Be, i respectfully say i would have to study it in the course of a judicial case. Let me where i it right down to the operative words. Whether employees should or should not make inquiries aas to whether an applicant or employee intends to become pregnant. Senator, it sounds like youre asking me a case for a controversy, and with all respect, when we come to cases and controversies, a good judge will listen. Sock tease said the first virtue of a good judge is to i think you know why im asking these questions. This one i dont. The reason im asking is because about your views on pregnancy women in the workplace is because two of your former students from legal ethics and professionalism class last spring wrote to this committee to say how troubled they were by your comments in april 19th class. It was a gender targeted discussion regarding the hardship to kbrsz of having female employees who may use maternity benefits. One of these students signed her name publicly to her letter, which is a pretty brave thing to do. That student didnt just make this issue up after you were nominated. Last night the university of Colorado Law School confirmed that she had voiced her concerns with add morministrators short your april 19th class and also confirmed that the administrators told her they would raise this matter with you, though they never actually did so. When we receive information like this, which raises questions about your views and conduct on important issues, i want to get to the bottom of it. I mentioned it to you yesterday in my Opening Statement that i would be bringing this up. I just want to ask you to confirm, did you ask your students in class that day to raise their hands if they knew of a woman who had taken maternity benefits from a company and then left the company after having the baby . No, senator. I would be delighted to actually clear this up where. Please. Because the first i heard of this was the night before my confirmation hearing. I have been teaching legal ethics at the university of colorado for seven or eight years. Its been a great honor and pleasure. I teach from a standard textbook that every professor well, i dont know if every professor a number of professors use. Professors lerman and shrog. One of the chapters in the book confronts lawyers with some harsh realities that theyre about to face when they enter the practice of law. As you know and i know, we have an unhappy and unhealthy profession in a lot of ways. Lawyers commit suicide at rates far higher than the population. Alcoholism, divorce, depression are also at extremely high rates. Young lawyers also face the problem of having enormous debts when they leave law school. Thats a huge inhibition for them to be able to do public service, like you and i are so privileged to be able to do. We talk about those things. There is one problem in the book, and i would be happy to share with you the book and the teachers manual so you can see for yourself, senator, which asks the question and its directed to young women because, sadly, this is a reality they sometimes face. The problem is this. Suppose an older partner woman at the firm that you are interviewing at asks you if you intend to become pregnant soon. What are your choices as a young person . You can say yes, tell the truth. Hypothetical is that its true and not get the job and not be able to pay your debts. You can lie, maybe get the job. You can say no. Thats a choice too. Its a hard choice. Or you can push back in some way, shape, or form. We talk about the pros and the cons in this dialogue that they can think through for themselves how they might answer that very difficult question. Senator, i do ask for a show of hands. Not about the question you asked, but about the following question. I ask it of everybody. How many of you have had questions like this asked of you in the employment environment . An inappropriate question about your Family Planning. I am shocked every year, senator, how many young women raise their hand. Its disturbing to me. I knew this stuff happened when my mom was a young practicing lawyer graduating law school in the 1960s. At age 20 she had to wait for a year to take the bar. I knew it happened with justice oconnor. Couldnt get a job as a lawyer when she graduated Stanford Law School and had to work as a secretary. I it still happens every year that i get women, not men, raising their hand to that question. Thank you for the opportunity to clarify that, senator. And i wanted to give you that opportunity. I told you yesterday we would get to the bottom of this, and i would give you your chance to tell your side of the story. You made a point yesterday of talking about your four heroes, and one of them was justice jackson. I went back to look at some of his cases. I know of him. I dont know much about him. I found his dissent. This was a case which i thought was fascinating because his dissent was not that long, but it was had an impact. It was profound. The question, of course, was it is military orders he had to go off to determent camp and the it was upheld an opinion by justice black, but among the dissenters was robert jackson, and his dissent, he said some things that i thought were pretty interesting, and i would like to ask your thoughts on it. He gave a constitution condemnation of what he considered the militarys racist exclusion orders, but what he articulated in the second half of the opinion is what i like to ask you about. He really raised a question about the role of the courts, even the Supreme Court, in time of war, in time of fear when it came to military orders and whether the courts and the constitution were up to it. That was really an amazing challenge to us as a nation, a nation of laws. What do you think about the role of the Court Challenging the military or the commander in chief in time of war, and as senator graham reminded us, many people believe we are at war, and i believe you confirm that as well. Are we up to it in terms of constitutional