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

Hopefully a republican democrat votes so i can finish. I havent missed a vote since 1993. Thats about 7,900 votes. I dont intend to miss another one. Professor tirly. Thank you members of the Senate Judiciary committee. It is an honor to discuss the nomination of judge neil gorsuch for the United States Supreme Court. I believe the nominee should be extraordinary. I should state at the outset that i do not agree with all of judge gorsuchs legal views, however i believe that judge gorsuch to be exceptional choice for the court. While many focus on replacing the conservative with another conservative, the primary concern should be to replace an intellectual with another intellectual. Judge gorsuch is that type of nominee to have the vigor to sit in the chair of the late antonin scalia. One of the primary complaints regarding past nominees has been lack och writings or opinions. Such individuals can make for good nominees. They do not make for great justices. Judge gorsuch is a refreshing departure from that trend. He has a record of well considered writings both as a judge and as an author so this is not a blind date. We have a very good idea of who judge gorsuch is and the type of justice he will be. In my written testimony i focus on two aspects of the nomination. First i have addressed the criteria often used to evaluate a nominee and i have looked at cases by judge gorsuch with particular emphasis on power and chevron. Every present senator expressed commitment to placing best and brightest on the court though few agree on qualitative measures needed to guarantee that. Historically the record is not encouraging. Our respect for the court blinds us with the fact that justices have ranged. To be blunt we have had more misses than hits. Top candidates are often rejected due to writings and views that might attract opposition. The result is a preference for nominees with clean records that have no public thoughts challenging conventional theories, not even raising interesting ideas. That is not the case with this nominee. Judge gorsuch is actively participated in debating some of the toughest questions of our time. This is in other words a full portfolio of work at the various highest level of analysis. On the basis of all criteria i discussed in my testimony judge gorsuch is a stellar nominee. I realize that many do not welcome a conservative nominee anymore than they welcomed a conservative president. President trump has every right to nominate someone who shares his views. To put it simply, neil gorsuch is as good as it gets and he should not be penalized for engaging in a policy and academic debates of our time. I discussed some of his opinions. There are many. 2,700 or so. The jurisprudence reflects a jurist who crafts his decision closely to the text of a statute and in my view that is no vice for a federal judge. The exception as i talk about is chevron in terms of the consistency of his views with those of Justice Scalia. There we have seen a lot of discussion of cases which i would be happy to go into. The confirmation hearings bring almost a mythical aspect to this process as people try to predict who a justice will be decades in advance. Of course, nobody knows that except the nominee. If history is a judge the nominee doesnt know that. These hearings remind me of judge holmes who is traveling by train when conductor asked for ticket. The conductor says we all know who you are. When you get to your destination just send us the ticket. He responded the problem is where am i going. Most nominees are in the same position as Oliver Wendell holmes. I do not expect judge gorsuch to be a robotic vote for the right of the court. He has shown intellectual curiosity and honesty that will take him across the spectrum. I would simply say we are not looking for the best imitation of Justice Scalia. We are looking for someone who can be intellectual on the court. That person is neil gorsuch who just might eclipse his iconic predecessor. Wont be the same. He will bring something new. In the end what i mostly can say about gorsuchs destination is that while i suppose they have this in common, he will go where his conscious takes him. It might be to the left or right. I cant say with the final term this will be but it will be exciting to watch. It is therefore my honor to recommend the confirmation of the honorable judge neil gorsuch for United States Supreme Court. Thank you. Now mr. Gallagher. Thank you for the opportunity to testify here today on behalf of the sierra club and its members and supporters. The Supreme Court justice holds considerable power over the laws which safe guard the air we breathe and water we drink and the integrity of our democracy. Unfortunately, judge gorsuchs ideology threatens bed rock and environmental law and rights of citizens to fair and equal voice. For these reasons the Sierra Club Opposes judge gorsuchs confirmation to the Supreme Court. Judge gorsuch has displayed consistent willingness to close courthouse doors to citizens while holding them open for corporate interests. Think for a moment of the child from bakersfield, california struggling to breathe as result of oil and gas operations outside her home and school or of the family who might not be able to take their annual camping trip in ohio because of fossil fuel Drilling Operations at that place. Or of the families here in washington, d. C. Who continue to suffer from the led contamination of Drinking Water. I presume that everyone in this room would agree that every single one of these people deserve access to federal courts to remedy the wrongs. Unfortunately, judge gorsuchs writings and judicial records show he would shut courthouse doors on many of these people who want nothing more than to protect their air, water, public lands and families. In 2005 judge gorsuch authored an article entitled liberals and lawsuits where he criticized those who seek to remedy justices in the federal courts when executive branch fails to do its job. While judge gorsuch repeatedly stated that he wishes this article would disappear his record continues to reflect this philosophy as he has denied environmental plaintiffs access to the courts where citizens must jump through multiple hurdles just to get inside judge gorsuchs courtroom corporations have been able to walk right in. Let me cite two examples. In 2013 the sierra club moved to intervene in lawsuit against Forest Service challenging closure of certain trails. Judge gorsuch concluded we should have been excluded. Neither the government, offroad Vehicle Group nor majority of judges objected to our participation in that case. Second, in 2005 a coalition of citizens groups challenged a utah countys attempt to take over Red Rock Wilderness areas managed by bureau of land management. Judge gorsuch ruled that the citizens did not have standing to sue and did not get into the courtroom. In an emphatic dissent, one that echoes my testimony here today stated a citizens right to protest and be heard on federal rules and regulations is ignored. Not only has judge gorsuch limited access to courts he has stated open hostility to the chevron doctrine a long standing precedent that ensures integrity is respected. It ensures laws are carried out by career Public Servants using best available science. Here thunderstorm most troubling issue. Judge gorsuchs opinion that it violates the constitution echoes the current white houses extreme antiagency demagoguery. Trump Senior Adviser gave speech in which he professed that white house priority is the deconstruction of the administrative state. Trumps massive budget cut for epa was next hammer to fall. Judge gorsuchs ideology will further this agenda hamstringing the ability to enact safe guards and incentivising to challenge epa forcing federal judges to second guess agency scientists. We now stand at a precipice in history. How we lift up our communities who lack access to clean Drinking Water and clean air . America cannot afford the appointment of yet another justice whose ideology disfavors groups and leads to degradation. Thank you mr. Gallagher. On behalf of the National Federation of independent business i am honored to testify today in support of the nomination of judge neil gorsuch to be an associate justice of the United States Supreme Court. Nfib is leading Small Business Advocacy Organization with hundreds of thousands of members across the country in every industry and sector. As the lead plaintiff in the historic challenge to the Affordable Care act nfib understands firsthand the importance one justice can have on the ability of Small Businesses to own, operate and grow their business. After reviewing judge gorsuchs articles, decisions and public statements we are pleased to see a judge who both applies the actual text of the law and the original meaning of that text at the time it became law rather than changing it to fit his personal views and preferences. Specifically, Small Businesses are encouraged by three qualities judge gorsuch has brought to the bench. His opinions are clear and often provide right line rules. He has a deep respect for the separation of powers and he has shown a willingness to tackle the difficult legal issues of our day head on. Judge gorsuch is not known for using ambiguous or broad language that fails to settle the question before him. Rather his decisions provide meaningful direction for District Court judges as well as businesses and ordinary individuals who may be effected by that law moving forward. Like their larger counter parts, mall Business Owners want and need certainty. They need bright line easy to understand legal standards. If Small Businesses dont know what is expected of them, what the rules of the game are they may be hesitant to undertake actions that otherwise would help their business grow. Judge gorsuch takes seriously his obligation to provide that clarity whenever possible. Judge gorsuch also has demonstrated that he truly respects and seeks to protect the separation of powers among the branches of government. This is important because nfib is concerned about what we see as the rising tide of regulation promulgated by elected bureaucrats. This trend over the last 30 years contra vaccines the fundamental principle that only congress should be able to enact and change statutory law. When it comes to regulations Small Businesses bear a disproportionate amount of Regulatory Burden as compared to larger counter parts. That is not surprising since it is the Small Business owner, not one of a team of compliance officers who is charged with understanding new regulations, filling out required paperwork and insuring the business is in full compliance with new and ever changing federal mandates. The uncertainty caused by future regulation negatively affects a Small Business owners ability to plan for future growth. For Small Business the problem of overregulation has been further exacerbated by the broad deference federal courts give to executive agencies in their interpretations of statutes passed by congress. This judicial deference to executive agencies has led to a break down in our constitutional system of checks and balances. Therefore nfib welcome judge gorsuchs concurring opinion last year encouraging the Supreme Court to revisit the chevron doctrine. In my written testimony i reference three cases where the chevron doctrine has caused serious harm to Small Business. In city of arlington the Supreme Court invoked chevron to find courts must defer to agencys interpretation of its own statutory authority. By extending to determinations the court set a dangerous precedent that encourages of Regulatory Authority with minimal judicial oversight by addicating its responsibility the court signaled that agencies may intrude with impugnity as long as their actions are justified as reasonable to the slightest degree. Our constitutional system of governing and separation of powers doctrine play a large role in empowering vitality. When the system erodes or functions less perfectly there is an adverse impact on Small Business and our nations economy. Small businesses have an important stake in who fills justice antonin scalias seat. Nfib is pleased to support the nomination of judge gorsuch to the u. S. Supreme court. Thank you. Thank you very much. Our next witness is the former Deputy Assistant attorney general. Thank you very much for inviting me to speak today. I am an attorney with more than 20 Years Experience implementing the laws protecting the rights of people with disabilities. I have serious concerns about judge gorsuchs approach to and support of americas disabilities civil rights laws. People with disabilities have long experienced what former president and then candidate george w. Bush called the soft bigotry of low expectations. Unfortunately, judge gorsuch bakes these low expectations into his disability rights jurisprudence in spite of bipartisan attempts to disen mantle such prejudices. Troubling not just for devastating human consequences but for dismissiveness of the law as established by congress. Individuals with disabilities act, education act requires Public Schools to ensure free appropriate Public Education for each student with a disability. In the luke case that you heard about earlier, judge gorsuch read to require only education that is merely more than diminimus. That context is nowhere. Judge gorsuch adopted the standard inspite of statutatory text requiring appropriate Educational Programs and in spite of repeated updates calling for high educational standards for children with disabilities. Yet in luke judge gorsuch substituted his opinion for that of three Decision Makers who found lukes school did not provide appropriate or meaningful education benefit nor did precedent require merely standard. A decision to overrule the findings of three lower courts in a way that ignores statutory text is deeply troubling. Lukes records showed he was failing in over 75 of the goals in his plan. Few parents in this country would find a 25 success rate to be appropriate or meaningful for their child with or without a disability. Yet judge gorsuch found that 25 success was a passing grade for lukes school. Notably a little over a year after the change in his placement as you heard this morning luke made significant progress in the goals that his prior school had failed him. It was judge gorsuchs expectations, not lukes capabilities, that were deminimus. Yesterday the Supreme Court explicitly rejected judge gorsuchs standard. The court found judge gorsuchs standard mischaracterized the intent and language of congress and Supreme Court precedent. The court found in requiring an appropriate Public Education congress meant what it said. The court stated when all is said and done a student offered an Educational Program providing merely more than minimum progress can hardly be said to have been offered an education at