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Confirmation Hearing for Neil Gorsuch for U.S. Supreme Court; White House Press Briefing. Aired 1:30-2p ET

Aired March 21, 2017 - 13:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[13:30:00] NEIL GORSUCH, U.S. SUPREME COURT NOMINEE: That was one.

Number two was our own rules of procedure, which yield cases, like the one we talked about, it took 25 years to resolve. That's wrong. That's wrong. We should be able to resolve cases in less time than it takes for my law partner to be born, raised and to get through law school.

And the third thing I pointed to was our legal educational system, where we have three years of post-graduate education for everybody who wants to - who had anything to do with lawyering.

The best lawyer in the country - this history, came from your state, Senator Durbin, and he didn't, ever, go to law school. And he always said the best way to become a lawyer, "read the books."

Still true. In other countries, around the world, don't have three years of post-graduate legal education. Now, this is where Justice Leahy (ph) and I - this is the disagreement.

He think - he thought three years was necessary for everybody; I'm not convinced. In England, where I studied, you could become a lawyer through three years of an undergraduate degree, or one year as a post- graduate degree.

All followed by a lot of on the job, practical training. And I wonder whether all that debt is worth it or whether it induces people to pick jobs that they have to pick to pay their debt, rather than serve the people they'd like to serve.

Those are the problems I talk about in that article.

CORNYN: Judge, you make this statement, "That the rules sometimes yield more nearly the opposite of their intended result, expensive and painfully slow litigation that itself is a form of injustice."

Can you think about - can you think of many things more unjust or people of modest means in America than being denied access to the courts because our system is so expensive and time consuming they simply can't afford it?

GORSUCH: I think it's a problem when 80 percent of the American College of Trial Lawyers, best lawyers in the country arguably, they certainly think they are - sorry, but then 80 percent of them say that good claims are priced out of court and 70 percent of them say that cases are settled based on the litigation costs, rather than merits of litigation.

That's a problem on both ways, and these are - these are lawyers who operate on both sides on the...

CORNYN: So, basically, you have to be able to pay a lawyer's hourly rate or you have to agree to some contingent fee arrangement, and lawyers aren't going to take a contingent fee case unless there is at least some reasonable prospect for their being compensated out of any settlement in judgment, ordinarily.

GORSUCH: Ordinarily, some - some do. What we're seeing today though, Senator, is an explosion pro-say (ph), that is filings by the person without a lawyer.

And that's what I was trying to address there. I do think access to justice, in large part, means access to a lawyer.

Lawyers make a difference; I believe that firmly. My grandpa showed that to me, what a difference a lawyer can make in a life.

CORNYN: Judge, let me ask you about another cases involving the little guy. This was an immigration case, that you'll recall was a conflict between two provisions of immigration law.

Gutierrez-Brizuela vs. Lynch, I hope I pronounced that approximately correctly, would you - do you recall the case?

GORSUCH: I do, and we've talked a little bit about it with Senator Feinstein and I'm happy to...

CORNYN: Well then, I'm happy to hear it again because I heard, I believe it was Senator Feinstein, maybe I'm mistaken there or maybe one of our other colleagues, I apologize if I misstated that.

It talked about this deference to administrative agencies that was being necessary and a fundamental doctrine. But can you explain that how ended up hurting the little guy in that case?

GORSUCH: So, Senator, in that case there were two statutes that this undocumented immigrant faced, and he was trying to remain in the country.

One statute said that he had the right to apply for immediate discretionary relief from the Attorney General, no promises about the outcome, but he could at least apply to the Attorney General.

The other statute seemed to suggest that he had to wait ten years out of the country before he could seek relief. Now, I'm not criticizing Congress of any work (ph) here, okay?

But those two statutes appeared a little in conflict, so the case came to our court in the first instance.

And our court held that the first statute helped (ph), that the man had a right to apply for immediate discretionary relief and didn't have to wait ten years out of the country. And then some number of years later, I can't remember whether is was three or four I want to say, don't hold me to that, the board of immigration appeals and its infinite wisdom comes back and says we're wrong. Court of Appeals got it wrong. The ten year stature trumps. Okay.

Says, though, that we're not just wrong, but we're wrong retroactively. So, it's as if this decision never existed. And this man who relied on our holding, to apply for immediate discretionary relief was denied the opportunity to do so and was told now he had to go start his ten year waiting period.

