Now, the right to refuse hazardous work under the osha act unlike the statute at issue is a product of Agency Interpretations of the statute. If judge gorsuch takes a sledgehammer to workers statute area rights as he did, imagine what he may do to rights stemming from Agency Interpretations. More workers will die on the job. His dissent in our view is disqualifying. Ignoring Agency Interpretations, legislative purpose, common sense and picking the narrowest division one can find in the dictionary to redefine our rights is not applying the law to the facts. It said our health and safety laws are written in the blood of working people. Please do not allow judge gorsuch to repeal these laws from the highest bench in the land with his brand of judicial activi activism. We urge the senate to reject this nomination and thank you very much for your time. I want to thank all of you for being here today and for your testimony. I just have one question for you judge. By the way, welcome. Youre a great judge in our circuit out there and i really appreciate your leadership over the years. Judge, this hearing has been somewhat of a civics lesson with the separation of powers being a prominent theme throughout this week. This is the first of three aspects of judge gorsuchs qualifications that you described in your testimony. As you put it he, quote, takes very seriously the appropriate roles assigned to each of the three branches of government, unquo unquote. This is a critical principal, but it can sometimes seem a tad detached or even cold when the facts of the toughest cases are presented. Im sure you wrestled with this when you were on the tenth circuit. How important it is for a judge too, as senator schumer put it in 2009, stick to the law even when it means ruling against sim pathetic litigants. I appreciate your kindness. I might say i was part of the dep tenth circuit and now im working at pepperdine university. Your question is to the heart of what a judge does. Let me just say in response to mr. Perkins, as a parent and as a human being, my heart goes out for the facts that youve laid forward that were in luke p, but as a judge to your point, senator hatch, the judge must look at the law as he or she sees it at that moment. And in particular in the luke p case, judge gorsuch was following very long standing precedent. This court i mean this committee, im sorry, has heard judge gorsuch repeatedly say precedent is important. Precedent stands. It is an important piece of of the lens that i referred to that a judge looks at a case through. And to be absolutely specific, judge gorsuch was applying pl precedent that went back to 1982 in the Supreme Court decision of the board of education versus rally. What judge gorsuch was called on to do was to apply that very long standing precedent for our circuit. Let me say it wasnt just our circuit. I believe it was but two circuits. All of the rest of the circuits in the nation were following the same standard in interprenter p. There is a lot of discussion, but its important to know that was long standing precedent from a long time back. Now, i will say circuit judges are really glad when the United States Supreme Court clears up circuit conflicts. So what happened in that case that was issued yesterday was two circuits had chosen one standard and the rest of us had chosen the other standard through long standing precedent on interpretation of the ieda. So yesterday the Supreme Court carried out its very important function of clearing up what the standard would be. I have not had time, i have to say, i have not had time to thoroughly review the opinion from yesterday, but i know for sure that the luke p case was based on the urban case that i wrote and it said standard must be more than deminmouse. Thank you. Thank you. I gather the standard the court passed yesterday would have covered mr. Perkins son, is that correct. It does appear to me that the standard that we had been using has changed. Thank you. And mr. Perkins, i just want to thank you for being here. That display you presented is very telling and 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 to the Supreme Court. Thats amazing because its a complicated building of the capital and very much pries appreciated. Thank you for being such a good parent. I wanted to go to mr. Jaffer if i could. I feel remiss because i wanted to ask some of these questions yesterday and didnt have an opportunity to do so, so let me throw out a question and ask you your view on it. The judge acknowledged that he worked on the graham amendment which sought to eliminate habus for began ton mow detainees. Judge gorsuch sent to Steven Bradbury and others heres what he said and i quote and this is on 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 in interrogation policy in light of the mccain portion of the amendment. This statement clearly and in a formal way that would be hard to dispute later puts down a marker to the effect that the view that mccain is best read as essentialessentia essentially codifying existing interrogation practices, end quote. This is in december of 05, nine months after the bradbury memo had included that waterboarding, sleep deprivation and on the techniques were not prohibited by the standard applied under the convention against torture. My question to you is what do you make of this email inoculate against being criticized in the future for not making sufficient changes in interrogation policy . I think this is a really important question. So in may of 2005 the office of Legal Counsel wrote memos that concluded that certain interrogation methods, including waterboarding, did not constitute cruel and inhumane or degrading treatment. My understanding of the email that you quoted is that judge gorsuch believed that the signing statement that the way that the administration should interpret the law is to essentially radfy those interrogation methods that the office of Legal Counsel had signed off in in may. I think one important question is what did judge gorsuch know about the interrogation methods that the cia was using at the time he urged that president bush sign the statement. I think thats an important question and i dont think its been answered yet in this hearing. Thank you. Thank you very much, mr. Chairman. Thank you. I remember the debate well and heres what senator mccain said about his amendment, which i supported. The amendment i am offering simply codifies what is policy and what was presumed to be existing law for years. The stated commitment it should require no change in our current interrogation and detention practices. What it would do is restore clarity on a simple and fundamental question, does america treat people inhumanly. My answer is no and americas answer has always been no. That was senator mccains view of what were trying to do here. The graham amendment i cant remember how the bill was passed, but it was overwhelming. What i tried to do was say that the system within the military would be the primary way of determining an enemy combatant status, but would have judicial review at the court of appeals. I think the Supreme Court said that the csrt is not an adequate substitute has been eus and thats the law of the land of the day. We redrafted the military commissions act and i feel good about where were at. Is the Current System if youre alleged to be an enemy combatant you can be held as such but you get a hearing in federal court, is that correct . Thats right. The government has to prove boy a preponderance of the evidence you are an enemy to be held . Thats right. You can be held under the law of war indefinitely, is that correct . Im not sure about indefinitely. I think thats still an issue in the courts, but yes, you can be held. There are people at Guantanamo Bay that have been held for years. Thats right. President obama left them in that status. Some of them, yes. I think theres 48 there have been determined too dangerous to release. Under the Obama Administration those 48 are being held under the law of war as enemy comb combata combatants. Thats right. Do you know about 30 have been freed have gone back to the fight . I dont think that figure is accurate. How many do you think have gone back to the fight . I dont know. How Many Americans have been killed by those release in the at Guantanamo Bay, do you know . I dont know the number. You got to take some risk because you cant hold people without due process. Do you agree with that. I agree with that. I guess the safest way is to never let anybody go, but thats not the right way. Its not the way that the Supreme Court has proposed that the law should be. No, the Supreme Court says theyve never said you cant hold anybody indefinitely, you just have to give them due process. Thats right. I am all for due process and sometimes you make mistakes. Weve