all. Unfortunately, it is likely too late for many children with disabilities in colorado, kansas, new mexico, oklahoma, utah and wyoming who have been subjected to the soft bigotry of expectations for nearly ten years. Judge gorsuchs other idea opinions have shifted standards of review and created legal mine fields of administrative processes to undermine the Education Rights of students with disabilities. And judge gorsuchs opinions on the rights of adults with disabilities also reflect rather than challenge stereotypes that congress enacted in federal disability rejected. Congress passed americans with disabilities act to open doors to the work place for people with disabilities. But judge gorsuch in 2010 held that an employee with multiple shrerose s did not have a disability because she was able to work. He made this holding in spite of both ada and the ada amendments act of 2008 where congress made clear that the ada provides and as always provided protection to people with ms and that disability is not defined catch 22 like as an inability to work. Federal disability laws are intended to address not just latent discrimatory treatment of people with disabilities but the ways the employment processes benefits and buildings have been designed in ways that inherently exclude people with disabilities. This is the basis for ada requirement of reasonable accommodation. In the case of Kansas State University a professor requested slight extension of her leave time to return to work when her campus experienced h 1 n 1 outbreak that could have risked her life. The university routinely allowed one year phsabbaticals for othe but judge gorsuch insisted she could only extend her leave. The ada asked if she was offered what she was entitled to or reasonable accommodation is available. Judge gorsuch ignored that test. Instead he suggested that congress was wrong to require leave as accommodation at all and that leave of over six months was unreasonable no matter what other employees were given. You may believe that a judges role is to protect dignity of all people and especially those of dissempowered minority groups or to remain faithful to clear intent of congress as expressed in statutes. Either way judge gorsuchs opinions in disability rights issues do not meet that standard. Thank you. Senator hatch, do you have questions . Yes. Im sorry. Professor turley. Yes, sir. You have observed and written about the confirmation process for a long time. Some of my democratic friends have been saying that the only way to find out what they need to know about judge gorsuch is to demand what Justice Ginsberg once called hints, forecasts and previews about his future votes or opinions in cases that will come before the Supreme Court. Your testimony is very different. In your written statement you insist that we have a very good idea of who judge gorsuch is and the type of justice he will be. Do you agree with me that results oriented litmus tests based on specific issues are not the best standard for evaluating fitness of the Supreme Court nominee . When i refer to knowing what type of judge this man is i was referring to the fact that he has a well known jurisprudence. He has a well known view of the constitution. He shares that distinction at nominee with the man he would replace. He will have lasting legacy. He changed the court more than it changed him because he came to the court with a clear understanding of his jurisprudence. When i look at judge gorsuch i see someone that quite frankly will follow his conscience. I dont think he will be robotic. I think that view, his view will take him to the left and the right of the spectrum. What we do know is he is textualist. I dont think that is a vice. What his opinions show is someone with intense intellectual curiosity and intense independence. I can think of no better possible nominee. I dont want a blind date. I dont want someone who we know nothing about. What we have in judge gorsuch is someone who wasnt just a pedestrian. He got involved and i respect that. I dont think we should penalize someone for being active in debating these issues. Thats a good point. The suggestion has been made in this hearing the concern about the chevron doctrine which requires deference to executive Branch Agency and interpretations of the law is just another way of opposing regulation in general. One democratic senator said that without chevron the agencies will not have the authority to address problems at all. Do you agree with that characterization . No, i dont. I share judge gorsuchs view on chevron. We come from two different places i think probably politically. I think how you view chevron depends on how you view it from constitutional standpoint or Administrative Law standpoint. I think i share judge gorsuchs view or looking at it through the lens of constitutional standpoint. Chevron is troubling because it does tend to u surp a role of this body. I also dont think that the suggestion that if chevron was set aside that all of rome would burn. I think that judge gorsuch made a very good point when he said what do people think is going to happen if we dont have chevron . What is going to happen is we will be in the same position we were before chevron which wasnt a bad position. You had the case where Justice Jackson said we have to respect agency opinions. We have to give them great weight. The apa itself in section 706 says you have to defer to that. So there is not a cliff here that people are talking about. What it does by moving away from chevron is to give the courts more heavily involved in review of Agency Decision making and also give more authority back to this body where i believe it should rest. I agree with you. We often speak about the impact of Court Decisions on the parties to a specific case and beyond. I really appreciate your response in this area and your comments because i think they provide an important perspective of this issue. Im sure you know from observing this process my democratic colleagues focus only on which party wins or loses or which narrow political interest is advanced by the decision in an individual case. You seem to have a very different take. Your testimony emphasizes more broadly clarity about the law and adherence to basic principles such as separation of powers have the most important impact. That is why you have such high praise for judge gorsuchs approach not only tamaking decisions but on writing opinions and explain those decisions, as well. My view is that the law, not the judge should determine the outcome of individual cases and broader impact of those decisions. Do you agree with that . There was discussion with senator about this which is the separation of powers is important because coming here before you is where my members, Small Business owners, are going to have the greatest impact. You are in the light of day with a true Public Discourse about what the law should be. They are not going to be in every courtroom in the country and every agency walking the halls. They need to know that once you all enact a law the regulation is issued that is appropriately within that statutory framework, a law they can rely on because that certainty is the only way for them to be able to do business. Certainty is a critical component of Small Business owners ability to operate business. May i ask unanimous consent. Ask that the report resulting from Supreme Court rulings as well as march letter from 109 house members to Ranking Member feinstein urging this committee to question judge gorsuch about money in politics and a 2017 report titled money and politics and the u. S. Supreme court and a 2015 report titled breaking vicious cycle rescuing our democracy and economy by transforming flawed approach to money and politics all be entered into the record. Without objection. Welcome. I appreciate that you are here and the work done to shed some light on the problem of money and politics and the influence that it gives special Interest Groups. We have kind of an unusual circumstance here in that President Trump originally outsourced the creation of the list from which judge gorsuch was selected to a pair of wellknown right wing Interest Groups. And then the notification to judge gorsuch that he describes in his description of the selection process, the opening sentence is on or about december 2, 2016 i was contacted by leonard leo who was the head of one of those same special Interest Groups. Then it has been reported in the news that the white house outsourced the Political Campaign on behalf of judge gorsuch to those Interest Groups and indeed we have seen reports of a 10 million Political Campaign to try to influence the senate in judge gorsuchs favor through a front group. So we dont know who the real donors are. Its dark money that is behind that entire operation. And it was the same front group that spent nearly equivalent amount of money trying to disrupt the nomination of judge garland. And finally we have the colorado reporting on judge gorsuchs friend and appears as patron in quest for 10th circuit seat who is a very big political spender. And all of that i think causes concern to some of us that although the talk may be about olympian detachment, the actual operation of getting judge gorsuch before us has been special interest dark money politics. I would like to ask you to react to that. Thank you senator whitehouse. I think you are right to express concern about this the same way that the American People including 91 of President Trumps own voters have expressed concern about the role of the Supreme Court in expanding our current big money system. Judge gorsuch had the opportunity over the past couple of days to distance himself from the entire problem of Citizens United either spoken out expansively in terms of influence of wealthy millionaires and billionaires to even some of the more narrow concerns. I was particularly concerned in your exchange with the judge when you gave him an opportunity to talk about something that is his predecessors, one of his great north stars which is importance of disclosure in our Campaign Finance system. Instead of saying clearly that there is a Public Interest and knowing who is spending millions of dollars to buy influence with our politicians, he was quite evasive. In fact, to my dismay raised the idea that disclosure chills speech and even suggested that the 650 million in secret money from societys most powerful which is what we have seen since Citizens United will be on the same level as the brave civil rights leaders in the naacp case, people who endured violence, bombings and shootings for their political activism. If you dont mind i want to read one sentence from what senatjus scalia said in doe v reed about the importance of disclosure which gave gives us sense. There are laws against threats and intimidation and Harsh Criticism a price our people have been willing to pay for self governance. Requiring people to stand up in public for their political acts fosters civic courage without which democracy is doomed. My time is expired. Thank you very much. Thank you. Thanks to senator whitehouse and you for filling in when i had to go vote. While many tried to argue that originalism is inherently conservative others pointed out that originalism has been ascribed to by liberal judges and academics, as well. Professor at Harvard Law School once described the late justice black as a liberal originalest. Would you agree that originalism is not by itself political in nature . Yes i would. If i might just give an example or two. Its absolutely true that much of the interest in originalism at the beginning was generated by critics of Court Decisions and originalism has been associated with conservatives to some extent. But originalism is the idea that we are going to enforce the original meaning of the United States constitution and the United States constitution has implications that both conservatives and progressives, both democrats and republicans can welcome. Let me give an example that relates to the question we have just been dusziiscussing, the rs of corporations. Justice thomas in his opinion in the donald case says that incorporation of the bill of rights can only be justified under privileges or immunities clause of United States constitution. The privileges or immunities clause is different than the equal protection clause or due process clause. Those clauses guarantee rights to all persons. The privileges or immunities clause guarantees rights only to citizens. Incorporations are not citizens. This is not a result that corporations will welcome at the state level where the 14th amendment applies, but it is an implication of the original public meaning of the constitution. Thank you. You worked with the judge when he was in private practice and you said you support his nomination to the Supreme Court. Do you think his experience as a trial lawyer would be relevant to his work on the Supreme Court . Yes. I think it is highly relevant. As somebody who was a trial lawyer for many years the judge has Great Respect for the record, Great Respect for the Factual Development whether developed by this body in support of statutes or record created by the parties at trial. I think when you are a trial lawyer and involved you develop that type of Great Respect that is important to really understanding what is going on in the cases to understanding not merely what the principles are but how they are affecting people. I think practical experience as a trial lawyer is something not as common among Supreme Court justices now as it should be. My last question. We have heard a lot during these hearings about the rule of law. We have heard in particular about how its the role of judges to enforce laws as they have been written by the congress. Can you explain why it is important to your clientele, Small Business men and women for judges to interpret statutes according to the text . Because Small Business owners need to know what the rules of the road are, what is expected of them and not have to worry that because of one judges decision a practice that they had been doing that they thought was perfectly legal one day is now unlegal or illegal. That is why Small Business owners are so committed to the way that the separation of powers works where legislators legislate and judges tell us what the law is. And that is why we have so much respect for judge gorsuchs work. Thank you. I yield back my time. Thank you. Ms. Hill, earlier we heard compelling testimony from jeff perkins about his son luke and about the consequences for luke and his family of judge gorsuchs perspective in his opinion in the 10th circuit and the Supreme Court disagreed with judge gorsuchs reasoning. I believe the goal of laws passed by Congress Like ada is access, opportunity and participation not isolation and segregation. I would be interested both judge gorsuch yesterday and judge taha today insisted that judge gorsuch was bound by precedent