11:04, March 21 309 0 abajournal.com

2017-03-21 11:04:04
Live blog of confirmation hearings, Day 2: Senators begin their questioning

10:47 a.m. ET. Sen. Orrin Hatch, R-Utah, questions Gorsuch.

Gorsuch said he remembers what it was like to be a lawyer and to have clients.

Gorsuch said he doesn’t treat lawyers during arguments as cat’s paws. “They’re not there to be toyed with, “Gorsuch said. He listens to the lawyers, and then to his colleagues. He also asks his clerks to tell him when he is wrong. His mind has been changed, he said, “and that’s the judicial process. And that’s the role I see as an appellate judge.”

10:42 a.m. ET. Feinstein asked Gorsuch about several cases, and he replied that he can’t discuss them.

Gorsuch said a focus on a case in which he ruled against a trucker ignores the body of his work, including many rulings where he did rule for the little guy.

“I’m a fair judge,” Gorsuch said, and people in the 10th Circuit would agree. “I can promise you absolutely nothing less.”

Feinstein turned to the doctrine of Chevron deference, which defers to agency interpretations of ambiguous legislation.

Gorsuch said his opinion referring to Chevron deference is based on unique facts. The case concerned a bureaucracy overturning judicial precedent without an act of Congress, Gorsuch said. Gorsuch said the case reminded him of Lucy picking up the football at the last minute so Charlie Brown couldn’t kick it.

10:27 a.m. ET. Feinstein asked Gorsuch if he believes the president has inherent authority to intercept the communications of Americans in the United States.

“Goodness no, Senator,” Gorsuch replied. Feinstein’s question was related to Gorsuch’s work in the Justice Department during the George W. Bush administration.

10:24 a.m. ET. Feinstein referred to a confidential report that found torture did not produce good intelligence in the fight against terrorism. Feinstein then asked Gorsuch about a signing statement he helped prepare for President George W. Bush when he was working in the Justice Department.

The signing statement said a law banning torture essentially codified existing policy. Feinstein asked about Gorsuch’s emails from that time and whether they backed continued use of enhanced interrogations such as waterboarding.

Gorsuch said he would have to see the documents, and Feinstein said she could supply them. Gorsuch said his recollection generally is that the legislation emphasized that torture was unacceptable, as was cruel and inhumane treatment.

Gorsuch said he worked on producing the bipartisan bill preventing cruel and inhumane treatment, and creating a regime to process claims by Guantanamo detainees.

Gorsuch said he was a lawyer for the government advising about legality. His “loose recollection,” he said, is that some people wanted a more aggressive signing statement and some wanted a gentler signing statement. Gorsuch said he recalled being “in the latter camp.”

“I certainly would never have counseled anyone that they could disobey the law,” Gorsuch said.

“There was a tug of war among parties in the White House,” and he was often on the side of John Bellinger of the U.S. State Department, which advocated for the gentler statement.

10:10 a.m. ET. Sen. Dianne Feinstein, D-Calif., refers to Roe v. Wade as a “super-precedent” and asks Gorsuch if he views the opinion that way. Gorsuch replies that Roe has been reaffirmed many times.

10 a.m. ET. Grassley asked Gorsuch about several cases, including the Second Amendment case of Heller and the campaign finance case of Citizens United. Gorsuch said he has personal views about all Supreme Court cases, “but the judge’s job is to put that stuff aside and approach the law as you find it.”

Grassley then asked about an older decision, Gideon v. Wainwright, which established the right to counsel. Gorsuch said he could talk about the factors surrounding precedent, but he couldn’t give his personal views on the opinion. Precedent “deserves our respect because it represents our collective wisdom,” he said. The idea that he has a better perspective “would be an act of hubris,” Gorsuch said.

Grassley then asked Gorsuch about Bush v. Gore, which settled Florida questions in the presidential election. Gorsuch repeated that he has respect for precedent. On Roe v. Wade, Gorsuch said he would say that the opinion is a precedent of the U.S. Supreme Court that has been reaffirmed, and reliance is one important consideration. Asked about the Griswold case establishing a privacy right to use contraceptives, Gorsuch once again said it is precedent.

If he were to list his favorite or least favorite cases, that would be tipping his hand to litigants, Gorsuch said. “If it looks like I’m giving hints or previews or intimations about how I might rule, I think that’s the beginning of the end of an independent judiciary,” Gorsuch said.

9:58 a.m. ET. Grassley asked Gorsuch when it is proper to reconsider precedent.

Gorsuch emphasized that precedent is important because “we don’t go reinvent the wheel every day.” Relevant considerations include whether a body of law has built up around the precedent, and the precedent’s “workability,” meaning that it is easy to apply.