been aligned more than most people would think. I dont believe that waterboarding was an appropriate technique to gain information and im sure you agree with that. I do, senator. I think the question is whether judge gorsuch agreed with that at the time he was in the Justice Department and my ent interpretation of that email is that he didnt. Is it fair to say that judge gorsuch, who i interacted with a lot, said that waterboarding is illegal. I read that. I was pleased to read that. You know why he said that, because i interacted with him a lot, he never bought the idea that waterboarding was consistent with the geneva convention. Some people had that view and im here to tell you he said before the country that waterboarding is now illegal without any question and i brought up the situation of the current president if he decided, and i dont think he will, he will be violating the law and judge gorsuch said no man and women is above the law. I hope that gives some comfort to people that judge gorsuch understands that the purpose of the act was to outlaw waterboarding and other techniques. He acknowledged before the country. No president can just seize the law because of National Security concerns alone. Do you agree were at war . I do. And this is a complicated endeavor in terms of how you fight the war because theres no nation state to fight, no air force to shoot down, no navy to sink. Its complicated. But we need to adhere to our values and realize that intelligence gathering is an essential ingredient of the war. It is. Its been a huge challenge for us. Thank you all very much. Youve done our country a great service. Thank you. Thank you. Just to follow up on senator grahams line of questions, at the time of the memo that was sent by judge gorsuch on this issue in which he said that mccain is best read as essentially codifying existing interrogation policies, i am told that waterboarding was part of the existing interrogation policies of this country. Is that correct. Thats correct. He could not remember that email nor any details surrounding it, but we clearly through the mccain amendment or the mccain laeegislation, which supported, we wanted to outlaw waterboarding and any cruel treatment of prisoners. There was a built in inconsistency here. I think thats right. Codify existing procedures, which included waterboarding and address that as a signing statement on the mccain amendment which would have prohibited clear distinction, e gorsuch, because of a variety of circumstances, did not directly answer. Mmhmm. Let me move to another issue i dont know if its dr. Or mr. Perkins. Thank you for your story about luke and his travels and journey and all that you and your family have done to bring him to this point in his life. When judge taha did i pronounce your name appropriately . When she talked about the standard, she left out one word. Merely. Merely. Im trying to draw an analogy. If i said when it comes to hungry 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 merely more than just a little bit of food. Difference . One word has made a big difference. It has taken de minimis lower. That was the express statement by judge gorsuch, which expanded what was the tenth circuit standard when it came to your son. It was the express phrase merely more than de minimis that the Supreme Court unanimously struck down yesterday, meaning that means no education at all. When you saw that opinion, what was your reaction that judge gorsuch said he was just following tenth circuit precedent . Well, i was devastated. At the time the opinion came out, luke had been at agashie for 5 1 2 years. I knew what he had accomplished in that time, all the progress he had made. To realize that judge gorsuch had, by this subtle word craft, taken what would seem to be making a statement that seemed to be saying he was following precedent, but actually further restricting an already restricted precedent, with unfortunately my son in the bullseye of that decision. It was very hard to take. Mr. Kalamine, did i pronounce your name correctly . Kalamine. Im sure many of the Committee Members will be chided that we spent so much time talking about a frozen truck driver. What in the worlds going on here . Were talking about the Supreme Court. Why should we be talking about alfons madden and whether he was facing hypothermia and frostbite . Whether were talking about one young man, young boy, with autism, or one truck driver, were really trying to figure out this judge and what makes him tick. And what his values are. And all we can rely on are really important decisions. Not the routine decisions, they come and go. But the ones where you really have a moment where you have to make a call with the law and the facts that really defined you. Many of the arguments that ive heard here today ive heard over and over in this committee. And that is, this is programmatic. Heres the law, the facts, the judge, case closed. We know better. We know better, because Merrick Garland is not sitting at the table, or wasnt yesterday. The decision was made that it would be in neil gorsuch, for fear that Merrick Garland, an obama appointee, would come in and say exactly the same thing. That really tells us that theres more at stake here than just this robotic application of the law. Theres something much more fundamental here. I thank you for coming and speaking on behalf of working people. Thank you, mr. Chairman. Thank you very much. I just want to find out whif youre familiar with an article that came out yesterday. Talking about the fact that former Justice Department official John Bellinger corroborated judge gorsuchs account. To be effective, he pushed back against advocates of waterboarding and other cruel interrogation techniques during the Bush Administration. Are you familiar with that . Im not familiar with the column. But im glad to hear that. And if you get the opportunity to ask questions for the record, it would be great to get more information about precisely what judge gorsuch did to push back against these interrogation methods. Its great to hear if he did that. But it would be good to get that on the record. In the email thursday, december 29th, 2005 at 4 57 p. M. , i dont think hes saying there were no changes being made, he used words like sufficient, and essentially. Talking about sufficient changes and whether they essentially codified existing law. Not suggesting that there were no changes at all that were made by the law. Would you dispute that . No, i think thats another good line of inquiry. I think it would be it would be important to ask judge gorsuch, again, what he knew of the interrogation methods that were being used at the time. And what adjustments he thought the administration was going to make as a result of the dta. I think those are important questions that havent yet been answer sgld thank you. Judges taha and henry, its very good to see both of you. Its more comfortable standing on this side of a stand. Im used to seeing both of you in positions of elevation with robes. Judge taha, about the use of the word merely, when you talk about what circuit precedent already demands, and youre trying to evaluate whether or not that precedent has been satisfied, the use of the word merely, as i see it, could mean and ordinarily would mean, if im not mistaken, this law does not require everything. It does not require 100 , if were measuring this on a 1 to 100 basis. It requires merely x percent. Ordinarily, when a judge would use such language, a judge wouldnt necessarily meaning to denigrate or minimize what the law requires. But indicate that the law requires x and nothing beyond x. Would that be how you would normally use that as a judge . Thats exactly right. I cant opine thank you, lee, for those kind words i cant opine what order the adjective, everything came in the sentence. But what it does is merely define very existing precedent. Which was our standard more than de minimis. So, yes, how that word was used is probably exactly as you describe. Which was, there is a standard here, there is a standard here, there is a standard here. And this one is the standard that is selected by the circuit. And followed Supreme Court precedent since 1982. And as an article 3 judge, even a powerful judge, on point you were the chief judge of the tenth circuit. Its not your job to write the laws. It definitely is not. I would add that judge gorsuch is meticulous in that. You will find throughout his opinions, this is not our job. This is congress job, or this is the president s job, or whatever. He is so meticulous about the roles of the three branches of government. And in fact, he and i have actually had these conversations. One of the things thats probably not seen, although you understand it in committee work, in an Appellate Court, theres a lot of backandforth