Now, instead of ten years it's equivalent of 13 or 14 years and to me that just seems he just had the rug pulled out from underneath him. And, I think a person in this country should be able to rely on the law, as it is. And, it's a matter of due process and fair notice, when he's told that's the law, he should be able to rely on it and I also think it's a separation of powers question.

When, with all respect a bureaucracy can overrule neutral dispassionate judges on the meaning of a law based on their political whims at the moment, that's a separation of powers issue, I think. And, maybe an equal protection issue, too. Because a political branch can single out people for disfavor. Judges are sworn to treat every person equally in that Vermont marble.

CORNYN: In this case the little guy was actually relying upon a judgment of a court of law and was effectively or the attempt was to overrule that court decision by an administrative regulation or interpretation, is that correct?

GORSUCH: Yes.

CORNYN: And, if you had applied the Chevron test, we talked about that a little bit, said that the -- if it is ambiguous, and the agencies interpretation is a legal one, then you're obligated to enforce the agency decision rather that the judgment of the court of a law.

GORSUCH: Senator, we did apply the Chevron case faithfully, because we had to. And, I also wrote separately to ask questions because I'm a circuit judge. And, I never dreamt that I would be sitting here, I can tell you that, when I wrote this opinion. And, part o my job is to tee up questions from my bosses. And it struck me, here is a question, is this result consistent with the Administrative Procedures Act? Which says, the Section 706 that we're supposed to defer to agencies when it comes to questions of fact, to the scientists, tot the biologists, but when it comes to questions of law, APA Section 706 entrusts courts to decide that the law is and is consistent with our values of equal protection, due to process and separation of powers. Those are questions I raised, Senator, to tee up for my bosses.

CORNYN: You actually applied the Chevron test in the -- in your judgment, but wrote a separate opinion raising these questions for review by the Supreme Court.

GORSUCH: I follow precedent.

CORNYN: Sounds like it. Even when you disagree with the outcome?

GORSUCH: Well, we got to an outcome that we could live with there too, Senator and applied Chevron. But, I did raise this in a separate concurrence to raise these questions. You know, I don't know how it ruled as far as Supreme Court Justice on the questions.

I've got to be honest with you Senator Cornyn, because I'd want to do what a good judge does, keep an open mind, read the brief and I can change my mind. I think here of my old boss Dave Sentel, when I clerked for him. He wrote a panel opinion going one way at the beginning of the year and at the end of the year he wrote an embank opinion reversing his own panel opinion. Now some people say, that's a man who doesn't have a spine, something like that. I say that's a judge with an open mind.

CORNYN: Well, speaking for myself, the idea that agencies unelected bureaucrats, have the latitude to interpret their own legal authorities, if the Congress is ambiguous and their interpretation is deemed reasonable is a troubling concept, because if there's one part of the federal government that is completely out of control of the regular voters in this country, it is the bureaucrats who don't stand for election, like members of Congress do. So, I hope it's something that we legislatively can look at as a way to help rein in the regulatory State, which, in my humble opinion, has gotten out of control.

Let me talk to you about the Establishment Clause, if I may. I firmly believe the Supreme Court has lost its way in limiting religious expression in this country, that's my opinion. And part of my conviction stems from an experience I had 20 years ago, when I had a chance to argue before the United States Supreme Court.

I had that chance two occasions when I was Attorney General of Texas. This case was called the Santa Fe Independent School District versus Doe. The school district in Southeast Texas around Galveston, had a practice before football games, of inviting a student to offer a prayer, or a poem, or maybe just an inspiration thought before the football game.

They got sued by the ACLU. And that case ended up going to the United States Supreme Court, where the court held by a vote of six to three that student led prayer was unconstitutional. That led the late Chief Justice Rehnquist to make the statement that, rather than neutrality of religious expression that the court now exhibits, quote, "hostility" to all things religious in public life.

We don't seem to have many limits on expressions of sex, violence or crime in the public square. But we do seem to have compunctions about religious expression in the public square.

And I wonder if you could just talk to us a little bit about your views, not prejudging cases, but the sorts of considerations that you believe the Founders, for example, had in mind. And of course as I'm asking you the question, I'm already thinking

through my head here, I'm not asking you to prejudge any future case. So let me give you the latitude to answer the question any way you deem fit. But I have to tell you I'm very troubled by what Chief Justice Rehnquist called "hostility" to religious expression in the public square and what that's done to change our country, not in a good way.