both circuit and Supreme Court to set the standard under the idea as more than diminimus. Are they right . I dont believe so. Of course, the Supreme Court yesterday indicated that it was not correct to approach or interpret as meaning that the standard was more than diminimus but for meaningful and appropriate education as Congress Said that it was. I looked more closely at the urban case that was the case that cited that judge gorsuch cited for the diminimus standard which still did not use the word merely. In urban no dispute about whether sufficient services had been provided for this child. There was dispute about whether procedural requirement had been followed and whether that failure created substantive violation. To the extent that there was no argument over whether free appropriate Public Education had been provided any argument about what the standard for free appropriate public accommodation was is largely dicta. In a 2013 case i think new mexico the sierra club attempted to intervene in a case and the Court Allowed you to participate. Judge gorsuch dissented and wouldnt allow even though none of the litigants opposed litiga. Judge gorsuch blocked another group. Why do you think it is important for groups like this to participate and how do you think judge gorsuch would prevent the ability for those. Right now when President Trump and his adviser steve bannon are threatening to dismantle the epa and when we have a new administrator of the epa scott pru whoit eviscerated with the governor of oklahoma it is critical to enforce environmental laws. This body legislated citizens to if we cant get access to court and mr. Trump and mr. Pruitt wont protect our Drinking Water, who are we going to call . Thank you. Ms. Graves in strickland versus us, judge gorsuchs colleagues found a woman had shown enough efd of discrimination based on sex to have a jury rule on her case. The woman had multiple coworkers testify she was treated worse than her male coworkers, though the law required the court to look at the evidence in the light most favorable to the woman, judge gorsuch again descented. Can you tell us more about this case and what it says about judge gorsuchs approach to deciding these opinions . Sure. Thank you, senator coons. I think the strickland case is a good example here of the concern that we have when judge gorsuch said he applies law to facts. Because here the real issue was that there were a lot of facts and these facts were disputed in fact and when facts are disputed, the thing to do is have the jury decide. Have the jury determine and resolve the facts. Here despite a lot of evidence that she should have been able to continue her claim, judge gorsuch said no, no, no, thats not enough. So in that case, thats an example of yes, he was applying the law to the facts but the jury itself is the one who is supposed to resolve the facts. Thank you, ms. Graves. Thank you. Thank you. Senator kennedy. Thank you, mr. Chairman. Ms. Mcgee. Is it mcgee or mcgeehe. Mcgee. Thank you. Tell me, im listening to your testimony about your criticism of judge gorsuch, and Citizens United. Tell me what your complaint is with respect to judge gorsuch and Citizens United, just briefly. Sure, absolutely. First of all, we believe that based on his record in two cases, hobby lobby and riddle v hicken looper that you have a recipe for striking down some of our last remaining protections against big money. He went out of his way in hicken looper i dont mean to interrupt you but ive only got five minutes. I understand that. Do you really expect a nominee of the United States Supreme Court whether he or she is dominate bade democratic president or republican president to come before the Judiciary Committee and talk about what is good policy or bad policy . Fortunately he doesnt have to get into policy to just talk about enduring democratic principles. I also think the heritage foundation, the number of right wing organizations that are antiCampaign Finance reform, that have backed his nomination for the court would be surprised to learn that he was at all ambiguous about about Citizens United which is one of the most Important Court cases in recent memory where all of the principles around grandly interpreting the First Amendment to give and protect the rights of millionaires and billionaires to spend unlimited amounts was just a continuation of a set of ideological jurisprudence that i would be surprised to hear him part from and he didnt when he had the opportunity. I want to understand your criticism of judge gorsuch as a nominee for the United States Supreme Court. Youre criticizing judge gorsuch for not coming before this body and offering a policy preference in terms of Campaign Finance in elections in america . Im not criticizing the judge. I am saying that had an opportunity to say principles about our democracy and upholding our First Amendment that would protect a vifgs one person one vote. He was asked multiple times about many different issues concerning Campaign Finance reform including cases where he went out of his way to right concurrences on majority opinions that put into doubt his opinions in future cases about issues such as the scrutiny level for campaign contributions, which is to date we believe hatter of settled law, and the very possibility of moving into corporations giving direct contributions to candidates based on his concurrence in hobby lobby. You would prefer to have a nominee who agrees with you on those policy issues . I would prefer to have a nominee who was open to considering the facts. We have seen that since Citizens United the facts have shown that some of the basic premises it is actually independent and cant corrupt. The disclosure is real, have been prove len false. Im going to put you down as doubtful on Citizens United. Thank you. Ms. Hill, how do you think they should decide cases . I think judges should decide cases based on the law as express bid congress interpreted by agencies and applied to the fact in front of them. What if they are wrong . If you think partys wellness status of power or eif fekt on the outcome after guest . I yield back. A couple of questions, this is part of tell me your organization promotes Small Business obviously and regulation has a little to do with the success or failure of Small Business. What have you seen over the years with regard to decisions by the Supreme Court or other courts that has impacted the ability of Small Business to succeed . Right. Well that has been really over last several decades we continue to see an increasing regulatory state and in large part that is because of Agency Deference that courts are giving to agencies. The chevron doctrine. And we have seen this firsthand with the number of cases this dh weve gotten involved. And i have several referenced and my testimony where because of that Agency Deference, Small Business owners, the interpretation of the regulation by the agency dwoferns and as a result of Small Business owner is sued and out millions of dollars in one case. The wahlberg case that i talk about here. But more importantly and more broadly on the regulatory state generally, Small Business owners do bear the dispro portionsate burden of regulation on their business as compared to the larger counter parts. Its been a primary concern. The reason they havent been able to grow over the past nine years and so we are that is why we are so committed and so encouraged to see that judge gorsuch recognizes as he said in his testimony, raised his hand to the Supreme Court and said, look, chevron deference this may be a time where we need to revisit that. We do think it is responsible for increasing the regulatory state in this country. Thank you. I would like your thoughts on that similar theme. The receive ron deference, certainly judge gorsuch has expressed an indifference about it but mildly i hopecreceive ro certainly judge gorsuch has expressed an indifference about it but mildly i hopehreceive ro certainly judge gorsuch has expressed an indifference about it but mildly i hopeereceive ro certainly judge gorsuch has expressed an indifference about it but mildly i hopevreceive ro certainly judge gorsuch has expressed an indifference about it but mildly i hopeoreceive ro, certainly judge gorsuch has expressed an indifference about it but mildly i hopenreceive ro deference, certainly judge gorsuch has expressed an indifference about it but mildly i hopeeceive ron deference, certainly judge gorsuch has expressed an indifference about it but mildly i hopeceive ron d certainly judgeive ronive ron d. What we have seen over past several years is one administration whose agencies will regulate in a certain way the new administration comes in with a completely different idea. We just dealt with a Congressional Review Act on certain tech regulations, internet regulations a few minutes go on the floor. Then the next administration might come in with something completely different. One thing that Small Business and Large Business any business cannot stand is uncertainty moving ahead. With chevron deference, looking back from congress to have maybe a more balanced or more predictable application of statutes which will govern regulation, is that a better way . What do you say . I do think it is a bet ater y it move beyond chevron. Ive been a critic. Chevron for years. More so of brand x which is one of these opinions. I thought the judge was right on on that one. He raised the issue. A lot of people dont realize that an agency can negate the legal interpretation after federal court and he appropriately said, you know, i thought that courts interpret the law after mar before i versus madison. Thats how chevron works the marbury of the state saying they can be the final word. Madison. Thats how chevron works the marbury of the state saying they can be the final word. I think you are seeing a tri par tied system with three branches held together. Inverse pressure in a fixed orbit that madison set. We have this Administrative Branch of agencies. I identify with many in those areas because they are dweebs like me. They are wonky. But we have a further branch that is a dangerous change in our system. One we arent having a debate over and chevron fueled that change. And you can largely go back to the conditions of cases like skid more where courts gave a lot of deference. You have the epa which would require deference. Also, appropos of your question it is a victory for judge gorsuchs mother and a vikt rif republicans trying to reverse maeb urs that were put into place. And democratic demonstration and using Administrative Authority to do that. So i would caution those that if suggested that this is going to be and to return this to a position closer to the design of our government. Thank you. My time is up and i believe the time for the panel. We will go on to the next panel. Thank you for your service. We will call up the next panel. You want to set the name plates. Consist of ms. Clark, ms. Krirsin al. Ms. Fisher. Ms. Miller. Professional marshal. Professor mayor. Ms. Phillips an professor jafer. If you could please stand and raise your right arm. Do you swear that the testimony you are about to give before the committee will be the truth, the whole truth, and nothing but the truth so help you god . I coudo. Thank you. Please be seated. Kristin clark is president of the Lawyers Committee for civil rights under law. Peter kirenaw is partner with the firm, ben itch Labor Employment Practice Group and is serving his third term on the u. S. Commission for civil rights. Sarah warblow is legal direct for Human Rights Campaign. Alice fisher is partner in a washington, d. C. Office and a member of the firms executive committee from 2005 to 2008 will she served as assistant attorney general in charge of the division at the department of justice. Amy miller is found of whole Womens Health. Sarah smith is Senior Council at beckett she clerked for judge alito on Third Circuit court of appeals for Clarence Thomas and for justice aalito. Tim meyer is former law clerk for judge gorsuch from 2007 to 2008. He is now professor of law and enterpri enterpri enterprise scholar at vanderbilt law school. Sandy phillips is mother of jessica gowin, tragically killed in the 2012 shooting at aurora, colorado movie theater. Jamil was a law clerk for goe gorsuch from 2006 to 2007 he is now director of law firm at scalia law firm at george mason university. Thank you for your testimony. It will be five minutes each. We will proceed of that with fiveminute rounds. Go ahead, ms. Clark. Good afternoon. I want to thank the distinguished members of this committee for the opportunity to testify today on behalf of the Lawyers Committee for civil rights under law. We we have the unique mission of mobilizing lawyers across the world for pro bono to advance our work. For africanamericans and other minorities, the court has been a crucial forum for seeking equal justice under law. Historically minority groups have looked to the court to vindicate their constitutional and civil rights. We have reviewed the civil rights record of judge neil gorsuchs. We have done for all Supreme Court nominees for the last several decades. We do not believe the record is sufficient to conclude he meets our standard which requires demonstration after profound respect for the importance of protecting civil rights afforded by the constitution and the nations civil rights laws. Judge gorsuchs views have a very narrow definition of what are civil rights. Our concerns are especially pronounced with respect to the question of whether he will fairly interpret and apply one of our nations most important civil rights laws, the Voting Rights act. In 2013 the act was gutted in Shelby County beholder. At issue in Shelby County were section 5 preclearance provision of the act that helped identify and successfully block hundreds of unconstitutional and discriminatory voting changes. And the section 5 provision section 4 provision that determined where the law applied. A closely divided court ruled that section 4 was unconstitutional. A decision which eviscerated the heart of the Voting Rights act. Witnesses have drawn parallels between judge gorsuch and the late Justice Scalia. During oral arguments in Shelby County Justice Scalia referred to congresss renewal of the Voting Rights to quote perpetuation of racial entitlement. That was a startling perspective on a law that has ensured millions of american citizens have not, merely because of the color of their skin, been unlawfully deprived of the most sacred right in our democracy. What is most troubling about the case in Shelby County is the consideration of court was set aside. In 2006 section 5 was renewed bay vote of 980 after overwhelming evidence of discrimination against minority voters. It is unclear whether judge gorsuch appreciates congresss broaden forcement powers under the 14th and 15th amendments and unclear whether he brings awareness