with judges on panels, and in bank sittings, and i have heard judge gorsuch on many occasions say, it is so important for us to be absolutely meticulous about what the role of each of the branches is. And as ive said in my written comments, he is a student of the federalist papers and of the founding documents, and really believes in that separation of powers. Its that separation of powers that recognizes that in our constitutional republic, it is the people who are sovereign, and the Peoples Branch is the legislative branch. Thats the branch of government where there is the most accountability to the people at the most regular intervals. I see my time has expired. Thank you, judge. Thank you, mr. Chairman. Thank you, chairman. Mr. Kalamine, you represent a labor union . Yes, sir. Id like to read you from a New York Times news story that relates to the abud case, which is a precedent of the Supreme Court that controls when labor unions like yours can charge nonmembers for services that they render in the collective bargaining process. Heres what adam liptack, the writer in the New York Times, wrote. In making a minor adjustment to how public unions must issue notifications about their political spending, Justice Alito digressed 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 abud issue. Justice sotomayor saw what was going on. To cast serious doubt on longstanding precedent, she wrote in a concurrence, a step we historically take with only the utmost caution and reticence, on our own invitation, and without adversarial presentation is both unfair and unwise. End quote of justice sotomayor. The story continues, michael a. Carbon, also saw what was going on. He and the center for individual rights, a libertarian group, promptly filed the challenge Justice Alito had sketched out. Indeed, mr. Carvin asked the lower courts to rule against his clients. Ill interject into the story that thats a rather unusual behavior for a lawyer. So that his clients could hightail it to the Supreme Court. The article continues. Last year, Justice Alito wrote a second majority opinion attacking the central precedent in the area. A 1975 decision called abud v. Detroit board of education. But the majority of the new case stopped short of overruling abud. By now, the story in the New York Times continues, everyone saw what was going on. Readers of todays decision will know that abud does not rank on the majoritys top ten list of favorite press dents. And that the majority could not restrain itself from saying, and saying, and saying so, Justice Elena kagan wrote in dissent. The article continues, this is some time ago, the court agreed to hear mr. Carvins case frederick v. California. It may soon complete the project alito began in 2012, that of overruling abud. End of my quotation of the New York Times story. As we know, the fredericks case did in fact come forward. It was expected to be a body blow to unions, according to reporting at the time. The justice the passing of Justice Scalia put the court back to 44. So the fredericks decision came in back 44 and went back to the ninth circuit, which had whose decision was upheld because it was a tie. Could you just react to me as a lawyer who represents a labor union on that series of events, and what you what makes you think about this particular court and its 54 decisions . Certainly. My concern is, based on the quotes you read from the times article, is that there is a project under way to harm workers rights, a project under way to harm workers organizations, so that workers dont have the ability to exercise the Bargaining Power that they all have. And win a better deal for themselves at work. The notion that there are signals being sent for cases rather than waiting for the case or controversy to arise is very concerning. And its one of the reasons why in the case of judge gorsuch, theres been a lot of talk about all he has done is apply the law to the facts in the trans am trucking case. What he did was he picked out the narrowest definition in the dictionary for the word operate. It had a particular result. There were other definitions in the dictionary that could have been chosen. Once you saw multiple definitions, perhaps you should defer to the agency because maybe they know how the law can work effectively on the ground given their expertise. He chose the narrowest definition. If the result had carried the day, it would have made life more difficult for Truck Drivers. Things like, you know, the word operate only means to drive, then if a Trucking Company told a truck driver to go over the speed limit, or speed up, go faster, sometimes they can see the trucks on the computer and see how fast theyre going, and the truck driver reports back, i cant, im in a Construction Zone full of traffic, but the Trucking Company persists and says go faster. That trucker, if he went the speed limit, complied with the law, he would not be protected under judge gorsuchs version of that statute. He could be fired for going the speed limit because hes driving. He would have to completely stop the truck on the highway to protect himself for disobeying that order. You can imagine the traffic that could cause. If thats the way the statute was carried out. Those are the kind of absurd results. In fact, i think judge gorsuchs dissent is exhibit a for why we should have chevron deference. Instead of picking out a dictionary definition and look at the agency and see how they, the experts, had figured out how this law works in the real world. Yes, sir. Thank you, mr. Chair. Mr. Perkins, i first want to probably just say something. I dont know if youll need to respond or not. But probably, i dont know anybody on capitol hill thats actually ratified bills that were sympathetic to families or persons with autism. As speaker of the house, we had our state employees Health Care Plan cover autism treatment, which included psychiatric care, psychological care, pharmacy care and Adaptive Behavior treatment. I know if youve studied autism, you know how those are critically important. We went on against the insurance industrys wishes to include an insurance mandate in North Carolina to do the same thing. In a court case yesterday on the one hand, im happy that it provides other people that are going through your condition with an option. But in reality, its a failing on the part of legislators. Now, you live in colorado still . Yes. Promise me you wont vote for a colorado legislator that wont support a mandate, or opportunity scholarships for children with autism. You dont have to make i may have just broken a law or rule or whatever. But these folks there are nine states in this nation, North Carolinas one of them, weve gone probably about as far, or maybe further in some cases than any other. But this is an example of where im going to support judge gorsuch. And my guess is that judge gorsuch, the individual who separates his jurisprudence job from his personal feelings is just okay with what the Supreme Court did yesterday. But in reality, the whole need for that lawsuit is a failure on the part of the states to solve the problem. So in a state like North Carolina, you dont have to get into a conflict, in a lawsuit with a school system, because its still going to be difficult to do. Youre still going to have to probably hire an attorney and work through all the complexities. Theyre going to push back. Im glad to hear my colleagues on the other side of the aisle, all from whom states who havent done this, but are okay with the fix the Supreme Court got, because im going to try and move legislation to make it easier for people like you to get the care you need. But it is a classic example of legislators, last night i used an analogy of a bear skin and a bear hunter. I wont use my time here. But we need to actually skin that bear here, not have the courts do it. And i do think that what judge gorsuch was doing was saying, fix the problem. He said, and something ill repeat time and time again to a question here from one of my colleagues on the other side of the aisle, its not our job to do your job. If legislators did their job, you would not be before us today. Your family situation would be better. And luke would be probably further along. And one other thing i want to tell you. We may need to get luke to come to my office, because were actually putting that same lego model together. And my staff are struggling. But thank you for being here. If you have a brief comment, i have one other question, mr. Chair. I would just like to comment briefly. I would say that the congress had indeed passed the i. D. E. A. Based on my reading of judge gorsuchs i dont mean to interrupt you, but i want to get one last comment in. Im already reaching out as a result of the Court Opinion yesterday, saying, how do you actually provide clarity that puts