GORSUCH: Senator, I appreciate your thoughts and it's a very difficult area, doctrinally, because you have two commands in the first amendment that are relevant here. You have the free exercise clause on the one hand, and you have the establishment clause on the other.

So you're guaranteed free exercise of religion and you're also guaranteed no establishment of religion. Those two commands are intentional because to the extent we accommodate free expression, at some point the accommodation can be so great that someone's going to stand up and say, you've established. Or you've passed a law respecting the establishment of religion.

It's a spectrum. And it's a tension. And as in so many areas of law, judges have to mediate two competing and important values that our society holds dear. The court has struggled in establishment clause jurisprudence to provide a consistent, comprehensive test. I think that's a fair statement.

The current dominant test is called the Lemon Test, and it asks whether the intent is to establish a religion, promote a religion; whether the effect is to help advance a religion; and whether there is too much entanglement between state and religion.

It's proved a difficult test according to six Justices at least -- have expressed dissatisfaction with this test, and never at the same time. So Lemon endures. And academics have thoughts about various options and alternatives, I know, and the Justices themselves have expressed various and sundry ideas. I can tell you as a lower court Judge, just trying to faithfully do what the Supreme Court wants us to do, it's a bit of a challenge in this area. We struggle along.

CORNYN: Just as one citizen to another, let me tell you I that I think it's a morass and unfortunately the result is, like Chief Justice Rehnquist said, hostility to religious expression in the public square and I think our country is poorer for it.

Let me -- my final topic, at least for this round, let me ask you a little bit about originalism and textualism. Our mutual friend, Bryan Garner, mentioned to me that textualism isn't the same thing as being a strict constructionist, I know we use that phrase at least colloquially some.

But if a judge isn't going to be bound by the text of the Constitution or the text of a Statute, what is a judge going to be bounded by?

GORSUCH: Well, Senator, I hope it isn't what he had for breakfast. And when I was a lawyer, all I wanted was a judge who put all of his personal things aside, her personal views and come to the law and the facts in each case fairly.

And I think when we're talking about interpreting the law, there is no better place to start than the text. Maybe here I have to blame Sister Mary Rose Margaret. She taught me how to read and she taught me how to diagram a sentence. And it was under pain of the hot seat paddle which hung above her desk for all to see.

Well you say, she could teach a monkey how to read. I think she did, me. And I think that's where we want to start for a couple of reasons with the text of the law. First we go back to the due process considerations, the fair notice considerations we spoke of earlier.

Before I put a person in prison, before I deny someone of their liberty or property, I want to be very sure that I can look them square in the eye and say you should have known, you were on notice, that the law prohibited that which you're doing.

I don't want to have him to say how am I supposed to tell? I need an army of lawyers to figure that out. Some people can afford armies of lawyers, most Americans can't. It's a matter of fair notice and due process. The other part again is separation of powers considerations.

If I start importing my feelings, if I treat statues or laws as workshop ink block tests, I've usurped your role. I've taken the right of self government by the people, for the people. Took a jog to the Lincoln Memorial the other morning before the start of all this. Second inaugural address, there it is.

Believe in government for the people and by the people? Maybe Well maybe that's the -- gosh is that the - -it's the Gettysburg Address isn't it? I read them both, thank you, Senator, it's the Gettysburg Address, it's the Gettysburg Address.

CORNYN: Well Judge, let me ask you -- I'm sorry to interrupt you.

GORSUCH: No, I'm sorry it's just a matter of separation of powers. It's not my job to do your job.

CORNYN: Well what sort of escapes me is if people who argue that somehow judges aren't bound by the text of the statute, it is the text of a statute that Congress votes on. So how in the world, if it's something else other than the text, that ought to direct the outcome, how can anybody have that kind of fair notice that we depend upon so people can align their fears consistent with the law?

GORSUCH: Right and it isn't a matter or strict construction. Strict construction, in my mind, sounds like I'm putting the finger on the scale for a particular interpretation, maybe even a pro-government interpretation. I don't see it that way at all. A judge should try and reach a fair interpretation.

What a reasonable person could have understood the law to mean at the time of his actions. That's a pretty good starting place for fair notice and for separation of powers, I think, Senator.

