U.S. GOVERNMENT PUBLISHING OFFICE

28–638 PDF WASHINGTON : 2018

S. HRG. 115–208 

CONFIRMATION HEARING ON THE 

NOMINATION OF HON. NEIL M. GORSUCH 

TO BE AN ASSOCIATE JUSTICE OF THE 

SUPREME COURT OF THE UNITED STATES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

MARCH 20, 21, 22, and 23, 2017 

Serial No. J–115–6 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

CHARLES E. GRASSLEY, Iowa, Chairman 

ORRIN G. HATCH, Utah 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

BEN SASSE, Nebraska 

JEFF FLAKE, Arizona 

MIKE CRAPO, Idaho 

THOM TILLIS, North Carolina 

JOHN KENNEDY, Louisiana 

DIANNE FEINSTEIN, California,

Ranking Member 

PATRICK J. LEAHY, Vermont 

RICHARD J. DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE K. HIRONO, Hawaii 

KOLAN L. DAVIS, Chief Counsel and Staff Director 

JENNIFER DUCK, Democratic Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

MARCH 20, 2017, 11:07 A.M., MARCH 21, 2017, 9:35 A.M., 

MARCH 22, 2017, 9:37 A.M., and MARCH 23, 2017, 9:33 A.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Blumenthal, Hon. Richard, a U.S. Senator from the State of Connecticut ........ 46 

prepared statement .......................................................................................... 632 

Coons, Hon. Christopher A., a U.S. Senator from the State of Delaware ........... 40 

prepared statement .......................................................................................... 628 

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 14 

Crapo, Hon. Mike, a U.S. Senator from the State of Idaho ................................. 48 

prepared statement .......................................................................................... 612 

Cruz, Hon. Ted, a U.S. Senator from the State of Texas ..................................... 31 

prepared statement .......................................................................................... 603 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 16 

prepared statement .......................................................................................... 599 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 5 

prepared statement .......................................................................................... 585 

Flake, Hon. Jeff, a U.S. Senator from the State of Arizona ................................. 44 

Franken, Hon. Al, a U.S. Senator from the State of Minnesota .......................... 34 

prepared statement .......................................................................................... 621 

Graham, Hon. Lindsey O., a U.S. Senator from the State of South Carolina .... 25 

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa: 

March 20, 2017, opening statement ................................................................ 1 

March 20, 2017, prepared statement .............................................................. 581 

March 21, 2017, opening statement ................................................................ 69 

March 22, 2017, opening statement ................................................................ 247 

March 23, 2017, opening statement ................................................................ 397 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 9 

prepared statement .......................................................................................... 590 

Hirono, Hon. Mazie K., a U.S. Senator from the State of Hawaii ....................... 52 

prepared statement .......................................................................................... 642 

Kennedy, Hon. John, a U.S. Senator from the State of Louisiana ...................... 54 

prepared statement .......................................................................................... 619 

Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota ................... 28 

prepared statement .......................................................................................... 614 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 11 

prepared statement .......................................................................................... 593 

Lee, Hon. Michael S., a U.S. Senator from the State of Utah ............................. 19 

prepared statement .......................................................................................... 596 

Tillis, Hon. Thom, a U.S. Senator from the State of North Carolina .................. 50 

prepared statement .......................................................................................... 634 

Sasse, Hon. Ben, a U.S. Senator from the State of Nebraska ............................. 37 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 22 

prepared statement .......................................................................................... 608 

PRESENTERS 

Bennet, Hon. Michael, a U.S. Senator from the State of Colorado presenting 

Hon. Neil M. Gorsuch, Nominee to be an Associate Justice of the Supreme 

Court of the United States .................................................................................. 59 

prepared statement .......................................................................................... 646 
Page

IV 

Gardner, Hon. Cory, a U.S. Senator from the State of Colorado presenting 

Hon. Neil M. Gorsuch, Nominee to be an Associate Justice of the Supreme 

Court of the United States .................................................................................. 57 

prepared statement .......................................................................................... 648 

Katyal, Neal, Former Acting Solicitor General, Washington, DC, introducing 

Hon. Neil M. Gorsuch, Nominee to be an Associate Justice of the Supreme 

Court of the United States .................................................................................. 61 

prepared statement .......................................................................................... 651 

STATEMENT OF THE NOMINEE 

Witness List ............................................................................................................. 499 

Gorsuch, Hon. Neil M., Nominee to be an Associate Justice of the Supreme 

Court of the United States .................................................................................. 63 

prepared statement .......................................................................................... 575 

questionnaire and biographical information .................................................. 503 

attachment ........................................................................................................ 571 

STATEMENTS OF THE WITNESSES 

Bressack, Leah, Former Law Clerk, Washington, DC .......................................... 417 

prepared statement .......................................................................................... 689 

Calemine, Guerino J., III, General Counsel, Communications Workers of 

America, Washington, DC ................................................................................... 418 

prepared statement .......................................................................................... 717 

Clarke, Kristen, President and Chief Executive Officer, Lawyers’ Committee 

for Civil Rights Under Law, Washington, DC ................................................... 468 

prepared statement .......................................................................................... 847 

Degan, Nancy Scott, American Bar Association, Standing Committee on the 

Federal Judiciary, New Orleans, Louisiana, accompanied by Shannon Edwards, American Bar Association, Standing Committee on the Federal Judiciary, Edmond, Oklahoma ................................................................................... 398 

prepared statement .......................................................................................... 654 

Fisher, Alice, Partner, Latham & Watkins, Washington, DC .............................. 473 

prepared statement .......................................................................................... 827 

Gallagher, Patrick, Director, Environmental Law Program, Sierra Club, Oakland, California ..................................................................................................... 453 

prepared statement .......................................................................................... 803 

Graves, Fatima Goss, Senior Vice President for Program and President-Elect, 

National Women’s Law Center, Washington, DC ............................................. 449 

prepared statement .......................................................................................... 793 

Harned, Karen, Executive Director, National Federation of Independent Business Small Business Legal Center, Washington, DC ........................................ 454 

prepared statement .......................................................................................... 773 

Henry, Hon. Robert Harlan, U.S. Court of Appeals Judge, Retired, President, 

Oklahoma City University, Oklahoma City, Oklahoma ................................... 410 

prepared statement .......................................................................................... 683 

Hill, Eve, Partner, Brown Goldstein Levy, Baltimore, Maryland ....................... 456 

prepared statement .......................................................................................... 809 

Jaffer, Jameel, Executive Director, Knight First Amendment Institute, 

Columbia University, New York, New York ...................................................... 412 

prepared statement .......................................................................................... 701 

Jaffer, Jamil, Former Law Clerk, Arlington, Virginia .......................................... 483 

prepared statement .......................................................................................... 842 

Kane, Hon. John L., U.S. District Court Judge, Senior, District of Colorado, 

Denver, Colorado .................................................................................................. 414 

prepared statement .......................................................................................... 687 

Kirsanow, Peter, Commissioner, U.S. Commission on Civil Rights, and Partner, Benesch, Friedlander, Coplan & Aronoff, Cleveland, Ohio ....................... 470 

prepared statement .......................................................................................... 818 

Lamken, Jeff, Partner, MoloLamken, Washington, DC ....................................... 444 

prepared statement .......................................................................................... 727 

Marshall, William, William Rand Kenan, Jr., Distinguished Professor of Law, 

University of North Carolina, Chapel Hill, North Carolina ............................. 477 

prepared statement .......................................................................................... 865 

Massimino, Elisa, President and Chief Executive Officer, Human Rights First, 

Washington, DC ................................................................................................... 409 

prepared statement .......................................................................................... 691 
Page

V 

McGhee, Heather, President, Demos, New York, New York ................................ 446 

prepared statement .......................................................................................... 783 

Meyer, Tim, Former Law Clerk, Nashville, Tennessee ........................................ 479 

prepared statement .......................................................................................... 838 

Miller, Amy Hagstrom, President and Chief Executive Officer, Founder, 

Whole Woman’s Health, Charlottesville, Virginia ............................................. 474 

prepared statement .......................................................................................... 862 

Perkins, Jeff, Berthoud, Colorado .......................................................................... 415 

prepared statement .......................................................................................... 710 

Phillips, Sandy, Boerne, Texas ............................................................................... 481 

prepared statement .......................................................................................... 870 

Smith, Hannah, Senior Counsel, Becket, Washington, DC .................................. 476 

prepared statement .......................................................................................... 828 

Solum, Lawrence, Carmack Waterhouse Professor of Law, Georgetown University Law Center, Washington, DC ................................................................. 447 

prepared statement .......................................................................................... 730 

Tacha, Hon. Deanell Reece, U.S. Court of Appeals Judge, Retired, Duane 

and Kelly Roberts Dean and Professor of Law, Pepperdine Law School, 

Malibu, California ................................................................................................ 407 

prepared statement .......................................................................................... 680 

Turley, Jonathan, J.B. and Maurice C. Shapiro Professor of Public Interest 

Law, The George Washington University Law School, Washington, DC ........ 451 

prepared statement .......................................................................................... 742 

Warbelow, Sarah, Legal Director, Human Rights Campaign, Washington, DC 471 

prepared statement .......................................................................................... 852 

QUESTIONS 

Questions submitted to Guerino J. Calemine, III, by Senator Whitehouse ........ 903 

Questions submitted to Hon. Neil M. Gorsuch by: 

Senator Blumenthal ......................................................................................... 917 

Senator Coons ................................................................................................... 911 

Senator Durbin ................................................................................................. 899 

Senator Feinstein ............................................................................................. 880 

Senator Franken ............................................................................................... 904 

Senator Hirono .................................................................................................. 922 

Senator Leahy ................................................................................................... 892 

Senator Whitehouse ......................................................................................... 900 

ANSWERS 

Responses of Guerino J. Calemine, III, to questions submitted by Senator 

Whitehouse ........................................................................................................... 928 

Responses of Hon. Neil M. Gorsuch to questions submitted by: 

Senator Blumenthal ......................................................................................... 986 

Senator Coons ................................................................................................... 977 

Senator Durbin ................................................................................................. 961 

Senator Feinstein ............................................................................................. 931 

Senator Franken ............................................................................................... 968 

Senator Hirono .................................................................................................. 996 

Senator Leahy ................................................................................................... 949 

Senator Whitehouse ......................................................................................... 963 

LETTERS RECEIVED WITH REGARD TO THE NOMINATION OF HON. NEIL M. 

GORSUCH TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF 

THE UNITED STATES 

Abell, Ben, Former University of Colorado Law School student, et al., 

March 15, 2017 ..................................................................................................... 1104 

Abortion Care Network, Minneapolis, Minnesota, et al., March 14, 2017 .......... 1036 

Abortion Rights Fund of Western Massachusetts et al., March 14, 2017 ........... 1031 

African American Ministers In Action, Washington, DC, et al., March 16, 

2017 ....................................................................................................................... 1019 

Allen, Bertrand-Marc, Former Law Clerk to U.S. Supreme Court Justice 

Anthony Kennedy, et al., February 25, 2017 ..................................................... 1099 

Alliance for Justice, Washington, DC, March 10, 2017 ........................................ 1044 

Americans Against Gun Violence, Sacramento, California, February 6, 2017 ... 1046 
Page

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Anhang, George, Washington, DC, Former Harvard Law School classmate, 

et al., March 1, 2017 ............................................................................................ 1110 

Apps, Antonia M., Former Law Firm colleague, et al., Washington, DC, February 2, 2017 ........................................................................................................ 1092 

Arena, Baker, Attorney, University of Colorado Law School graduate, Class 

of 2016, Denver, Colorado ................................................................................... 1052 

Barker, Scott S., Denver, Colorado, February 2, 2017 ......................................... 1054 

Barkow, Rachel E., Professor, New York University School of Law, New 

York, New York, March 16, 2017 ........................................................................ 1171 

Bend the Arc Jewish Action, New York, New York, March 7, 2017 ................... 1055 

Blatt, Lisa, Member, the Supreme Court Bar, et al., March 1, 2017 .................. 1135 

Bressack, Leah, Former Law Clerk to Judge Gorsuch, et al., March 20, 

2017 ....................................................................................................................... 1096 

Bruce, Stephen R., Washington, DC, March 22, 2017 .......................................... 1188 

Building the California Dream Alliance, February 22, 2017 ............................... 1056 

Compassion and Choices, Portland, Oregon, March 17, 2017 .............................. 1057 

Congress of the United States, 109 Members, March 13, 2017 ........................... 1007 

Consumer Action, San Francisco, California, et al., March 8, 2017 .................... 1164 

Demos, New York, New York, March 9, 2017 ....................................................... 1059 

Earthjustice, Trip Van Noppen, President, San Francisco, California, March 17, 

2017 ....................................................................................................................... 1062 

Electronic Privacy Information Center (EPIC), Washington, DC, et al., statement ...................................................................................................................... 1066

Equality California, Los Angeles, California, March 15, 2017 ............................ 1084 

Family Research Council (FRC), Washington, DC, March 16, 2017 ................... 1086 

Feminist Majority Foundation, Beverly Hills, California, and Arlington, 

Virginia, March 10, 2017 ..................................................................................... 1087 

Gottschalk, Hugh Q., Littleton, Colorado, February 16, 2017 ............................. 1109 

Hispanic Leadership Fund, Washington, DC, March 17, 2017 ............................ 1114 

Lambda Legal, New York, New York, et al., March 16, 2017 ............................. 1023 

Lawyers’ Committee for Civil Rights Under Law, New York, New York, 

and Washington, DC, March 17, 2017 ............................................................... 1120 

Leadership Conference on Civil and Human Rights, The, Washington, DC, 

February 15,2017 ................................................................................................. 1125 

Lyons, James M., Denver, Colorado, February 7, 2017 ........................................ 1116 

Mac Avoy, Janice, Partner, Fried, Frank, Harris, Shriver and Jacobson LLP, 

et al., March 15, 2017 .......................................................................................... 1040 

Major Cities Chiefs Association, J. Thomas Manger, President, and Chief 

of Police, Montgomery County Police Department, Maryland, March 17, 

2017 ....................................................................................................................... 1134 

Mitchell, Sarah, Denver, Colorado, March 21, 2017 ............................................. 1178 

Morrisey, Patrick, West Virginia Attorney General, et al., February 1, 2017 ... 1184 

Ms. Foundation for Women, The, Brooklyn, New York, March 21, 2017 ........... 1137 

National Abortion Federation (NAF), Washington, DC, March 13, 2017 ........... 1139 

National Association of Women Lawyers (NAWL), Committee for the Evaluation of Supreme Court Nominees, March 16, 2017 ........................................... 1140 

National Congress of American Indians and the Native American Rights 

Fund, Washington, DC, March 23, 2017 ............................................................ 1143 

National Council of Jewish Women (NCJW), New York, New York, March 9, 

2017 ....................................................................................................................... 1144 

National Education Association (NEA), Washington, DC, March 9, 2017 .......... 1146 

National Employment Lawyers Association (NELA), Oakland, California, and 

Washington, DC, March 13, 2017 ....................................................................... 1148 

National Employment Lawyers Association (NELA/Illinois), Chicago, Illinois, 

March 20, 2017 ..................................................................................................... 1153 

National Nurses United, Silver Spring, Maryland, and Oakland, California, 

March 23, 2017 ..................................................................................................... 1157 

National Partnership for Women and Families, Washington, DC, March 17, 

2017 ....................................................................................................................... 1163 

99Rise et al., March 14, 2017 ................................................................................. 1015 

People For the American Way (PFAW), Washington, DC, March 9, 2017 ......... 1168 

Roseman Law Offices, LLC, Barry D. Roseman, Denver, Colorado, March 17, 

2017, introductory letter and document of anonymous declaration ................. 1174 

Service Employees International Union (SEIU), Washington, DC, March 8, 

2017 ....................................................................................................................... 1179 

Sierra Club, Michael Brune, Executive Director, Washington, DC, February 6, 

2017 ....................................................................................................................... 1182 
Page

VII 

Sisk, Jennifer R., Esq., Denver, Colorado, March 17, 2017 ................................. 1118 

Tlingit and Haida Indian Tribes of Alaska, Juneau, Alaska, March 16, 2017 ... 1115 

Voices for Progress, Washington, DC, March 9, 2017 .......................................... 1191 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Amar, Vikram, ‘‘Supreme Court nominees should weigh in on these rulings: 

You’re up, JudgeGorsuch,’’ The Washington Post, March 19, 2017, op-ed 

article .................................................................................................................... 1195 

Barnes, Robert, and Ed O’Keefe, ‘‘Senate Democrats focus on Gorsuch’s defense of Bush-era terrorism policies,’’ The Washington Post, March 15, 

2017, article .......................................................................................................... 1197 

Black, Charles L., Jr., Yale Law School, ‘‘A Note on Senatorial Consideration 

of Supreme Court Nominees,’’ Yale Law School Legal Scholarship Repository, January 1, 1970, article .............................................................................. 1199 

Blake, Aaron, ‘‘Stephen Bannon’s nationalist call to arms, annotated,’’ The 

Washington Post, February 23, 2017, op-ed article ........................................... 1208 

Fagg, Russell, Judge, ‘‘Supreme Court nominee Neil Gorsuch is a home run,’’ 

Independent Record, March 6, 2017, 2017, op-ed article .................................. 1240 

Feldman, Noah, ‘‘Democrats’ Misguided Argument Against Gorsuch: Judges 

should stand up for the law, not for the ‘little guy’,’’ Bloomberg, March 15, 

2017, op-ed article ................................................................................................ 1224 

Frederick, David C., ‘‘There is no principled reason to vote against Gorsuch,’’ 

The Washington Post, March 8, 2017, op-ed article .......................................... 1229 

Greenstone, Jessica, ‘‘I’m a moderate for Gorsuch: Former law clerk,’’ USA 

Today, February 13, 2017, op-ed article ............................................................. 1231 

Harkin, Hon. Tom, a former U.S. Senator from the State of Iowa, and Eve 

Hill, Former Deputy Assistant Attorney General, Civil Rights Division, 

U.S. Department of Justice, ‘‘Gorsuch would endanger most vulnerable: 

persons with disabilities,’’ The Des Moines Register, March 21, 2017, oped article ............................................................................................................... 1233 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, ‘‘Worried 

about the separation of powers? Then confirm Judge Gorsuch,’’ 

SCOTUSBlog, February 13, 2017, op-ed article ................................................ 1314 

Hutchinson, Dennis J., ‘‘Crying wolf over Neil Gorsuch,’’ Chicago Tribune, 

February 9, 2017, op-ed article ........................................................................... 1235 

Hwang, Frank, David and Katherine Hwang, and Jean Hwang Carrant, 

‘‘Judge Gorsuch failed our family,’’ San Francisco Chronicle, March 14, 

2017 ....................................................................................................................... 1227 

Katyal, Neal K., ‘‘Why Liberals Should Back Neil Gorsuch,’’ The New York 

Times, January 31, 2017, op-ed article .............................................................. 1244 

Kenneally, Michael E., Matt Owen, and Eric Tung, U.S. News, February 13, 

2017, article .......................................................................................................... 1247 

Kim, Seung Min, ‘‘Gorsuch recommended to Justice Dept. that federal judges 

visit Gitmo,’’ Politico, March 18, 2017, article ................................................... 1249 

Leadership Conference on Civil and Human Rights, The, Washington, DC, 

statement .............................................................................................................. 1260 

Lioz, Adam, ‘‘Money in Politics, Racial Equity, and the U.S. Supreme Court,’’ 

Demos, New York, New York, report .................................................................. 1251 

Lipton, Eric, and Jeremy Peters, ‘‘In Gorsuch, Conservative Activist Sees 

Test Case for Reshaping the Judiciary,’’ The New York Times, March 18, 

2017, article .......................................................................................................... 1254 

McCain, Hon. John, a U.S. Senator from the State of Arizona, ‘‘Floor Statement of Senator John McCain on CIA Interrogations and Army Field Manual,’’ February 13, 2008, statement before the U.S. Senate ............................. 1311 

McConnell, Michael W., ‘‘A Personal Reflection on Judge Neil M. Gorsuch 

From a Former Colleague,’’ Stanford Law Review Online, March 2017, 

essay ...................................................................................................................... 1267 

Murray, Jason, ‘‘Liberals should welcome Gorsuch: Like Kagan, he puts law 

before politics,’’ The Washington Post, February 8, 2017, op-ed article .......... 1269 

National Abortion Federation (NAF), Washington, DC, statement .................... 1271 

National Education Association (NEA), Washington, DC, statement ................. 1273 

Northup, Nancy, and Rachel B. Tiven, ‘‘If abortion rights fall, LGBT rights 

are next,’’ The Washington Post, February 22, 2017, op-ed article .................. 1282 

Peeples, Camille E., ‘‘Rights, Facts, and Relevant Inquiries: Surveying Judge 

Neil M. Gorsuch’s Employment Law Jurisprudence,’’ Stanford Law Review 

Online, March 2017, essay .................................................................................. 1316 
Page

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Peterson, Kyle, ‘‘Trump’s Supreme Court Whisperer: The man who advised 

the president on picking Judge Gorsuch explains what his elevation means 

for the law and America,’’ The Wall Street Journal, February 3, 2017, 

article .................................................................................................................... 1284 

Planned Parenthood Federation of America, New York, New York, and Washington, DC, statement .......................................................................................... 1288 

Rehnquist, Hon. William H., Chief Justice, Supreme Court of the United 

States, Laird v. Tatum, recusal letter ................................................................ 1218 

Rehnquist, William H., ‘‘Senate Should Consider Nominees’ Judicial Views,’’ 

The Stanford Daily, November 23, 1971, article ............................................... 1291 

Saporta, Vicki, President and Chief Executive Officer, National Abortion Federation, statement ................................................................................................ 1297 

Savage, Charlie, ‘‘Neil Gorsuch Helped Defend Disputed Bush-Era Terror 

Policies,’’ The New York Times, February 15, 2017, article .............................. 1302 

Savage, Charlie, ‘‘Newly Public Emails Hint at Gorsuch’s View of Presidential 

Power,’’ The New York Times, March 18, 2017, article ..................................... 1305 