the benefit in the hands or the benefit of the doubt in the hands of the parent. The way you do this properly is structurally, after an iep, failing to allow a child, in your case, to learn in school, back at home, how do you grant them the power to after just a year move somewhere else . How do you make sure that the state funding follows the child . How do you make sure that federal funding follows the child . How do you make sure that the parent doesnt have to go into a courtroom, or an arbitrator, or all the other things theyll still have to do with the court decision, how do you get the members here and im thrilled to hear that we have such support on the other side of the aisle how do you get us to provide more specificity in the i. D. E. A. So 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. It is not a failing in this case of judge gorsuch. And i hope that people understand that i am so glad to hear in states, none of whom who have stepped up and done it, are prepared to actually go with me to those states and convince them to do. Because we could solve the problem. Ill submit my other questions for the record. May i have the opportunity he offered me to briefly respond . The i. D. E. A. Is not a perfect law. But the fact of the matter is, judge gorsuch in his opinion shrank and minimized the requirements of the i. D. E. A. Such that they trivialized this law. And as the opinion yesterday characterized current law, provides much more significant protection to disabled children than judge gorsuchs ruling offered. But it doesnt provide enough. And its because of a failing of legislators and congressmen, not the courts. Thank you, mr. Perkins. Thank you, mr. Chairman. Judge taha, in your testimony, you were talking about judge gorsuch as a judge. And you said his attention to the views of his colleagues informs his work. He has an acute sense of identifying those circumstances, reading from your testimony, where consensus is the highest value. And on the other hand, those decisions were personal conviction and reasoned judgment and independent decision making. Personal conviction. That is about whether consensus should be built on a decision or whether the judge should write independently either as a concurrence or dissent or whatever. But he says you saying that he takes thats whats important to him is what his colleagues believe, but also his personal conviction. About how he reads the law. His personal conviction about how he reads the law. Because what basically he wouldnt tell us are any of his personal convictions. Because he would not bring those to cases. He would be well, im sorry. This is what bothered me, is that he said his personal convictions didnt enter into his decisions. And we spent three days here, hearing that over and over and 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 yet now im hearing that they matter a great deal. Senator, could i explain that . May i have more time then . Go ahead, mr. Chairman. I belonged to four labor unions before i got here. Fredericks is an important case. We couldnt get any personal convictions on anything, basically. What is your mr. Kalamine, what is your read on from what you see from his decisions on how you feel about he will rule on fredericks . Whats your i think this trans am trucking dissent is only seven paragraphs long. And i think its worth reading it closely, because of what it shows his judicial philosophy being capable of. Which is rewriting law, not just applying the law as written by congress. But rewriting it. Thats why one should Pay Attention to that as a decision on how he might treat other workers rights laws, and then you Pay Attention to what he says in that decision. And the way he treats the workers perspective in that case. For example, he describes the option that the supervisor gave to the worker to illegally drag the trailer down the highway, as being maybe sarcastically offered. In other words, hes excusing the boss outrageous order. When it comes to describing the option of staying at the truck, and freezing, suffering hypothermia, he describes that as merely unpleasant. And im actually adding the word merely there. He describes it as unpleasant. And he describes creates an analogy for this situation involving an office computer, rather than a truck, and freezing to death. That analogy, i believe, shows a bit about what the real concerns are here, which is from the boss perspective. The hostility to the worker here. Yes, sir. If you let mr. Madden drive his truck to safety, the next thing you know, well have to let him drive the truck to the beach, is the sense one gets from it. Were concerned about his 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 discomfort. He had hypothermia. He had fallen asleep with hypothermia. But only was woken 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 unhitching that cab and driving off. And this says to me a lot about the mans judgment. Thank you, mr. Chairman, for your indulging. Judge taha, ill take a few minutes to say what you want to say. Then well go to senator kennedy do you have questions, senator kennedy . Go ahead. Just very briefly. To the question of personal conviction. What i meant there, and what perhaps i didnt get clear is, each judge brings to his or her reading of the law their own intellect, their own interpretations, their history, their precedence. Im going to give you an example here because its really 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 in on this, too. And note, all three of us appointed by republican president s, we all three had very different views on this very important First Amendment case. Finally it came to the point where my reading of the law was different from judge gorsuch and judge mcconnells. Now, i ultimately became convinced that i was wrong after the Supreme Court reversed me. But it was a wonderful exchange. And a wonderful way to bring different judges perspectives onto the interpretation of whatever the case or the law is. Senator kennedy . Thank you, mr. Chairman. Mr. Jafra mentioned a few cases that judge gorsuch had worked on at the department of justice. And i note in one of those matters, the government actually continued the litigation during the Obama Administration. In fact they filed a petition and made the same argument as the Bush Administration had made. And the solicitor general who signed the brief was now Justice Elena kagan, solicitor general at the time. I would like to make the briefs a part of the record, mr. Chairman, in the case of United States department of defense, et al. , versus the Civil Liberties union. Without objection it is included. All right. Just because of the nature of our job, my guess is the person on this panel whose been around the judge the most, in the shortest period of time, is miss bresk. Am i saying your name right . I believe you joined the judge right out of law school. On the Southern District of new york and then went to clerk on for the judge. First in your class at vanderbilt . Yes. Okay. You were with the judge probably about every working day, right . Absolutely. Just the nature of being a clerk. Thats correct. Tell me what hes 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 hes very robotic, i think that misses the essence of the judge, which is, he takes very seriously his job of interpreting the law correctly. And he also obviously has great sympathy for the litigants that appear before him, and he has deep respect for the litigants. Anyone whos ever appeared before him as well as his clerks understand that. I think that the sense that i had to respect everyone around me, i think was really solidified in that year of clerking. I think he is an individual who is not only brilliant, but also very humble in the way he approaches his important task of applying the law to the facts of a particular case. But also, clearly understands that the litigants in front of him are real people. I appreciate all that. Tell me what hes really like. Well in his heart. Hes just 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 the choices we make, whether we go into public service, whether we go into the private sector. He cares when you have personal events in your life, whether you get married, whether you have a kid. I think that beyond just the intelligent judge, hes just an incredible human being. Is he political . Not when were deciding cases, no. I mean, again, when we approach cases, were just looking at the arguments that have been made by the litigants, the law before us, and the facts of the case. And politics has no place when were looking at a case in that way. Did you ever see him decide a case based on one of the litigants wealth or status or power . No. Okay. Did you ever see him approach a case in the terms of, heres the result i want, 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 