There is a heavy presumption in favor of precedent, Gorsuch said. “And yes, in a very few cases, you may overrule precedent.”

9:52 a.m. ET. Emphasizing that there are no Democratic or Republican judges, Gorsuch said that, in the few cases in which he has dissented, the majority was as likely to be Democratic as Republican.

Gorsuch called separation of powers “the genius of the Constitution.”

Grassley asked Gorsuch if he was asked to make any promises about how he would rule in certain cases.

Gorsuch said he tries to live under a shell during the campaign system, but he did recall hearing about litmus tests. He didn’t intend to be a party to such a thing, Gorsuch said. And no one in the nomination process asked him for any commitments or promises about how he would rule in any cases, Gorsuch said.

9:39 a.m. ET. The hearing begins with a question by Grassley. He asks for Gorsuch’s view of judicial indpendence and whether he would have any difficulty ruling against the president.

Gorsuch says he would have no difficulty ruling against any party, if that’s what the law requires. There is no such things as a Democratic or Republican judge; there are just judges, he said.

Gorsuch said he takes the judicial process very seriously, and he keeps an open mind throughout the entire process. “And I leave all the other stuff at home and I make a decision based on the facts and the law,” he said. That is what judicial independence means, Gorsuch said.

Gorsuch confirmation hearings: ABA previews rating: The second day of confirmation hearings for U.S. Supreme Court nominee Neil Gorsuch begins at 9:30 a.m. ET on Tuesday, as the ABA Standing Committee on the Federal Judiciary issues prepared testimony on its rating.

The standing committee gave Gorsuch its highest rating of well-qualified, in a unanimous vote. Committee chair Nancy Scott Degan and committee member Shannon Edwards are slated to appear before the committee on Thursday to explain the rating.

The committee hearing is expected to last 10 hours Tuesday as Gorsuch answers senators’ questions, the New York Times reports in a preview. In a shorter hearing Monday, Gorsuch told the Senate Judiciary Committee that judges are not politicians in robes. Instead, the robes signify that judges are neutral and independent decision-makers who apply the laws to the facts, he said.

Judicial independence was also a theme during the hearing on Monday. One Democrat, Sen. Richard Blumenthal of Connecticut, referenced a “looming constitutional crisis” that could be precipitated by the FBI investigation of potential ties between affiliates of the Trump campaign and the Russian government. Blumenthal said it was important to have a judiciary that will protect the nation “from overreaching and tyranny.”

In a statement (PDF) prepared for the Senate Judiciary Committee, Degan spoke to Gorsuch’s views on the subject. “Based on the writings, interviews, and analyses we scrutinized to reach our rating,” Degan said of the ABA committee, “we discerned that Judge Gorsuch believes strongly in the independence of the judicial branch of government, and we predict that he will be a strong but respectful voice in protecting it.”

The ABA committee does not evaluate judicial nominees based on judicial independence, Degan said, but it is essential in qualities it does evaluate—integrity, professional competence and judicial temperament. The committee reached out to nearly 5,000 judges, lawyers, professors and community representatives for information about those qualities, and received more than 1,000 responses.

The committee concluded that Gorsuch has “an excellent reputation for integrity and is a person of outstanding character,” Degan said in the statement.

“It was clear from our interview of Judge Gorsuch that he began learning the significance of a lawyer’s integrity during his early childhood,” the statement said. “His mother, father and his father’s father were attorneys, and he recalled with fondness their love of the profession and their genuine commitment to helping others through the practice of law.”

Those who were interviewed said Gorsuch approaches every case fairly and independently, and he does not let his personal preferences interfere with his evaluation of the law. Committee members who read Gorsuch’s opinions praised them as “models of care, thoroughness and analytical rigor.”

Gorsuch had told the ABA committee that he sees no reason to use a lot of legal jargon in his opinions, and he tries not to use too many footnotes. He likes to write the way that people talk and likes to use contractions. He tries to “demystify opinions” and wants litigants and nonlawyers to be able to understand them.

Almost all of the lawyers, academics and judges who were interviewed about Gorsuch had the highest praise for his intellect and his ability to communicate effectively, Degan said in the prepared statement. Observers also praised his temperament, calling him an even-keeled good listener who is sincere, reasonable and respectful.

“He is a real-life Jimmy Stewart,” one person told the ABA committee.

Story corrected at 8:45 a.m. CT to state that the ABA testimony will be on Thursday.

10:47 a.m. ET. Sen. Orrin Hatch, R-Utah, questions Gorsuch.

Gorsuch said he remembers what it was like to be a lawyer…

Lady Justice slips on a banana peel.