protection and the role of the court . We better be. Senator, a wise old judge kind of like judge johnson, you are going to hear from. He is going to come talk to you from colorado. A hero of mine. Known me since i was a tot. He taught me that the test of the rule of law is whether the government can lose in its own courts and accept the judgment of those courts. That doesnt happen every where else around the world. We take it for granted in this country. Its a remarkable blessing from our forefathers, says and it is a daunting prospected as a judge to have to carry that baton. And to do it on the Supreme Court of the United States is humbling. That prospect to me. I pledge to you that i will do everything i can to uphold the constitution and the laws as a good judge should at all times. Let me ask you about another case thats been referred to. Yesterday many of us left elle madden sitting in that truck. It was about 3 00 in the morning on i88 west of chicago. Ive driven it many times. It was in january. The temperature in the cab was 14 degrees below zero. He had no heat ner his cab. His dispatcher had told him to sit tight. You either drag that trailer with the frozen brakes behind you out on to that highway or you wait, and so he waited for hours, and finally feeling numb and lifethreatening, he unhitched his trailer and took his tractor to a place for some gas and to warm up and then returned to it when they fixed it. Seven different judges took a look at those facts and came down on el maddens side. Except for one. You. Why . Senator, this is one of those you take home at night. The law said that the man is protected and cant be fired if he refuses to operates an unsafe vehicle. The facts of the case, at least as i understood them, was that mr. Madden chose to operate his vehicle, to dry away. Therefore, he wasnt protected by chose to operate. Senator you know the distinction, though. The dispatcher had told him dont leave unless you drag that trailer. Right. And he said i cant do it. Its you know, the brakes are frozen, and they went out there at 14 below and unhitched that trailer, he thought, because he was in danger. When you wrote your dissent to this, you said it was an unpleasant option for him to wait for the repairman to arrive. I said more than that. No, you didnt. You went on to say that you thought that the statute which we thought protected him, you said, especially in the ephemeral Phrase Health and safety, you went on to write after all what under the sun at least at some level of generality doesnt relate to health and safety. We had a legislative intent for a driver who feels he is in danger of his life perhaps, and you dismiss it. The only one of seven judges and say no. Youre fired, buddy, and you know, he was blackballed from trucking because of that. Never got a chance to drive a truck again. Senator, all i can tell you is my job is to apply the job you write. The law as written said he would be protected if he refused to operate, and i think by any plain understanding, he operated the vehicle. If congress wishes to revise the law, i wrote this i wrote i said it was an unkind decision. I said it may have been a wrong decision, a bad decision, but my job is not to write the law, senator. Its to apply the law, and if Congress Passes a law saying a trucker in those circumstances gets to choose how to operate his vehicle, i will be the first one in line to enforce it. I have been stuck on the highwy in wyoming in a snowstorm. I know whats involved. I dont make light of it. I take it seriously. Senator, this gets back to what my job is and what it isnt, and if were going to pick and choose cases out of 2,700, i can point you to so many in which i have found for the plaintiff in an employment action or affirmed a finding ing of an agency for worker or otherwise. I would point you, for example, wd sports or casey energy west crane, simpson versus cu. Its just a few that come to mind that i have scratched down here on a piece of paper. Judge, we up here are held accountable for our votes. I have been in congress for a while, and i have cast a lot of them. Some of them im not very proud of. I wish i could do it all over again. Ive made mistakes. Your accountability is for your decisions, as our accountability is for our votes, and if were picking and choosing, its to try to get to the heart of who you are and what you will be if you are given a chance to serve on this Supreme Court. I would like to go, if i can, for just a moment to this famous case which you and i discussed at length. Hob dw hobby lobby. I still struggle all the way through this, and it was a lengthy decision, with trying to make a corporation into a person. Boy didf time twisting and turning and trying to find some way to take rifra and say that Congress Really meant corporations like hobby lobby when they said person. It was dictionary law on so many different aspects of this. What i was troubled by, and i asked you then, ill ask you again, when we are setting out as that court did to protect the religious liberties and freedom of the green family, the corporate owners and their religious belief about whats right and wrong when it comes to Family Planning and the court says thats what well decide it, what the green family decides when it comes to Health Insurance, you made a decision that thousands of their employees would not have protection of their religious believes and their religious choices when it came to Family Planning. You closed the door to those options in their Health Insurance, and by taking your position to the next step, to all those who work for closedend corporations in america. 