of the widespread voting discrimination and voters suppression that we continue to face today. The right to vote is too important. We must understand where judge gorsuch whether judge gorsuch is committed to fairly interpreting and preserving what remains of Voting Rights act. Equally important are questions concerning judge gorsuchs tenure at the u. S. Department of justice between 2 005 and 2006. When he occupied the role of Principal Deputy associate attorney general. As a career attorney at the Civil Rights Division of the Justice Department during that time, i am personally aware of what led to the self rights work. Those views were substantiated in a july 2008 inspector generals report which found that politicization of the Civil Rights Division hiring practices and its work violated federal law, and Justice Department policy. We must not turn a blind eye to the fact that judge gorsuch had some responsibility for overseeing the division during this time. The materials provided by judge gorsuch together with his Senate Questionnaire do not clarify the extent of his involvement in the significant problems that tarnished the work and integrity of the Civil Rights Division at this time. Oi urge t i urge the senate to find the answers to these questiones. Before i finish i want to say a brief word on judge gorsuchs criminal justice issues. This remains at the forefront for many africanamerican, latino and minority communities. Our review shows that he takes an unusually narrow view of the Constitutional Rights of defendants particularly under the fourth amendment. Judge gorsuch has also shown extreme difference to Police Officers in Excessive Force decisions. We have seen intensifying efforts to restrict the rights of minority voters, unconstitutional policing practices, risings and a phobia, religious initll ra religious intolerance and other circumstances that make clear the fragile state of our democracy. Our nation deserves a Supreme Court justice who will interpret the constitution and civil rights laws in a way that recognizes that discrimination is both ongoing and a threat to democracy. And who is committed to ensuring equal justice under law for all americans. Based on the record to date, i am not able to support the nomination of judge gorsuch to the Supreme Court today. I respectfully request that the Lawyers Committee for civil rights under laws report on the nomination of judge gorsuch and accompanying letter signed by more than 100 of our Board Members expressing concern regarding the nomination be entered into the record. Without objection. Thank you. Thank you, ms. Clark. Mr. Kirsenaw. Thank you. Im i speak as one member of the commission on civil rights, not necessarily on behalf of the commission as a whole. The u. S. Commission on civil rights was established pursuant to 1957 act and to act as National Clearing house for information related to discrimination and equal protection and in furtherance of the Clearing House function and with the help of my assistant i have reviewed the nearly 200 cases related civil rights that judge gorsuch authored or participated in. Of the opinions we examined related to civil rights that judge gore such participated in, he was in the the minority of 5 of those cases. In 43 cases he was on a threejudge panel in which two other Panel Members appointed by president s of the Democratic Party and in 94 of those cases he joined majority opinion or concurred in the result. A useful example of judge gorsuchs mainstream texturalism, is his descent in trans am trucking versus administrative review board where a majority of the panel found that a statutory provision that provided that an employer may not discharge an employee who refuses to operate a vehicle where that employee has a reasonable apprehension of serious bodily harm actually meant that the employee may not be discharged if he operates the vehicle contrary to employee instructions. Judge gorsuch applied the plain text of the statute in a very precise manner and noted that employee in question had done the opposite of the stat foruto privilege. That is he operated the vehicle, not refused to operate the vehicle. His deference to precedent and interpretation to governing statutes yields cases and record on civil rights thats consistent with prevailing civil rights. For example carrera verustyson foods. Judge gorsuch held up in a hostile Sexual Harassment case where there was no evidence that there was a hostile environment. The evidence proffered was that supervisors were standoffish. That standing alone does not constitute a hostile environment. Moreover the defendant immediately discharged the employees who made provocative gestures and transferred plaintiff upon request. And this this the st. Marys medical center, there was a retailation claim where there was no evidence that hospital had fired the plaintiff for reporting sexually explicit remarks made by a coworkers as opposed to firing plaintiff because the plaintiff had threatened to shoot such coworker. As pertaining to religious discrimination cases. Judge gorsuch takes it soberly and seriously regardless of whether or not the issue at hand may be trivial to some, may be obscure or the plaintiff is unsympathetic or beliefs may be at odds with societal norms. An example is yellow bear versus lamper. Judge gorsuch held the rights of an unsympathetic plaintiff where a little girl was murdered which plaintiff had been denied his right to access a sweat lodge pursuant to religious beliefs. Judge gorsuch also noted that protections might be available to individuals and families given the hobsons choice of either abiding by religious beliefs or saving their business. And judge gorsuchs approach to civil rights cases is consistent with the norms in this jurisprudence. His record shows that he is a caref careful and exacting judge who has Great Respect for the constitutional order, rule of law, rule of congress and corresponding limits on judicial authority. He is consistent with mainstream tex actual interpretation of the governing statutes and all of his records show he will faithfully and carefully apply the law to protect the civil rights of allamericans. Thank you, mr. Chairman. Thank you. If you are wondering where my colleagues are, there is a vote going on right now. Soon other members will go as well. Thank you. On behalf of the Human Rights Campaign, the largest advocacy org ney n iization for lesbian, gay, bisexual, transgender and queer people. We represent nearly 2 million supporters nationwide. Unfortunately, im disappointed that the topic for discussion is President Trumps nominee to the Supreme Court, mr. Neil gorsuch. Lbgqt people are no strangers to the Supreme Court. We understand the power of the court to affirm or deny our most basic rights. Jim obbergofel had to be air flighted to tarmac to get married because their home state of ohio refused to allow them a marriage license. Their heart break didnt end on that maryland tarmac. The state of ohio attempted to erase their marriage by refusing to place jims name as surviving spouse on johns death certificate. By narrow 54 ruling the Supreme Court validated jim and johns relationsh relationship and extended Marriage Equality nationwide. By his own words judge gorsuch admitted he would have forced samesex couples to pay the price of inequality for decades to come. This is why judge gorsuch cannot be given a lifetime appointment to the Supreme Court. Time and time again, judge gorsuch employed a dangerous brand of originalism. Judge gorsuch has directly questioned the courts recognition of the fundamental right to personal autonomy that has served as the keystone for multiple lbgtq cases. Equating marriage eequal it to beastality and made no effort to distinguish marriage, one of our societys most sacred traditiones from anticriminal social behavior. Despite records that judge gorsuch is friends with lbgtq people, his choice to embrace this line of reasoning has a level of indeference to the lbgtq community that should be disqualifying for an individual to be appointed to the United States Supreme Court. During his time on the bench, judge gorsuch ruled against jessica castle, a transgender Woman Working at a college. She began to use the womens rest room. Half way through the semester the school informed her she would have to begin using the mens rest room based on safety concerns. Rebecca was terminated because she refused to subject herself to the dangers of using a mens rest room. As Justice Kennedy made clear in roemer versus evans, false justifications may never be used to cloak bare an i muss. Thats what happened in rebeccas case. I muss. Thats what happened in rebeccas case. Muss. Thats what happened in rebeccas case. Judge gorsuchs other rulings such as hobby lobby have been used to blatantly defend discrimination against lbgtq people. Amy stephens is one of these people. After working for a for profit funeral home for nearly six years she informed the owner she would be transitioning when she returned to work. And would be dressing consistent with the womens dress code. Ignoring the employees strong record the funeral homeowner stripped her of her job based on his belief in being transgender. The judge in this case adopted judge gorsuchs views regarding moral culpability which callously disregards harm to real people. If this reasoning is widely adopted it will undermine our core civil rights laws allowing pervasive discrimination, not only against the lbgtq community but americans widely. Areas of law that the majority of americans view is settled including Marriage Equality are litigated and debated by groups who are emboldened, that a justice like gorsuch will reopen law. The Supreme Court will be asked to hear cases such as those that could decide whether a Public School counsellor from mississippi could turn away lbgtq youth in need. Whether a city of houston employees may be stripped or whether moms like marissa and tara must both be listed on their daughters birth certificate. We might not agree with every desags Supreme Court justice may make but we must believe that their commitment to reaching impartial judgments based on fact, not public ideology or bias. They must agree that lbgtq people have a fundamental right protected by the constitution and we as individuals and a community are entitled to equal treatment under the law. Judge gorsuch has never met this bar and that is why the Human Rights Campaign opposes his nomination to the Supreme Court. Thank you, mr. Warbelow. Ms. Fisher, and i have to excuse myself to vote. Thank you, senator flake. Thank you, senator. It is an honor to be here today. A privilege to testify and support my friend and former colleague judge neil gorsuch. It has been a privilege over the years to watch his career unfold. I had the pleasure of meeting him in 1991 when we both had our summer jobs in law school. He was in his third year of law school. I was getting out of my second year of law school and we worked together, Summer Associates that year in 1991. May make me the longest person that knew him today thats testifying. Of course i was struck by his brilliance and his keen intellect but what was more striking was his character. And his integrity and his courtesy and his kindness. Everyday he would walk into work and he would stop and he would talk to people. Everyone in the office. Asked them how they were doing. Asked them about their lives. About their troubles. And would he spend so much generosity with his time and his consideration for others. It was almost like an unlimited reserve of courtesy, kindness and good humor to boot. I was the beneficiary of this and i am forever grateful of the time he took with me early on in my legal career to spend time counseling me, mentoring me, helping me. It was almost as if he cared as much about my success as he did about his own. And i was not alone in the way he treated people. I will be forever thankful for his support and thats just the man that he is. He has been through the years as you can see driven by his devotion of his country and devotion to Public Service. He has deep humility when he comes into Public Service and i can remember our conversations about when he was entering Public Service and how much that meant to him that had the ability to do that. He has a keen intellect of course but holds himself to excellence and his unwaivering commitment to the law. You have heard him talk about that. He is a wonderful husband to louise and devoted father and devoted friend to many. As i have watched neil, neil, judge gorsuch for many years, i find him a man of the highest personal integrity. He has a commitment to fairness and decency that will serve the Supreme Court well. And i am hopeful that he is confirmed. Thank you. Thank you. Next we have amy miller. Ms. Miller . Thank you. Chairman grassley, senator feinstein and members of the committee. Im very honored to speak with you today. My name is amy heg strem miller. Im founder and ceo of whole Womens Health. A group of Womens Health clinics that have Reproductive Services including abortion care. Im here today on behalf of abortion providers, Womens Health advocates and people we serve across the country who deserve access to Quality Health care, delivered with dignity even respect. We are gravely concerned about the nomination of judge gorsuch to the u. S. Supreme court. In fact whole Womens Health joined other Reproductive Health rights and justice organizations in a letter to the senate opposing judge gorsuchs nomination. In our clinics we offer Holistic Care for women that includes caring for their heart, mind and body. We envision a world where every woman who decided to end pregnancy will be respected and where she will have the information she needs and quality care she deserves. We were the lead plaintiff in last years landmark Supreme Court case whole Womans Health v helen stead and witnessed how decisions made at the high court directly impact the lives of women. I know what happens when a politicians find devious ways to deny womens rights and why it is so important to have independe independent jurists who respect the rule of law. Roe v wade has settled law for more than four decades and is reaffirmed repeatedly by the Supreme Court. Nevertheless, that hasnt stopped legislators across the country from putting roadblocks in front of women a seeking abortion care. More than 330 have been passed since 2010. Nowhere was the impact of these laws more evident than in the state of texas where antiabortion legislators passed a law in 2013 that forced over half of the states clinic to shut down. The law forced women to drive hundreds of miles even across state lines to access their right to safe and legal abortion. In some cases, the hurdles were so high women simply took matters into their own hands. I will never forget the woman who called from south texas right after the law went into effect. We told her our clinic was