Savage, Charlie, and Julie Turkewitz, ‘‘Neil Gorsuch Has Web of Ties to 

Secretive Billionaire,’’ The New York Times, March 14, 2017, article ............. 1307 

Scalia, Hon. Antonin, Associate Justice, Supreme Court of the United States, 

California Lawyer, January 2011, interview ..................................................... 1242 

Sisk, Jennifer, University of Colorado student, email exchange with University of Colorado Law Dean of Students, April 28–29, 2016 .............................. 1237 

Sisk, Jennifer, University of Colorado student, April 20, 2016, online posting . 1238 

Stolberg, Sheryl Gay, ‘‘Gorsuch Not Easy to Pigeonhole on Gay Rights, 

Friends Say,’’ The New York Times, February 11, 2017, op-ed article ............ 1321 

Supreme Court of the United States Cases Reaffirming Roe v. Wade, May 

15, 2017, List ........................................................................................................ 1259 

Tacha, Deanell Reece, and Robert Henry, ‘‘Neil Gorsuch is the kind of judge 

our framers envisioned,’’ The Washington Post, March 17, 2017, op-ed article .......................................................................................................................... 1324 

USA Today, The Editorial Board, ‘‘9 questions for Neil Gorsuch: Our view,’’ 

March 19, 2017, editorial ..................................................................................... 1326 

Utz, Robin, ‘‘I had an abortion to save my baby from pain. In my state, 

that didn’t matter,’’ The Washington Post, March 10, 2017, op-ed article ...... 1328 

Wall Street Journal, The , ‘‘Neil Gorsuch Is a Supreme Court Pick: An 

originalist judge in the Antonin Scalia mold,’’ February 1, 2017, editorial .... 1340 

Wardon, Theresa R., and Katherine C. Yarger, ‘‘Three Things We Learned 

While Clerking for Neil Gorsuch,’’ The Federalist, February 15, 2017, article .......................................................................................................................... 1330 

Whelan, Ed, ‘‘Fellow Students Refute Student’s Claim of Sexist Gorsuch Comments,’’ National Review, March 21, 2017, article ............................................ 1333 

Witt, Matt, ‘‘My opposition to Neil Gorsuch is personal: His opposition to 

‘death with dignity’ should disqualify him from the Supreme Court,’’ The 

Washington Post, March 7, 2017, op-ed article .................................................. 1338 

Young, Evan, ‘‘Judge Gorsuch Is Just Right For The Scalia Seat,’’ Forbes, 

February 13, 2017, op-ed article ......................................................................... 1342 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government, or other criteria 

determined by the Committee, list ..................................................................... 1347 

Constitutional Accountability Center, Elizabeth B. Wydra, President, Washington, DC, statement: 

https://www.judiciary.senate.gov/imo/media/doc/Constitutional 

%20Accountability%20Center%20-%20Statement.pdf ................................ 1347 

Demos, ‘‘Breaking the Vicious Cycle: Rescuing Our Democracy and Our Economy by Transforming the Supreme Court’s Flawed Approach to Money 

in Politics,’’ Adam Lioz, New York, New York, report: 

https://www.judiciary.senate.gov/imo/media/doc/Demos%20-%20 

Breaking%20the%20Cycle.pdf ...................................................................... 1347 
Page

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Demos, ‘‘Court Cash: 2016 Election Money Resulting Directly From Supreme 

Court Rulings,’’ Adam Lioz, Counsel and Senior Advisor, Policy and Outreach, Juhem Navarro-Rivera, Senior Policy Analyst, and Sean McElwee, 

Policy Analyst, New York, New York, report: 

https://www.judiciary.senate.gov/imo/media/doc/Demos%20-%20 

Court%20Cash.pdf ........................................................................................ 1347 

Endrew F. v. Douglas County School District RE–1 (2017), legal case: 

https://www.judiciary.senate.gov/imo/media/doc/Endrew%20F.%20v. 

%20Douglas%20County%20School%20District%20Re-1%20(2017).pdf .... 1347 

Herndon-Reston Indivisible, Herndon, Virginia, letter to Hon. Charles E. 

Schumer, a U.S. Senator from the State of New York, January 26, 2017: 

https://www.judiciary.senate.gov/imo/media/doc/Herndon%20Reston 

%20Indivisible%20-%20LetterlRedacted.pdf ............................................. 1347 

Laird v. Tatum, 92 S. Ct. 2318, legal case: 

https://supreme.justia.com/cases/federal/us/408/1/case.html ................. 1347 

Lawyers’ Committee for Civil Rights Under Law, ‘‘Report on the Nomination 

of Judge Neil M. Gorsuch as an Associate Justice of the United States 

Supreme Court,’’ Washington, DC, March 2017, report: 

https://www.judiciary.senate.gov/imo/media/doc/Lawyers’%20 

Committee%20for%20Civil%20Rights%20Under%20law%20-%20 

Report%20on%20Neil%20M%20Gorsuch.pdf .............................................. 1347 

National Association for the Advancement of Colored People Legal Defense 

and Educational Fund, Inc. (LDF), ‘‘The Civil Rights Record of Judge Neil 

M. Gorsuch,’’ New York, New York, and Washington, DC, March 16, 2017, 

report: 

https://www.judiciary.senate.gov/imo/media/doc/NAACP%20Legal 

%20Defense%20Fund%20Report%20on%20Neil%20Gorsuch.pdf .............. 1347 

Post, Robert C., and Reva B. Siegel, Yale Law School, ‘‘Questioning Justice: 

Law and Politics in Judicial Confirmation Hearings,’’ Yale Law School 

Legal Scholarship Repository, January 1, 2006, article: 

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article= 

1173&context=fss—papers ............................................................................ 1347 

(1) 

CONFIRMATION HEARING ON THE 

NOMINATION OF HON. NEIL M. GORSUCH 

TO BE AN ASSOCIATE JUSTICE OF THE 

SUPREME COURT OF THE UNITED STATES 

MONDAY, MARCH 20, 2017 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 11:07 a.m., in Room 

SH–216, Hart Senate Office Building, Hon. Charles E. Grassley, 

Chairman of the Committee, presiding. 

Present: Senators Grassley, Hatch, Graham, Cornyn, Lee, Cruz, 

Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy, Durbin, 

Whitehouse, Klobuchar, Franken, Coons, Blumenthal, and Hirono. 

OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Chairman GRASSLEY. Good morning, everybody. I want to welcome everybody to this confirmation hearing on the nomination of 

Judge Neil Gorsuch, and he is nominated to be Associate Justice 

of the Supreme Court of the United States. 

Judge, welcome to the Senate Judiciary Committee. 

Judge GORSUCH. Pleasure to be here. Thank you. 

Chairman GRASSLEY. This is a big day for you and your family. 

You have been before this Committee once before for the confirmation hearing to the Tenth Circuit, where you now sit. I imagine 

that this hearing may be a little better attended than the last time 

you were here. 

Judge GORSUCH. Just a little, Senator. 

Chairman GRASSLEY. Yes. Before we begin, I would like to give 

you the opportunity to introduce your family and anybody else you 

want to introduce. 

Judge GORSUCH. Senator, this is quite a lot different than it was 

the last time I was here, and I appreciate all the attention. 

I would like to introduce my family who are here. My wife, Louise, who, as you remember, stole the show in the East Room the 

day I was nominated. 

Chairman GRASSLEY. Yes. 

Judge GORSUCH. I have got here somewhere, I am told, in the audience, my brother-in-law, my brother-in-law’s folks, Phil and Priscilla Albright, and my nephew Jack. How are you doing, Jack? 

[Laughter.] 
2 

Judge GORSUCH. I have got my cousin Meg Hopkins and her 

daughter with her, Lori. I have got a bunch more family coming. 

My daughter is watching back home in the West. 

I have got my longtime assistant, Holly Cody. Where is Holly? 

There she is. Ten years we have worked together. I consider her 

family. 

And I have got a whole bunch of my law clerks here in the audience, and if they would not mind just standing up for a second, I 

would like to recognize them because I consider them family, too. 

So, Senator, I am very blessed to have so many family here with 

me today. 

Thank you. 

Chairman GRASSLEY. Thank you. We thank you, Judge. We are 

delighted to have your family here as well for this very important 

moment in your life. 

Before I give my opening statement, I want to set out a couple 

of ground rules. I want everyone to be able to watch the hearing 

without obstruction. If people stand up and block the view of those 

behind them or speak out of turn, it is not fair or it is not very 

considerate to others. So officers will immediately, under our rules, 

remove those individuals. 

Now I would like to take a minute to explain about how we are 

going to proceed. We will have 10-minute rounds of opening statements. The Ranking Member and I may go a minute or two over 

the 10 minutes, but I am going to ask everyone else to limit your 

remarks to 10 minutes. And I hope everybody on both sides of the 

aisle will respect that. 

We will then turn to our introducers, who will be formally presenting the judge. Then we will administer the oath to the judge, 

and we will close today’s portion of the hearing with the judge’s 

testimony. 

Tomorrow morning, we will begin at 9:30 a.m. for the opening 

round of questions. Each Senator will have 30 minutes for the 

opening round. After the first round, the Senators will have 20 

minutes for a second round. 

And finally, as I have discussed with the Ranking Member, later 

today we will notice a mark-up to consider the judge’s nomination 

for next Monday the 27th. In anticipation of his nomination will be 

held over for 1 week, as any Senator has that right under our rules 

to do so, we will then vote on his nomination the following Monday, 

April 3. 

With that, I would turn to my opening statement and then to 

Senator Feinstein for her opening statement. 

One of Justice Scalia’s best opinions begins with this declaration. 

It is ‘‘the proudest boast of our democracy that we have a government of laws and not of men.’’ 

The phrase comes from the Massachusetts Constitution of 1780. 

This infant State constitution linked the Government of laws, and 

not of men, directly to the separation of powers. 

Justice Scalia said the Founders ‘‘viewed the principle of separation of powers as the absolutely central guarantee of a just government because without a secure structure of separated powers, our 

Bill of Rights would be worthless.’’ 
3 

In plain words, it was the desire to preserve and protect liberty 

and self-government that guided the Framers as they designed our 

Constitution. And the founding charter they designed is a remarkable document, as we know. 

The Bill of Rights, of course, preserves liberty by restricting what 

the Government may do. But the single most important feature of 

our Constitution is not any particular enumerated right or even the 

entire Bill of Rights taken together. The most important feature of 

our Constitution is the design of the document itself. 

That design divides the limited power of government vertically 

between State and Federal Governments, and it distributes power 

horizontally between co-equal branches. 

It is this very delicate balance of power, entrusted to competing 

factions, that ensures that liberty for the people will endure. It is 

the Constitution’s design that protects against the mischief that results from the concentration of political power. 

The Founders understood this fundamental principle, and Justice 

Scalia understood it better than anyone. He was fond of telling law 

students, ‘‘Every tin horn dictator in the world today, every president for life, has a bill of rights. But the real key to the distinctiveness of America is the structure of our Government.’’ 

Our constitutional republic is also designed around the notion 

that the people, acting through their representatives, retain ultimate authority to govern. It was the people, through their representatives, who ratified the Constitution that establishes our system of government. 

Under that system, except where the Constitution has already 

answered the question, decisions are made by elected representatives. Elected, yes, but also accountable to the voters. 

But to endure, our system of self-government requires judges to 

apply the text of our laws as the people’s representatives enacted 

them. So our judges, by design, play a crucial, but limited role. 

They decide cases or controversies, but in resolving those cases, 

they may look only to the laws the people wrote. 

Judges are not free to rewrite statutes to get results they believe 

are more just. Judges are not free to reorder regulations to make 

them more fair. For sure, judges are not free to update the Constitution. That is not their job. That power is retained by the people, acting through their elected representatives. 

And when our judges do not respect this limited power, when 

they substitute their own policy preferences for those in the legislative branch, they take from the American people the right to govern themselves. As that happens, inch by inch and step by step, 

representative government is undermined, the carefully constructed balance of power is upset, and individual liberty is lost. 

These are not stale concepts. If anything, the enormous size, the 

enormous power, and the enormous complexity of the modern state 

renders them more relevant than ever before. 

In recent months, I have heard that now more than ever we need 

a Justice who is independent and who respects the separation of 

powers. Some of my colleagues seem to have rediscovered an appreciation for the need to confine each branch of government to its 

constitutional sphere. 
4 

I do not question the sincerity of those concerns. Some of us have 

been alarmed by Executive overreach and the threat it poses to the 

separation of powers. Whether it was the executive branch unilaterally rewriting Federal law, as the Obama administration did dozens of times, or the Executive’s repeated failure to enforce and defend the laws passed by Congress, over the last 8 years we have 

witnessed repeated abuses by one branch at the expense of the 

other two. 

Just ask the Supreme Court, which unanimously rejected arguments the Obama administration made in more than 40 cases. The 

policies that drove those abuses were, of course, problematic. But 

policies can be changed and must be changed. 

To this Senator, what is far more distressing about each Executive overreach and each failure to defend the law is the damage 

that it does to the constitutional order. The damage those abuses 

inflict is far more difficult to undo than the policies that animated 

them. For as John Adams observed, ‘‘Liberty, once lost, is lost forever.’’ 

So the separation of powers is just as critical today as it was during the administration, the last administration. And the preservation of our constitutional order, including the separation of powers, 

is just as crucial to our liberty today as it was when our founding 

charter was first adopted. 

No matter your politics, for all of these reasons you should be 

concerned about the preservation of our constitutional order and, 

most importantly, the separation of powers. And if you are concerned about these things, as you should be, I want you to meet 

Judge Neil Gorsuch. 

Fortunately for every American, we have before us today a nominee whose body of professional work is defined by an unfailing commitment to these principles. His grasp on the separation of powers, 

including judicial independence, enlivens his body of work. 

As he explains, ‘‘To the Founders, the legislative and judicial 

powers were distinct by nature and their separation was among the 

most important liberty-protecting devices of the constitutional design.’’ 

About the Executive, he writes that through ‘‘the hard-won experiences under a tyrannical king, the Founders found proof of the 

wisdom of a government of separated powers.’’ 

The judge’s job, our nominee says, is to deliver on the promise 

that ‘‘all litigants, rich or poor, mighty or weak, will receive equal 

protection under the law and due process for their grievances.’’ 

The nominee before us understands that any judge worth his salt 

will ‘‘regularly issue judgments with which they disagree as a matter of policy, all because they think that is what the law fairly demands.’’ 

Fundamentally, that is the difference between a legislator and a 

judge. All of us should keep this in mind during the course of this 

hearing. 

Judge, I am afraid over the next couple of days, you will get 

some questions that will cause you just to scratch your head. Truth 

be told, it should puzzle anyone who ever takes a civics class. We 

will hear that when you rule for one party and against another in 

a case, it means you must be for the winner and against the loser. 
5 

Senators will cite some opinions of yours, and then we will hear 

that you are for the ‘‘big guy’’ and against the ‘‘little guy.’’ You will 

scratch your head when you hear this because it is as if you judges 

write the laws instead of us Senators. 

But if Congress passes a bad law, as a judge, you are not allowed 

to just pretend that we passed a good law. The oath you take demands that you follow the law, even if you dislike the result. 

So if you hear that you are for some business or against some 

plaintiff, do not worry. We have heard all of that stuff before. It 

is an old claim, from an even older playbook. 

You and I and the American people know whose responsibility it 

is to correct a law that produces a result that you dislike. It is the 

men and women sitting here with me. Good judges understand 

this. They know it is not their job to fix the law. In a democracy, 

that right belongs to the people. 

It is for this reason that Justice Scalia said this. ‘‘If you are going 

to be a good and faithful judge, you have to resign yourself to the 

fact that you are not always going to like the conclusion you reach. 

If you like them all the time, you are probably doing something 

wrong.’’ 

Judge, I look forward to hearing more about your exceptional 

record, and I look forward to the conversation we will all have 

about the meaning of our Constitution and the job of a Supreme 

Court Justice in our constitutional scheme. 

[The prepared statement of Chairman Grassley appears as a submission for the record.] 

Senator Feinstein. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, 

A U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

Judge Gorsuch, I want to welcome you and your family. 

We are here today under very unusual circumstances. It was almost a year ago today that President Obama nominated Chief 

Judge Merrick Garland for this seat. Unfortunately, due to unprecedented treatment, Judge Garland was denied a hearing, and this 

vacancy has been in place for well over a year. 

I just want to say I am deeply disappointed that it is under these 

circumstances that we begin our hearings. Merrick Garland was 

widely regarded as a mainstream moderate nominee. However, 

President Trump repeatedly promised to appoint someone in the 

mold of Justice Scalia and said that the nomination of Judge 

Gorsuch illustrates he is a man of his word. 

For those of us on this side, our job is not to theoretically evaluate this or that legal doctrine or to review Judge Gorsuch’s record 

in a vacuum. Our job is to determine whether Judge Gorsuch is a 

reasonable mainstream conservative, or is he not. Our job is to assess how this nominee’s decisions will impact the American people 

and whether he will protect the legal and constitutional rights of 

all Americans, not just the wealthy and the powerful. 

We hold these hearings not because court precedent and stare 

decisis are something average Americans worry about. We hold 

these hearings because the U.S. Supreme Court has the final word 

on hundreds of issues that impact our daily lives. 
6 

The Supreme Court has the final say on whether a woman will 

continue to have control over her own body or whether decisions 

about her healthcare will be determined by politicians and the Government. It decides whether billionaires and large corporations will 

be able to spend unlimited sums of money to buy elections and 

whether States and localities will be able to pass laws and make 

it harder for poor people, people of color, seniors, and younger people to vote. 

It is the Supreme Court that will have final word on whether 

corporations will be able to pollute our air and water with impunity. Or whether the NRA and other extreme organizations will be 

able to block common sense gun regulations, including those that 

keep military-style assault weapons off our streets. 

And it is the Supreme Court that will have the ultimate say on 

whether employers will be held accountable for discriminating 

against workers or failing to protect workers when they are 

harmed or killed on the job. 

For example, last year Judge Gorsuch sat on a case that involved 

a truck driver who was stranded in the freezing cold for several 

hours after his trailer’s brakes froze. He had no heat. In fact, it 

was so cold that the driver was having trouble breathing. His torso 

was numb, and he could not feel his feet. 

Despite this, his employer directed him to wait for a repairman 

or else drive both the truck and the trailer. When no one came, the 

driver unhitched the trailer to search for assistance because driving with frozen brakes with a fully loaded trailer would have been 

too dangerous. A week later, he was fired. 

After hearing the case, the administrative law judge ruled that 

firing the driver was a violation of the health and safety law intended to protect workers. The United States Department of Labor’s Administrative Review Board and the Tenth Circuit agreed. 

Judge Gorsuch dissented and sided with the company. 

In another case, Judge Gorsuch wrote a separate opinion, this 

time to challenge a longstanding legal doctrine that allows agencies 

to write regulations necessary to effectively implement the laws 

that Congress passes and the President signs. It is called the Chevron doctrine. 

This legal doctrine has been fundamental to how our Government addresses real world challenges in our country and has been 

in place for decades. If overturned, as Judge Gorsuch has advocated, legislating rules are very difficult. 

In fact, Congress relies on agency experts to write the specific 

rules, regulations, guidelines, and procedures necessary to carry 

out laws we enact. These are what ensure the Clean Air Act and 

the Clean Water Act to protect our environment from pollution. 

They are the specific protections put in place by the FDA and the 

Agricultural Department that safeguard the health and safety of 

our food supply, our water, our medicines, and they are the details 

needed to support the infrastructure of our communities, our roads, 

highways, bridges, dams, and airports. 

We in Congress rely on the scientists, biologists, economists, engineers, and other experts to help ensure our laws are effectively 

implemented. For example, even though Dodd-Frank was passed 

nearly 7 years ago to combat the rampant abuse that led to our 
7 

country’s worst financial crisis since the Great Depression, it still 

requires over 100 regulations to be implemented by the Securities 

and Exchange Commission, the Commodities Futures Trading 

Commission, and other regulators in order to reach its full effectiveness as intended by Congress when it was passed. 

Judge Gorsuch’s position, were it to be adopted, would take away 

agencies’ authorities to address these necessary details. Such a 

change in law would dramatically affect how laws passed by Congress can be properly carried out. 

Two weeks ago, The Washington Post ran an op-ed written by a 

woman who desperately wanted to have a baby. She described how 

she and her husband went to great lengths for 4 years trying to 

get pregnant and were thrilled when they finally succeeded. 

Tragically, after her 21-week check-up, they discovered her 

daughter had multicystic dysplastic kidney disease. They were told 

by three separate doctors that her condition was 100 percent fatal 

and that the risk to the mother was sevenfold if she carried her 

pregnancy to term. 

The mother described their excruciating decision and the unforgiving process the couple endured to get the medical care they 

needed. The debate over Roe v. Wade and the right to privacy, ladies and gentlemen, is not theoretical. 

In 1973, the Court recognized a woman’s fundamental and constitutional right to privacy. That right guarantees her access to reproductive healthcare. In fact, the Supreme Court has repeatedly 

upheld Roe’s core finding, making it settled law for the last 44 

years. 

I ask unanimous consent, Mr. Chairman, to enter into the record 

the 14 key cases where the Supreme Court upheld Roe’s core holding and the total 39 decisions where it has been reaffirmed by the 

Court. 

Chairman GRASSLEY. Without objection, it is included. 

[The information appears as a submission for the record.] 

Senator FEINSTEIN. Thank you. 

If these judgments, when combined, do not constitute super 

precedent, I do not know what does. Importantly, the dozens of 

cases affirming Roe are not only about precedent. They are also 

about a woman’s fundamental and constitutional rights. Roe ensured that women and their doctors will decide what is best for 

their care, not politicians. 

President Trump repeatedly promised that his judicial nominees 

would be pro-life and ‘‘automatically’’ overturn Roe v. Wade. Judge 

Gorsuch has not had occasion to rule directly on a case involving 

Roe. However, his writings do raise questions. 

Specifically, he wrote that he believes there are no exceptions to 

the principle that ‘‘the intentional taking of a human life by private 

persons is always wrong.’’ This language has been interpreted by 

both pro-life and pro-choice organizations to mean he would overturn Roe. 