approaches the case, he looks at the arguments that have been made by the parties, he looks at the applicable text, the statute or constitution, and then he sincerely takes his task very seriously. Attempting to figure out what congress meant by the words, for example, the statute, or what the parties meant by the words of acontract. And thats how he figures out the result that is required by the case. Not based on the identity of the parties before him, government, or individual litigant. Did he read the briefs or did he give them to you and say, summarize them for me . No, he we read the briefs and then he read the briefs and then we talked about the briefs. You both read the briefs . Absolutely. Okay. Did you ever see him render decisions that he felt the law required, but he wasnt necessarily happy with the result . Absolutely. I mean, the job of a judge is a very difficult job. I think sometimes there are sympathetic parties that appear before him, but he takes very seriously the oath he takes to apply the law before him. It doesnt mean that he lacks sympathy for the lit gapts, it takes seriously his oath to apply the law. Thank you, mr. Chairman. Thank you very much, mr. Chairman. I think ill just start with you, mr. Perkins. Thank you so much for being here. And for sharing your son lukes experience with us. This was a matter of discussion yesterday at the hearing, as you probably heard, in light of the Supreme Courts 80 decision rejecting the standard that had been used in your sons case. And that denied him the help that he needed. What did you think when that opinion came out yesterday . How did you feel about it . Well, i guess the first thing was just, i was very happy for andrew and his family, having gone through what they went through to ultimately have that vindication. And i think for ourselves, although belatedly, it i we did feel vindicated. We felt that ultimately, when an very similar case ive been asked to have you speak into the mike, please. Okay. When this case was decided, i mean, it we felt in a sense, although indirectly, lukes case, and lukes situation, was being vindicated. My mom taught 2nd grade until she was 70 years old and worked a lot with kids with disabilities in public school. And as a parent of a son whos benefited from i. D. E. A. , could you quickly talk about what the laws mandate, which is to help students achieve, quote, full participation, independent living and economic selfsufficiency means to your family . Its huge. Without an appropriate education, would have was in a very restricted situation. He basically lived his life in his house and in a special needs classroom and school, and that was it. That was the only context he could be in. And behaviors and lack of tools to deal with his disability really restricted him. Now, he has a good life. He enjoys what he does. He is able to get joy out of interaction with peers, with his family. Its meant its a huge difference in his life. Thank you so much. Mr. Kalamine, again, just briefly, we have little time, i have questioned the nominee a lot on the gutierrez case, which is the concurrence that he did to his own opinion regarding the chevron doctrine, and as you know chevron allows deference to administrative decisions by agencies. Could you briefly talk about how the uncertainty this would create for safety rules in your industry if this was overturned . Well, as i mentioned earlier, the rule that allows us to refuse hazardous work, to do hazardous work is a rule that isnt explicitly in the osha act. Its been developed through Agency Interpretations of the statute. So this creates an opportunity, if the courts are not going to follow chevron deference, it creates an opportunity to just strip those kind of rights away. Those rights as we speak are saving lives right now. Thats whats at stake here. Thank you very much. Last, thank you miss emeal for being here. You talked about the importance of checks and balances. The constitutions give the president certain powers as commander in chief, but those powers have the potential to be abused if they are unchecked. How should the Supreme Court approach, in your mind, with your background with human rights, how should the Supreme Court approach the balance between National Security and civil rights . And what does the judges record suggest about how he would assess president ial assertions of executive authority . Thank you. Well, its often said that there 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 it remains true today. I heard judge gorsuch testify the other day that no man is above the law. And 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 the administration, and in particular many of its lawyers, had a different view of the law. So its not enough to say that no man is above the law. According to the legal memos that were prepared at that time by Bush Administration lawyers, they believed that the law against torture allowed torture. This is sort of an alice in wonderland situation that we were in. And thats why i find that email that senator feinstein pointed to, from mr. Gorsuch while he was at the Justice Department, one of the most troubling things about his record. He was basically arguing there that the Bush Administration ought to interpret the mccain amendment, that was one of the strongest and most bipartisan pieces of antitorture legislation that this body has ever enacted, as actually cod y codifying and legalizing torture rather than prohibiting it. When judge gorsuch was asked the other day in the hearing whether there were 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, that each branch of government has to play its role. And its 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 being here. I have a question for mr. Jafra. I grew up in a family that believes very strongly in the constitution, especially the First Amendment. We owned a small weekly newspaper. You have the right to practice any religion that you want, or none if you want. You could say what you want. Its important if you guarantee all that, you guarantee diversity, you guarantee a democracy. But you also have to have an independent judiciary. I asked judge gorsuch to give me a clear answer to basic questions. I asked him whether the First Amendment prohibits the president from imposing a religious litmus test for entry into this country. I thought it would be a fairly easy question. He said its currently being litigated so he couldnt discuss it. Im a southpaw. So does the constitution allow the president to impose a litmus test for entry into the United States . Of course, senator leahy. Does it concern you he wouldnt answer that question . I think theres a bigger concern here. You know, some of the responses that judge gorsuch gave to questions like this, including about including response to questions about executive power, i think were very abstract. And i dont think its enough, for example, to say no person is above the law, in response to a question about the youngstown framework. The dispute ten years ago over torture was not a dispute between people on one side who said, we should follow the law, and on the other side people who said we shouldnt follow the law. Everybody claimed to be following the law, including the Bush Administration officials who authorized torture. So really, im hoping that 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 don dont it might. You would think with my italian background, an italian mother i could pronounce that correctly. But miss massamino, but you raised the Justice Department, and im very concerned that he declined to answer any questions regarding his role there. But even though documents indicate he justified torture, in definite detention, warrantless surveillance, should we be concerned about that work . I think you should. And, you know, that period of time in our history was so important to our democracy. And we talk a lot here about the law. But, you know, 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, you know, 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. From the records that we have here, it does not appear that judge gorsuch was one of them. Well, theres a great expansion of executive power that many of us question. And in my remaining time, i know mr. Perkins, i listen and know about the story of luke. You know, id hate to have been in your shoes. But i think i would have felt the same way. We found out yesterday judge gorsuchs 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 standard judge gorsuch created in your sons case. What did you think when you heard the Supreme Court . I was very happy that they reversed a trend that clearly judge gorsuch and the tenth circuit had been part of, to water down the standards for progress such that they were of minimal practical benefit. And