shutterered shutterer and she now had to drive 250 miles each way to san antonio. She told us there was no way she could take two days off work, find the child care and the money to drive that far. She said, and i quote, i will tell you what is in my medicine cabinet and can you please tell me what to use to do my own abortion . In our country, where abortion has been legal for more than 40 years, no woman should be forced to take matters into her own hands. Nor should she fear criminalization or jail time if she does. We need justices on the bench who oppose unnecessary obstacles to our Constitutional Rights. Neil gorsuch is not that judge. I also remember the woman who called from west texas where every single clinic had been shut down. She was a single working moench with three children. We helped her to find a clinic raise money for her abgs, child care, transportation and lost wages. By the time she made it to a dallas clinic eight weeks later it was too late for her to have an abortion in the state of texas. We need judges on the court who support our Constitutional Rights no matter our zip codes. Neil gorsuch is not that judge. Last year we took texas to the Supreme Court and in its ruling the court called out these and other clinic shut down laws for what they are, sham laws that create obstacles to care with no medical basis behind them. Women need to know that if their rights are once again on trial they will be decided by justices who are independent and be be holden to an ideological agenda. Judge gorsuch refused to answer basic questions on his stance about roe, whole Womans Health or right to privacy. We know in planned parenthood he sided with politicses using misinformation and false claims to defund Womens Health services and in the hobby lobby contraception case he supported the notion that corporations are people. Judge gorsuchs positions raise concerns about list ability ton openminded, fair and guided by the constitution and not his own ideology or personal beliefs. Your decision on this nomination will have profound impact on all your constituents. Everyone loves someone who has had an abortion. And we all want the people we love and treat et to ed to be s. We would request you deny his nomination for United States Supreme Court. Thank you. Thank you very much. Now miss santo domingo. Thanmanto domingoianto domi. Thank you. As judge gorsuch has said religious liberty quote doesnt just apply to protect popular religious beliefs. It does perhaps its most important work in protecting unpopular religious beliefs. Vindicating this nations long held aspiration to serve as a refuge of religious tolerance. End quote. To prepare for this hearing i have reviewed all 40 cases related to religious liberty in which judge gorsuch either wrote an opinion or cast a vote. My assessment is that judge gorsuch as associate justice of the Supreme Court would be a Jurist Committee to protecting this vital freedom. None of his religious liberty opinions has ever been reversed by the Supreme Court. In fact every time the Supreme Court reached the merits in one of these cases it vindicated judge gorsuchs position even where he had descented. An examination of these cases reveals that judge gorsuch is also a remarkable consensus builder. When he sat together with judges appointed by a democratic president those judges unanimously agreed with him in 80 percent of those cases. Overall he was part after unanimous decision almost 90 of the time. And when he actually authored the religious liberty decision for the court he produced a unanimous decision every sixth time, 100 . This is a striking record in the area of jurisprudence can that can be quite contentious. Ill focus my remarks on two areas. First judge gorsuchs prisoners cases and second decisions involving religious freedom restoration act. First judge gorsuch demonstrated repeatedly he applies the law fairly to protect intercourse rated persons. Some of the most politically powerless in our society. For example, in yellow bear against lamb pert, judge gorsuch addressed a case where a native american prisoner requested access to a sweat lodge for religious purposes. For a unanimous panel judge gorsuch authored an eloquent opinion in which he said quote, while those convicted of crime in our society lawfully forfeit a great many civil liberties, congress has repeatedly instructed that the sincere exercise of religion should not be among them. Here there was no suunless ther compelling reason. Here there was no such compelling reason. It is easy with governmental officiales with so much power over inmates lives to deny capriciously one more liberty to one who has forfeit soemd others. End quote. The government must prove it has a good reason for denying religious liberty by offering much more than the governments quote bear say so, end quote. On this point, Justice Sonia sotomayor quoted yellow bear in her concurrence in another case, hold against hobbs. A muslim prisoner sought to grow a religiously required beard. In two other cases judge gorsuch voted in favor after muslim prisoner seeking access to religiously required meals and reversed Lower Court Decision failing to adequately consider a pro se prisoners request for a kosher diet. Second regarding his cases, in hobby lobby and Little Sisters of the poor, the government tried to force religious ministries and familyowned businesses to change their health plans in a way that would violate their faith or else pay millions of dollars in irs penalties. Applying rfra, judge gorsuch voted in favor and the Supreme Court vindicated his position in both cases. Some have tried to frame these cases as irresolvable conflict between religious liberty and womens rights. Not so. In the Little Sisters case the government conceded that it could still achieve its interest by allowing women to access contraceptive services on the governments own exchanges through another Government Program or other insurance plans. The governments concessions exposed an important truth. No real conflict existed between contraceptive access and religious liberty. In closing, judge gorsuch has a consistent record of carefully applying the relevant statutory and constitutional provisions as well as governing precedence without regard to a particular ideological outcome. His jurisprudence demonstrates an evenhanded application of the principle liberty and to human dignity. And that protecting the religious ranks of others even the rights of those with whom we may disagree ultimately leads to greater protections for all of our rights. Thank you. Thank you very much, chairman grassley. And members of the committee it is an honor to appear before you. My purpose here today is to not pass judgment on judge gorsuch but rather to discuss the subject of her originalism and constitutional interpretation. The term originalism is new dating back to the 1980s but it has not had only one meeting at first it was said to be original intent and then changed to original public meaning then changed by some to original meaning be a struabstract by technological change and then changed by other for semantic meaning that might be different from the common public understanding. Nevertheless, despite their consensus on what originalism means and what theory requires, those who support the theory argue that originalism should be governing mode of constitutional interpretation. First they suggest that originalism is a written constitution an therefore consistent with the framers design. But the early courts did not see it that way. Chief Justice John Marshal wrote in mcculloch it is intended to endure for ages to come an be adapted to the various crises of human affairs. This means the constitutional interpretation is to give meaning and substance to enduring principals over time in new context. The fact that framers did not envision this approach is also evidence in the text of the constitution which uses very broad words such as prfreedom o speech, equal protection, due process of law. Those terms are not conducive to fixed meaning and the framers likely intended this he would be interpret rated in given context over time. They understood that law changed to adopt to new circumstances. R over time. They understood that law changed to adopt to new circumstances. A over time. They understood that law changed to adopt to new circumstances. T over time. They understood that law changed to adopt to new circumstances. E over time. They understood that law changed to adopt to new circumstances. It is incorrect to suggest it was inappropriate to do so because framers knew otherwise. Finally, framers were visionaries. They werent concerned with only the issues the day but with broad principles to guide future generations. The irony is while it report to the framers it demeans their framers enterprises because it subjects they were more concerned with involving problems. 178 will 1787 than developing the constitution that could solve problems of 2017. Originals also error when they suggest that their theory limits the ability of courts toin sert their political preferences at least the way originalism has been practices by conservative jurists. For example, there is no originalist theory that can support striking down federal affirmative action as conservative court did if yadran. Equal protection clause does not apply to the federal government and history during period indicated there were special programs that advantaged only africanamericans. O originalism does not support Citizens United. Framers did not give much creedance to corporations, they distrusted them, they were very limited charters. It does not support the expanded Property Rights that exist in the regulatory takings doctrine and is worth noting that justice ska scalia when he wrote on that suggested this t was not by text or history but by contusional culture. In my written arguments i suggested some results that might be troublesome. End of one person one vote. Overruling of brown. Idea there would be no equal protection for women. The abolishment of the United States air force. Now to their credit, many originalists will not go that far. Will not take us back to the way of life of the 19th century and some have gone out of their way to argue that brown can be reconciled with originalist principles which would be news to those who drafted the 14th amendment and also segregated schools of the District Of Columbia and would also be news to the brown court itself which looked for original spaces and couldnt find it and expressly dis disevowed about the originalism. What does this say about o originalism . Two things. One, that originalists know in their hearts that originalism is at odds with what we know as a nation and secondly demonstrates that that originalism can be used to manipulate the particular results you want to g get to so therefore doesnt fix the meaning that those say it does. Originalism says a doctrine of false promises suggest a framers design when it is to the framers vision. Purports to offer jurisprudence with fixed and predictable results. Claims value neutrality when it has been erratically deployed in order to achieve specific results. Certainly text in history is important in constitutional interpretation. But the claim that constitutional interpretation should be controlled only by history and text was one that was rejected in mcculloch versus maryland in 1819. We should learn that lesson. Mr. Chairman, members of the committee, thank you for letting me testify today. Im a professor of law at vanderbilt law school. I had the honor to claeerk for judge gorsuch from 2007 to 2008. Judge gorsuch is a bril naliant fair jurist. He is a gentleman. You will never meet a kinder or more Charitable Public servant. One of the biggest risks a judge takes each year is inviting a few recent Law School Graduate into hisser her chambers. Judges use law clerks as sounding boards for ideas, to spot flaws in arguments including their own, and to find and help analyze precedent. This requires a judge to put quite a bit of faith in these recent Law School Graduates and requires them to invest quite a bit of time in teaching recent Law School Graduates to be kpe opportunity assistants and k competent lawyers. Judges thus often become the most important mentors Young Lawyers have. This mentoring role is not the most important that judges play but it does provide a window into a judges temperament and their approach to the law. I could not have hoped for a better mentor than judge gorsuch and the country could not have hoped for a better teacher forty brighte brightest legal mind. I could say a lot about judge gorsuch about how he welcomes clerks into colorado and into his family. How he hosted a Birthday Party for my 1yearold son in chambers when we didnt know anybody in colorado. I could talk about his love of being a lir. The joy he takes in the back and forth of legal argument. Or his concern for the integrity of our judicial system. But instead i want to spend my time talking about what judge gorsuch taught me about writing. By the time i arrived if judge gorsuchs chambers i was in school for about 21 years and had written thousands of changes including most after doctoral dissertation. But i didnt really learn to write until i worked for the judge. In conversation, read his work, careful comments on my work i learned the importance of claire kn ity in legal writing. He spend hours in just the introductory paragraphs. These sentences he taught the clerks are most important. Lawyers need to know how the court thought the constitution statutes and regulations apply to the case. But even nonlawyers the judge taught us should be able to understand the stakes in a court case and basic reason a court came out the way it does. Litigants deserve an explanation that does not require a lir to interpret. I have taken this lesson with me at each stop on my legal career. His careful writing is important in its own right because of the written way judges communicate. The emphasis is his broader concern for the process due litigants who seek the protection of our courts. As a clerk i had the opportunity to observe over and over again judge gorsuchs respect for litigants and the care he took to be sure he fairly and fully addressed each of their claims. I have examples in my testimony but by way of one brief example the federal courts receive a high number of pro se petitioners from prisoners. The antiterrorism and Death Penalty act set in 1996 sets a bar they cannot clear and many courts summarily dismiss petitions. Not judge gorsuch. When i worked for him he insisted each receive a written decision on his petition. Each inmate he told me is entitled to an explanation he can understand no matter how far off the mark his claim. Many we received without the aid of council and were difficult to understand. No matter the judge reminded we clerks that court add duty to liberally construe, that is to give the benefit of the doubt, to those who appear on their own behalf seeking protection of the court. The judges concern for fair notice, i can recall many times that judge gorsuch wrote while he might have decided a case differently a panel already addressed the question. In deed i had the clans this morning to look back at the tenth Circuit Decision in andrew f. , the case decided yesterday, reversing the tenth circuit. In that case the court expressly noted the more than dominions standard that judge gorsuch applied in thompson is actually from an earlier tenth circuit case in a line of cases that stretch from urban until thompson. And by noting both instances, judge gorsuch rules on both side of the issues come out beoth was he advocated for better rep zen stati rep z representation and for disableed. It is thank one mr. Meyer. Now ms. Phils. Chairman grassley, Ranking Member feinstein, and members of the Judiciary Committee, thank you for the opportunity to speak with you today. My name is sandy phillips. Im a registered republican, gun owner and i live in tm. But i now vote a straight democratic ticket. Tm. But i now vote a straight democratic ticket. Etm. But i now vote a straight democratic ticket. Xtm. But i now vote a straight democratic ticket. Atm. But i now vote a straight democratic ticket. Stm. But i now vote a straight democratic ticket. But i now vote a straight democratic ticket. Im a mother and im here to stop other families from experiencing my nightmare. Im here to speak on the gun violence that takes 33,000 american citizens lives each year. On average 91 americans are killed each day. 8 of whom are children. My daughter, jesse, was one of them. Five years ago this july my beautiful 24yearold daughter was slaughtered in the aurora, colorado theater massacre along with 11 other beautiful souls. 