The Supreme Court is also expected to decide what kind of reasonable regulation States and localities can implement to protect 

our neighborhoods and schools from gun violence. In fact, just last 

month, the Fourth Circuit became the fifth appellate court to up-
8 

hold a State’s ban on assault weapons and large-capacity magazines under Heller. 

These new cases, taken together, enable the enactment of prudent and legal legislation to restrict military-style weapons from 

flooding our streets. Now while Judge Gorsuch has not written decisions on the Second Amendment, he did write an opinion to advocate making it harder to convict a felon who illegally possessed a 

gun. 

In this opinion, Judge Gorsuch argued against the Court’s own 

precedent. Specifically, in this case, the defendant had been 

charged with attempted robbery in July of 2009. After pleading 

guilty, he was given probation. 

However, ‘‘he was repeatedly both orally and in writing told that 

possession of a firearm’’ violated his probation, which would mean 

he could not ‘‘escape the consequences of his felony conviction.’’ 

Less than a year later, he was apprehended by the police holding 

‘‘a fully loaded Hi-Point .380-caliber pistol with an obliterated serial number’’ in clear violation of his probation. 

Later, he argued he did not know he was a felon. Six Circuit 

Courts, including the Tenth, have determined that the Government 

does not need to prove a defendant knew he was a felon to convict 

for this crime. Despite this, Judge Gorsuch wrote two separate 

opinions that argued in favor of making it harder to convict felons 

who possess guns. 

In one, he wrote that sometimes following precedent ‘‘requires us 

to make mistakes.’’ I find this concerning. Following precedent in 

this case was not a mistake. It led to the conviction of a felon who 

should not have had a firearm. 

Judge Gorsuch has also stated that he believes judges should 

look to the original public meaning of the Constitution when they 

decide what a provision of the Constitution means. This is personal, but I find this originalist judicial philosophy to be really 

troubling. 

In essence, it means the judges and courts should evaluate our 

constitutional rights and privileges as they were understood in 

1789. However, to do so would not only ignore the intent of the 

Framers that the Constitution would be a framework on which to 

build, but it severely limits the genius of what our Constitution upholds. 

I firmly believe the American Constitution is a living document, 

intended to evolve as our country evolves. In 1789, the population 

of the United States was under 4 million. Today, we are 325 million and growing. At the time of our founding, African Americans 

were enslaved. It was not so long after, women had been burned 

at the stake for witchcraft, and the idea of an automobile, let alone 

the internet, was unfathomable. 

In fact, if we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools and bans on 

interracial marriage. Women would not be entitled to equal protection under the law, and government discrimination against LGBT 

Americans would be permitted. 

So I am concerned when I hear that Judge Gorsuch is an 

originalist and a strict constructionist. Suffice it to say, and I con-
9 

clude, the issues we are examining today are consequential. There 

is no appointment that is more pivotal to the Court than this one. 

This has a real world impact on all of us. Who sits on the Supreme Court should not simply evaluate legalistic theories and 

Latin phrases in isolation. They must understand the Court’s decisions have real world consequences for men, women, and children 

across our Nation. 

Thank you, Mr. Chairman. 

[The prepared statement of Ranking Member Feinstein appears 

as a submission for the record.] 

Chairman GRASSLEY. Senator Hatch for 10 minutes. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, 

A U.S. SENATOR FROM THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman. 

Judge Gorsuch, welcome back to the Judiciary Committee. This 

will be more of an ordeal than your last. But your fitness for the 

appointment, it will be just as apparent. 

I served on this Committee for 40 years, and some things in the 

confirmation process never change. The conflict over judicial appointments in general, and over this nomination in particular, is a 

conflict over the proper role of judges in our system of government. 

I have long believed that the Senate owes the President some 

deference with respect to his qualified nominees. Qualifications for 

judicial service include legal experience, which summarizes the 

past, and judicial philosophy, which describes the present and anticipates the future. 

Judge Gorsuch’s legal experience is well known. My Democratic 

colleagues have referred to the American Bar Association’s rating 

as the gold standard for evaluating judicial nominees. The ABA’s 

unanimous ‘‘well qualified’’ rating for Judge Gorsuch confirms that 

he has the highest level of professional qualifications, including integrity, competence, and temperament. 

Judicial philosophy is both the more important qualification and 

the more challenging to assess. It refers to a nominee’s understanding of the power and proper role of judges in our system of 

government. Over the last several weeks, I have addressed this 

issue on the Senate floor and in opinion pages around the country 

by contrasting what I have called impartial judges and political 

judges. 

An impartial judge focuses on the process of interpreting and applying the law according to objective rules. In this way, the law, 

rather than the judge, determines the outcome. 

A political judge, in contrast, focuses on a desired result and 

fashions a means of achieving it. In this way, the judge, rather 

than the law, often determines the outcome. 

In my experience, a Supreme Court confirmation process reveals 

the kind of judge that Senators want to see appointed. A Senator, 

for example, who wants to know which side a nominee will be on 

in future cases or who demands that judges be advocates for certain political interests, clearly has a politicized judiciary in mind. 

The New York Times reported last week that the most prominent 

lines of attack against this nomination will be that Judge Gorsuch 

is ‘‘no friend of the little guy.’’ Something is seriously wrong when 
10 

the confirmation process for a Supreme Court Justice resembles an 

election campaign for political office. 

This dangerous approach contradicts the oath of judicial office 

prescribed by Federal law. When taking the seat on the U.S. Court 

of Appeals in 2006, Judge Gorsuch swore to administer justice 

without respect to persons and to impartially discharge his judicial 

duties. 

His opponents today demand in effect that he violate that oath. 

Advocates of such a politicized judiciary seem to think that the confirmation process requires only a political agenda and a calculator. 

When a nominee is a sitting judge, they tally the winners and 

losers in his past cases and do the math. If they like the result, 

it is thumbs up on confirmation. If they do not, well, it is thumbs 

down. 

What if, for example, Judge Gorsuch’s record on the appeals 

court was as follows? He voted against the plaintiff in 83 percent 

of immigration cases, against the defendant in 92 percent of criminal cases, denied race claims more than 80 percent of the time, and 

agreed with other Republican-appointed judges 95 percent of the 

time. 

I can just hear the cries of protest, accusations that he favors 

certain parties and is hostile to others and threats of filibuster. 

That is, in fact, the record of a U.S. Circuit Court Judge nominated 

to the Supreme Court, but not the one before us today. It is the 

record of Judge Sonia Sotomayor, as described by Senator Charles 

Schumer at her July 2009 confirmation hearing. 

Not only did he champion her nomination, but he offered that 

statistical summary of her record as proof that, as he put it, 

‘‘She is in the mainstream.’’ Oh, what a difference an election 

makes. 

Alexander Hamilton wrote about the importance of judicial independence, what Chief Justice William Rehnquist later called the 

‘‘crown jewel of our judicial system.’’ Today, in a bizarre twist on 

that principle, Judge Gorsuch’s opponents say that the only way for 

him to prove his independence is by promising to decide future 

cases according to certain litmus tests. 

In other words, judicial independence requires that he be beholden to them and their political agenda. If simply describing that 

unprincipled position is not enough to refute it, the confirmation 

process is in more trouble than I thought. 

Judge, I know that the integrity of the judiciary, fairness to the 

litigants who come before you, and your own oath of office are your 

highest priorities. You will be in good company by resisting efforts 

to make you compromise your impartiality. 

When President Lyndon Johnson nominated Judge Thurgood 

Marshall to the Supreme Court, Senator Ted Kennedy, my friend 

who would later chair this Committee, said, ‘‘We have to respect 

that any nominee to the Supreme Court would have to defer any 

comments on any matters which are before the Court or very likely 

to appear before the Court.’’ 

Now that was 50 years ago. When Justice Ruth Bader Ginsburg 

appeared before this Committee in 1993, she said, ‘‘A judge sworn 

to decide impartially can offer no forecast, no hints, for that would 
11 

show not only disregard for the specifics of the particular case, it 

would display disdain for the entire judicial process.’’ 

Now in a speech earlier this year, Justice Sotomayor said this. 

‘‘What you want is for us to tell you how, as a judicial nominee, 

we are going to rule on the important issues you find vexing. Any 

self-respecting judge who comes in with an agenda that would permit that judge to tell you how they will vote is the kind of person 

you do not want—you do not want as a judge.’’ 

Now I will close by reading from the letter we received from dozens of Judge Gorsuch’s Harvard Law School peers. After describing 

how they were of all political, ideological, religious, geographical, 

and social stripes, the signers wrote, ‘‘What unites us is that we 

attended law school with Judge Neil Gorsuch, a man we have 

known for more than a quarter century, and we unanimously believe that Neil possesses the exemplary character, outstanding intellect, steady temperament, humility, and open mindedness to be 

an excellent addition to the U.S. Supreme Court.’’ 

I agree with that appraisal by people from all walks of life, from 

different political views, people who agree with you and do not 

agree with you, but acknowledge that you are a great judge. 

And I look forward to this hearing, Mr. Chairman. Thank you. 

[The prepared statement of Senator Hatch appears as a submission for the record.] 

Chairman GRASSLEY. Yes, thank you, Senator. 

The Senator from Vermont. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. 

I did find it interesting the Senator from Utah spoke about Justice Sotomayor, saying that these are the reasons her nomination— 

the speech, these are the reasons why Republicans should vote for 

her and Democrats vote against her. I would note that, of course, 

that Senator Hatch voted against her. 

Today marks the first time the Senate Judiciary Committee has 

met publicly to take action on a Supreme Court vacancy that resulted from Justice Scalia’s death 13 months ago. It was just hours 

after we learned of Justice Scalia’s sudden passing the Republican 

majority leader declared that the Senate would not provide any 

process to any nominee selected by President Obama, despite the 

President having nearly a year left in his term. 

This was an extraordinary blockade. It was totally unprecedented in our country’s whole history. Some liken it to the action 

of the tyrannical kings who claim that they have sole control, as 

one of our Senators referred to here a few minutes ago, but it was 

a blockage backed by then-candidate Donald Trump. 

Committee Republicans met behind closed doors and declared 

that they would surrender the independence of this Committee to 

do the majority leader’s bidding, and they ignored the Constitution 

in the process. In fact, this unprecedented obstruction is one of the 

greatest stains on the 200-year history of this Committee. 

Remember, the Judiciary Committee once stood against a Courtpacking scheme of a Democratic President that would have eroded 

judicial independence, and that was a proud moment. Now Repub-
12 

licans on this Committee are guilty of their own Court-unpacking 

scheme, and the blockade of Chief Judge Merrick Garland was 

never grounded in principle or precedent. 

While Senate Republicans were meeting in backrooms to block 

President Obama’s nominee, extreme special interest groups were 

also meeting in private to vet potential Supreme Court nominees 

for then-candidate Donald Trump. I do not know of any other Supreme Court nominee who was selected by interest groups rather 

than by a President in consultation with the Senate, as required 

by the Constitution. 

Now Senate Republicans made a big show last year about respecting the voice of the American people in this process. Now they 

are arguing that the Senate should rubberstamp a nominee selected by extreme interest groups and nominated by a President 

who lost the popular vote by nearly 3 million votes. 

That President has demonstrated hostility to our constitutional 

rights and values. He has leveled personal attacks against Federal 

judges and career prosecutors who dare to see his promised Muslim 

ban for what it is, unconstitutional. 

He called our constitutionally protected free press ‘‘the enemy of 

the American people.’’ When the President’s chief of staff says the 

nominee before us has the vision of Donald Trump, well, that 

raises questions for people who have actually read the Constitution 

or care about the rights it protects. 

More than perhaps any confirmation hearing for the last 30 

years, I expect this nominee’s judicial philosophy will play a central 

role. Now Judge Gorsuch has spent more than a decade on the Federal bench. He graduated from Harvard Law School. He clerked for 

the Supreme Court. He served in the Department of Justice. He received a unanimous ‘‘well qualified’’ rating from the American Bar 

Association. All things very positive for a Supreme Court nominee. 

And if all those things I have read were a sufficient reason to 

confirm a nominee to the Supreme Court, of course, Chief Judge 

Merrick Garland, who had exactly the same qualifications but was 

refused by the Republicans, would be sitting on the Court today. 

That is why philosophy becomes important. 

In contrast to past nominees like John Roberts, whose judicial 

philosophy was not clearly articulated when he appeared before 

this Committee, Judge Gorsuch appears to have a comprehensive 

originalist philosophy. It is the approach taken by jurists such as 

Justice Scalia or Justice Thomas, former Judge Bork. 

While it has gained some popularity within conservative circles, 

originalism, I believe, remains outside the mainstream of modern 

constitutional jurisprudence. It has been 25 years since an 

originalist has been nominated to the Supreme Court. Given what 

we have seen from Justice Scalia and Justice Thomas and Judge 

Gorsuch’s own record, I worry that it goes beyond being a philosophy and that it becomes an agenda. 

We know that conservative groups that have vetted Judge 

Gorsuch, and the millionaires who fund them, have a clear agenda—one that is anti-choice, anti-environment, pro-corporate. And 

these groups are obviously confident that Judge Gorsuch shares 

their agenda. 
13 

The first person who interviewed Judge Gorsuch in this process 

explained these groups did not ask, who is a really smart lawyer 

who has been really accomplished? Instead, they saw a nominee 

who understands these things like we do. After all, Judge Gorsuch 

has been described by a former leader of the Republican Party as 

a true loyalist and a good, strong conservative. 

Now the concerns I have about Judge Gorsuch’s judicial philosophy and the process by which he was selected, the views of the 

President who nominated him, I hope and expect, Judge, that you 

will answer my questions and the questions of all of the Senators, 

both parties, as clearly as possible. 

You know, it is not enough to say in private that the President’s 

attacks on the judiciary are disheartening. I need to know that you 

understand the role of the courts in protecting the rights of all 

Americans. I need to know that you could be an independent check 

and balance on the administration that has nominated you and on 

any administration that might follow it. 

Judge Gorsuch, these hearings, occurring the week after Sunshine Week, are the first opportunity for the American people to 

hear your views on the role of the courts and the meaning of our 

Constitution. Like the Founders, who did not know what legal 

questions would be presented in the decades to come, they set this 

constitutional process. It is important to understand or to determine whether you understand how the Court has a profound impact on small businesses and workers, on law enforcement and victims, on families and children across America. 

It is not contrary to the duties and obligations of a Supreme 

Court Justice to consider the effects of their rulings. The Court’s 

aspiration, after all, is to provide equal justice under law. That is 

inscribed in Vermont marble over the doorway to the Court. 

Judge Gorsuch, these hearings will help us conclude if you are 

committed to the fundamental rights of all Americans. Will you 

allow the Government to intrude on Americans’ personal privacy 

and freedom? Will you elevate the rights of corporations over those 

of real people? And will you rubberstamp a President whose administration has asserted that Executive power is not subject to judicial review? 

It is important to know whether you serve with independence or 

as a surrogate to the President who nominated you or to the special interest groups that provided that President with your name. 

Now I approach these hearings with these thoughts in mind. I 

can honestly say I have yet to decide how I am going to vote on 

this nomination. Unlike those who blocked the nomination of Chief 

Judge Merrick Garland, I believe it is my constitutional responsibility to fairly evaluate a President’s nominee to the Supreme 

Court. 

I have voted for Supreme Court nominees, and I have voted 

against others. I recall going on the floor of the Senate right after 

our Democratic leader said he would vote against John Roberts for 

Chief Justice. I was the next speech. I said I would vote for him. 

But I am going to base my determination on the full record at 

the conclusion of these hearings, just as I have done for the 16 previous Supreme Court nominations I have been in the Senate. 
14 

The Supreme Court is the guarantor of the liberties of all Americans. Judge Gorsuch, when you took the oath to sit on the Federal 

bench, you spoke these following words that are in a judicial oath. 

‘‘I will administer justice without respect to persons and do equal 

right to the poor and to the rich.’’ 

If confirmed, you have to be a Justice for all Americans, not for 

the special interests of a few. You know, I cannot think of any time 

in our Nation’s history when that commitment is more important 

than it is now. That is what I have been thinking of all weekend 

long. 

The stakes for the American people could not be higher. We 

know that in Vermont, but America knows that. 

I thank you, Mr. Chairman. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman GRASSLEY. Yes, and thank you, Senator Leahy. 

Now to Senator Cornyn. 

OPENING STATEMENT OF HON. JOHN CORNYN, 

A U.S. SENATOR FROM THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman. 

Judge Gorsuch, welcome to you and your family. As you can already tell, this is going to be a much different experience than you 

had 10 years ago when you were confirmed by voice vote of the entire United States Senate to the Tenth Circuit Court of Appeals to 

a life tenure position. 

The Senate Judiciary Committee undertakes no task more important than the one before us, considering a nominee to the U.S. Supreme Court. As you know, historically, these used to be pretty 

routine. But that is until judges became seen as policymakers rather than as impartial interpreters and appliers of the law. 

The Nation is watching, and I think that is a really good thing. 

At a time when fewer and fewer American citizens know our founding story and the principles upon which it is based, I think this is 

a wonderful opportunity for a teachable moment, and I would encourage you to take every opportunity to engage in that. 

We are considering a nominee, of course, left by the death of Justice Antonin Scalia. And as we have heard before, Justice Scalia 

was unique. His wit and style brought the Constitution to life for 

lawyers in their first year of law school and for the American public at large. 

He led the most important legal revolution in our lifetimes, tethering judicial interpretation to the written text. What a concept. 

This was part of the broader project which the nominee before 

us, Judge Neil Gorsuch, described as ‘‘reminding us of the differences between judges and legislators. That judges should strive 

to apply the law as it is, not to decide cases based on their own 

moral convictions or the policy consequences they feel might serve 

society best.’’ 

In one dissent, Justice Scalia wrote along similar lines that, ‘‘If 

our pronouncements of constitutional law rely primarily on value 

judgments, then a free and intelligent people’s attitude toward us 

can be expected to be quite different. The people know that their 
15 

value judgments are quite as good as those taught in any law 

school and perhaps better.’’ 

The Framers, I believe, shared Justice Scalia’s and your modest 

view of the role of judging. Alexander Hamilton wrote, for example, 

‘‘The judiciary may truly be said to have neither force nor will, but 

merely judgment.’’ 

After Justice Scalia’s death, Senate Republicans decided to let 

the American people in this last Presidential election choose his 

successor. In Judge Gorsuch, President Trump chose one of the 

most accomplished lawyers and jurists of his generation. As we 

have heard, he is a husband and a father of two daughters, lives 

in his native Colorado and, if confirmed, would be our only Western 

Justice. 

Judge Gorsuch attended Columbia and Harvard Law School and, 

of course, got his doctorate at Oxford. After clerking for two Supreme Court Justices, Byron White and Anthony Kennedy, he went 

to work for a startup law firm that grew to be one of the Nation’s 

most prestigious, where he spent a decade, as he put it, working 

in the trenches of the law. 

As a recovering lawyer and judge myself, I think it is critically 

important, Judge, it means that you understand better than most 

the impact of your decisions, actually having represented real, live 

clients. The law is not just an academic or intellectual exercise. It 

has real consequences for real people, and I would encourage you 

to talk about those real people that you came in contact with during your legal and judicial career. 

After serving his country at the Justice Department, Judge 

Gorsuch, as I mentioned earlier, was nominated and confirmed to 

the Tenth Circuit. Not one of our Democratic colleagues then in the 

Senate opposed Neil Gorsuch for the Tenth Circuit Court of Appeals because there was simply no reason to do so. 

In the decade since, Judge Gorsuch has written hundreds of 

opinions on the Constitution and innumerable laws. He has demonstrated that he actually reads the text carefully to get the right 

result. I am reminded that there is a difference between what we 

sometimes loosely call a strict constructionist and a textualist, and 

I would invite you to make that point during some of your testimony. 

As you can see here today, his jurisprudence reflects brilliance 

and humility, the humility of a man committed to the Constitution 

and the law. That body of work is the best guide for the kind of 

judge Judge Gorsuch will be. 

Answers to questions posed during these hearings we have already heard about specific issues cannot and should not be a guide. 

You are not a politician running for election, Judge, as you know. 

In the dissent I mentioned earlier, Justice Scalia warned that 

‘‘confirmation hearings for new Justices should deteriorate into 

question and answer sessions in which Senators go through a list 

of their constituents’ most favored and most disfavored alleged constitutional rights.’’ It should not be the forum in which you seek 

the nominee’s commitment to support or oppose them. 

So we are not here to ask you, even though some might, how you 

will vote in specific cases. And it would be wrong for you to prejudge those cases, as you know. 
16 

And that is the same reason why, for example, Ruth Bader Ginsburg, during her nomination hearing, said, ‘‘A judge sworn to decide impartially can offer no forecast, no hints, for that would not 

only show disregard for the specifics of a particular case, it would 

display disdain for the entire judicial process.’’ 

Can you imagine what a litigant might think if the judge before 

whom he or she was to present their case said before they heard 

a word how they were going to decide the case? That is why it is 

improper for you, as you know, to prejudge cases in your testimony 

before the Committee, and our colleagues know that as well. But 

I expect them to ask a few questions nonetheless. 

Well, lately, we have heard from some that they should criticize 

you for failing to rule for a sympathetic constituency in one case 

or another. But of course, as you know, Judge, if you follow the law 

and the facts wherever it may lead, sometimes it is for the police. 

Sometimes for a criminal defendant. Sometimes it is for a corporation. Sometimes it is for an employee. Sometimes it is for the Government. Sometimes it is against the Government. 

That is how the rule of law works, and that is good for all Americans. One law professor at Harvard wrote, following the law regardless of the parties is, in the long run, it protects the little guy 

a lot better than a system rigged to favor one side. 

Because of your qualifications and a demonstrated record of following the law, other than a few special interest groups, I believe 

you have got a broad spectrum, really surprisingly broad spectrum 

of people supporting your nomination. One of your colleagues on 

the left wrote in The Washington Post, ‘‘The Senate should confirm 

Judge Gorsuch because there is no principled reason to vote no.’’ 

Another liberal constitutional scholar joined a letter that stated, 

‘‘Judge Gorsuch has the unusual combination of character, dedication, and intellect that will make him an asset on our Nation’s 

highest court.’’ 