because even with these very watereddown standards, that were part of lukes Education Program, he was only meeting 25 of his objectives. But i really appreciated the fact that he 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 disability can make a tremendous progress. Thank you very much. Thank you, mr. Chairman. And i thank the senator from hawaii. Thank you, mr. Chairman. Thank you all for being here. Mr. Perkins, yesterday was a 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, in this case people with disabilities. And generally remedial legislation, not even generally, remedial legislation should be broadly interpreted to effect its purpose. So when you were before judge gorsuch and you saw that opinion, do you think that judge gorsuch did in fact do that, broadly apply i. D. E. A. . Absolutely not. In fact he did the exact opposite. He took precedent that, frankly, in light of yesterdays decision, was already inappropriately narrow, or restrictive, and further restricted that interpretation such that i really wondered why would Congress Even bother if thats really what i. D. E. A. Meant. So do you think that if judge gorsuch had looked at the legislative history, perhaps, of what was behind i. D. E. A. , that he may have issued a more expansive ruling than what he than his dissent showed . I would hope so. I know that his picture of what he felt the law said was a huge distortion of what the actual intent was. And so i would have hoped if he had looked into it some more, he might have been able to see that he had reached a wrong conclusion and maybe backtracked in his judicial reasoning and come to a more appropriate conclusion. So i understand that your family had a lot of resources. You are a doctor. You had parents who helped you. Did Different Things to accommodate the needs of your child. And 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 who have children who look to the i. D. E. A. For the kind of educational support that they require, 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 . Actually, that is probably one of the most frequent thoughts that we had through this whole Legal Process is, just realizing how overwhelmed we were with all of the resources, financial Family Support resource that is we were blessed with, we were overwhelmed. And to think that the people out there i mean, many of my patients, i think how in the world if they had had luke in their family could they have done this. And having a child with a severe disability is completely overwhelming. And sometimes it may seem impossible. I mean, even for us with our resources, we felt at many times that this may be impossible, because the law apparently isnt on our side. Thank you. With the brief time that i have left, id like to ask mr. Kalamine, we have concerns about how judge gorsuch would rule in cases relating to workers rights and unions. And i refer to his decision in nlrb versus health services. Is that a decision you are familiar with . Yes. A little bit. So you have a dissent there that disadvantages the workers that are illegally required longer hours, and it affected their pay, so they had to get another job. Would you share your thoughts on judge gorsuchs dissent and Overall Record on workers rights . Really briefly. The dissent in that case involved, i believe, judge gorsuch saying that these hospital workers who had been unlawfully their hours had been reduced unlawfully, they went out and got other jobs to try to make up for their loss of income. What judge gorsuch wanted to do in his dissent was to subtract the money that they earned from the outside jobs from the total back pay award, which meant, you know, it does not recognize an example of not recognizing what life is like for somebody working for hourly pay just trying to make ends meet. Just going out and getting another job in itself. My question is whether you think on the Supreme Court he would continue to that is the concern. Of workers rights. That is the concern we have. If the workers are going to see a fair shake here. Thank you, mr. Chairman. I have one question, then ill turn to senator feinstein. And when shes done, well bring on the next panel. Judge, i bet this is the First Time Since 1977, since youve been before this committee, is that right . Thats correct, senator. Youve been a judge for 40 years. But before that, you were a public defender. When you were a public defender, did you adopt every position of your client . Well, i represented a number of murder defendants, and i didnt agree with them on that. [ laughter ] so you can represent somebody without agreeing with them, just like judge gorsuch when he was in the doj, could also represent his superiors as their counsel . Absolutely. Okay. 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 was in a position once, if you thought the president was absolutely wrong in what he was doing, would you deny a launch . And the 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 bosses. 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. I would just like to quote a few lines. To me, its substantive obligation under i. D. E. A. , a school must offer an educational improvement plan, reasonably calculated to enable a child to make progress appropriate in light of the childs circumstances. The reasonably calculated qualification reflects a recognition that crafting an appropriate program of education requires a prospective judgment by school officials. So 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, who spoke about the detainee treatment act, senator graham, i was mccains cosponsor on his bill. And i would like to read from his statement on the floor on february 13th, 2008. And in this, he makes clear that his view of the detainee treatment act of 2005 outlawed waterboarding. He says, and i quote, i stated during the passage of that law that a fair reading of the prohibition on cruel, inhumane and degrading treatment outlaws waterboarding, and other extreme techniques, end quote. So i would ask that this statement be part of the record, and also, the opinion in this case. Without objection, so ordered. Senator blumenthal . Thank you, mr. Chairman. And thanks to the members of the panel for sharing your insights and experience with judge gorsuch. I have a question for mr. Kalamine. But others are free to answer it as well. As you know, the importance of our consideration here is not only the results. In fact, even more important than the results, the judges method of reasoning. His approach to analysis. In cases. And a couple of cases i think are illustrative in the environment, inc. Judge gorsuch voted to overturn a fine that was imposed by the department of labor for a company who failed to properly train a worker actually caused a death in trans am trucking versus administrative review board. As we all know now from the discussion that took place when he testified here, he voted to reverse the judgment of both an administrative judge and the department of labor which held that a truck driver had been improperly fired in violation of federal law. The truck driver abandoned his truck. Subfreezing weather, when the heater in his cab 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 reasoning in approaching these laws, and other cases that have the same and i open the same question to others on the panel. Thank you. So, the purpose of the laws in this in the two cases that you just mentioned, environmental and transit trucking, the purpose of those laws to protect Workers Health and safety and one of the most alarming things about one of those cases is judge gorsuch describing those purposes as ephemeral and generic. In other words, theres not enough concrete there to allow those purposes to guide how we interpret these laws so instead we turn to things like the oxnard English Dictionary which he did in that particular case. Another concern from the other case, when it comes to environmental, was his description of the of oshas powers being remarkable and in that case, worker had been electrocuted to death and the remarkable power imposed by osha was 5,500 fine. Just a 5,500 fine on the employer. That is described as remarkable. And that is a concern because workers in this country rely on that agency and other agencies to enforce their rights every day. And we have come to rely on those interpretations. We want to know what the law is. We dont want the 1989 oxford dictionary to change the law and that is almost what happened in transam trucking. A rewrite of the law. Any other members of the panel . If i might, senator. Sure. Im comforted to hear that you specifically note that were not going to just look at the results of cases in judging judge gorsuch because obviously hes been on the bench for ten year so were focused on certain cases in which he may have ruled against certain