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Will be vilified as unwilling to assent into this new orthodoxy? >> senator, i understand that concern. because there are cases that are addressing these sorts of issues i'm not in a position to comment about either my personal views or -- >> i'm not asking you to. justice alito in the ober filed case wrote that ice and those who cling to the old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by government employers and schools. so the case was decided under a do...

Want to see it repeated. he was asking her about her faith and about her family and about other nominees to the process that he thought have not been treated fairly. it is clear the republicans want the make a point they will handle it differently and felt the recent nominees were treated poorly and having to relive stuff she wasn't a part of. he said we aren't going to do that regardless of your personal faith or family situation. we'll treat you with respect. they are smarting from those hearings. >> she is about to take her seat and it will resume shortly. final thought? >> i think she is g...

Correct? >> if memory serves, yes. substantive due process and i think there might have been equal protection concerns mentioned as well. >> and the supreme court has applied that, somehow fairly mysteriously by saying it's created by the confluence of the fifth amendment and the 14th amendment to the united states constitution. but historically, it's been applied in ways that seem to sanction explicit policy making by the courts. for example, the locker in versus new york case which i know you talked to senator lee about in particular which it was a new deal case which set limitations on how ...

Not? >> the supreme court has considered that to be an application of the substantative due process clause of 14th amendment. >> and it doesn't mention anything about substance when it talks about due process. the 14th and sfif fifth amendment talks about due process of law, correct? >> correct. >> one of the things that concerns me is here is an example of the courts finding a new fundamental right mentioned nowhere in the document of the constitution that's the product of simply court-made law that we're all supposed to salute smartly and follow because of

Scott that adopts the substantive due process argument to determine the constitutionality of various laws. perhaps the most recent decision by the supreme court that was a dramatic departure from previous laws in the states and in the nation was the oberfeld case that dealt with same-sex marriage. in the opinions that were written , there it was noted that here we are at the time 234 years after the constitution had been ratified, 135 years since the 14th amendment had been ratified, that the supreme court articulated a new fundamental right which is a right to same-sex marriage. you are famil...