President Obama’s Solicitor General, from whom this Committee 

will hear, wrote in The New York Times that ‘‘liberals should back 

Judge Gorsuch because he would live up to the promises to administer justice with respect to persons and to do equal right to the 

poor and to the rich.’’ 

So, Mr. Chairman, the list goes on and on. So I am very pleased 

the American people are about to learn why President Trump chose 

you as his nominee for the Supreme Court. I look forward to hearing from Judge Gorsuch, and I would encourage my colleagues to 

carefully consider the nominee on the merits and nothing else. 

Thank you. 

Chairman GRASSLEY. Thank you, Senator Cornyn. 

Now, Senator Durbin. 

OPENING STATEMENT OF HON. RICHARD J. DURBIN, 

A U.S. SENATOR FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thanks, Mr. Chairman. Judge Gorsuch, welcome to you and your family. 

I have often read stories about earlier Supreme Court nominees 

and how little politics played any role in the selection and vetting 

of the nominees. Those of us on the Democratic side, as you can 

hear, are frequently warned not to let politics be part of this deci-
17 

sion. When I consider the path to this historic hearing, this plea 

rings hollow. 

The journey began with the untimely death of Justice Scalia in 

February 2016. President Obama met his constitutionally required 

obligation by nominating Judge Merrick Garland to fill that vacancy in March 2016. Senate Republican Leader Mitch McConnell 

announced that for the first time in the history of the United 

States Senate, he would refuse Judge Garland a hearing and a 

vote. He went further and said he would refuse to even meet with 

the judge. 

It was clear that Senator McConnell was making a political decision, hoping a Republican President would be elected. He was willing to ignore the tradition and precedent of the Senate so that you 

could sit at this witness table today. 

In May and September 2016, Republican Presidential candidate, 

Donald Trump, released a list of 21 names, including yours, that 

he would consider to fill the Scalia vacancy. President Trump 

thanked the Federalist Society and the Heritage Foundation, two 

well-known Republican advocacy groups, for providing the list that 

included your name. 

Your nomination is part of a Republican strategy to capture our 

judicial branch of government. That is why the Senate Republicans 

kept the Supreme Court seat vacant more than a year, and why 

they left 30 judicial nominees, who had received bipartisan approval of this Committee, to die on the Senate calendar as President Obama left office. 

Despite all of this, you are entitled to be judged on the merits. 

The Democrats of the Senate Judiciary Committee will extend to 

you a courtesy which Senate Republicans denied to Judge Garland: 

a respectful hearing and a vote. 

Judge Gorsuch, you have been nominated to a lifetime appointment on the highest court in the land, and this Court has the final 

say on matters of fundamental importance affecting all Americans. 

You have a lengthy record before the Tenth Circuit, and we will 

ask many questions. We have found in the past that nominees try 

their best to dodge most of the questions, but it is our job to try 

to still seek the truth. 

At the nomination hearing of Justice Ruth Bader Ginsburg, my 

friend and predecessor, Senator Paul Simon, set forth the standard 

for Supreme Court nominees. I have noted this with each Supreme 

Court nominee that I have questioned. He said, ‘‘You face a much 

harsher judge than this Committee, and that is the judgment of 

history, and that judgment is likely to revolve around the question, 

did you restrict freedom or did you expand it.’’ 

Let me be clear. When I talk about expanding freedom, I am not 

talking about freedom for corporations. ‘‘We the people’’ does not 

include corporations. Senator Simon could never have imagined 

that the Supreme Court would give corporations rights and freedoms that were previously reserved only for individuals under the 

Constitution, and yet that is where we find ourselves with the Roberts Court. 

It is often said the Roberts Court is a corporate Court because 

of its pro-business tilt. A study by the Constitutional Accountability 

Center found that the Court ruled for the U.S. Chamber of Com-
18 

merce 69 percent of the time. The Court has certainly favored big 

business on issues like forced arbitration, corporate price fixing, 

workplace discrimination cases, just to name a few. 

But the Roberts Court has gone further than just ruling the way 

corporate America wants. In the 2010 Citizens United case, the Supreme Court held for the first time that corporations have the 

same rights as living, breathing people to spend money on elections, and that was followed in 2014 by the Hobby Lobby decision, 

which allowed for-profit corporations to discriminate against employees based on the corporation’s assertion of religious belief. 

I do not recall ever seeing a corporation in the pews of Old St. 

Patrick’s Church in Chicago. Our Founders never believed that corporations were endowed with certain inalienable rights, but were 

seeing the Supreme Court expand the rights of this legal fiction, 

a corporation, at the expense of the voices and choices of the American people. This strikes at the heart of the Supreme Court’s promise to provide equal justice under the law. 

Judge Gorsuch, you took part in that Hobby Lobby case when it 

was before the Tenth Circuit. As I read the case, I was struck by 

the extraordinary, even painful, lengths the court went to protect 

the religious beliefs of the corporation and its wealthy owners, and 

how little attention was paid to the employees, to their constitutionally protected religious beliefs, their choices as individuals, and 

the burdens that the court’s decision placed on them. 

I want to hear from you about a pattern I have seen in your decisions on the Tenth Circuit. In case after case, you either dismissed 

or rejected efforts by workers and families to recognize the rights— 

that recognized their rights or defend their freedoms. Cases like 

TransAm Trucking, which we have already spoken to. 

Alphonse Maddin. I had a chance to sit down with him just last 

week. He was the truck driver from Detroit who was driving 

around Chicago in the middle of January when a malfunction in 

his trailer froze the brakes, and he was forced to pull over on the 

side of the road. Al sat there on his cell phone with the dispatcher 

for the truck company, who told him do not leave this truck no 

matter what, and if you do, pull the trailer with you. 

Well, that was a big problem because the brakes were frozen, 

and it would have been a safety hazard. And so, he waited and 

waited, and the hours passed, and he started feeling numb and 

sick. You see, there was no heater in the truck, and, according to 

his recollection, it was so cold. It was 14 degrees below. 

Not as cold as your dissent, Judge Gorsuch, which argued that 

his firing was lawful. You cited a strict textualistic argument to 

make your point, but you chose the text that you focused on. Thank 

goodness the majority in this case pointed out that common sense 

and the Oxford Dictionary supported the majority view. 

Compass Environmental Incorporated, another one of your cases. 

Your dissent would have vacated a penalty against an employer 

who failed to train construction employee Christopher Carder to 

avoid the electrocution hazard that killed him. Strickland v. UPS, 

your dissent would have kept Carol Strickland’s sex discrimination 

case from going to a jury, even though your fellow judges said she 

provided ample evidence that she was regularly outperforming her 

male colleagues and treated less favorably. 
19 

I want to hear more about your views on fundamental individual 

rights that the Supreme Court is tasked to defend: the right to privacy, the right for all faiths to practice their religion, the right to 

vote, equal protection, and the rights of women. The Committee 

has received two letters from students who you taught last year 

that raised some serious concerns. Tomorrow we will get to the bottom of it, I hope. 

We have learned you were an aggressive defender of Executive 

power during the time of the Bush administration. In June 2004, 

after the Abu Ghraib torture scandal, I authored the first bill to 

ban cruel, inhuman, and degrading treatment of detainees. That 

legislation became the McCain Torture Amendment, which passed 

the Senate in December 2005 by an overwhelming 90–to–9 vote. 

But when President Bush signed the Amendment into law, he 

issued a signing statement claiming he had the authority to ignore 

the McCain Amendment. It turns out, you were deeply involved in 

this unprecedented signing statement. We need to know what you 

will do when you are called upon to stand up to this President or 

any President if he claims the power to ignore laws that protect 

fundamental human rights. 

You are going to have your hands full with this President. He is 

going to keep you busy. 

It is incumbent on any nominee to demonstrate that he or she 

will serve as an independent check or balance on the presidency. 

There are some warning flags. February 23rd, White House chief 

of staff, Reince Priebus, said, ‘‘Neil Gorsuch represents the type of 

judge that has the vision of Donald Trump.’’ I want to hear from 

you why Mr. Priebus would say that. Make no mistake, when it 

comes to the treatment of workers, women, victims of discrimination, people of minority religious faith, and our Constitution, most 

Americans question whether we need a Supreme Court Justice 

with the vision of Donald Trump. 

With my constitutional responsibility firmly in mind, I look forward to questioning tomorrow. Thank you, Mr. Chairman. 

[The prepared statement of Senator Durbin appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Senator Durbin. Now, the Senator from Utah. 

OPENING STATEMENT OF HON. MICHAEL S. LEE, 

A U.S. SENATOR FROM THE STATE OF UTAH 

Senator LEE. Thank you, Mr. Chairman, and thank you Judge 

Gorsuch. Welcome to the Committee. I also want to welcome your 

friends, family members, supporters, former colleagues, and people 

you have worked with over the years who have come to show their 

support. I know they are proud of you, and they are proud of you 

not just because of what you have done and what you have accomplished professionally, but also because of who you are personally: 

a man of integrity, a man of great accomplishment, a man of character, and a man of faith. 

Everyone knows that a Supreme Court confirmation hearing can 

be dramatic, even emotional at times. The stakes are high. As Senators, we understand that there are a few things that are more important than the obligation that we are performing here than the 
20 

duty that we are carrying out in connection with this process. 

These days it seems like standing for a confirmation hearing in the 

United States Senate after being nominated to the Supreme Court 

of the United States can appear a little bit like running for political 

office. 

As we have seen over the last few weeks, there are interest 

groups out there, some supporting you, some opposing you, out 

there waging campaigns almost as if they were running a campaign for someone pursuing public office. Maybe that is why, especially on this side of the dais, it can be easy to forget that a nominee is an ordinary citizen, perhaps not ordinary in the usual sense, 

but at least that person is not a politician. 

You, sir, are not a politician, which means that the acrimony, the 

duplicity, the ruthlessness of today’s politics are still a little foreign 

to you, are still quite unfamiliar to you. I hope that they will remain unfamiliar to you. 

In a former life when I was a practicing attorney, I had the good 

fortune of appearing in front of you on the Tenth Circuit, and so 

I know from my own personal experience that you are one of the 

best judges in the country. You come to oral argument prepared, 

and you ask fair, probing questions that are designed to get at one 

thing and one thing only, which is what the law says and what the 

law requires in each individual case, depending on the facts and 

circumstances of that case. 

You are not there to promote a personal agenda or a political 

agenda, and you are not there to grandstand. You are there to listen to both sides of the argument in the case. You write thoughtful 

and rigorous opinions. They are careful, and they are well reasoned. And they are even interesting and pleasant to read, which 

is very difficult to achieve in the world of appellate litigation. Now, 

I know I am easily entertained. 

[Laughter.] 

Senator LEE. But I find your opinions particularly interesting. 

You have the re ́sume ́ of a Supreme Court Justice, but I think 

what is most impressive and, for our purposes, what is most important about your career and about the approach you take to the law, 

is your fierce independence from partisan influence and from any 

personal biases that you might otherwise be inclined to harbor. 

The judiciary is set apart from and, in a way, set far above the 

other branches in our republic, the other organs of our constitutional system, specifically because we allow it to invalidate and interpret the actions of the elected branches. So, we have got two 

branches of government that are political in that they are run by 

people who are elected and stand for re-election at regular intervals, thus, making themselves directly accountable to the American 

people. 

Our confidence in our entire system, including our confidence in 

the American judiciary, depends entirely on judges just like you, 

judges who are independent and whose only agenda is getting the 

law right, regardless of whether any particular judge, or any particular litigant, or any particular member of the public like—might 

like or dislike the outcome in that case. You are essential to making us accountable because unless you do your job right, were not 

held accountable because our laws do not stand. That is what 
21 

makes your role, and your particular unique approach, and your 

particular unique commitment to this so important. 

Now, I want to take a moment to address some of the unique 

criticisms that you yourself, Judge Gorsuch, might be facing this 

week. I am sure that during this hearing some of my colleagues 

might claim that you are outside the mainstream. In fact, we have 

sadly heard some of that already today. We have heard arguments 

to the effect that you are an originalist, and we have heard assertions to the effect that originalism is somehow so far out of the 

mainstream, that it is dangerous. 

Well, I would remind my colleagues who have raised such concerns or who might be harboring them, that if this is the case, then 

they are going to have to acknowledge the fact that there is a pretty broad spectrum of people on the U.S. Supreme Court they might 

be painting with that brush. 

Justice Elena Kagan, before she was Justice Kagan, when she 

was standing before this Committee, in the second day of her confirmation hearings said, referring to the Founding Fathers and the 

need to figure out what the Founding Fathers understood about 

particular words, about how those particular words were used by 

the founding generation, said, ‘‘Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, 

we apply what they tried to do. In that way, we are all 

originalists.’’ That was on June 29th, 2010, before this Committee. 

Moreover, these out-of-the-mainstream arguments, out-of-themainstream approach, for addressing you, referring to you as an 

originalist, just does not stick. This is not a description that was 

attributed to you the last time you stood before this Committee and 

went through a confirmation process. Nowhere in the record is 

there any reference to you being outside the mainstream. In fact, 

your nomination to the United States Court of Appeals for the 

Tenth Circuit was so remarkably uncontroversial that one Senator 

and only one Senator—Senator Lindsey Graham from South Carolina—was the only Member of this Committee who even bothered 

to show up at your confirmation hearing. 

Now, I would have been there, too, Judge. I was not yet a Member of the United States Senate. 

[Laughter.] 

Senator LEE. You were confirmed unanimously by voice vote 

without a single ‘‘no’’ vote. 

I am sure that some of my colleagues will question your independence because, in their view, perhaps you have not sufficiently 

criticized the comments made by some of today’s politicians. Personally, I think you have made your views on this subject very 

clear. I am sure some of my colleagues will complain that you are 

not providing any hints as to how you might rule in any particular 

case. But that, however, is a reason for your confirmation, certainly 

not against it. 

In our system, judges do not provide advisory opinions. They do 

not make legislation, they do not legislate, they do not make law, 

they do not set policy, in the same sense that those things are 

made in the political branches. They decide cases and controversies 

only after each side has had the opportunity to make its case be-
22 

fore the bench, and they do so outside the realm of political influence. 

In an odd twist, some of the same colleagues who will question 

your independence will also push you to answer questions that you 

simply cannot. I am sure that some of my colleagues will pick apart 

some of your rulings, and they will try to say that you are hostile 

to particular types of claims or to particular plaintiffs. I do not 

think it is productive to evaluate someone’s judicial record by looking at who wins or who loses in his courtroom, at least outside the 

context of evaluating how the law was interpreted in that case. 

It goes without saying that in our system you face the same burden of convincing a court, regardless of who you are. And judges 

do not decide cases—they certainly should never decide cases— 

based on their own personal preferences. But to my colleagues who 

go down that road, the record shows with abundant clarity that you 

apply the law neutrally in all cases without regard to the parties. 

Finally, I would urge my colleagues to keep in mind that while 

Judge Gorsuch’s reputation will not be affected by how we treat his 

confirmation, the same cannot always be said of the Senate. The 

night Judge Gorsuch was nominated, he said, ‘‘The U.S. Senate is 

the greatest deliberative body in the world.’’ I tend to agree, but 

these days it seems like this title is more of a challenge than an 

observation. It is more of an aspiration than a present sense description of reality. So, I hope we prove you right this week. 

Thank you very much, and I really look forward to hearing answers to the questions we will raise to you. 

[The prepared statement of Senator Lee appears as a submission 

for the record.] 

Chairman GRASSLEY. Thank you, Senator Lee. Now, Senator 

Whitehouse. 

OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 

A U.S. SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Judge Gorsuch, welcome. As we discussed 

when we met, the question that faces me is, what happens when 

the Republicans get five appointees on the Supreme Court? I cannot help but notice the long array of 5–to–4 decisions, with all the 

Republican appointees lining up to change the law to the benefit 

of distinct interests: Republicans at the polls and big business pretty much everywhere. 

Let us look at the 5–to–4 decisions, first helping Republicans at 

the polls. All the Republican appointees’ 5–to–4 decisions on election law favor Republicans at the polls, 6–to–0. Helping Republicans gerrymander, paving the way for the Republican red map 

plan that won the House against the American majority in 2012, 

Gobeille, 5–to–4, all the Republican appointees. 

Helping Republican legislatures keep Democrat-leaning minorities away from the polls with targeted voter suppression laws, 

Shelby County, 5–to–4 all the Republicans; Bartlett v. Strickland, 

5–to–4, all the Republicans. Helping corporate money flood elections and boost Republican candidates, McCutcheon, 5–to–4, all the 

Republicans, counting the concurrence; Bullock, 5–to–4 all the Republicans. And the infamous Citizens United decision, 5–to–4 all 

the Republicans. In each area, the Court made new law, 5–to–4, 
23 

and each decision predictably helped Republicans win elections. At 

6–to–0, it is a partisan route. 

Then look at cases that pit corporations against human beings. 

All the 5–to–4 Republican appointee decisions line up to help corporations against humans. Citizens United and the political money 

decisions should, again, count here. All three of them, 5–to–4, all 

the Republicans. Then come decisions to protect corporations who 

have harmed their employees. In pay discrimination, Ledbetter, 5– 

to–4 all the Republicans. In age discrimination, Gross, 5–to–4 all 

the Republicans. In harassment cases, Vance, 5–to–4, all the Republicans. In anti-retaliation cases, Nassar, yes, you guessed it, 5– 

to–4, all Republicans. 

Then there are the decisions that protect corporations from class 

action lawsuits. Wal-Mart v. Dukes, 5–to–4, and Comcast, 5–to–4, 

both all Republicans. Then there are decisions that help corporations steer customers away from juries and into corporate-friendly 

mandatory arbitration. Concepcion and Italian Colors Restaurant, 

both 5–to–4, both all Republicans. 

The Iqbal decision, 5–to–4, all Republicans, helped bar the courthouse door for all types of plaintiffs. All of this helps keep corporations away from juries, the one element of government hardest for 

corporations to control. Indeed, as you know, tampering with a jury 

is a crime. 

The Court also helps big business against unions. Harris v. 

Quinn, 5–to–4, all Republicans. Last year Friedrichs was teed up 

as a 5–to–4 body blow against unions when Justice Scalia died. 

With a new 5–to–4 Court, they will be back. 

Throw in Hobby Lobby. Corporations have religious rights that 

supersede healthcare for their employees, 5–to–4, all Republicans. 

Add Heller and McDonald, reanimating for gun manufacturers a 

legal theory a former Chief Justice once called a fraud, 5–to–4, all 

Republicans. 

Help insulate investment bankers from fraud claims? Why not? 

Janus Capital Group, 5–to–4, all Republicans. Chamber of Commerce v. EPA, gave corporate polluters an unprecedented victory, 

again 5–to–4, all Republicans. 

That is an easy 16–to–0 record for corporations against humans. 

To me, every time seems like a lot. 

There is no coincidence here. Big business has law groups out 

trolling for test cases to go get those cases before the friendly 

Court. The Republican politico-industrial complex piles in with 

amicus briefs and floods to tell the Republican appointees on the 

Court what it wants. Republican Justices are even starting to give 

hints so big business lawyers can rush to get certain cases up pronto to the Court. 

It is kind of a machine. Special interests set up and fund front 

groups. The front groups appear as amici before the Court. The 

amicus briefs or the front groups tell the Court what the special 

interests want. The Court follows the amicus briefs. The decision 

benefits the special interests, and the special interests pour more 

money to the front groups. On it goes like turning a crank. The biggest corporate lobby of them all is winning better than two–to–one 

at the Court. 
24 

This 5–to–4 rampage is not driven by principle. Over and over, 

judicial principles, even so-called conservative ones, are overrun on 

the Court’s road to the happy result. 

Stare decisis, that is a big laugh. These are law-changing decisions, many upending a century or more of law and precedent. 

Textualism. The Second Amendment uses the military term, 

‘‘arms,’’ and talks about militias, but never mind that when the 

gun lobby wants something. Originalism, there is a particularly 

good one. Find me a Founding Father who planned a big role for 

business corporations in American elections, or one who would 

have countenanced the steady strangulation of the civil jury without so much as a mention of the Seventh Amendment. 

The Citizens United majority even fiddled with Court procedure 

to get to the decision it wanted to deliver, dodging its way around 

a record that would have belied their findings of fact, setting aside 

that their findings of fact were factually preposterous, as events 

have shown, and that appellate courts are not even supposed to 

make findings of fact. 

It is not just us who notice. Top writers and scholars describe the 

Roberts Court as essentially a delivery service. Jeffrey Toobin 

wrote in 2009, ‘‘Even more than Scalia, Chief Justice Roberts has 

served the interests and reflected the values of the contemporary 

Republican Party.’’ Linda Greenhouse in 2014, ‘‘I am finding it impossible to avoid the conclusion that the Republican-appointed majority is committed to harnessing the Supreme Court to an ideological agenda.’’ Norm Ornstein has described what he called the new 

reality of today’s Supreme Court: ‘‘It is polarized along partisan 

lines in a way that parallels other political institutions and the rest 

of society in a fashion we have never seen.’’ 

Studies of the Court’s decisions show it is the most corporatefriendly Court in modern history, with Justices Roberts and Alito 

vying to be the most corporate-friendly Justice. And the American 

public knows something has gone wrong at the Court. A 2014 poll 

revealed that a majority of Americans think a person will not get 

a fair shake in this Court against a corporation. 

Now, where do you fit in? When Hobby Lobby was in the Tenth 

Circuit, you held for a corporation having religious rights over its 

employees’ healthcare. Your record on corporate versus human litigants comes in by one count at 21–to–2 for corporations. Tellingly, 

big special interests and their front groups are spending millions 

of dollars in a dark money campaign to push your confirmation. 

We have a predicament. In ordinary circumstances, you should 

enjoy the benefit of the doubt based on your qualifications, but several things have gone wrong that shift the benefit of the doubt. 

One, Justice Roberts sat in that very seat, told us he would just 

call balls and strikes, and then led his five-person Republican majority on that activist 5–to–4 political shopping spree. Once burned, 

twice shy. Confirmation etiquette has been unhinged from the 

truth. 

Two, Republican Senators denied any semblance of due legislative process to our last nominee, one I would say even more qualified than you, and that is saying something. Why go through the 

unprecedented political trouble to deny so qualified a judge even a 

hearing if you do not expect something more amenable to come 
25 

down the pike? Those political expectations also color the benefit 

of the doubt. 