70 others wounded. Many with wounds that will shorten their lives. I know them. I know their struggle. I know their pain. Both physical and emotional. And i understand it. My daughter went to a movie and was slaughtered. I use the word slaughtered because the killer chose to use a weapon designed for the battlefield by the military as part of his arsenal and ambushed people that could not escape. He was able to purchase 4,000 rounds of green tip 223 high velocity bullets over the internet without even showing his drivers license. These steel jacketed bullets were designed to rip through bone, tissue, flesh, seats and walls. When we sued that online seller, to change their dangerous business practices, our case was thrown out because of the plaqua law. The gun lobby brags that this law was their crowning achievement because it protects the industry from being sued in civil court and denies the Constitutional Rights of gun violence victims to have their day in court. The night jesse was murdered, i was texting with her. I was due to go visit her in just a few days and we were very excited to be able to spend some mother and daughter time. The last thing she wrote to me was, i cant wait to see you. I need my momma. I wrote back, i need my baby girl. Minutes after that text, my phone rang. It was the young man with her that we have known for many, many years and we think of as family. What i heard on the erj eother f the phone changed our lives forever. I could hear horrific screaming. I asked what was wrong. He said that there had been a shooting and it was random. I asked if he was okay. He said, i think ive been shot twice. At this point, i grew alarmed since i was the one calling and not my jesse. I said, wheres jesse . He answered, im sorry. I asked, is she okay . And he said, i tried. I said, oh, god, please tell me shes not dead. And again, he said, im sorry. Bren is a firefighter and paramedic so i knew at that very moment that my daughter was gone. I started screaming, im told. But i have little memory of my husband catching me as i collapsed on the floor. Oe our little girl had been hit six times with a 22 ps that sprayed the theater in mere seconds. 3 ps that sprayed the theater in mere seconds. Ps that sprayed the theater in mere seconds. S that sprayed the theater in mere seconds. One bullet tore through her leg and the other through the other leg making it impossible for her to escape. Three more through her abdomen. One through her clavicle and shattered it and one exploded through her left eye leaving a fiveien fiveinch hole that blew her brains on to the theater seats, floor and people. I live with that image everyday of my life. This preventable pain and suffering of victims and survivors has changed my life. I can no longer remain silent on the side lines. Our Second Amendment begins with the phrase a wellregulated, but guns are not wellregulated. Our lack of strong federal laws allow them to acquire guns too easily. People like jesses shooter who showed clear signs of very veer Mental Illness that made him dangerous to himself and others still enabled him to get his hands on weapons and 4,000 bullets for his attacks. There are new rules in the kind of weapons and background collection. But extremists of pushing courts to accept and endorse a gun lobbied backed radical version of the Second Amendment that would call into question basic Public Safety law like those in colorado. This version is the one that Justice Scalia rejected understand the Second Amendment is not unlimited. As a mother and an american, i believe it is critical that any Supreme Court justice understands this as well. Cases pushing these radical views could make their way to the Supreme Court in months and years to come. This committee must know, does this nominee believe the Second Amendment has limits . Does this nominee recognize that it does not override any other Constitutional Rights like my daughters right to live in a safe community. Does this nominee understand that as times change, laws must change. And responsible regulations to protect communities from gun violence have been recognized as and are constitutional and necessary. To be concerned confirmed, any Supreme Court nominee must answer these questions clearly and convincingly. If not, the Public Safety is at risk. Thank you for the opportunity to speak with you today. Thank you, mr. Chairman. And thank you to the committee for having me hear today. I want to say, obviously a very painful story from mrs. Phillips and her daughter, jesse. I think what i want to say to mrs. Phillips and to the members of this committee is that judge gorsuch, ive known him for 13 years, judge gorsuch is the kind of judge that mrs. Phillips and jesse would want on the bench. He is the kind of judge that apply he the law fairly even even handedly to all litigant before him. Set kind of judge that doesnt rule based on a policy preference or preference for outcome but on the law as its written by members of this body. The constitution our framers wrote. The kind of judge that applies the law in the way we want the law to be applied. Is a judges judge. I followed judge gorsuch to the Justice Department in a Different Office but saw him there as senior Justice Department official. I then went with him to the tenth circuit we he was confirmed to the bench and spent the first four months with him on the bench as a judge. I washington watched him trance farm from passionate strong advocate for client as strong advocate under the rule of law. He is the kind of man that cares about p em. That cares deeply about his family, his friends, the parties that appear before him. He feels what the litigants before him feel. And he applies the law fairly to each and every one of those litigants. Today weve heard from a lot of individuals on this panel about what judge gorsuch, if you were confirmed by this body to the Supreme Court may or may not do on the court. But what i would direct you to is his real record and the ten years on the bench. This is not a judge that in a short period of time on the bunch where we cant tell how a judge is going to be. We can look at his record and determine exactly what kind of judge he is going to be. Now over the last few days youve heard about handful of cases where people feel like he hasnt ruled for the little guy. Well, let me tell you about some of the cases where he has ruled for the little guy. Voting to allow a hispanic employee for a case of race discrimination in District Court. Harris where he voted qualified immunity to University Official accused of discriticisming against a professor. Or city of kualbuquerque where o female officers bringing discrimination claims. Gad versus kansas state, a sex discrimination claim to proceed. All state sweeping. Allowing two female contractors to bring a gender bias claim against a male Denver Airport employee. Chatman versus cinemas where he reversed District Court and allowed a female employee who was sexually assaulted to bring a claim against her corporate employee. Voting to allow a female employee to sue for discrimination. Wd sports, reversing District Court and allowing female to proceed to trial. Eisenhower v weber county. Where judge gorsuch allowed a female Court Employee to bring claims against a male judge who sexually harassed her. Kul van with a dismissal of female workers claim. Judge gorsuch ruled a female employee could sioux City Government for sexual discrimination against reversing the court. In case after case after case judge gorsuch applied the law fairly and evenhandedly. Yes, its true on occasionally cases you three or four you heard about over the last few few days. So the notion that judge gorsuch is not capable of being an even handedly fair judge the kind of judge that mrs. Phillips and jesse deserved is absolutely wrong. He is a judges judge. He will be a credit to our nation and to this body even should be confirmed swiftly. Thank you, mr. Chairman. Thank you. Im going to call on senator coons because he has another assignment. Thank you very much, mr. Chairman. I would like it thank this entire panel. I will take just a few minutes and ask two questions if i might. Ms. Warbelow, over the course of the entire several days of hearings, judge gorsuch repeatedly said he respects precedent and followed law. And i questioned him about casy, lawrence, owe baergafell. And he wrote judges should apply the law as it is focussing forward not backward and look to text, structure and history to decide a what a reasonable reader at the time of the event in question would have understood the law to be but these three critical cases as i questioned him about dont merely look forward they applied a more inclusive and hodern principle of liberty andity understanding to protect right to privacy, relationship and marriage. Can originalis many as judge gorsuch designed it protect the freedoms now recognized for lbgt recognized in the due process law . If we press the pause pause button, and a time when either the constitutional was written or any single statute was written, we missed the broader context and of peoples lives. It is no surprise that in the 1700s, lbgtq was a stranger to the law and if we continue to advocate for a view of the constitution that is stuck in that time period we will always be strangers to the law. And judge gorsuch himself made very clear that he thought the lbgtq community should only have recourse through legislate tour, that Marriage Equality was not appropriate topic for the courts. And should be left solely to the legislatures. But the role of the cour court is to recognize that they are often disadvantaged when it comes to the majority and a good justice looks to how peoples lives are affected and how the rule of law will apply in the daytoday. Looks to how people affected and how the rule of law will apply in the daytoday. Thank you. Ms. Miller, theres been a lot of discuss from President Trumps campaign about what kind of justice he might nominate through questioning judge gorsuch this week. And the potential overruling of roe versus wade seems to hover in the middle distance in these hearin hearings. Im concerned there are ways many courts could and would limit womens access to Health Care Without explicitly overruling roe. And as you heard perhaps in my questioning of judge gorsuch i had questions form about what his standard of complicit meant and where it came from and what consequences would be. And in what ways could the court limit access to reproductive care without overturning roe and what does judge gorsuchs record mean to you about how he might touch these cases. His ability to set aside personal beliefs and rule in a fairminded independent way, what we have seen since 2010 like i referenced in my statement is 330 laws that have been passed to restrict womens access to Abortion Services even with roe being stable. We have seen waiting periods. Weve seen requirements that close physical plants. Weve seen you know really women with undue burden having to travel hundreds of miles and encounter, you know, lot of obstacles. So what we really have a situation where a right exists on paper but its not the ability to access it in the real way people live their lives. Ms. Miller, you are talking about legislatures acting. Why isnt that an appropriate venue and what the the courts role in this . In our case whole Womans Health we were able to illustrate that legislators went too far and the court ruled in our favor saying you cant just pass laws willynilly to block peoples access. They need to be substantiated by medical fact and medical evidence and it put an undue burden and womens ability to access right it privacy and safe apportion as guaranteed by roe. Thank you. I would like to thank you both. I appreciate your consideration. Mr. Chairman. And the opportunity to talk with you both about legitimate concerns about the scope of the right to privacy and its impact on peoples lives. Thank you. Thank you. Thank you, mr. Chairman. Let me ask mr. Smith some questions. I want to thank you for your work depending our first freedom religious freedom. As you know, im one of the authors of the religious freedom restoration act, one of the prime authors and also the author of the religious land use and institutionalized persons act. Now these statutes make it difficult for the government to substantially burden the exercise of religion. And your organization, the beckett fund uses these statute to vindicate the fundamental right to exercise religions for men and women of many faiths. Your written testimony from judge gorsuchs opinion in hobby lobby, that rfra does quote does perhaps its most important work in protecting unpopular religious beliefs vindicating this nations longheld aspiration to serve a refuge of religious tolerance. End quote. In hobby lobby judge gorsuchs court concluded that rfra can apply to a corporation. My guess however is that in your practice and most frequent use of the strat United States is to depend the individual, the little guy if you will, since weve had talk about that, that we have heard so much about, it is to defend the weak and