CORNYN: Thank you. Thank you, judge. GORSUCH: Thank you.

GRASSLEY: Mr. Whitehouse.

WHITEHOUSE: Thank you, Chairman. Let me ask unanimous consent to put into the record a letter from over a hundred groups dated March 14, 2017 regarding what they described as Judge Gorsuch's troubling money in politics record. And I letter from DEBOS (ph) dated March 9, 2017, urging opposition to Judge Gorsuch's confirmation and a New York Times article captioned Neil Gorsuch has web of ties to secretive billionaire.

GRASSLEY: Without objection, all three documents will be included.

WHITEHOUSE: Thank you.

Before we get into that Judge, let me, since we were talking about separation of powers, could you just reflect on -- whether the constraint that an appellate court is obliged to take the findings of fact, as lower courts have found them and can't indulge in its own fact finding or fact making.

Does that have a separation of powers element to it, in terms of constraining the free range wonderings of a court that could make up its own facts and then go in that direction?

GORSUCH: I hadn't thought about that Senator, to be honest with you. I know --

WHITEHOUSE: How about the question presented. Should the Supreme Court in the question presented try to keep the question narrow to the case presented, so that it's using an expansive question presented, to enable itself to wonder throughout the legal landscape, beyond the constraints of the case?

GORSUCH: Senator, it's generally, as you know, on the facts the practice of an appellate court not to review or overturn the facts of a trial court, except in the presence of clear error.

WHITEHOUSE: Very rare.

GORSUCH: And that's very -- it's a very important standard.

WHITEHOUSE: Yep.

GORSUCH: I may -- I haven't thought about it in the separation of powers, but it's a very important principle that I take seriously. I was a trial lawyer for a long time.

WHITEHOUSE: And in terms of the constraint and how narrow the question is, does that have separation of powers overtones, as well?

GORSUCH: And I give you a similar answer on that, Senator. I don't know about that, but I would say it's an important, general practice. Sometimes, there are exceptions that a court can and should go beyond a question presented, but it's pretty rare. Usually, we stick within -- well, we don't -- the questions presented

are whatever the parties present to us in an intermediate court. They get to choose, we don't get to choose.

WHITEHOUSE: That's part of what separation of powers is about, in terms of constraining the judicial branch to actual cases and controversies, correct?

GORSUCH: Well, we generally refrain from examining arguments that haven't been adequately developed or made, for risk of improvident mistakes.

WHITEHOUSE: Now, let me turn to another topic, let's talk for a minute about money, and in particular, let's talk about dark money. Are you familiar with that term?

GORSUCH: In the loosest sense.

WHITEHOUSE: How would you describe it in the loosest sense, just to make sure you and I are on the same wavelength?

GORSUCH: Senator, as I understand it, you may be referring to money that's not spent by a candidate or a party in connection --

WHITEHOUSE: And where you actually don't know who the true source of the money is.

GORSUCH: OK.

WHITEHOUSE: Is that a fair enough definition for us to --

GORSUCH: Sure.

WHITEHOUSE: -- again on? OK.

Could you let us know first what you know about the campaign that is being run to support your confirmation. There's been a lot of talk about how this is outside of politics and we're above politics, but there's a group that is planning on spending $10 million on TV ads, in which their own press release as a comprehensive campaign of paid advertising, earned (ph) media, research, grassroots activity and a coalition enterprise, all adding up to the most robust operation in the history of confirmation battles. That sounds pretty political to me, and I'm wondering what you know about that?

GORSUCH: I've heard a lot about it, Senator. From you, from others, I've heard a lot about it.

WHITEHOUSE: Do you know -- what do you know about it?

GORSUCH: I know that there's a lot of money being spent in this by, as I understand it, both sides.

WHITEHOUSE: Well, I wouldn't leap to that conclusion at this point.

GORSUCH: OK. I know what I've read, I know what I've heard from friends and family and acquaintances. I know what you're -- what you've just indicated.

(CROSSTALK)

WHITEHOUSE: Do you know --

GORSUCH: Again, appears to be a lot of money being spent --

WHITEHOUSE: Do you know who is spending the money?

GORSUCH: Senator, I could speculate based on what I've read and what I've heard, but I don't know individuals who are contributing. I don't know that.