Finally, the special interests who have done so well in that 5– 

to–4 extravaganza of decisions are now spending millions and millions of dollars campaigning to push your nomination. They obviously think you will be worth their money. These special interests 

also supported the Republican majority keeping this seat open. 

I am afraid at all costs, whoever now sits in that seat, the benefit 

of the doubt to answer this question. Will you saddle up with the 

other Republican appointees and launch the Court 5–to–4 again on 

another massive special interest and Republican election spree? 

I hope whatever we may disagree about on this Committee, we 

can at least agree that we cannot have a Court where litigants in 

these 5–to–4 decisions can predict how they will do based on who 

they are, because here is what it looks like now. If they are big Republican election interests, they will win every time. If they are 

corporations against a human being, they will win every time. And, 

Your Honor, every time seems like a lot. 

Thank you, Chairman. 

[The prepared statement of Senator Whitehouse appears as a 

submission for the record.] 

Chairman GRASSLEY. Thank you. Senator Graham. 

OPENING STATEMENT OF HON. LINDSEY O.GRAHAM, 

A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA 

Senator GRAHAM. Thank you, Mr. Chairman. There is a reason 

I did not do this litany with Democratic nominees that appeared 

before the Committee. I do not think it would have made any difference in terms of how other people voted, and I did not expect 

them to vote with the Republican majority. 

Elena Kagan and Sonia Sotomayor, I could have spent a lot of 

time talking about how antagonistic they are to the Second Amendment, in my view, how the unborn does not have much of a chance 

in their Court, how the environmentalists always win, and there is 

no government too big to be said ‘‘no’’ to. 

The reason I did not do that is because I thought they were 

qualified, and if you believe this has been a great plan to get a 

Trump nominee on the Court, then you had to believe Trump was 

going to win to begin with. I did not believe that. 

[Laughter.] 

Senator GRAHAM. Obviously, I did not believe that saying all the 

things I said—— 

[Laughter.] 

Senator GRAHAM [continuing]. Followed closely by Ben. But apparently what I said did not matter, and that is okay with me. The 

American people chose Donald Trump, and here is what I can say 

about the man in front of us. 

No matter who had won our primary, no one could have chosen 

better than Neil Gorsuch to represent conservatism on the Supreme Court. So, Donald Trump deserves to be congratulated for 

listening to a lot of people and coming up with, I think, the best 

choice available to a Republican President in terms of nominating 

somebody who is going to keep the conservative philosophy alive 

and well in the Court. 
26 

And I doubt if you will be disappointed many times with Judge 

Gorsuch, but he is a pretty independent guy from what I can tell. 

You will probably be more—I have never been disappointed with 

Sotomayor and Kagan in the sense I knew what I was getting. 

They always vote with the liberal block. They are very qualified 

people. Sometimes the Court comes together 9–to–nothing to reject 

something, but most of the time people break along the lines of 

where they came from. 

And I think Sotomayor and Kagan came from a view of the law 

that I do not accept in terms of who I would have chosen, but was 

well within the mainstream of judicial philosophy from the left. I 

thought they led exemplary lives quite frankly. There were a lot of 

attacks on them that I did not echo because I thought, give me a 

break. Really? Are these the two worst women in the world? They 

lived exemplary lives, were highly qualified, and that is why I 

voted for them. 

I thought that is what we should be doing, and I am beginning 

to wonder now how the game is played. I do remember when I 

voted for them, how many good editorials I have from papers that 

nobody in South Carolina read. 

[Laughter.] 

Senator GRAHAM. I miss Harry. Harry is around here somewhere, Harry Reid. He said something about me. I cannot find it. 

But he basically said that I wished more people would follow Senator Graham’s lead when it comes to voting for very highly qualified nominees. He said that on the floor. Maybe that will happen 

in the future. Well, time will tell. 

Now, as to whether or not this man is highly qualified, I am 

dying to hear the argument that he is not. You may not like the 

view he has of the law, but I am dying to hear somebody over there 

tell me why he is not qualified to be sitting here when a Republican President occupies down the street. 

Now, when you look at the Federalist Papers, I saw the musical, 

‘‘Hamilton.’’ It was pretty good. Reading his work was even better. 

And the Federalist Papers 78, 87—I cannot remember the number. 

Basically, what he tells us is that the role of the Senate is, make 

sure that the President does not pick someone specially favored for 

their State and association to their family, someone really cronyism, I guess, is what we are supposed to be doing. And most Supreme Court Justices, up until modern times, basically were reconfirmed without with a voice vote. 

So, things have changed, and we cannot lay all the blame on our 

Democratic friends about politicizing the selection process. What I 

want to say to the public is, I am glad people like Judge Gorsuch 

are willing to go through this, and I am sure Justices Sotomayor 

and Kagan had wished on a couple of days they had not chosen 

that path, but I think they made it through, quite frankly, with flying colors. 

So, the issue for me is, I am waiting to hear somebody over there 

tell me why you are not qualified for the job that you are seeking. 

Twenty-seven hundred decisions, and you have been overruled 

once. An academic record. The reason I did not do all the things 

you did academically, I could not get into any of the schools—into 

the schools you were able to get into. 
27 

But the way you have handled yourself, I think you should be 

proud of the way you have handled yourself on the court. I think 

all the statements by your colleagues who know you better than 

anybody up here when no TV camera is rolling say nothing but 

great things about you, even people who have a different philosophy. 

So, I just want you to know that from my point of view, you are 

every bit as qualified as Justices Sotomayor and Kagan. I think 

you are just as good a man as they are two fine women. And over 

the course of the next couple of days, the American people are 

going to get to understand who you are and, within limits, your judicial philosophy. They are going to want you to decide every case 

they do not like here, and you will have to say ‘‘no.’’ 

And there is a reason I did not ask Justices Sotomayor and 

Kagan to give me an opinion as to what they would do when they 

got on the Court because I knew they would not tell me that. I did 

not really feel comfortable asking them that. 

As to Judge Garland, the one thing I can say for sure is that 

when Justice Scalia passed on February the 13th, we had already 

had three primaries on the Republican side, and the campaign was 

in full swing on the Democratic side. I thought long and hard about 

that. Are we doing something unfair here by not allowing the current President to nominate somebody and fill a vacancy in the last 

year of their presidency after the political process had started? 

So, when I started looking around at what other people thought, 

here is what Joe Biden thought in 1992. ‘‘If someone steps down, 

I would highly recommend the President not name someone and 

not send a name up. If Bush did send someone up, I would ask the 

Senate to seriously consider not having a hearing on that nominee. 

It would be a pragmatic conclusion that once the political season 

is underway, and it is, action on known Supreme Court nominations must be put off until after the election campaign is over.’’ 

Now, that is what my friend, Joe, said in 1992. 

The bottom line here is I have no doubt in my mind if the shoe 

were on the other foot, the other side would have delayed the confirmation process until the next President were elected. In a hundred years, when we have had the President of one party in power 

and the Senate in the hands of another party, I think we have had 

one person confirmed in the last year of a term. So, I do not feel 

like any injustice has been done to anybody here. And the bottom 

line, when you read Democratic words from the past, they are saying basically what we said. 

The one thing I can say is that I have been consistent. I have 

voted for everybody since I have been here, four: Justices Roberts, 

Alito, Sotomayor, and Kagan. And I feel all four had one thing in 

common: no Republican would have chosen Sotomayor or Kagan, 

but how could a Republican say they were not qualified for the job 

they had? They had lived an exemplary life, well qualified, and had 

years on the bench. 

Now, the shoe is on the other foot. I remember after I voted for 

Ms. Kagan, all the headlines in The Washington Post were, this 

will ensure that Graham gets primary. They were right. That is not 

the only reason, to my primary opponents, but that was the main 
28 

reason, and I made it through just fine. And I do not know how 

we got here as a Nation. 

Scalia had 98–to–nothing. Ginsburg I think was 96–to–3. What 

happened between now and then? How did we go from being able 

to understand that Scalia was a well-qualified conservative, and 

Ginsburg was a well-qualified liberal, and recognize that elections 

matter? I do not know how we got there, but here is what I hope, 

that we turn around and go back to where we were because what 

we are doing is going to destroy the judiciary over time. 

Chairman GRASSLEY. Thank you, Senator Graham. Now, Senator 

Klobuchar. 

OPENING STATEMENT OF HON. AMY KLOBUCHAR, 

A U.S. SENATOR FROM THE STATE OF MINNESOTA 

Senator KLOBUCHAR. Thank you, Mr. Chairman. Welcome, 

Judge. We have already met once before in my office, and all of us 

on the Judiciary Committee are looking forward to hearing from 

you. And welcome to your family as well. 

This Committee has no greater responsibility than the one before 

us today. Our Constitution, our laws, and our values all depend on 

a Supreme Court that is impartial, fair, and just. Your nomination 

comes before us during an unprecedented time in our country’s history. We are witnessing a singular moment of constitutional and 

democratic unease. 

In recent months, foundational elements of our democracy, including the rule of law, have been questioned, challenged, and even 

undermined. So, I cannot evaluate your credentials in the comfort 

of a legal cocoon. Instead, I must look at your views and record in 

the real world of America today. You see, you come before us this 

afternoon not only as a nominee sitting at a table alone with your 

friends and family behind you, but in the context of the era in 

which we live. 

From the highest levels of Government, we have heard relentless 

criticisms of journalists. Seventeen intelligence agencies have confirmed that Russia, an autocratic foreign government, attempted to 

influence our most recent election. At the same time, voting rights 

in the U.S. have been stripped from far too many, while dark 

money and extraordinary sums, adding up to an estimated $800 

million in just 6 years, continues to have an outsized influence in 

our politics, distorting our representative democracy. 

Just last month, we saw the President of the United States refer 

to a man appointed to the Federal bench by President George W. 

Bush as a ‘‘so-called judge,’’ and we have sadly seen hate unleashed 

toward religious minorities from Jews to Muslims, venom directed 

at innocent Americans, from kids in restaurants being told to go 

back to where they came from, to a man gunned down while washing his car in his driveway. 

The pillars of our democracy and our Constitution are at risk. 

You are not the cause of these challenges, Judge, these challenges 

to our democracy, but if confirmed, you would play a critical role 

in dealing with them. 

This is a serious moment in our Nation’s history, and as representatives of the American people, it is our duty up here to deter-
29 

mine if you will uphold the motto on the Supreme Court building 

itself, to help all Americans achieve equal justice under law. 

Before I was elected to the Senate, I spent 8 years leading Minnesota’s largest prosecutor’s office. I have seen firsthand how the 

law has a real impact that extends far beyond the walls of a courtroom, whether it is crime victims and their families, or people who 

have seen a loved one sent to jail. The decisions made from the 

bench affect people living right now in the 21st century with 21st 

century problems. 

So, though the U.S. Constitution and its Bill of Rights were written in the 18th century, though the Fourteenth Amendment’s guarantee of equal protection of the laws was written in the 19th century, the decisions made today affect not the lives of our 18th and 

19th century ancestors, but of all Americans today. 

So, Judge, these hearings will not just be about your legal experience. They are about trying to understand what you would actually 

do on the Court, for the law is more than a set of dusty books in 

the basement stacks of a law library. It is the bedrock of our society. We need to know how you approach the law. 

After Judge Merrick Garland was nominated to the Supreme 

Court last year, we often heard about how he is a careful jurist 

who decides cases on the narrowest possible grounds, who builds 

consensus across the ideological spectrum, who does not inject political considerations into his rulings. We look forward to hearing 

what your judicial philosophy would be on the Court. 

Looking at your past decisions, I have questions about how you 

would approach your work. In a speech last year, you spoke about 

the differences between judges and legislators. You said that, 

‘‘While legislators may appeal to their own moral convictions and 

to claims about social utility to reshape the law as they think it 

should be in the future, that judges should be none of those things 

in a democratic society. Judges,’’ you said, ‘‘should instead strive to 

apply the law as it is, focusing backward, not forward, and looking 

to text, structure, and history to decide what a reasonable reader 

at the time of the events in question would have understood the 

law to be.’’ 

I want to understand better those views of the Constitution and 

how they square with modern day life. Due process, equal protection of the laws, these are general and sweeping terms. And the 

Supreme Court, which has the power of judicial review, has the 

constitutional duty to be the final arbiter of what the Constitution 

means, rulings that can impact voting rights, civil rights, and the 

right of people to marry. 

Many of the issues we face today are ones that this country’s 

founders never considered, and, in fact, never could have considered because of all the social change and innovation that has taken 

place. We are no longer dealing with plows, bonnets, and colony 

deaths in England, but instead driverless cars, drones, and 

cybercrimes. And those were just the topics of the hearings I attended last week. 

I want to understand how your judicial philosophy, which, as you 

suggest, looks backward, not forward, may affect the rights of our 

fellow citizens. I also want to understand the implications of your 
30 

views on legal precedent. One example of this occurs in the context 

of the Chevron doctrine. 

In stating that courts should generally defer to reasonable interpretations of Executive agencies, this 33-year-old case guarantees 

that the most complex regulatory decisions, ones judges themselves 

may have little or no expertise to handle, are made by the scientists and professionals best equipped to rise to these challenges. 

These modern agency decisions include things like rules protecting 

public safety, requirements against lead-based paint, and clean 

water protections for our Great Lakes. 

Last year in your concurring opinion in Gutierrez v. Lynch, you 

suggested that Chevron should be overturned, yet this act would 

have titanic real-world implications on all aspects of our everyday 

lives. Countless rules could be in jeopardy, protections that matter 

to the American people would be compromised, and there would be 

widespread uncertainty. Judge, if you believe it is really time to 

overturn Chevron, then we need to know with what you would replace it. 

Another opinion that I want to talk about is Riddle v. 

Hickenlooper. In your concurring opinion, you suggest that the 

Court should apply strict scrutiny to laws restricting campaign contributions. If the Supreme Court adopted that view, it could well 

compromise the few remaining campaign finance protections that 

are still on the books. The notion that Congress has little or no role 

in setting reasonable campaign finance rules is in direct contradiction with the express views of the American people. 

In recent polls, over three-quarters of Americans have said that 

we need sweeping new laws to reduce the influence of money in 

politics. While polls, as we know, are not a judge’s problem, democracy should be. When unlimited, undisclosed money floods our campaigns, it drowns out the people’s voices. It undermines our elections. 

Other questions about your views in money and politics are 

raised by your opinion in Hobby Lobby. In that opinion, you found 

that corporations were legal persons and could exercise their own 

religious beliefs. This ruling leaves open the troubling argument 

that corporations have a right to free speech equal to that of citizens, which would invalidate the prohibition of corporations donating. These are not the only First Amendment issues I will raise. 

I want to talk about New York Times v. Sullivan and freedom of 

the press, as well as an area you have great expertise in, antitrust. 

Judge, as I consider your nomination, I am reminded of something a Justice who hailed from Minnesota, Justice Blackmun, once 

said, ‘‘Surely,’’ he wrote, ‘‘there is a way to teach law, strict and demanding though it might be, with some glimpse of its humanness 

and basic good. There is room for flexibility and different answers, 

and not all is Black and White. You see, there is a reason we have 

judges to apply the laws to the facts. It is because answers are not 

always as clear as we would like, and sometimes there is more 

than one reasonable interpretation.’’ 

As a prosecutor, I knew that every charging decision that we 

made, every case we chose to pursue, had real implications. It is 

the same with judges, for in the end it was not a law professor or 

Federal jurist who was helped by the Eighth Circuit is reliance on 
31 

Chevron. It was an hourly Minnesota grocery store worker who got 

his hard-earned pension. And when the Court stripped away the 

rules that opened the door to unlimited super PAC spending, it was 

not the campaign financers or the ad men who were hurt. It was 

a grandma in Lanesboro, Minnesota, who actually believed that 

giving $10 to her Senator would make a difference. 

And as the granddaughter of an iron ore miner, I can tell you 

it was not a CEO or a corporate board chair whose life was saved 

by mining safety rules. It was the Minnesota iron ore workers like 

my grandpa, who went to work every day with a black lunch bucket 1,500 feet underground in a cage. 

My dad, who ended up as the first kid in his family to graduate 

from high school, and from there to community college, and then 

to the University of Minnesota, still remembers as a little boy 

standing in front of the caskets of those mine workers lining St. 

Anthony’s Church. It was the worker protections, coupled with the 

ability to organize as a union, that finally made those miners’ jobs 

safe. 

Judge, you have been rightfully praised for your impressive academic credentials and experience, but at these hearings I want to 

know more than just about your record. I want to know about how, 

if you are confirmed, your decisions will, in fact, reflect precedent 

and the law, whether your judgments and decisions will be good, 

whether they will be done in a way that will help all Americans, 

from that grandma in Lanesboro to that Minnesota grocery store 

worker. That is not politics. That is why we are having these hearings today. 

Thank you. 

[The prepared statement of Senator Klobuchar appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Senator Klobuchar. Now, Senator Cruz. 

OPENING STATEMENT OF HON. TED CRUZ, 

A U.S. SENATOR FROM THE STATE OF TEXAS 

Senator CRUZ. Thank you, Mr. Chairman. Judge Gorsuch, welcome. Thank you for your decades of service, honorable service. 

Thank you for your family being here today, and thank you for 

your willingness to endure the spectacle of this confirmation hearing. 

February 13th of last year was a devastating day for those of us 

who revere the Constitution and the rule of law. On that day, we 

lost Supreme Court Justice Antonin Scalia. Justice Scalia was one 

of the greatest Justices to ever sit on the Bench. He was a trailblazing advocate for the original meaning of the Constitution, and 

a shining example of judicial humility. 

His death left an enormous hole not only in our hearts, but in 

the protections for the rule of law, and it left enormous shoes to 

fill, a daunting task that I know weighs on you as you consider the 

enormity of what is in front of you. 

Today there is a sharp disagreement about the very nature of the 

Supreme Court. Some people view the Court as a hyper-powerful 

political branch. When they grow frustrated with the legislative 
32 

process and the will of the people, they turn to the Court to try to 

see their preferred policies enacted. 

For conservatives, we understand the opposite is true. We read 

the Constitution and see that it imbues the Federal judiciary with 

a much more modest role than the left embraces. Judges are not 

supposed to make law. They are supposed to faithfully apply it. 

Justice Scalia was a champion of this modest view of the judicial 

role, but had his vacant seat been filled by Barack Obama or Hillary Clinton, Justice Scalia’s legacy would have been in grave danger. If they filled his seat, we would have seen a Supreme Court 

where the will of the people would have been repeatedly cast aside 

by a new activist Supreme Court majority. 

We would have seen a Supreme Court majority that viewed itself 

as philosopher kings who had the power to decide for the rest of 

us what policies should govern our Nation and control every facet 

of our lives. We would have seen our democratic process controlled 

by five unelected lawyers here in Washington, DC. 

That would have been a profound and troubling shift in the direction of the Supreme Court and our Nation’s future. That is why 

after Justice Scalia’s untimely death, the Senate chose to exercise 

our explicit constitutional authority, and we advised President 

Obama that we would not consent to a Supreme Court nominee 

until the people in the midst of a Presidential election were able 

to choose. For 80 years, the Senate had not filled a Supreme Court 

vacancy that had occurred in a Presidential election year, and the 

Senate majority rightly decided that last year would not become 

the first in eight decades. 

The people, therefore, had a choice, a choice between an 

originalist view of the Constitution represented by Justice Scalia or 

a progressive and activist view of the Constitution represented by 

Barack Obama and Hillary Clinton. During the campaign, President Trump repeatedly promised to nominate Justices in the mold 

of Justice Scalia, and, indeed, he laid out a specific list of 21 

judges, constitutionalists from whom he said he would choose his 

nominee. Judge Gorsuch was one of those 21. 

Issuing such a list was a move without precedent in our country’s 

Presidential history, and it created the most transparent process 

for selecting a Supreme Court Justice that our Nation has ever 

seen. The voters had a direct choice. The voters understand the 21 

men and women from whom the President would pick, and they 

had a very different vision of a Supreme Court Justice that would 

be put forth by Hillary Clinton. 

And in November, the people spoke in what was essentially a referendum on the kind of Justice that should replace Justice Scalia. 

The people chose originalism, textualism, and rule of law. The people chose judicial humility. The people chose protecting the Bill of 

Rights, our free speech, our religious liberty, our Second Amendment rather than handing policymaking authority over to judges on 

the Supreme Court. 

Given that history, given the engagement of the electorate nationally on this central issue, I would suggest that Judge Gorsuch 

is no ordinary nominee. Because of this unique and transparent 

process, unprecedented in the Nation’s history, his nomination carries with it a super legitimacy that is also unprecedented in our 
33 

Nation’s history. The American people played a very direct role in 

helping choose this nominee. 

Like the renowned Justice he is set to replace, Judge Gorsuch is 

brilliant and has an impeccable academic record. His judicial 

record demonstrates a faithful commitment to the Constitution and 

the rule of law. He has refused to legislate his own policy preferences from the bench, while recognizing the pivotal role the judiciary plays in defending the fundamental liberties protected in the 

Bill of Rights. 

On the night he was nominated, Judge Gorsuch channeled Justice Scalia when he explained that, ‘‘A judge who likes every outcome he reaches is very likely a bad judge, stretching for results 

he prefers rather than those the law demands.’’ That is exactly 

right, and those words should give comfort to the American people 

and to my Democratic colleagues. 

And it is worth recalling that our friends on the Democratic side 

of the aisle understand this and, indeed, not too long ago agreed 

with it. A decade ago, Judge Gorsuch was confirmed by this Committee for the Federal Court of Appeals by a voice vote. He was 

likewise confirmed by the entire United States Senate by a voice 

vote without a single Democrat speaking a word of opposition. Not 

a word of opposition from Minority Leader Chuck Schumer, not 

from Harry Reid, or Ted Kennedy, or John Kerry. Not from Senators Feinstein, Leahy, or Durbin, who still sit on this Committee. 

Not even from Senators Barack Obama, Hillary Clinton, or Joe 

Biden. 

Not a one of them spoke a word against Judge Gorsuch’s nomination a decade ago, and the question this hearing poses to our 

Democratic colleagues is, what has changed? What has changed? 