60 Million People had their Health Insurance and their Family Planning and their religious belief denigrated, downsized to the corporate religious belief, whatever that is. Did you stop and think when you were making this decision about the impact it would have on the thousands and thousands, if not millions of employees if you left it up to the owner of the company to say, as you told me, theres some kind Family Planning i like and some i dont like. Senator, i take every case that comes before me very seriously. I take the responsibility entrusted in me in ask the lawy and judges of the 10th circuit am i a serious and careful judge, i think youll hear that i am. Im delighted to valedictorian aopportunity to talk to you about that decision. As you know in rifra, the religious freedom restoration act, congress was dissatisfied with a level of protection afforded by the Supreme Court under the First Amendment to religious exercise. The court in a case called smith versus maryland written by Justice Scalia said any neutral law of general applicability is fine. That doesnt offend the First Amendment. Laws banning the use of paoti, native americans, tough luck. Even though its essential to their religious exercise, for example. This congress decided that that was insufficient protection for religion and in a bill sponsored by senator hatch, senator kennedy, senator schumer when he was in it the house wrote a very, very strict it says any sin seerply held religious belief cannot be abridged by the government without a compelling reason and even then it has to meet it has to be narrowly tailored. Strict scrutiny. The highest Legal Standard known in american law. Okay. I have applied that same law, companion statutes, to muslim prisoners in oklahoma, to native americans who wish to use an existing sweat lodge in wyoming, and to Little Sisters of the poor. Hobby lobby came to court and said we deserve protections too. Were a small familyheld company. A small number of people who own it, i mean. They exhibit their religious affiliations openly in their business. They pipe in christian music. They refuse to sell alcohol or things that hold alcohol. They close on sundays, though it costs them a lot. They came to court and said were entitled to protection too under that law. Its a tough case. We looked at the law, and it says any person with a sincerely held religious belief is basically protected, except for strict scrutiny. What does person mean in that statute . Congress didnt define the term so what does a judge do . A judge goes to the dictionary act, as you alluded to, senator. The dictionary act is an act prescribed by congress that defines terms when they are not otherwise defined. Thats what a good judge does. Doesnt make it up. Goes to the dikdsary act, and the dictionary act congress is defined person to include corporation. You cant rule out the possibility that some companies can exercise religion, and, of course, we know churches are often incorporated. We know nonprofits, like Little Sisters or hospitals, can practice religion. In fact, the government in that case conceded that nonprofit corporations conceded that. Thats the case. Then we come to the strict scrutiny side. I dont want to cut you off. Im sorry. Im going to get in big trouble. I dont want to get you in trouble. With iowa here. I think i would want you to continue your answering his question. Im sorry, mr. Chairman. No. I want you to continue. All right. Then youve got the religion first half of the test met, right . Then you go to the second half. Does the government have a compelling interest in the aca and providing contraseptive care . The Supreme Court of the United States said we assume yes. We take that as given. Then the question becomes is it narrowly tailored to require the green family to provide it . The answer there, the Supreme Court reached, and precedent binding on us now and we reached in anticipation is no, that it wasnt as strictly tailored as it could be because the government had provided different accommodations to churches and other religious entities. The greens didnt want to have to write down and sign something saying that they were permitting the use of devices they thought violated their religious believes, and the government had accommodated that with respect to other religious entities and couldnt provide an explanation why it couldnt do the same thing here. Thats the definition of strict scrutiny. Now, congress can change the law. It can go back to smith versus maryland if it wants to. Eliminate rfra altogether. It could say that only natural persons have rights under rfra. It could lower the test on strict scrutiny to a lower degree of review if it wished. It has all of those options available, senator. If we got it wrong, im sorry, but we did our level best, and we were affirmed by the United StatesSupreme Court, and its a dialogue, like any statutory dialogue between congress and the courts. Thank you. Judge. Thank you, mr. Chairman. Senator from texas. Thank you, mr. Chairman. Before i start, yesterday in my statement i mentaled an op ed written by my apologies to him. With a name like cornyn, im used to it. I get a lot worse. I got a lot worse the other day. The title is why liberals should back neil gorsuch. I would like to include this in the record along with other supported letters. Without objection, all documents will be included. Judge, i have a pretty basic question for you. Does a good judge decide who should win and then work backward to try to justify the outcome . Thats the easiest question of the day, senator. Thank you. No. , and i have to correct myself. Senator durbin, its not smith versus maryland. Thats third party doctrine. Its Employment Division versus smith. I apologize to you for that. Im glad to hear you answer my question the way you did. I expected that you would. But that seems to be implied in some of the questioning that you are getting. You look at who the litigants are and who you would like to win, the little guy, as weve heard, and ill get to that again in a minute, and then go back and try to justify the outcome, but i agree with you. Thats not what good judges do. I want to return briefly to i know something you have talked to senator feinstein and senator durbin about. Again, just to give you every opportunity to make sure this is cr