workers but there are a number of other decisions that i believe the panel the committee is aware of where he ruled in favor of workers and i believe that the approach he applies in all of those cases irrespective of the results is is to look at the text passed by congress and apply it fairly to the facts beforehand and i believe its that process that does not change. Its the results that change based on obviously the facts of the case before him. The reason i asked about the reasoning and analytical approach is prepriccisely the ar thats 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 their families expecting to come home at the end of the day without having been injured, maimed or killed. Thats the purpose of these laws. That purpose is not generic or ephemeral. It is urgent and important and i think he well stated the reservation i have 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 one. And yet judge gorsuch uses it very, very abundantly in his opinions to seek a definition for how hes going to apply a statute. Thats not a realworld approach to health and safety. And it concerns me. And thats why i asked the question. But its not the result, alone. In those cases, i was concerned about the result. He probably has ruled for individuals and weve been throwing around hthis term, the little guy. It doesnt matter whether its a big or little person or a group of people. Its more the concept of preserving workers safety that is important. Thank you. Thank you, senator blumenthal. Thank you, all, for your presentation. More importantly for your preparation and for informing the committee. Thank you very much. And will the second panel come but while the second panel come and please dont sit down until i swear, but i want to inform the members swear you in, you mean. Youre not just going to swear. Yeah, swear in. Heres what id like to have the members think about. We will not get through this Panel Presentation at 12 25 is when the votes starts, so i think were going to tgo with this panel until 12 35 then well recess and ill vote at the end of the first vote and then vote on the second vote immediately. So that means we probably reconvene this panel about 1 05, 1 10, in that period of time then well have the rest of the Panel Presentation and the questions and then we have yet one more panel, i believe one more panel after that. So do you swear the testimony youre about to give before this committee will be the truth, the whole truth and nothing but the truth, so help you god . I do. Thank you. Im going to do something that i forgot to do and it was very wrong of my not doing it. I didnt say anything about the last panel individually. Jeff lampkin is a founding partner. And a clerk for Justice Oconnor. Heather mcgee is president of demos. Is that how you . Demos. Okay. Professor Lawrence Slocum is the Carmack Waterhouse professor of law, georgetown. Latima, 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. Professor of Public Interest law, George Washington u. Pat gallagher is director of environmental law program, sierra club. Karen harnen is executive director of the National Federation of independent business, Small Business legal center and eve hill is partner with brown, goldstein,levy. Previously served as Deputy Assistant attorney general for the Civil Rights Division from 2011 to 2017. Well start there and well go until we see how this vote goes. Thank you, mr. Chairman. Ranking member feinstein, members of the committee, for the opportunity to speak to you about judge gorsuch. Since clerking for Justice Oconnor in 1992, ive had the honor of arguing 23 cases before the u. S. Supreme court. Many of those as an assistant to the solicitor general first under seth waxman who was president clintons solicitor general then later under ted olson who was president bushs. Ive known neil gorsuch, neil, as ive always known him, as a colleague and friend for more than 20 years. My wife whos here today has known him even longer because she went to law school with him. I like to think i helped recruit neil after the Supreme Court clerkship in his time at oxford. I think i may have edited the first brief he ever wrote as a young lawyer. I understand hes improved substantially from then and can tell senator staff he never once used the word, big league, in the brief. From the outside, it was always clear to all of us he was not only smart and thoughtful and a great writer but had great judgment. In both the literal and figurative sense, he had gray hair from the beginning of his career. I want to speak to you about something other than judge gorsuchs legal acumen. I want to speak to 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 from him on the bench. Since i first got to know neil many years ago, hes been one of my dearest friends. We both have two daughters. His a bit older than mine. Hes always been there for me to listen, to advise, to commiserate about the trials of the often difficult project. I have vivid memories of standing in neils backyard in colorado after i became a judge, talking about what then seemed to me about a very difficult moment. As we spoke, we scooped up horse manure while his family pet goat, anybonibbles, tried to ra judge. I honestly never understood what they saw in that goat. Neils kindness resonated throughout this 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 leading one of my kids to one of adventure by the hand whether trying to balance on skis or trying on hats at 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 know neil gorsuch, his wife, louise, or his family. Simply put, judge gorsuch is a thoroughly decent and kind person. Get a dog. So why does that matter to this body as its consideration his nomination . As a former colleague of mine from the Solicitor Generals Office told me, if you have someone whos that good a person, it means he listens. It means he truly hears. It means he can be persuaded. That is, to my mind, the most essential attribute for a Supreme Court judge. The Supreme Court has an argument calendar that the printed list of cases and counsel the court prepares for each session is called the hearing list. Its a chance for people to be heard. When the chief justice calls each case, he says, well hear argument in case number, then he gives the case number and the case name. The key words there are, hear argume argument. Not just have argument, but hear it. I know everyone who appears before judge gorsuch, before neil, will be heard. Genuinely heard. Regardless of who they are, who they represent, their position or the nature of the controversy. His kindness and his humility make him place an extraordinary valuing on listening, to the lawyers, to his colleagues, and to those with backgrounds different from his own who may come at the matter from a different angle or insight of different experiences. Ive heard a lot of speculation over the last few days and months about how judge gorsuch might prul on this matter or the other. I dont know how he might rule. I dont think he knows. These are often really hard cases. Thats why they get to the Supreme Court because theyre hard. Because the judges disagree. I do know that judge gorsuch will struggle with those hard cases, me immerse himself in th law. Hell listen to the litigants. Listen to his colleagues. To history. To experience. And he will decide the cases based on what where those things lead him at the end of the case. Based on the 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 whether you consider yourself a democrat like me or republican or an independent. If the senate believes that as well, i believe judge gorsuch should be confirmed. Thank you. Miss mcgee. Chairman grassley, Ranking Member feinstein, members of the committee, thank you so much for the privilege of testifying here today. My name is Heather Mcgee and im the president of demos, a Public Policy organization working for an america where we all have an equal say in our democracy and an equal chance in our economy. Whats at stake is not just Critical Issues that youve heard about over the past few days but the way that we, the people, make decisions about all of the issues that we face as a nation. And whose voices are heard in that process. Judge neil gorsuch has the potential to be the deciding vote to destroy the few remaining safeguards against big money, corrupting our politics completely. His troubling record on none and politics requires this committee to reject his nomination to the u. S. Supreme court. Id like to make three basic points today. First, that the way that we fund our campaigns in the u. S. Enables wealthy individuals and institutions to take their economic might and translate that directly into political power. Second, the Supreme Courts activism in striking down democratically enacted safeguards is what has brought us to this perilous place in our 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 overhaul is needed. Senators, we are near a breaking point. Nine out of ten. Its hard to imagine things getting worse and yet 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 big money and your vote on this pivotal Supreme Court seat will be one of the best chances you will ever have to do so. Leading political scientists have concluded that our government now 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, ly squu skewed toward the wealthy. 