Ten years ago, Judge Gorsuch was so unobjectionable, he did not 

merit even a whisper of disapproval. In the decades since, he has 

an objectively exemplary record. By any measure, he has shown 

himself to be even more worthy of the bipartisan support he received back then. 

Unfortunately, modern reality suggests that is probably not 

something my Democratic colleagues feel they can do in today’s political environment. Many probably believe they have no choice but 

to try to manufacture attacks against Judge Gorsuch, whether they 

want to or not, just to preserve their own political future and protect themselves from primaries back home. 

We are seeing some of these baseless attacks already. Most recently, some Democrats have tried to slander Judge Gorsuch as 

being ‘‘against the little guy’’ because he has dared to rule based 

on the law, the law that Congress has passed, and not on the specific identity of the specific litigants appearing before him. This is 

absurd. 

For one thing, many of these same critics who spent the last 8 

years attacking the Little Sisters of the Poor, a Catholic charity of 

nuns, for having the audacity to live according to their deeply held 

religious beliefs. You really need to take a long look in the mirror 

if one day you find yourself attacking nuns, attacking the Little 

Sisters of the Poor, and then the next day you find yourself orating 

on the need to protect the little guy. 
34 

A judge’s job is not to protect the little guy or the big guy. A 

judge’s job and a judge swears an oath to uphold the Constitution 

and to follow the law fairly, impartially, and equally for every litigant, little or big. 

In the past weeks as well, some of my Democratic colleagues 

have questioned Judge Gorsuch’s independence and suggested that 

he needs to answer questions about the actions and statements and 

even tweets of the President who appointed him. I would ask, was 

Justice Ginsburg or Justice Breyer asked about the sexual harassment suit that had been filed against President Clinton by Paula 

Jones? No, neither was asked about that suit. Was Justice Kagan 

asked about President Obama’s incendiary comments at the State 

of the Union attacking the Supreme Court for a decision he disagreed with? No, of course not. 

Those questions were not asked because they were inappropriate 

political questions that have nothing to do with the record of the 

nominee before this Committee. Justice Ginsburg, Justice Breyer, 

Justice Kagan were not asked those questions, and Judge Gorsuch 

should not be either. Instead, we should evaluate this nomination 

on the record, on the merits, and on that ground I have every confidence that Judge Gorsuch will be confirmed as the next Associate 

Justice of the Supreme Court. 

[The prepared statement of Senator Cruz appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Senator Franken. I mean, Senator Cruz. 

Now, Senator Franken. 

[Laughter.] 

OPENING STATEMENT OF HON. AL FRANKEN, 

A U.S. SENATOR FROM THE STATE OF MINNESOTA 

Senator FRANKEN. Thank you, Mr. Chairman. 

Judge Gorsuch, congratulations on your nomination. You are a 

man of considerable qualifications and experience. And having reviewed your decisions, I can say that you are a man of strong opinions. 

But the task before this Committee is not to determine whether 

you are a man of conviction. Rather, it is incumbent upon us to determine whether the views that you espouse, and whether your interpretation of the Constitution, take proper measure of the challenges the American people face every day. 

We must determine whether your understanding of our founding 

document is one that will make real its promise of justice and 

equality to all Americans, Black and White, immigrant, Native 

American, gay, straight, and transgender. 

We must determine whether your interpretation of our laws and 

the Constitution will unfairly favor corporate interests over working families or limit the ability of Minnesotans to get their day in 

court. 

The Justices who sit on the Supreme Court wield enormous 

power over our daily lives, so before this Committee decides whether to advance your nomination, we have an obligation to fully examine your views on these important issues, and to make sure that 

those views are known to the public. 
35 

That is really the whole purpose of these hearings, to allow the 

people of Minnesota, the American people, to meet you, to decide 

for themselves whether you are qualified to serve. 

But, Judge Gorsuch, having reviewed your decisions and your 

writings, I have concerns. In the days ahead, I will use this hearing 

as an opportunity to better understand your views and perhaps to 

alleviate those concerns. 

But in order for the hearing to serve its purpose, in order for the 

public to determine whether you should be confirmed, you must answer the questions this Committee poses fully, candidly, and without equivocation, so I hope that is how you will approach our exchanges. 

Now, with that in mind, I think it is important to acknowledge 

just exactly how it is that you came before us today, and we talked 

about this, namely through the Committee’s failure to fulfill one of 

its core functions. Immediately following the death of Justice Scalia 

and before President Obama even named a nominee, my Republican colleagues announced that they would not move forward with 

filling the vacancy until after the Presidential election. 

The Majority Leader said, ‘‘The American people should have a 

voice in the selection of their next Supreme Court.’’ 

The only problem with the Majority Leader’s reasoning is that 

the American people did have a voice in this decision, twice. 

Nonetheless, when President Obama nominated Chief Judge 

Merrick Garland, the Republican Members of the Committee responded by refusing to hold a hearing, a truly historic dereliction 

of duty of this body and a tactic as cynical as it was irresponsible. 

As a result of my Republican colleagues’ unprecedented obstructionism, Justice Scalia’s seat on the Court remained vacant until 

President Trump was able to name a replacement. 

Now, during the campaign, then-candidate Trump made no secret about what kind of nominee he would select. In fact, he openly 

discussed his litmus test. He said that he would ‘‘appoint judges 

very much in the mold of Justice Scalia.’’ During the final Presidential debate, then-candidate Trump said, ‘‘The Justices I am 

going to appoint will be pro-life. They will have a conservative 

bent.’’ 

Now, Justice Scalia was a man of great conviction, and, it should 

be said, a man of great humor. But Justice Scalia embraced a rigid 

view of our Constitution, a view blind to the equal dignity of LGBT 

people and hostile to women’s reproductive rights, and a view that 

often refused to acknowledge the lingering animus in laws and policies that perpetuate the racial divide. 

Judge Gorsuch, while no one can dispute the late Justice Scalia’s 

love of the Constitution, the document he revered looks very different from the one that I have sworn to support and defend. So 

it troubles me that, at this critical juncture in our Nation’s history, 

at this moment when our country is so fixated on things that divide 

us from one another, that President Trump would pledge to appoint jurists whose views of our founding document seek to reinforce those divisions rather than bridge them. 

This is an important moment in our history. The public’s trust 

in our Government and in the integrity of our institutions is at an 
36 

all-time low. But that erosion of trust did not take place overnight, 

and it did not happen on its own. 

The American people’s loss of confidence in our public institutions was quickened by the Court. A study published in the Minnesota Law Review found that the Roberts Court is more likely to 

side with business interests than any Supreme Court since World 

War II. 

Time and time again, the Roberts Court issued decisions that 

limit our constituents’ ability to participate freely and fairly in our 

democracy, decisions like Shelby County where the Court gutted 

one of our landmark civil rights laws and removed a crucial check 

on race discrimination at the ballot box, or like Concepcion, a 5– 

4 decision that allows corporations to place obstacles between consumers and the courthouse door. 

Perhaps most egregious of all was Citizens United, which paved 

the way for individuals and outside groups to spend unlimited 

sums of money in our elections. 

It is no surprise that, during the 2016 elections, voters from 

across the ideological spectrum, Democrats and Republicans alike, 

described our system as rigged. That is because it is. And the Roberts Court bears a great deal of responsibility for that. 

Now, in each one of those 5–4 decisions, Justice Scalia was 

among the majority. So as this Committee sets about the task of 

evaluating his potential successor, I want to better understand the 

extent to which you share Justice Scalia’s judicial philosophy, and 

I will be paying close attention to the ways in which your views 

set you apart. 

One of the ways in which your views are distinct from Justice 

Scalia’s is in the area of administrative law. Just this past August, 

you wrote an opinion in which you suggested that it may be time 

to reevaluate what is known as the Chevron doctrine. 

Now, in broad strokes, the Chevron doctrine provides that courts 

should be reluctant to overrule agency experts when they are carrying out their missions, like when the FDA sets safety standards 

for prescription drugs. This principle, outlined by the Supreme 

Court, recognized that our agencies employ individuals with great 

expertise in the laws that they are charged with enforcing, like biologists at the FDA, and that where those experts have issued 

rules in highly technical areas, judges should defer to their expertise. 

Now, administrative law can be an obscure and sometimes complicated area of law, but for anyone who cares about clean air or 

clean water, or about the safety of our food and of our medicines, 

it is incredibly important. And Chevron simply ensures that judges 

do not discard an agency’s expertise without good reason. Justice 

Scalia recognized this to be true. 

But to those who subscribe to President Trump’s extreme view, 

Chevron is the only thing standing between them and what the 

President’s chief strategist Steve Bannon called the ‘‘deconstruction 

of the administrative state,’’ which is shorthand for gutting any environmental or consumer protection measure that gets in the way 

of corporate profit margins. 

Speaking before a gathering of conservative activists last month, 

Mr. Bannon explained that the President’s appointees were se-
37 

lected to bring about that deconstruction. And I suspect that your 

nomination, given your views on Chevron, is a key part of that 

strategy. 

So this hearing is important. Over the next few days, you will 

have an opportunity to explain your judicial philosophy, and I look 

forward to learning more about how you would approach the great 

challenges facing our country. 

But if past is truly prologue, then I fear that confirming you 

would guarantee more of the same from the Roberts Court, decisions that continue to favor powerful corporate interests over the 

rights of average Americans. 

During your time on the Tenth Circuit, you have sided with corporations over workers, corporations over consumers, and corporations over women’s health. What this moment in our history, and 

in our Nation’s history, calls for is a nominee whose experience 

demonstrates an ability to set aside rigid views in favor of identifying common ground and crafting strong consensus opinions, 

someone like Merrick Garland. 

But your record suggests that, if confirmed, you will espouse an 

ideology that I believe has already infected the Bench, an ideology 

that backs big business over individual Americans, and refuses to 

see our country as the dynamic and diverse Nation that my constituents wake up in every morning. 

As I said before, I see this hearing as an opportunity to learn 

more about your views, and perhaps to alleviate some of my concerns, so I hope that we are able to have a productive conversation. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Franken appears as a submission for the record.] 

Chairman GRASSLEY. Before the Senator from Nebraska goes, I 

have not talked to the person sitting there and cannot get up and 

go, but I think, when you are done, we will take 5 minutes, and 

you can do whatever you want to do. 

[Laughter.] 

Chairman GRASSLEY. Go ahead, Senator from Nebraska. 

OPENING STATEMENT OF HON. BEN SASSE, 

A U.S. SENATOR FROM THE STATE OF NEBRASKA 

Senator SASSE. Thank you, Mr. Chairman. 

Judge, this is a special moment in the life of our Republic. We 

have an opportunity to stand back from more than 200 years of our 

history to evaluate our civic health and to recommit ourselves to 

a government that is intentionally limited, to powers that are intentionally distinguished and divided. 

That is what these next few weeks are actually about. 

Arguably, the most important thing the U.S. Senate will do this 

year is confirm the next Supreme Court Justice. 

I want to focus my opening remarks around the simple image of 

a judge’s black robe. It is a strange thing that judges wear robes. 

You people are odd. But it is not something that we should just 

look past as an odd convention. It is something that we should look 

right at. It is not some relic from history that people wore long ago 

in an era of formality, like a powdered wig. 
38 

So why do the robes exist, unfashionable and unattractive as 

they often are? The reasons are better summed up by a current sitting judge than I might be able to put them, ‘‘Donning a robe does 

not make me any smarter, but the robe does mean something. It 

is not just that I can hide the coffee stains on my shirt. It serves 

as a reminder of what is expected of us, what Burke has called ‘the 

cold neutrality of an impartial judge.’ It serves, too, as a reminder 

of the relatively modest station we are meant to occupy in a democratic society. In other countries, judges might wear scarlet. Here, 

we are told to by our own plain, black robes, and I can attest to 

the standard choir outfit of the local uniform supply store as a good 

deal. Ours is the judiciary of an honest black polyester.’’ 

The author of these insightful words sits before us, Judge Neil 

Gorsuch, and that statement is an excellent lens through which to 

view the work of the Committee this week and, indeed, the work 

of the Court over the next century and beyond. 

I want to make three simple overlapping points about that 

judge’s black robe. One, it changes the way that our eyes see the 

court. Two, it reiterates the calling of a judge to the judge. And 

three, it gives us a special opportunity to teach our kids something 

about our—about their Constitution, the enduring paper that defines what our Government can and cannot do. 

First, then, how does it change the way we see the court? When 

you look at the nine Justices sitting together in their robes, they 

blend in with one another. It is hard to tell them apart if you 

squint. And, thus, it calls attention to the office rather than to the 

person. That is because when the judge puts on his or her robe, it 

forces their personalities into the background so that we can focus 

on the important but the modest job that they have to do, which 

is to drill down on facts and law. 

Facts are objective. They do not change based on your personality. They are evaluated against written, objective laws, not 

against what the judge wishes the law said. 

Someone famously said that ‘‘empathy’’ is an essential ingredient 

in arriving at a just decision. This belief is well-meant, but it is 

very foolish. For standing before a court, your gender, your skin, 

your bank account cannot decide your fate in the same way a 

judge’s race, class, and gender should not decide your fate. Empathy is actually not the role of a Supreme Court Justice. It is, in a 

sense, our role, for we are men and women who have been hired 

and can be fired by the American people to empathize. We are to 

identify with the hopes and the struggles of 320 million Americans. 

But the judge, instead, has a different job, to faithfully and dispassionately apply the law to the facts of the particular case. The 

judge’s robe is there to remind the judge and us of that—that if the 

facts are on your side, it should not matter which judge you sit before. 

Our ideal is one where you can trade out one judge for another 

judge, and you should get the same outcome. This is the heart of 

what we mean when we say that we believe in the rule of law, not 

of men or of women, or of Black or White, or rich or poor. We are 

not to be ruled by a judge’s passions or by a judge’s empathy or 

by a judge’s policy preferences. 
39 

Here is the second thing that the black robe is supposed to do. 

It is supposed to reiterate the calling of the judge back to the 

judge. By way of loose analogy, many people across our country sat 

in church pews yesterday morning and listened to someone preach 

from behind a big wooden pulpit wearing a robe. Why the pulpit? 

Why the robe? Because these things make it harder to see the 

preacher. They help us all understand that yesterday morning, for 

those of us in that tradition, knew that it was not about the messenger but about the message that was being passed on from 

above. It was also to remind the minister of the same cloaking. 

Likewise, a good judge on the bench knows that. It is not about 

you, so do not make it about you. 

I said that it is only a loose analogy because, of course, the job 

of a Supreme Court Justice is absolutely not to deliver some eternal word from God. It is, rather, to interpret a man-made, written 

Constitution as objectively and faithfully as they can, inserting 

their opinions as little as possible. 

When you put on your robe, you are cloaking your personal preferences. You are cloaking your partisan views. There is not a red 

robe for Republicans. There is not a blue robe for Democrats. We 

issue here only black robes. 

This brings us to the third and final point, which is that the 

judge’s robe is also to teach our kids how they should understand 

their Constitution. As all of us learned in ‘‘Schoolhouse Rock,’’ the 

judiciary is not only a separate branch of government from the 

President and the Congress, but it is also a coequal one. We have 

different functions, but we have the same responsibility to be upholding and to teach the Constitution. 

As a coequal, the Court can examine whether the actions of the 

other two branches are, in fact, unconstitutional. Time and again, 

at important moments in our Nation’s history, the Court has struck 

down laws passed by the Congress or put a stop to a President’s 

Executive actions. 

Here is what that means: The primary job of the Supreme Court 

is not to uphold the will of the majority of the moment. The primary job of a Supreme Court Justice is not to reflect the popular 

opinions of the day. That might sound surprising. Do we not live 

in a democracy where the majority is supposed to rule? The answer 

to that question is only a very qualified ‘‘yes,’’ for there are critical 

limits to that statement. 

The Constitution is a decidedly and intentionally anti-majoritarian document. The Constitution exists to protect our rights and 

our liberties, even when we might hold unpopular views. And the 

role of the Supreme Court in protecting those rights and liberties 

is sometimes precisely to frustrate the will of the majority. 

Think about how the Constitution deals with religion and public 

opinion. The First Amendment prohibits the Government from establishing any state religion, and it guarantees that every citizen 

can worship or not worship, however their conscience dictates. 

If, however, at some moment polling showed a 51 percent popular desire in this country to pass a law making church attendance 

mandatory, or to subsidize a particular religious denomination, the 

Supreme Court would rightly strike down such flawed laws. This 

is because, in the Constitution, we decided that we would limit our 
40 

own power. We the people decided, in the founding of this Republic, 

that we would restrain our own majoritarian impulses. By enacting 

the Constitution, we intentionally decided to tie our own hands so 

that there are certain things that a majority can never do, like invade someone’s conscience. And if the majority in its arrogance 

should at some point in the future seek to cross that line, the Supreme Court will rightfully shout ‘‘no.’’ 

When Congress passes an unconstitutional law, it is, in fact, the 

Congress that is violating the long-term will of the people, for the 

judiciary is there to assert the will of the people, as embodied in 

our shared Constitution, over and against that unconstitutional but 

perhaps temporarily popular law. 

Each branch serves the people but in unique ways. It is the job 

of the Congress and the President to act. It is the job of the Court 

often, to react. Each branch holds the others in check. Each branch 

faithfully seeks to uphold and teach the Constitution. Each branch 

serves the American people, but with distinct offices. 

When a Supreme Court Justice puts on his or her robe, we do 

not want them confusing their job with those of other branches. We 

want them policing the structure of our Government to make sure 

that each branch does its job, but only its job. 

Today, Judge Gorsuch sits in front of us wearing a suit and tie. 

Before he can put back on the black robe, he must answer this 

Committee’s questions. And I expect that Mr. Gorsuch the citizen 

has policy preferences. He probably has desired outcomes. But I do 

not know what they are, and that is a good thing. And I expect, 

by the end of this week, it should be clear that Judge Gorsuch, the 

judge’s judge, will faithfully embody the spirit of that black robe, 

for the American people deserve the comfort of a judiciary that is 

cold and impartial, not seeking to be super-legislators, for if a judge 

seeks to be a super-legislator, he or she should run for office so the 

American people can choose to hire them or fire them. But that is 

not the calling you have before us today. 

Thank you, and thank you to your family for being willing to endure this calling and this service and this hearing. 

Chairman GRASSLEY. In 4 minutes and 59 seconds, I will call on 

Senator Coons. Stand at ease. 

[Recess.] 

Chairman GRASSLEY. Senator Coons, would you proceed, please? 

OPENING STATEMENT OF HON. CHRISTOPHER A. COONS, 

A U.S. SENATOR FROM THE STATE OF DELAWARE 

Senator COONS. Thank you, Mr. Chairman. 

Welcome, Judge Gorsuch, and welcome to your family and your 

friends. Congratulations on your nomination, and I look forward to 

the opportunity to question you. 

I believe my constitutional duty to advise the President on this 

nomination to the Supreme Court is among my most important responsibilities as a Senator. A nominee confirmed to the Supreme 

Court shapes our law for decades. Justices decide cases that influence the lives of generations of Americans. This hearing is our opportunity to ask you, Judge Gorsuch, questions in front of the 

American people to better understand how you interpret the text 

of our Constitution and how you apply Supreme Court precedent. 
41 

We will explore how your approach to interpreting our Constitution would impact our lives in the future. I am committed to ensuring the consideration of your nomination by this Committee is thorough and fair, and I am hopeful that as our hearing proceeds, it 

will promote an important dialogue about the Constitution and the 

courts. Based on our meeting, Judge Gorsuch, I know that you, too, 

hope that this moment can serve as a shared civic experience. 

I am considering your nomination with an open mind, and I 

would ask that you be forthcoming in your responses to our questions. I would like this hearing to be substantive and to reflect the 

best traditions of the Senate. 

However, I cannot let this moment, in commenting on the best 

traditions of the Senate, pass without expressing my deep regret 

that Chief Judge Merrick Garland was treated with profound and 

historic disrespect. The disrespect shown by Senate Republicans to 

Chief Judge Merrick Garland and to President Obama and to our 

institutions was unprecedented and deeply damaging. For nearly 

300 days, longer than any other nominee, Chief Judge Garland’s 

nomination to the Supreme Court sat without action. My Republican colleagues did not afford him a hearing and would not give 

him a vote. 

I believe we have a responsibility to work to re-elevate our democratic institutions above these narrow partisan politics. I will support a process worthy of its important purpose, to carefully evaluate a candidate for the highest court in the land. 

The American people are entitled to see you answer probing, 

thorough, and challenging questions about your views on a wide 

range of constitutional issues because the breadth of the issues 

that come before the Supreme Court cannot be overstated. Just in 

the last year, the Supreme Court considered cases involving Executive power, affirmative action, intellectual property, partisan gerrymandering, racial bias in the courtroom, and reproductive rights. 

The seat you would fill, Judge Gorsuch, if elevated, was occupied 

by Justice Scalia, and you have been compared to him. While it 

may seem at times to many that the Supreme Court is engaged in 

abstract intellectual exercises about originalism or textualism or a 

living Constitution, even a small subset of landmark decisions Justice Scalia took part in during his nearly 30 years on the Court 

demonstrates otherwise. 

It is because of Supreme Court decisions that gay men can no 

longer be criminally prosecuted for engaging in consensual relationships; that loving same-sex couples can get married in every State 

in our Union; that women cannot be denied attendance at one of 

the Nation’s premier military academies, and that women are entitled to access the full range of reproductive healthcare; that juveniles and intellectually disabled people can no longer be executed; 

and that millions of Americans who obtained health insurance 

under the ACA have been able to keep that care, at least for now. 

These cases impacted the lives of millions of real Americans, and 

Justice Scalia applied his understanding of the Constitution and 

dissented in every one of them. 

I would like to use these hearings to explore your interpretation 

of the Constitution. I believe that our Constitution, which I view 

as our Nation’s secular scripture, includes guarantees of equality 
42 

and privacy, hallmarks of our modern American society. I believe 

in an independent judiciary that safeguards our rule of law from 

unlawful intrusions of the most powerful, even the President of the 

United States. 