powerless and disfavored. Now i have two questions about judge gorsuchs record in this area. First, do any of his decisions or opinions in such cases go beyond interpret etiing statutee way congress implemented them and instituting them the way congress intended. And secondly how faithful is it to apply statutes like these when it might be controversial as well, as when it is more sympathetic. Thank you very much for that question, senator hatch. Your first question is are there any decisions that go beyond the correct interpretation of the statute in judge gorsuchs ten years on the bench. Ive looked at a lot of his opinions that he has written where he has interpreted rfra and its sister statute, raloopa, which you mentioned. I think his jurisprudence very clearly shows that he understands the limit of these statutes. He understands the balancing test that congress put into these statutes. And that he has found in favor of religious parties some of the time but he also found against parties who are religious litigants in other cases. Hobby lobby and Little Sisters are two examples where he was in favor of the religious objectors and he found a substantial burden on their religious exercise in those cases and the government even ultimately conceded that they had alternative ways to meet their interests without forcing these religious objectors to violate their faith. And i think those two cases show very clearly there was no conflict to begin with between religious liberty and womens rights. But there are other cases where he held the religious parties were either insincere or didnt suffer a substantial burden under rfra. One case i spoebke about in my written testimony where a couple made a fake church to distribute marijuana and sought protection of rfra for drug running. Judge gorsuch said sorry, thats an an insincere claim and rfra wont protect you there. As he said over the last few days, to square its corners, to profits ca prove its case, to have a good justification for what its doing. To impose and recognize these reasonable limits on religious liberty where there are meritless claims shows he has a very balanced and thoughtful approach to applying these statutes as he has done so over the last ten years on the tenth circuit. And how critical is it that these statutes be faithfully interpreted and faithfully implied . It is absolutely critical. As you know, senator, rfra has been used to protect minorities around the country and certainly many of becketts clients are religious minorities. Im thinking here of pastor soto, a pastor of the Native American Church in texas and government created operation powwow and went in undercover and invaded his religious circle to confiscate eagle feathers. It was because of rfra and the hobby lobby decision which the court cited that he was able to get those precious eagle feathers back and use them in his religious ceremonies. It was also rfra who helped another of becketts clients captain simmersing who is a devoted sikh to be able to ask the army to give him an acommendation so he could were a religious beard and turban according to the requirements of his faith. Eventually he was able to get a thanks to rfra and eventually the army was actually willing to change his regulation so that now all sikhs can faithfully serve in the army and not have to deny their faith in doing so. So i appreciate the questions, senator. I think it is a really important point we make here that rfra and raloopa protect religious minority around the country and do this vital work of preserving religious freedom. Thank you so much. Senator franken . Thank you, mr. Chairman. Ms. Phillips, thank you for your testimony, honoring your daughter. Thank you very much. So sorry for your loss. Thank you. I appreciate that. I would also like to ask senator grassley if he would please make note in the record that this gentleman next to me does not speak for me or my dead daughter. You just made that point. Thank you. And we accept it. Ms. Clark, thank you for being here today. I would like to talk about Voting Rights. Now as judge gorsuch and i discussed yesterday the Supreme Courts Shelby County gutted the preclearance provision of Voting Rights act which required certain states, states with a history of engaging in discriminatory practices at the polls. To get the federal governments approval for making changes to the voting laws. Shelby county struck down the provision that determined which states were covered by preclearance, meaning that none are. Im not sure that people fully appreciate how quickly some of the states previously covered by preclearance reacted to Shelby County, the Shelby County decision. Lets look at North Carolina. Shelby county decision was issued on june 23rd 2013. North carolina legislators had already teed up a photo id bill in anticipation of the ruling. And within hours of the decision a state senator indicated that it would start it move. And it does. Additional provisions were added in the North Carolina senate, approved an om any bous package. No africanamerican senate voted for the bill. The house grew the senate bill later that same day. The governor signed it on august 12, 2013. Now after Shelby County section 2 of the act remained in place but where preclearance stopped discriminatory measures before they could do any harm section 2 alieus plaintiffs the challenge restrictions after when have been enacted. So even though litigants successfully challenged North Carolinas restrictions, under section 2, even though the fourth court found that law quote targeted africanamericans with almost surgical decision, the Fourth Circuit didnt strike down that law until july 29, 2016. That means that some of those restrictions were on the books for years before a successful section 2 challenge could work its way through the courts. In the meantime these restrictions kept people from voting. According to the naacp Legal Defense fund, hundreds of North Carolina voters disproportionately people of color not counted in the 2014 primary, election, because North Carolina eliminated same day legislation and allowing to be thrown out if they are cast at the wrong polling place. So i mention this to judge gorsuch. I wanted to know whether gore u gorsuch was bothered by the s l Shelby County decision. He said section 2 is still available. I responded by bringing a challenge to section 2 could take time. And in the time it takes to bring one of those challenges people are robbed of their right to vote. We went around the barn a few times. On this. He told me that voting is a fundamental right. I know that. But didnt answer my question. Ms. Clark, i was not reassured by my conversation with judge gorsuch. Now i understand that he cant weigh in on certain policies or proposals but as a judge, who makes decisions based on the facts and the law alone, as he says, it is prnt know whether he takes proper measures of facts and the fact of the matter is section 2 is not adequate on its own. Do you agree . Thank you for the question, senator franken. Section 2 of the Voting Rights act is no adequate substitute for the strong protections that have long been provided by the section 5 preclearance provision of the Voting Rights act. I believe this is an important area for the senate to focus on the right to vote is the most sacred civil right in our democracy. And i listen to judge gorsuch yesterday in response to your question. I listen to his response to senator leahy who asked for his view about Justice Scalias statement in the Shelby County argument where he referenced the Voting Rights act as a racial entitlement. And he refused to disavow that statement for distance himself from that statement and i find that deeply troubling. I believe our nation deserved justices on our nations highest court who appreciate that the right to vote is central under our democracy and understand and appreciate that that right remains under attack. You point to the example in North Carolina and sadly we have seen the flood gates of voting discrimination and Voter Suppression open. All across our country since the Supreme Courts 2013 ruling in Shelby County alabama versus holder. Texas is another example on the day that the court issue edit ruling it put in place a discriminatory and burdensome photo id requirement that on the day it went into effect disenfranchised more than 600,000 legitimately registered voters who were without one of the forms of qualifying id. I listened intently and carefully to judge gorsuchs response to questions on the right to vote and on the Voting Rights act and remain incredibly dissatisfied. Again, our nation deserves justice who will take the bench and understand that grave challenges arising under the Voting Rights act and other correspondentses concerning voting will come before the court. We need a justice whole be prepared to ensure a voting right act is fairly interpreted and applied. Le be prepared to ensure a voting right act is fairly interpreted and applied. Wle be prepared to ensure a voting right act is fairly interpreted and applied. Ile be prepared to ensure a voting right act is fairly interpreted and applied. Le be prepared to ensure a voting right act is fairly interpreted and applied. Le be prepared to ensure a voting right act is fairly interpreted and applied. E be prepared to ensure a voting right act is fairly interpreted and applied. Be prepared to ensure a voting right act is fairly interpreted and applied. Mr. Chairman may i ask consent that naacp legal fund report entitled civil rights record of neil m. Gorsuch be entered into the record p is. Without objection. It will be entered in. Thank you, senator. Thank you. Senator considerable. Thank one mr. Chairman. I dont have any questions. Okay. Then senator horono. Thank you, mr. Chair. Am i beginning to pronounce your name right . I think youve been doing okay so far. Otherwise i would have corrected you. It is horono. You have to add another 10 seconds to my time for that. P. At 15 seconds to her time. Thank you. So ms. Clark, let me continue with Shelby County because we talked about what happened in North Carolina and in texas where not only did they pass a Voter Suppression law but made a very plane discriminatory intent. So the very thing that people were concerned about because you argue the Shelby County case wbt people were concerned about what happened after they the court eliminated section 5, what happened did happen in some 13 states or maybe more are passing various kinds of laws that disenfranchise in effect voters. So well, i know that you are listening to judge gorsuchs testimony yesterday and the day before probably all of your and it was very difficult to ascertain what his judicial philosophy is because he basically said that he would apply precedent. Let me ask ms. Miller, you founded whole Womans Health. I commend you for that. Thank you for the work youre doing. I think youre probably familiar enough with the hobby lobby case where access to contraception coverage for some, well thousands of hobby lobby employees, and to have hobby lobby be referred to as familyowned business when they basically had over probably 30,000 employees is a stretch to me. But nonetheless, there were thousandis of hobby lobby employees whose right to contraceptive coverage was given very short lift, or no consideration at all. Ms. Miller, do you consider judge gorsuchs position on hobby lobby, do you see hobby lobby of indicative of where judge gorsuch would be on issues relating to a womans right to choose . Thank you for the question. I absolutely do. I think that women have a right to health care that covers all of our health care needs. Whether it is contraception, preventative care, Abortion Services, pregnancy, everything. I dont think we can be set aside because of who we work for. Professor marshal . There are a number of ways to describe originalism. Ive come to the conclusion that originalism is used as a tool and justification to restrict rights of vulnerable americans. Let me ask you this. If originalism had been applied with the Supreme Court have made the with the Supreme Courts decisions have been what it was in the following cases, and i want to set the cases to you, griswold v connecticut, if they a had applied originalism, would the court had come up with that decision . No, your honor. It would be great with me if they would appoint you to Supreme Court. Thank you for that. Loving v virginia . No. V virginia v United States . No. Lawrence v texas. No. Owe baergafell v hodges . No. Thank you. Basically you did write that it is basically a philosophy or approach to construction that conservatives use to restrict rights . I think what was mentioned earlier today that originalism took hold to the war in court so that might give a little bit of sense to the direction it took. There was discussion of shellby county which i agree is one of the most important cases decided by the Supreme Court in the last hundred years because of its affect and yet the case for striking down the preclearance provisions of section 5 is very weak, recently a recent article in the harvard law review pointed out the fallacy behind the notion of equal dignity that court relied on in that case. So yes, it has been selectively used and as appoint out in my testimony, in cases like federal affirmative action when an originalist decision would clearly uphold federal affirmative action originallyist slid away from that decision. Mr. Chairman, i wanted to express my profound sorrow for ms. Phillips. We all share that feeling. Thank you very much for being here and testifying. Thank you, mr. Chairman. Thank you, senator. Senator kennedy, do you have any questions . Proceed. Ms. Miller. I think i understand your position abortion. I went to your website, which is a a well put together website. Thank you. And it is an issue that divides many americans. Would you ever support a nominee for the United States Supreme Court that didnt agree with you on abortion . Senator, whether the nominee agrees with me, to me is not is what at issue here. It is whether they can uphold the precedent and the let me rephrase it. Im sorry to interrupt. Its okay. They dont give me much time. I know. Would you ever support a nominee to the United States Supreme Court who wouldnt declare in front of the United States senate on the judiciary that he or she supported roe v wade . I think what we have seen judge gorsuch do im asking you, would you ever support a nominee that wouldnt do that . Im trying to answer the question. Im sorry. But what we have seen him do is acknowledge that roe exist but i havent heard him affirm. Im not asking about judge gorsuch. Im sorry, im probably not being clear. Would you support any nominee for the United States Supreme Court who didnt come before this panel and say, i support roe v wade . I believe that roe v wade is precedent and that it is important for the justices to uphold precedent. Is that a yes . Yes, it