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 released a report calculating how much extra money has flowed into politics because of Supreme Court rulings striking down Campaign Finance laws. We found in the 2016 election cycle Court Decisions were responsible for more than half of the big money spent. Still, its not too late to reverse course. The roberts courts Campaign Finance rulings have been 54 decisions in which the majoritys basic assumption about politics have been proven false including the idea that socalled independent expenditures are actually independent of candidates and therefore cant be corrupting and disclosure laws would be effective. With a Supreme Court that was responsive to the facts rather than ideology, we could end the superpacs that the Court Created and begin to restore our democracy. But judge neil gorsuch would have been with the majority in Citizens United. His Overall Record puts him in the right of scalia and on the question of money and politics, he would take us even further down the roberts courts extreme path. Judge gorsuch has had two directly relevant cases. In hob, lby lobby, voted to exp First Amendment rights for corporations, building on Citizens United long ed logic. Riddle v. Hickenlooper, review to Campaign Contribution limits which would deem a wealthy donors check worthy of more constitutional protection than the court has consistently offered for our 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 would be open to limiting big pmoney 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 we wealthy and well connected. We urge you to vote against judge gorsuchs nomination and tell your constituents a key reason you did so was to stand with them over big money. Thy withey will thank you and i thank you. Thank you very much. Professor . Thank you very much, senators, 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 gorsuchs judicial philosophy. Originalism. And over the course of this hearing, i think weve learned several things about originalism and there are still some things i think that might be cleared up. What is originalism . It consists of three basic ideas. The first idea is that 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 theyre written. And the final idea is that that original public meaning should constraint what judges do. That judges, the president , the members of this august body, are all bound by the original public meaning of the constitution. Over the course of the past three days, weve learned some other things. We learn there are a number of myths about originalism and i think that those myths have for the most part been cleared up. Originalism does not ask the question, what would madison do . A very silly question when we try to apply the constitution to modern circumstances. Weve 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 have no problem concluding that nonetheless california is now a state and entitled to two starts in this body. 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 19 the 95, brown v. Board was required by the original meaning of the constitution. We learned we learned this very clearly, originalism is not inconsistent. What id like to say today most importantly is that originalism is in the mainstream of american jurisprudence. Originalism in the mainstream of american jurisprudence because throughout our history, for the most part, with important exceptions, the Supreme Court has been an originalist court. 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. Im not a conservative. Im not a libertarian. Im not a republican. But i do believe in originalism. Why is that . Its because im convinced that giving power to judges to override the constitution, to impose their own vision of constitutional law, is dangerous for everyone. If youre a democrat and you know that the next justice to the United States Supreme 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 a conservative justice whos a living constitutionalist who believes that their values are an appropriate ground for modifying or overriding 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. There are 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 all together. I support judge gorsuchs nomination because he is an originalist. Thank you, mr. Solum. Miss graves . Thank you, senator, Ranking Member feinstein, and the committee. My name is fatima gosgraves, Senior Vice President for program and president elect of the National Womens law center. 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 ask that my full written testimony be submitted. Over the past few days judge gorsuch talked about how he follows the law rather than his personal views and feelings and aprice the l applies the law to facts. A review of his record shows time and again his approach to the law gets the benefit of the doubt to employers, to politicians, to other powerful entities rather than the vulnerable individuals who rely on the law for protection. And time and again this approach disadvantages women. If you take the case of betty pinkerton, Administrative Assistant whose Sexual Harassment claim was dismissed, judge gorsuch ruled against miss 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 her breast size, ask about her sexual habits and under title 7, those sorts of remarks only become a pattern of harassment as they add up over time. If she complained too early under title 7, shed have no claim. And waits two months under judge gorsuchs 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 workplace harassment. Or if you take the hobby lobby case in which a corporation challenged the Affordable Care act Birth Control benefit which requires Health Insurance plans to provide Birth Control without cost sharing. Access to contraception means for women the ability to plan their lives, to plan their futures and the Birth Control benefit relieved women of a steep financial burden which can run as high as 100,000 in upfront costs. Judge gorsuch joined the tenth Circuit Holding under the religious freedom restoration act that an employers religious belief could override an employees right to Birth Control under the Affordable Care act, including an especially extreme holding that promoting gender equality and public health, the very goals of the Birth Control benefit, were not compelling government interests. His concurring opinion was stunning and its 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 by judge gorsuch, the Supreme Court instructed that as a part of the balancing test, courts must consider the impact on women. Judge gorsuchs record also shows hostility to the constitutions protections of the most personal and intimate decisions which is the basis for the right to Birth Control and the right to abortion. Yesterday, judge gorsuch decl e declined to say whether roe v. Wade was correctly decided. Nearly acknowledging that it is actually precedent of the court. And he refused to answer key question about other areas of the law that are core to womens lives. When he was questioned about letters from former students who claimed that he had suggested companies can and should ask women and only women about their pregnancy plans and their family plans, even in explaining this incident, judge gorsuch shockingly refused to acknowledge that such behavior would violate title 7. And to be clear, statements like these are wildly at odds with the very letter and the very purpose of title 7 and the family medical leave act. Finally, we reviewed judge gorsuchs record against a highly unusual backdrop including promises made by President Trump that his nominee would overturn roe automatically and would be selected from lists approved by the Heritage Foundation and the federalist society. A really highly unusual occurrence, to say the least. When you put these extraordinary promises together with a judges record and his refusal to provide anything but platitudes about his judicial philosophy to this committee, theres only one possible conclusion. And it is that judge gorsuch should not be confirmed. Thank you, miss graves. And to the remaining witnesses on the panel and the members of the committee, we are about halfway through a vote and 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 that reset so that folks can get a bright