The legitimacy of our Supreme Court transcends the outcome of 

any one case, but that legitimacy rests on the unyielding responsibility of Justices to put their personal political views aside to decide cases on their merits. 

Judge Gorsuch, your nomination has been championed by the 

ideologically driven Federalist Society and Heritage Foundation. 

Interest groups are already spending millions of dollars advocating 

for your confirmation. But as I have told you during our meetings, 

none of those facts will determine my vote on your nomination. I 

am instead looking to you to demonstrate your ability to separate 

politics from constitutional interpretation. 

As my colleague from the State of Utah, Senator Hatch, once 

noted, ‘‘Judges that say what the law is promote liberty. Judges 

that say what they think the law should be undermine it.’’ 

I have spent a good deal of time reviewing your record. I appreciate that you are an engaging and careful writer. I also have some 

serious questions based on your decisions. What stands out to me 

is your tendency to go beyond the issues that need to be resolved 

in the case before you. I have seen a pattern in which you have 

filed dissents, dissents from denials of rehearing, concurrences, or 

even concurrences to your own majority opinions, to explore broader issues than what is necessary, to revisit long-settled precedent, 

and to promote dramatic changes to the law. This pattern concerns 

me because these additional writings hint at an unwillingness to 

settle on a limited conclusion and forge a narrow consensus with 

your colleagues. 

I want to know that you would apply the Constitution and settled precedent to reach consensus and resolve narrowly the disputes before you. And I want to know that our treasured freedoms 

would be safe in your stewardship. Our Constitution, as you know, 

is designed to protect our diversity of views. It guarantees to all of 

us the freedom of expression, the right to privacy, the liberty to 

make our most personal life decisions, equal protection, and the 

ability to worship freely. 

Take the freedom of religion, enshrined in the First Amendment, 

which says, in part, ‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’’ I 

believe we must balance our respect for the significance of faith 

and free exercise with concerns about impacts on others’ liberty. As 

my colleagues know, I studied both law and divinity in school, and 

some of the most formative and meaningful experiences of my life 

have been guided by my Christian faith. The command to care for 

the most vulnerable among us inspires my work and service as a 

Senator, and I value opportunities to share with my colleagues in 

prayer. 

Throughout our Nation’s history, religion has inspired countless 

acts of charity, kindness, and good works. But when I think about 

the Founders’ wisdom to protect both church and state by ensuring 

their separation, I am in awe. Our United States were founded by 

people who came here for many reasons, seeking opportunity, free-
43 

dom from oppression, and hoping in many cases to be free to practice their faith. From Pilgrims to Mormons, from the Amish to Jehovah’s Witnesses, America from its founding to today has been 

home to many faiths from many parts of the world, and part of our 

Founders’ genius was to abandon the European practice of having 

a state religion supported by state taxes. 

Now today across the U.S., churches and mosques, synagogues 

and temples find their own way, recruit and raise up their own believers and funds free from state interference and unsustained by 

state support. 

The Supreme Court over decades has sought to strike and preserve a careful balance between the free exercise rights of religious 

minorities and the power of legislatures to compel compliance with 

neutral laws. 

Recently, the Court has decided several landmark and controversial cases: in the Hobby Lobby case, where the free religious exercise rights of a few were held to permit the infringement on personal liberty of many; and in another important line of cases in 

which substantive due process rights have been held to guarantee 

a right to privacy and self-determination even when longstanding 

practices and religiously motivated statutes are challenged as a result. 

I look forward to exploring these decisions with you. Religious 

freedom must be freedom not to have our values and practices 

pushed into the public square. While other nations are besieged by 

sectarian wars, inclusion of all faiths and all people have been 

guiding lights in the success of our democracy. However, at other 

times in our history, sincerely held religious beliefs have been invoked to deny millions of Americans full equality under the law in 

defense of laws prohibiting interracial marriage or LGBT relationships or reproductive rights. 

We live today in tumultuous times, as you know, Judge. The Supreme Court is likely to hear many important cases in the years 

to come. It will be important that we understand your values and 

framework for interpreting the Constitution on areas as important 

as Executive power, national security, the independence of the judiciary, deference to agencies, and personal liberty. 

There are disturbing developments that I see in our modern environment as affronts to religious freedom and personal liberty. 

President Trump campaigned on putting in place a Muslim ban 

and has signed unlawful and discriminatory Executive orders to deliver on that promise. The new administration’s Justice Department has withdrawn guidance supporting protections for 

transgendered individuals. And the Attorney General testified 

under oath at his confirmation hearing before us that secular attorneys may not have the same claim to understanding the truth as 

religious ones. 

Our next Supreme Court Justice will play a pivotal role in sustaining and defending our rights during this critical time for our 

country and in the years to come. America needs a Supreme Court 

Justice who will protect the Constitution, not one who will countenance the faith or fear of some as a justification for infringing the 

liberty of many. It is against that backdrop, Judge, that I will be 
44 

seeking to understand your commitment to the rule of law, the 

guarantees of the First Amendment, and individual liberty. 

I look forward to your testimony. Thank you. 

[The prepared statement of Senator Coons appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Senator Coons. 

Now I go to Senator Flake. 

OPENING STATEMENT OF HON. JEFF FLAKE, 

A U.S. SENATOR FROM THE STATE OF ARIZONA 

Senator FLAKE. Thank you, Mr. Chairman. And thank you, 

Judge Gorsuch. Thank you for being here, and thank you to your 

family as well and your many friends and associates who have 

come to support you. That says a lot for you to have so many willing to be here, and I have been astounded at the number of op-eds 

I have read and statements I have heard from those—not just 

those that you agree with, but those who do not always agree with 

you. That says a lot about you. 

I had a speech to deliver a while ago, and when it was fed into 

the teleprompter, your name was not as familiar as some, and it 

replaced it with ‘‘Judge Grouch’’ throughout the entire time. 

[Laughter.] 

Senator FLAKE. And I had to be careful. 

Judge GORSUCH. I had similar problems. 

Senator FLAKE. I think it is safe to say by the end of this week 

every spell checker in the country will know your name, and 

‘‘Judge Grouch’’ is about as far as you can get from Judge Gorsuch 

in terms of your temperament. So I commend you. That may 

change by the end of the week as well, though. 

[Laughter.] 

Judge GORSUCH. I hope not. 

Senator FLAKE. I do not think so. 

As we all know, one of the most consequential decisions a President makes is who he or she will select to fill vacancies on the Supreme Court. This is a lifetime appointment. It means that a man 

or woman who is selected will likely be interpreting our laws for 

decades to come. Judge Antonin Scalia demonstrated how much 

one Justice can impact and shift the gravity of the Court, and no 

Justice in recent memory has so fundamentally influenced the trajectory of the Supreme Court or our approach to reading the law. 

He did this with an unshakable commitment to an originalist interpretation of the Constitution and a textualist approach to statutes. 

Justice Scalia’s passing marked a watershed moment for the future of our judiciary. One law professor remarked, ‘‘What lets the 

legal system survive is that people in power such as Scalia believe 

that the system controls their individual judgments. What will happen to the law without Justice Scalia to believe in it?’’ 

Now, fortunately, the President has nominated a jurist who believes in the rule of law. 

Now, in meeting with Judge Gorsuch and learning about his judicial philosophy, I was impressed by his respect for the law and 

his commitment to service. I have been particularly struck by his 

recognition that, ‘‘It is for Congress, not the courts, to write new 

law,’’ and that a Justice should make decisions based on what the 
45 

law demands, not an outcome he or she desires. And as we discussed in my office, you said that when you don that black robe 

that Ben Sasse talked about, you understand that you are not a 

legislator. That is important. 

It was brought up before by one of my colleagues that says that 

Judge Gorsuch is pro-business or against the little guy. I think the 

record suggests that he faithfully applies the law and the laws as 

enacted by Congress. Good judges do not decide cases based on how 

big the guy is but based on the law and the facts. 

Now, I am not alone in thinking that. Harvard Law Professor 

Noah Feldman, a self-described liberal, recently wrote that,‘‘Siding 

with workers against employers is not a jurisprudential decision. It 

is a political stance. And Justices, including progressive Justices, 

should not decide cases based on who the parties are.’’ I think 

Judge Gorsuch’s opinions show just that: He decides cases based on 

what the law says, not who the parties are. 

Judge Gorsuch has repeatedly reminded us that while we as legislators may appeal to our own moral convictions in shaping the 

law, judges in a democratic society should not decide cases based 

on their own moral convictions or their policy preferences. With 

Judge Gorsuch, I think the record shows that we can be confident 

that he will read the law as written and not legislate from the 

Bench. 

With regard to the separation of powers, Judge Gorsuch has cautioned against ‘‘governmental encroachment on the people’s liberties,’’ which could occur should the political majorities of the legislative and executive branches be permitted to decide cases and 

the political unresponsive judiciary branch be allowed to create or 

execute policies. For my part, I am excited to confirm a Justice who 

reveres the separation of powers as a central principle of our Constitution. 

Judge Gorsuch has also demonstrated support for religious liberties. Our country has always valued the right of individuals to 

practice their faith according to the dictates of their own conscience. He once wrote that our religious freedom statutes ‘‘do not 

just apply to protect popular religious beliefs. It does perhaps its 

most important work in protecting unpopular religious beliefs, vindicating this Nation’s long-held aspiration to serve as a refuge for 

religious tolerance.’’ 

The Supreme Court later agreed with Judge Gorsuch that it is 

the Government’s job to protect an individual’s ability to practice 

their religion, not to instruct them how to practice their religion. 

Now, finally, as an Arizonan, I am proud of the fact that Judge 

Gorsuch is a fellow Westerner. Where you are from influences your 

understanding of cultural and regional sensitivities, and the current makeup of the Supreme Court has an unmistakable lack of geographic diversity. Of the eight current Justices, five of them were 

born in New York or New Jersey. As we say in Arizona and elsewhere, ‘‘New York City.’’ This is nice to have someone from the 

West with a Western perspective, and, fortunately, Judge Gorsuch 

fits that bill. 

When I met Judge Gorsuch earlier this week, we talked about 

our respective Western backgrounds. I told him about my days 

growing up on a cattle ranch in rural Arizona. He told me that his 
46 

heart has always been in the American West. You learn a lot about 

a person by how they spend their time with their friends and family. There is no mistaking it with Judge Gorsuch. He is a Westerner through and through. 

Now, what makes Judge Gorsuch a true Westerner is more than 

just where he lives or what his personal interests are. In the West, 

we pride ourselves on being a free people with strong communities 

and limited Government. Judge Gorsuch’s jurisprudence reflects 

what every Westerner knows to be true: An intrusive Federal Government cannot interfere with the ability of Western States to govern themselves. And perhaps more than anything, it will be Judge 

Gorsuch’s Western perspective that most enriches debate on the 

Supreme Court for years to come. 

Now, there has been a lot said about what happened last year 

with the nomination of Merrick Garland. I find it striking and very 

revealing that one of the first calls that Judge Gorsuch made when 

he received this nomination was to Merrick Garland, his friend. I 

think that says a lot about the man, regardless of any of our 

thoughts, and certainly what happened here should not reflect on 

Judge Gorsuch. But I appreciate the temperament that you have 

and your willingness to subject yourself and your family and 

friends to this process. And I look forward to the rest of the hearing. 

I yield back. 

Chairman GRASSLEY. Thank you, Senator Flake. 

Now, Senator Blumenthal. 

OPENING STATEMENT OF HON. RICHARD BLUMENTHAL, 

A U.S. SENATOR FROM THE STATE OF CONNECTICUT 

Senator BLUMENTHAL. Thank you, Mr. Chairman. Thank you for 

being here, Judge. I live in the Western part of Connecticut. 

[Laughter.] 

Judge GORSUCH. Close enough. 

Senator BLUMENTHAL. I love Colorado, and my first job was on 

a farm in Nebraska where my grandfather raised corn and cattle, 

so we can go into other commonalities. But I want to join in thanking you and your family and say that, despite the hardships of 

going through this process, I suspect there are quite a few lawyers 

in Connecticut who would not mind changing places with you. 

But I also want to thank one group that perhaps should be given 

gratitude, and that is your fellow judges on the Federal bench. 

Some of them are here. I have no doubt that many are watching. 

I have had the honor in the last 40 years to appear before many 

of them, and they make sacrifices that are often unappreciated by 

most Americans who enjoy the benefits of their service, often financial sacrifices, personal sacrifices, sometimes even physical threats, 

as happened when the schools were desegregated or when women’s 

clinics were protected in the United States. And so I want to thank 

them and, through you, express my gratitude. 

The independence of those judges has never been more threatened and never more important, and a large part of the threat 

comes from the man who nominated you, who has launched a campaign of vicious and relentless attacks on the credibility and capacity of our judiciary to serve as a check on lawless Executive action. 
47 

His demeaning and disparaging comments about the judiciary have 

shaken the foundations of respect for judicial rulings—rulings that 

hold the President accountable to the people and our Constitution. 

Respect for the opinions of our judges is fundamental, as you 

well know. Without it, our democracy cannot function. Alexander 

Hamilton said that the judiciary is the least dangerous branch because it has the power of neither the purse nor the sword. Essential to its power to protect us is its respect and trust and credibility. And the President has gravely undermined it, and that is 

why I believe you have a special responsibility here this week, 

which is to advocate and defend the independence of our judiciary 

against those kinds of attacks. It is not enough to do it in the privacy of my office or my colleagues’ behind closed doors. I believe 

that our system really requires and demands that you do it publicly and explicitly and directly. 

We meet this week in the midst of a looming constitutional crisis. 

Just hours ago, not far from here, the Director of the FBI revealed 

that his agency is investigating potential ties between President 

Trump’s associates and Russian meddling in our election. The possibility of the Supreme Court needing to enforce a subpoena 

against the President is no longer idle speculation. It did so in 

United States v. Nixon. So the independence of the judiciary is 

more important than ever, and your defense of it is critical. 

You are also the nominee of a President who set a set of litmus 

tests, saying that his nominee would be pro-life and pro-Second 

Amendment and of a conservative bent. In fact, he said that he 

would nominate someone, and I am quoting almost exactly in one 

of the debates, ‘‘who would automatically overturn Roe v. Wade.’’ 

So, again, if you fail to be explicit and forthcoming and definite in 

your responses, we have to assume that you will pass the Trump 

litmus test. 

Your nomination also imposes on you a special burden because 

of the process that brought you here. The President has largely 

outsourced the selection process to conservative groups. He specifically referred to them on May 11th when he said that a list would 

be prepared by the Heritage Foundation and the Federalist Society. 

On June 13th, he said, ‘‘We are going to have great judges, conservative, all picked by the Federalist Society.’’ 

You must be clear that your views are not theirs, and while 

under ordinary circumstances this Committee might be satisfied 

with the platitudes of ‘‘I cannot reach conclusions or state conclusions because of the possibility that I may have to consider a case 

before the Court,’’ these times are not ordinary. 

The rule of law is more than the pillars and the judicial robes 

that people ordinarily associate with the U.S. Supreme Court. Justice has a human face and a voice and, as you know from being 

in the trenches, real clients with real lives, and the law has real 

consequences in their lives. 

I met with Alphonse Maddin, the trucker who was fired by 

TransAm Trucking. When he left his truck in sub-zero weather, 

that truck was disabled. It could not be driven, and he was freezing. 
48 

I met with Patricia Caplinger, who was denied relief by your 

court after suffering a very serious injury resulting from a defective 

product use. 

I met with the children of Grace Hwang who was denied leave 

by Kansas State University even though she was suffering from 

cancer. 

I am troubled by the results in those cases for those real people, 

but also for the broader issues that those decisions reflect in workers’ safety and consumer protection, as well as the rights of women 

to healthcare and reproductive decisions that are protected by the 

Fourth Amendment. And the right of privacy goes beyond just 

women’s healthcare. It also relates to surveillance and Government 

snooping and a right that is central to our democracy. 

Let me just close by saying that you have a special obligation to 

be forthcoming about your views, not to prejudge the merits of a 

particular case before the Court, but to share your views on longstanding precedent that the President who nominated you indicated would be overturned. And you have an obligation to be forthcoming as well because the decision before us is not about Justice 

Scalia, nor is it about your confirmation 10 years ago. The Supreme 

Court is different. The Supreme Court is the ultimate resort of justice in this country. And as much as you may have encountered little difficulty 10 years ago, you now have a record. And we are here 

to judge that record and to make sure that our decision—and I 

agree with my colleagues that it will be probably one of the most 

consequential and profoundly important decisions that I make as 

a United States Senator—is the right one for the country and will 

above all make sure that the rule of law is preserved for real people with real lives, and that we assure that the independence of 

our judiciary will continue to protect us from overreaching and tyranny and the constitutional crisis that is now a real danger before 

us. Thank you for being here. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Blumenthal appears as a 

submission for the record.] 

Chairman GRASSLEY. Thank you, Senator Blumenthal. 

Now, the Senator from Idaho. 

OPENING STATEMENT OF HON. MIKE CRAPO, 

A U.S. SENATOR FROM THE STATE OF IDAHO 

Senator CRAPO. Thank you, Mr. Chairman. Judge, welcome and 

congratulations on the high honor of your nomination. 

Much of the discussion surrounding this nomination has centered 

on answering the key question: What kind of Justice should serve 

on the U.S. Supreme Court? 

Some want a judge in their own making—predictable, ideological 

and political. Others regard the role of judge as a final arbiter of 

justice—clothed in those dark, black robes, unquestioned, and seated on an elevated platform well above the court proceedings. 

In recent years, selecting judges has become more about a numbers game with the courts, measured at least in part by comparing 

vacancies filled by each President. Often, in fact, as recent as last 

week and this week, we read about Federal court proceedings in-
49 

variably coupled with the name of the judge and the President who 

appointed him or her. 

Because venue shopping has become all too common a practice 

today, the individual judge can become more important than the 

facts of the case. In this scenario, the judge serves not justice, but 

politics in another form. 

Whenever Congress considers a judicial nomination, people talk 

earnestly about the importance of independence. For some, that 

word flows from the central work of the Founders of our Constitution, who created a separate branch of government empowered to 

review laws passed by the legislature and signed and executed by 

the President and the executive branch. To others, independence is 

more about giving judges the power to issue decisions without personal consequence. 

The true American vision of justice is one in which the judge 

fairly and impartially finds the facts and applies the law. The law 

is supreme. The facts decide the day. The judge could be substituted with another and the outcome remains the same. The 

President who nominated him or her is never mentioned in the article about the decision, and venue shopping is a relic of another 

era. 

This is the vision most Americans have of the proper judge on 

the Federal bench. As I reflect on the nomination of Judge 

Gorsuch, I think back to our meeting soon after his nomination was 

announced. I have met several Supreme Court nominees in my 

service in the Senate. All of them have impressive credentials and 

legal experience. But Judge Gorsuch stands out for a notable reason. He understands and is focused on the principle that a judge 

is the servant of the law, not the maker of it. 

One of his comments during our visit still resonates with me. He 

said, ‘‘My personal views are irrelevant as a judge.’’ Is that not the 

ideal illustration of a judge steadfastly committed to the law? 

To quote the late Justice Scalia, ‘‘If you are going to be a good 

and faithful judge, you have to resign yourself to the fact that you 

are not always going to like the conclusions you reach. If you like 

them all the time, you are probably doing something wrong.’’ 

Judge Gorsuch recognizes that the law may be imperfect, being 

the product of an imperfect system. But there is a remedy to the 

imperfection of law: the political system, directly accountable to the 

public. The people choose policymakers, not Federal judges. 

The law can frustrate. In Black and White it is stark, and change 

comes slowly and often deliberately, just as our forebears designed. 

Law that can change in a moment and capriciously is inherently 

destabilizing. 

An activist judge who makes law plants insecurity in our system. 

Rather, our Constitution provides for law to be enacted legislatively 

with the sanction of the American people through the ballot box. 

Policy changes advanced by judges can be reversed and reversed 

again. Law properly grounded in the democratic and political process cannot. 

‘‘Equal protection under the law.’’ ‘‘Justice is blind.’’ These are 

not just catchy phrases that echo back to our time in civic classes. 

These are guiding principles of our Republic and reaffirmed in the 

Fourteenth Amendment to our Constitution. Fundamentally, each 
50 

of us should know courts will find for us when the law is on our 

side, whether we are rich or poor, strong or weak, or a big guy or 

a little guy. That is principled justice. 

Some may not like a particular law. That is fair and not unexpected. But the remedy for this disagreement is not changing 

judges but changing the law. Fortunately, our system of Government has the exact solution available to us: passing a new law 

through the deliberate, careful, and publicly accountable political 

processes. 

No one seriously questions Judge Gorsuch’s fitness and capability 

to serve on the highest court in our land. His credentials are exemplary. He is widely respected for his intellect, his judgment, and his 

modesty. His admirers span the political spectrum. Judge Gorsuch 

is intelligent and open-minded. He is exactly the model for an appointment to the U.S. Supreme Court. 

Mr. Chairman, I look forward to hearing from the nominee himself. The next few days will prove extraordinarily insightful as we 

discuss with Judge Gorsuch his philosophy of jurisprudence, what 

animates him to interpret the law, and his vision for the Federal 

judiciary. 

I look forward to this hearing. Thank you very much, Mr. Chairman. 

[The prepared statement of Senator Crapo appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Senator from Idaho. 

Now, the Senator from North Carolina. 

OPENING STATEMENT OF HON. THOM TILLIS, 

A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA 

Senator TILLIS. Thank you, Mr. Chair. Judge Gorsuch, thank you 

for being here, and congratulations to you and to your family and 

friends who are either here present or watching on TV. 

I have had a couple of opportunities to be in your presence, and 

I really appreciate your calm, respectful demeanor, and I am completely convinced you have an at-rest heart rate of about 4. 

[Laughter.] 

Senator TILLIS. Before I get into a few brief comments—and I 

want to be brief so that we can get through the comments and to 

the questions and move your nomination forward—I do think there 

is a little bit of confusion right now in terms of the comments made 

by some of my colleagues. This is not directed to you, Judge 

Gorsuch, but perhaps to those watching and to my Members. 

The nominee before us today is not President Trump. The nominee before us today is not Leader McConnell. And the nominee is 

not Judge Merrick Garland. It is one of the most extraordinarily 

talented and capable people that we could possibly have going to 

the Supreme Court. So I hope that this nomination hearing focuses 

on the one person before us who will go on, I believe, to fill the vacancy on the Supreme Court. 