WHITEHOUSE: Do you know if your friend, Mr. Angetz (ph) is contributing?

GORSUCH: I don't know.

WHITEHOUSE: Do you think that it should matter who is contributing? Do you think that there's a public interest in the public knowing who is contributing.

GORSUCH: Well Senator, I think we've got a long tradition from Buckley v. Valeo indicating that this body has robust authority to regulate disclosure and...

WHITEHOUSE: Yeah, but my question is do you think there's a public interest...

GORSUCH: And senator...

WHITEHOUSE: ... in disclosure of political funds in a democracy? That's -- I don't think a prejudgment. That's just values proposition and one of the considerations that you ought to be able to answer without much hesitation.

GORSUCH: And Senator, what I'm prepared to say is, I recognize that is matter of First Amendment interests. The Supreme Court has validated the proposition, the disclosure serves important functions in a democracy.

At the same time, the Supreme Court's also acknowledged that those disclosure functions can sometimes themselves have unintended consequences as the NAACP case which I know you're familiar with where you can disclosure as a weapon to try and silence people.

And we have a long history in ...

WHITEHOUSE: That's hardly the case with respect to the dark money operation that is funding this campaign in your favor is (ph) it (ph)?

GORSUCH: Senator, I'm not prejudging any case. What I am suggesting to you is that there are interests here in this area of First Amendment disclosure. That's what we're talking about, in my mind, generally.

WHITEHOUSE: Yep.

GORSUCH: OK. That are competing on the one hand, in order for informed voters and citizens to be able to make decisions, the Supreme Court in Buckley has validated the interest that this body has in regulating disclosure.

WHITEHOUSE: And in theory, so did the court in Citizens United.

GORSUCH: And in theory in Citizens United. At the same time, the court also recognized an NAACP, for example, that --

[13:57:19]

WOLF BLITZER, CNN ANCHOR: All right, we're going to break away for a little while from the Senate Judiciary Committee confirmation hearings.

Sean Spicer, the White House Press Secretary, is at the lectern. I want to listen in.

[13:57:29]

SEAN SPICER, WHITE HOUSE PRESS SECRETAR: -- after President Obama had signed Obamacare into law. We're hoping to make this the last anniversary that Americans will have to endure Obamacare.

Republicans have been working to repeal and replace this misguided law ever since, and now under President Trump, we will finally be able to take this step forward towards fundamental reform of our healthcare system.

I think most Americans remember the lines that were used to sell Obamacare seven years ago: "If you like your doctor, you can keep your doctor"; "If you like your healthcare plan, you'll be able to keep your healthcare plan." But for millions of Americans, those lines proved to be nothing more than empty promises.

Plans that their families had relied on for years were suddenly canceled. Premiums and deductibles skyrocketed, leaving many who had plans unable to actually use them. And insurers fled the marketplace. Nearly one in five Americans only have one insurer offering plans on their Obamacare exchange. President Trump and Republicans in Congress will keep their promise by reforming the system once and for all.

And that's exactly what we're doing with the Americans Health Care Act, which along with additional legislative and administrative action that is part of the three-prong approach that we've continued to outline, will finally give all Americans the healthcare system they deserve where market-based competition leads to more affordable, higher quality healthcare opportunities.

This is an ongoing process and the president has made it clear to Congress that they should be open to incorporating some of the common sense policy proposals that have been suggested by members on both -- in both chambers who share their commitment to improving the healthcare system. To that end, the House introduced several technical and policy amendments to the legislation last night, which the president acknowledged on Capitol Hill this morning. They include delivering more immediate relief from Obamacare's taxes; accelerating the repeal of these taxes from 2017 rather than from 2018; and ensuring that millions of Americans who paid Obamacare's penalties or taxes can reclaim their hard-earned dollars from the IRS.

SPICER: It's making it easier for Americans to deduct more of the costs of their medical expenses; protecting life by prohibiting taxpayer dollars from being used to help purchase insurance plans that currently cover abortion; giving states additional flexibility for their Medicaid programs, covering traditional adults and children populations, while maintaining baseline funding for elderly and disabled populations; giving states the ability to implement optional reasonable work requirements for able-bodied adults without dependents as part of their Medicaid programs; freezing Obamacare's Medicaid expansion, while allowing for responsible -- a responsible unwinding.

[14:00:04]