is. And thats your right. Youre an american. You can believe what you want. I do have to ask you this, though. You made charge that judge gorsuch decides cases purely on the basis of his personal policy preferences. And thats pretty serious charge. Whats your basis for saying that . So what i said is im concerned that he wont be able to set aside his personal beliefs and rule independently. Why do you say that . Whats your evidence for that . Because in the hobby lobby case and planned parenthood v utah case, i think he ruled in favor, as you guys say, of the big guy. I would say i tend to side with the little gal. And im concerned that womens ligh rights were set aside for big business. Do you think judges should decide based on the status or wealth of the parties. Basically not. You said you support the little guy. Im concerned that a womens rights were set aside in for big corporation. What is your evidence for siting that. . The hobby lobby case. What is your evidence for making the statement about the judges in that case decided it purely on their personal policy preferences . I the beliefs i think personal beliefs and religious beliefs got in the way of objectivity when women are trying to Access Health care. Whats your evidence for saying that . Reading the hobby lobby case. The result . Yes. Professor meyer, how do you like vanderbilt . Very much, senator. Do you go to the basketball games . Sometimes. We probably shouldnt talk about the first round of the ncaa tournament. Thank you for bringing that up. You spent a year with judge gorsuch. Di did, yes. You saw him when he was tired. I did. Saw him when he was under pressure . I did. You probably saw him when you saw him more than his spouse that year. Yes. He works hard . We works very hard. Works you hard, too . Yes, he did. You ever see him decide a case based purely on personal policy pref rens. I didnt ever see him bring his personal policy preferences into claim bers at all. Ever. You ever see him walk in and say okay, mr. Clark, dont show me the briefs here, we will look at those later. Lets go do some research on who the parties are. No. That never happened. He pays scrupulous attention to the briefs. You ever see him decide a case based on a litigants wealth . No. How long did you spend with limb . I worked for him for about 14 months. 14 months. You ever see him in 14 months, decide a case based on a litigants status or power . No. You ever see him sue come to political pressure . Not at all. Not once. You ever see him sit down and use a kick seat to say okay ive decided this many cases for the little guy, whatever that is, and whatever cases to the big guy so we need to give one to the little guy. Is that his approach . Absolutely not, senator. Im out of time. Thank you. Thank you, mr. Meyer. Thank you. Senator blumenthal is next. Im hoping other members that havent come in that dont have questions, ill ask my questions, then we will chose. Senator blumenthal. Yes. First of all, ms. Phillips, there is nothing there is nothing anyone can say here to ease the pain or close the hurt. And i know from having worked with families of sandy hook and many, many others around connecticut and the country how senselessly and needlessly you suffer as a result of gun violence. And all can i do is pledge to you that more than saying anything, i will continue to work as hard and long as possible for common sense measures that will stop gun violence in this country. Senator, blumenthal, you know you are my hero. Thank you. And the work you are doing in connecticut, the whole country should look to as the leadership that you have given there to immolate throughout the country. So, thank you. I deeply appreciate those comments. But much more important, i deeply appreciate the work you are doing day in and day out. And i know that everyday as you said so eloquently, at the opening, the work you do reminds you of your loss. And all i can do is stand in awe and admiration of what you are doing. And that is partly the reason why i asked neil gorsuch yesterday, about exactly this topic. And about his reading of the heller decision which in my view perfectly well allows measures to stop gun violence. Including stopping the kind of weapon that was used to kill your daughter. The fact that this country has failed to stop the sale of such weapon and impose common sense measures like universal background checks is absolutely reprehensible. I was disappointed in judge gorsuchs response to me when i asked him these questions. Because he failed to agree with me in my reading of the statute and use the same kind of disclaimer that he did in response to numerous other questions i put to him that he wouldnt answer about a particular case or controversy. Wouldnt state his personal views. And i think that a persons stance on these issues is a matter of core beliefs and principles and values. That a judge brings to the bench. No matter how objective and impartial he or she may be, every judge is a flesh and blood human being. Not an atomorrowa ton. Wa i was looking to what was in his heart as one of my colleagues, put it. So i want to thank you for being here today and for giving a face and voice to this profoundly important american issue. Thank you very much. Im honored, sir, thank you. I want to ask ms. Miller, thank you for the great work you are doing at whole Womans Health. And the service that you provide for women everyday. And as you may know, yesterday when i asked judge gorsuch about brown versus board of education, he said in effect that that decision was correctly reached, that the result was correct. He agreed with it. But he was not willing to say the same about the cases underlying the constitutional right to privacy. Which underlies the work that you do everyday. It its not just the results of those cases, is the core constitutional principle underlying. Why is the right to privacy so important for people facing the very personal private decisions that they do in coming to your clinic and why is apprehension or doubt about that right so hurtful. I appreciate your question and im very thankful for your support. I cant get over the fact that candidate trump and President Trump has been very clear that there was a litmus test for this nomination and in addition to that we havent seen judge gorsuch affirm his support for roe, acknowledge that it exists. And with the apple right the wo to privacy is a fundamental right to realize our fuel full humanity. We have to be able to control our reproduction and via contraception and sometimes via access to safe abortion care and i think thats fundamental right that has been approved and reaffirmed by the Supreme Court for over 40 years. Thank you. My time is up. I really want to thank all the members of the panel for being here today. This is a profoundly important proceeding for the nation. And you are making a great contribution. Thank you so much. Ive got three questions i want to ask. And i would like to have my time start now but i want to yield a few second to senator kennedy because he asked for that. Go ahead. Out of my time. Ill be lightning fast. If its coming out of your time. Professor jafer, am i saying that right if. Yes, sir. I want it clear to clear up record. Did you mean to speak for anyone else here today . No, i certainly did not. Thank you for the opportunity to clarify that. I apologize to ms. Phillips. I did not mean to speak for anyone else today. Now he shaehasnt spoken lat but i do have a question for you, you have watched the last tw days of testimony. A lot of it focused on judge gorsuchs record on civil rights. I would like to focus first on the cases that he decided alleging discrimination on the basis of race. What conclusions can you draw from his record in this area . The conclusions are, as i testified, that when it comes to the application of the law, that judge gorsuch is precise. He is a faithful applicant of the law to the facts. And if youre looking for an outcomedriven judge, he is your wrong judge. If you are looking for someone to apply the statutory text as written by this body, thats your judge. Okay. Now ms. Smith, while hobby lobby seems to get the most attention, judge gorsuch has applied federal law protecting religious freedom, specifically the religious land use and institutional persons act. I think you referred to that already. To protect the First Amendment rights of other americans. Could you tell us a lit about calbone and then i think you already mentioned yellow bear but say it again for the benefit of responding to me and then how it really does i think its going to show that judge gorsuch, depending on your response, has applied these statuteses to protect americans of all faiths. Thank you, very much, chairman. Yes. So the first case that you mentioned was abdul haseeb against calbone. That was a case, i think that demonstrates what a fair judge, judge gorsuch is. He was on that panel and they had a pro se prisoner bring this claim for a religiously required diet. And it was a muslim prisoner. And the panel decided that there would be potentially some merit to some of the claims that he had brought. And so the panel decided that they were going to appoint council in that case. So they appointed council so that this muslim prisoner would have the benefit aftof a real lawyer who knew what he was doing to argue his case effectively before the court. They extended the briefing schedules so they had more time to really dig deeply into these claims. And ultimately that panel decided that this muslim prisoner was due a religiously required diet under the religious land use and persons act and judge gorsuch agreed with that decision the court. And then in yellow bear, the case that i discussed in my opening statement, a very significant case involving native american prisoner who had claimed that he was being denied access to a sweat lodge which was essential to his religious practice being a northern arappawho native american. Judge gorsuch in a unanimous opinion wrote an eloquent opinion saying prisoners are are denied so many things in prison but religious exercise should not be one of them. He went on to find that government had not proven its case. That they had not shown that they add compelling reason to deny him access to this sweat lodge. And so again in that case, the little guy, the native american prisoner, prevailed in that case. And i think boemg of these are really important cases to show that judge gorsuch applies federal statutes as congress has written them to protect the religious liberty of in these two cases, a muslim prisoner and native american prisoner. Thank you very much. Now mr. Meyer, my last question, since you worked with him for a year, i think you can touch on this issue. What does he look to get out of advocates for oral argument . Have you ever known him to change his mind in a case during oral argument . Thank you, senator. Oral argument is incredibly important to the judge. It is the basic notion that litigants should have fair opportunity to be heard. And yes, i have seen the judge change miss mind based on oral arguments. Briefs are full argument but oral argument gives you a chance to interact and pose questions to counsel that they may not have presented this their brief. Ive seen something shaped by exchanges in questions with counsel. His preparation for oral argument is incredible. The amount of the number of hours he devotes to the briefs and then thinking through all of the issues in the briefs and background research, is really is really incredible. A huge amount of time. Okay. Senator, blumenthal, i was told you would like to ask one more question. I have one more brief question. Go ahead. Please proceed. Professor marshal, i was struck on your testimony by reference to brown versus board of education. And as you will note, in my discussion with ms. Miller, i mentioned distinction that there was in judge gorsuchs comments on the privacy cases versus brown in a way that he acknowledged that privacy cases were decisions of the court, and he declined to say whether or not he thought they were correct and brown versus board of education which he said in effect was correctly decided. So my question is, when i saw the reference to brown, it reminded me of a question i did not have time to raise yesterday with judge gorsuch, which is whether brown versus board of education is somehow distinguishable because it is an originalist case. I dont believe it is. But you are the professor. So let me ask you. No, its not an originalist case. Least if it was it would be a surprise to the framers and drafters of the 14th amendment and segry gated schools in the District Of Columbia. A surprises to who wrote and signed on to the brown case. They looked for an originalist and specifically questioned information and whether it was supported by originalism and were told no but they decided anyway. Some originalists try to get there. The reason they try to get there is because of how difficult it would be to say we have a tie y theory of the constitution that doesnt support brown versus education. But my answer would be the problem isnt with brown versus education. The problem is with the theory that if honestly applied didnt get there. Just by way of historical enlightment, it has been a while since i looked at history, chief Justice Warren asked justice frankfurter to find an originalist justification for brown. He went to one of his law clerks, i think alexander bickell who wrote about it subsequently and bickell couldnt find anything, frankfurter couldnt find anything and warren said well we will reach the result anyway, we will write the opinion without an originalist justification. Am i roughly correct in that . You are absolutely correct. Thank you. Im sorry, im not in your law school class. I think you could teach it. If you want to review or a view of a farmer of that discussion, i would say that you very clearly say that its not erid originalist, gorsuch said that it wasnt, and i think you backed up what he said. Because he said yesterday that he didnt consider that part of or that can you call him an originalist at least on that point. Okay, i want to thank you. Thank you, mr. Chairman for your courtesy and being able to answer the question. It is my opportunity for the third time today to thank the panel for participating. I know it takes a lot of work for time to be here. Your presentation and preparation. And it is all part of a very important part that Congress Thank God doesnt get involved in very often because we have continuity on the Supreme Court but it is important for all of the testimony. Thank you for that. And for the benefit of the committee, i said earlier this week so this shouldnt come as surprise, questions for the record are due by tomorrow at 5 00 p. M. The record will also remain open until tomorrow at 5 00 p. M. The hearing is now adjourned. Thank you, all. Wrapping up the four day confirmation hearing