This is a very important role that we have. I consider it one of 

the most important jobs that I have as a U.S. Senator. In the 2 

years that I have been here, nothing rises to the level of importance of your nomination and the composition of the Supreme 

Court. These appointments last for life. They will outlast most 
51 

Presidents and many Senators. It affects all Americans, and the decisions you render will last for decades. 

I have no doubt that you have the qualifications. As a matter of 

fact, Senator Graham—I associate myself with Senator Graham’s 

comments. The only reason I did not pursue your academic line of 

schools mainly had to do with their admission requirements. I appreciate the hard work that you did academically. I appreciate the 

hard work that you did as a litigator. And the work that you have 

done as a judge I think is truly extraordinary. 

I want to just go back to a comment or a conversation we had 

in my office. I mentioned to you in my office that I do not like activist judges, period—conservative or liberal. It is not their role. 

The activists are us. We get elected. We go out to the people. We 

convince them that we want to make changes. We pass laws. Your 

job is to interpret them as a judge. And I believe that you responded to me that you fully understood that your role fell squarely within Article III and that mine fell squarely within Article I, 

and you saw the very bright line between the two. 

And I think you are going to do a great job. I think in your nomination acceptance, your quote was, ‘‘It is for Congress and not the 

courts to write new laws. It is the role of judges to apply, not alter, 

the work of the people’s representatives.’’ 

There have been some comments today made about cases that 

you have taken up, and I think they probably in some cases relate 

to the instances where you were not really happy about the outcome. And I look forward to getting to some of those. I think that 

two or three have been mentioned that I intend to go through as 

a part of my review of your decisions. There are a number of examples where you interpreted the law. You did not become an activist. 

You did not allow your empathy or your sympathy for a case to influence what your job is. I for one find that inspiring. 

And so, Mr. Chair, I am going to keep my comments short, not 

for a lack of a desire to want to speak more about Judge Gorsuch’s 

extraordinary background and history and qualifications for the 

job, but because I desperately want the American people to get you 

to spend more time talking and let us spend more time listening 

so that they recognize the historic opportunity we have to confirm 

you to the Supreme Court. And I look forward to the remaining testimony. 

[The prepared statement of Senator Tillis appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Senator Tillis. 

And now I will call on the Senator from Hawaii. 

OPENING STATEMENT OF HON. MAZIE K. HIRONO, 

A U.S. SENATOR FROM THE STATE OF HAWAII 

Senator HIRONO. Thank you, Mr. Chairman. Aloha, Judge 

Gorsuch. 

Judge GORSUCH. Hello. 

Senator HIRONO. Thank you as well, of course, for being here. 

This hearing is about more than considering a nominee for the 

Supreme Court. It is about the future of our country. It is about 

the tens of millions of people who work hard every day, play by the 

rules, but do not get ahead. It is about the working poor who are 
52 

one paycheck away from being on the streets. It is about Muslim 

Americans who are victims in a renewed wave of hate crimes asking for protection from the courts. It is about women having the 

choice of what to do with their bodies, our bodies. It is about 

LGBTQ Americans who want the same rights as everyone else. 

For me, this hearing is about the people in this country who are 

getting screwed every single second, minute, and hour of the day. 

I have into public service to help these people, and my questions 

over the coming days will draw on their experience as well as my 

own. 

My story might be unique for a United States Senator, but it is 

a story that is familiar for millions of people in our country. When 

I was nearly 8 years old, my mom changed my life when she 

brought me to this country from Japan, fleeing an abusive marriage. Back then there were no religious tests to determine who 

could immigrate to this country. There were no language requirements. You did not need any special skills. If President Eisenhower 

pursued the same policies President Trump would like to, it is very 

possible I would not be here today. 

I always knew I wanted to give back to my State and my country, but I never thought politics would be the path that I would 

choose. But the Vietnam War opened my eyes to how public service 

could create social change. I joined campus protests, questioned 

why we were sending so many young men to die in a far-off country. 

A small group of us decided that in order for things to change, 

we needed to do much more than protest. Many of us ran for office 

because we needed to take a seat at the table to be able to fight 

and help make lives better. It is why I am here today. 

Over the past few months, I have heard from thousands of people 

who are deeply worried about their families, their kids, and the future of our country under the Trump administration. Many of them 

are worried about what will happen if you are confirmed to the 

Bench. 

Apart from the legal analysis, whenever a case comes before a 

judge, it invariably involves real people, people who are often there 

because they have experienced the worst day in their lives. Whether they are victims of a crime, suffered a serious injury due to corporate malfeasance, or because they have lost their livelihood due 

to discriminatory behavior from their employer, each of them is 

looking to the Court to protect their interests and their rights. 

During our meeting, I was encouraged when you said that the 

purpose of Article III of the Constitution was to protect the rights 

of the minority through access to the courts. But as I have reviewed your opinions, I have not seen that the rights of minorities 

are a priority for you. In fact, a pattern jumps out at me. You rarely seem to find in favor of the little guy. 

In TransAm Trucking, your dissent argued that the company 

was justified in firing an employee who faced a choice between operating his vehicle in an unsafe manner and freezing to death in 

his truck. 

In a number of other cases, including Thompson School District, 

your decisions made it more difficult for families with special needs 

children to get the help they needed as the law intended. 
53 

In Planned Parenthood of Utah v. Herbert, your dissent was far 

too deferential to the decisions of a Governor who based those decisions on unverified information. 

In Burwell v. Hobby Lobby, your opinion justified denying access 

to contraception based on the argument that corporations, like people, can hold religious beliefs. 

The facts in each of these cases might be different, but there is 

a clear pattern to your writing. You consistently choose corporations and powerful interests over people. But more than that, you 

have gone to great lengths to disagree with your colleagues on the 

Tenth Circuit so that you can explain why some obscure or novel 

legal interpretation of a particular word in statute must result in 

finding for a corporation instead of an individual who has suffered 

real live harm. This tendency demonstrates a commitment to ideology over common sense and, indeed, the purpose of the law, and 

it is deeply troubling. 

For example, again, in TransAm Trucking, you fixated on the 

plain meaning of the word ‘‘operate,’’ despite choosing a definition 

out of context and using it at odds of the clear purpose of the statute, which was a safety purpose. And in Longhorn Service Company, you found a difference between a ‘‘floor hole’’ and a ‘‘floor 

opening’’ in order to side with a corporation trying to avoid a citation for a safety issue. You found a difference in these terms, between a ‘‘floor hole’’ and a ‘‘floor opening,’’ that the rest of your colleagues on the Tenth Circuit did not—truly a case of a distinction 

without a difference. It is like arguing whether your nomination is 

because of a vacancy or an opening on the Supreme Court. 

These decisions affected not just the individuals who came before 

you. As a Supreme Court Justice, your decisions will have lasting 

consequences for the rest of us. 

During the campaign, President Trump made it very clear that 

he had a series of litmus tests for his Supreme Court nominees. 

Over a 2-year period, the President said that his nominee must 

favor overturning Roe v. Wade, denying women access to healthcare 

on the basis of religious freedom, and upholding the Heller decision 

on guns, which the NRA believes prevents Congress, States, or 

local governments from passing commonsense gun safety legislation. Each of these tests would have a profound impact on the lives 

of every American. 

Donald Trump’s litmus tests for his Supreme Court nominees 

were crystal clear. In nominating you, Judge Gorsuch, I can only 

conclude that you met the President’s litmus tests. Your ideological 

perspective or, as some would say here, your judicial philosophy, on 

these issues matter because if you are confirmed, you will have a 

lifetime appointment to the Supreme Court. 

In our courtesy meeting, you said you have a heart, so, Judge 

Gorsuch, we need to know what is in your heart. We need to understand how you will grapple with a number of important questions 

the Court will be asked to consider in the years ahead. 

Will the Court protect the rights of working people and our middle class or side with corporations who want to dismantle organized 

labor in America? 

Will the Court uphold a woman’s constitutional right to choose 

or upend decades of legal precedent to overturn Roe v. Wade? 
54 

Will the Court protect free and fair elections by stopping unfettered campaign spending or allow corporations and the ultra-rich 

to hijack our democracy with dark money? 

Will the Court protect the right to vote for all Americans or allow 

States to use voter fraud as an excuse to disenfranchise vulnerable 

communities? 

Will the Court protect our land, water, our earth, or gut decades 

of environmental regulations? 

Will the Court protect access to our justice system or slam the 

courthouse door to all but the wealthiest among us? 

Judge Gorsuch, my colleagues, this is not merely a hearing to 

consider the confirmation of one Supreme Court Justice. No. We 

are considering the affirmation of our country’s values. The Supreme Court does not just interpret our laws. The Supreme Court 

shapes our society. Will we be just? Will we be fair? Will America 

be a land of exclusivity for the few or the land of opportunity for 

the many? Will we be the compassionate and tolerant America that 

embraced my mother, my brothers, and me many decades ago? 

Make no mistake. A Supreme Court vacancy is not just another 

position we must fill in our Federal judiciary. A Supreme Court vacancy is a solemn obligation we must fulfill for our future generations. Let us treat it as such. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Hirono appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Senator from Hawaii. 

Now, the Senator from Louisiana. 

OPENING STATEMENT OF HON. JOHN KENNEDY, 

A U.S. SENATOR FROM THE STATE OF LOUISIANA 

Senator KENNEDY. Thank you, Mr. Chairman. 

How are you doing, Judge? 

Judge GORSUCH. Great. Thank you very much. 

Senator KENNEDY. I walked by the Supreme Court the other day. 

I live nearby. And on that building, as many of us know, are the 

words ‘‘Justice, the Guardian of Liberty.’’ 

Now, we live in cynical times, but I think those words are sacred—sacred to most Americans. And they really tell us everything 

we need to know about the importance of the U.S. Supreme Court, 

in my judgment. 

Without justice, without equal treatment by the law, liberty— 

which is why our country was founded—becomes an empty promise. 

So even though it is easy to look to elected officials, the President, Congress, Governors as last protectors of liberty, we as Americans have entrusted that, I think we can all agree, to our Supreme 

Court. And that is why, in my judgment, this hearing is important. 

And that is why we need, if we can, to go beyond politics, beyond 

the person who lives in the White House, beyond whatever the 

issue of the day happens to be, and we need to try to truly understand our role in this process, which is to advise and consent. 

I hope we can focus on temperament, on legal philosophy, on 

legal reasoning, on qualifications, on experience. And for just a 
55 

minute, I hope we can forget that we are all politicians here, you 

excluded—— 

Judge GORSUCH. Thank you, Senator. 

Senator KENNEDY [continuing]. And focus instead on the judiciary and the role we get to play in affecting that most American of 

institutions, the U.S. Supreme Court. 

Now, I have had the opportunity to meet Judge Gorsuch and to 

read his work, and I like what I see. A former Governor in my 

State once said of the then-Attorney General, ‘‘If you want to hide 

something from him, put it in a law book.’’ You obviously do not 

have that problem. You appear to me to be exceptionally well qualified to be a Supreme Court Justice. I was especially impressed with 

your Doctor of Philosophy in law. That stuck out to me. A D.Phil 

from Oxford is probably the most difficult terminal degree in the 

world. You also attended Columbia and Harvard, and they are satisfactory as well. 

I have read about 20 of your opinions. My favorite is A.M. v. 

Holmes. Your dissent was very short, four pages, but you packed 

a lot in those four pages. As far as I am concerned, that dissent 

should be required reading in every law school. 

All I can say after reading those 20 opinions—some of which I 

agreed with, some of which I did not—is that you write really, really well. Your opinions are engaging, whether you agree with them 

or not. Judge Gorsuch is direct, clear, concise. You are collegial, 

and you have a clean grasp of the law. There is no boilerplate language that lawyers often put in their briefs, and sometimes judges 

do as well. 

I also might add that another thing struck me about your opinions. You show concern for the parties. You use their names. You 

do not refer to the parties as ‘‘appellants’’ or ‘‘appellees’’ or ‘‘respondents.’’ You call them by their name, and I like that. 

Judge Gorsuch’s respect for judicial independence and for precedent, in my judgment, is apparent in all of his opinions. He is an 

unyielding supporter of the separation of powers, and I believe that 

he genuinely understands and values the role of the judiciary as 

a check on both the legislative and executive branches. And that 

is very, very important to me. 

As are we all, I am rather fond of the Constitution and the structure that it creates, separating powers so no branch of government 

can bully another or bully the American people. 

One of the main purposes of the United States Constitution, in 

my opinion, is to tell us when to stop, to reaffirm that the authority 

of the state over its people is limited and it is finite. 

Let me be blunt. I am looking for a judge, not an ideologue. I do 

not want somebody on the U.S. Supreme Court who is blinded by 

ideology. I am not interested in people who want to use the judiciary to advance their own personal policy goals, whether they are 

to the right or to the left. 

I want a judge to apply the law as it is as best he understands 

it, not to try to reshape the law as he wishes it to be. 

I also want a person who is intellectually curious, who is earnest 

in his desire to rule fairly, and who is willing to really fight for his 

view of justice. 
56 

I guess what I want is a cross between Socrates and Dirty Harry, 

and I believe you just might be that person. 

Let me say one final thing. I am an officer of the court, as a lawyer, as are you. None of the questions that I am going to ask you 

today are designed to trick you, as if I could. Nor are they designed 

to suggest that you should violate Canon 3(A)(6) of the Code of 

Conduct for United States Judges, which says, ‘‘A judge should not 

make public comment on the merits of a matter pending or impending in any court.’’ Nor will my questions be designed to cause 

you to violate Rule 2.10(A) of the American Bar Association Model 

Code of Judicial Conduct, which, as you know, states, ‘‘A judge 

shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter 

pending or impending in a court.’’ 

And, finally, nor will my questions be designed to ask you to violate Rule 2.10(B) of the American Bar Association Model Code of 

Judicial Conduct, which states, ‘‘A judge shall not, in connection 

with cases, controversies, or issues that are likely to come before 

the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of 

his judicial office.’’ 

If you think any of my questions today or tomorrow or later this 

week cross those lines, I hope you will speak up so we can talk 

about it. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Kennedy appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Senator from Louisiana. 

Now it is your opportunity to take a rest while other people say 

what I imagine will be very good things about you. So we are going 

to call to the bench Senator Bennet and Senator Gardner and Neal 

Katyal. We will take Senator Bennet and Senator Gardner first. 

Mr. Katyal was Acting Solicitor General for President Obama. I 

know you have busy schedules, and I want to thank you for taking 

time to introduce our nominee today. So would you depart from the 

table? And the—— 

Judge GORSUCH. You do not have to ask me twice, Mr. Chairman. 

[Laughter.] 

Chairman GRASSLEY. Okay. And then we will have the other people come. Just stand at ease for just a couple minutes here. It will 

not take very long. 

[Pause.] 

Chairman GRASSLEY. It is my understanding that you two have 

kind of decided that Senator Gardner should go first and then-Senator Bennet. 

And then when you folks depart the table, we will have Mr. 

Katyal come to the table. 

Senator Gardner. 
57 

PRESENTATION OF HON. NEIL M. GORSUCH, NOMINEE TO BE 

AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE 

UNITED STATES, BY HON. CORY GARDNER, A U.S. SENATOR 

FROM THE STATE OF COLORADO 

Senator GARDNER. Thank you, Mr. Chairman. Chairman Grassley, Ranking Member Feinstein, I would like to begin by thanking 

all of you on the Committee for your hard work during these hearings in the next several days. 

Today, it is with great pleasure that I introduce, along with my 

colleague and fellow Coloradan, Senator Michael Bennet, and share 

my strong support for our outstanding Supreme Court nominee, 

Judge Neil Gorsuch. 

If you have ever had the privilege of visiting Confluence Park in 

Denver, you will notice a plaque bearing a poem by Colorado Poet 

Laureate Thomas Hornsby Ferril. It is a poem known as ‘‘Two Rivers,’’ describing the settlement of the West: ‘‘I wasn’t here, yet I remember them, that first night long ago, those wagon people who 

pushed aside enough of the cottonwoods to build our city where the 

blueness rested.’’ Where the optimistic blueness of our Colorado 

skies rests against the mountains and the plains, we are reminded 

about how incredibly diverse our great Nation is, its people and its 

geography. 

Judge Gorsuch’s nomination helps recognize that, indeed, there 

are highly qualified jurists west of the Mississippi River. Judge 

Gorsuch is a fourth-generation Coloradan, skier, fly fisher, serving 

on a court that represents 20 percent of our Nation’s landmass, 

whose family roots reflect the grit and determination that built the 

West. 

Once confirmed, Mr. Gorsuch will join Justice Byron White and 

be only the second Coloradan to have served on the U.S. Supreme 

Court and the only Coloradan to be serving on the U.S. Supreme 

Court who did not break the NFL rushing record. But the good 

news is, today, he does have the endorsement of number seven, 

John Elway, of the great Denver Broncos. 

Should he be confirmed, Judge Gorsuch will make history as he 

represents the first Generation X Justice of the U.S. Supreme 

Court, the emerging generation of American leadership. Judge 

Gorsuch was confirmed to the Tenth Circuit Court unanimously by 

voice vote in 2006. Eleven years ago, Senator Graham presided 

over an empty Committee room, empty dais. What a difference a 

court makes. 

But when you look at his record, his writing, his statements, it 

is easy to see why Judge Gorsuch has such overwhelming appeal. 

Judge Gorsuch is not an ideologue. He is a mainstream jurist who 

follows the law as written and does not try to supplant it with his 

own personal policy preferences. As he said, ‘‘Personal politics or 

policy preferences have no useful role in judging. Regular and 

healthy doses of self-skepticism and humility about one’s own abilities and conclusions always do.’’ 

Judge Gorsuch is not an activist judge but rather a faithful adherent to and ardent defender of our Constitution. He is an 

originalist, as Justice Kagan even described herself in her confirmation hearing to the U.S. Supreme Court. 
58 

Judge Gorsuch recognizes that the judiciary is not the place for 

social or constitutional experimentation, and that efforts to engage 

in such experimentation delegitimize the court. As he said, ‘‘This 

overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. As a 

society, we lose the benefit of give-and-take of the political process 

and the flexibility of social experimentation that only the elected 

branches can provide.’’ 

Judge Gorsuch has a deep appreciation and respect for the constitutional principles of Federalism and the separation of powers 

prescribed by our Founding Fathers. As he stated, ‘‘A firm and 

independent judiciary is critical to a well-functioning democracy.’’ 

Judge Gorsuch understands the advantage of democratic institutions and the special authority and legitimacy that come from the 

consent of the governed. As he said, ‘‘Judges must allow the elected 

branches of government to flourish and citizens, through their 

elected representatives to make laws appropriate to the facts and 

circumstances of the day.’’ 

Judge Gorsuch appreciates the rule of law and respects the considered judgment of those who came before him. As he said, ‘‘A 

good judge will seek to honor precedent and strive to avoid its disparagement or displacement.’’ 

It is this appropriate temperament, this fidelity to the Constitution, this remarkable humility that has made Judge Gorsuch a consensus pick among Colorado’s diverse legal and legislative communities. 

Former Colorado Senator, Democrat Ken Salazar, in praising 

Judge Gorsuch’s temperament during his Circuit Court confirmation, said, ‘‘A judicial nominee should have a demonstrated dedication to fairness, impartiality, precedent, and the avoidance of judicial activism from both the left and the right. I believe that Mr. 

Gorsuch meets this very high test.’’ 

Jim Lyons, a prominent Colorado lawyer and former adviser to 

President Bill Clinton, said, ‘‘Judge Gorsuch’s intellect, energy, and 

deep regard for the Constitution are well known to those of us who 

have worked with him and have seen firsthand his commitment to 

basic principles. Above all, this independence, fairness, and impartiality are the hallmarks of his career and his well-earned reputation.’’ 

Colorado’s former Democratic Governor Bill Ritter and former 

Republican Attorney General John Suthers jointly said, ‘‘It is time 

to use this confirmation process to examine and exalt the characteristics of a judge who demonstrates that he or she is scholarly, 

compassionate, committed to the law, and will function as part of 

a truly independent, apolitical judiciary. Judge Gorsuch fits that 

bill.’’ 

According to the Denver Post, Marcy Glenn, a Denver attorney 

and Democrat, recalls two cases before Gorsuch in which she represented underdogs. And I quote Marcy Glenn, ‘‘He issued a decision that most certainly focused on the little guy.’’ Judge Gorsuch 

has a consistent record of applying the law fairly, and his reputation among his peers and lawmakers is evidence of it. 

For all of these reasons cited today, I am certain Judge Gorsuch 

will make Colorado proud and that his opinions will have a positive 
59 

impact on this country for generations to come. I look forward to 

Judge Gorsuch receiving a fair hearing and, after that, to working 

with my distinguished colleagues on both sides of the aisle to expeditiously confirm his nomination. 

Thomas Hornsby Ferril wrote another poem. This one memorialized on a mural on the walls of the Colorado Capitol rotunda. It 

ends with these words: ‘‘Beyond the sundown is tomorrow’s wisdom, today is going to be long, long ago.’’ 

The wisdom of Neil Gorsuch, guardian of the Constitution, will 

serve our Nation well for generations to come. 

Mr. Chairman, Committee Members, thank you. 

[The prepared statement of Senator Gardner appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Senator Gardner. 

Now, Senator Bennet. 

PRESENTATION OF HON. NEIL M. GORSUCH, NOMINEE 

TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT 

OF THE UNITED STATES, BY HON. MICHAEL BENNET, A U.S. 

SENATOR FROM THE STATE OF COLORADO 

Senator BENNET. Thank you, Mr. Chairman. I want to thank you 

and the Committee for allowing me to be here today. It is a distinct 

privilege to be here with my colleague, Senator Gardner from Colorado, to introduce Judge Neil Gorsuch, a son of Colorado born and 

raised in Denver with a distinguished record of public service, private practice, and outstanding integrity and intellect. And I welcome as well his wife, Louise, who met the judge during their studies at Oxford and who moved from the United Kingdom to Colorado, where they now live with their two daughters in Boulder. 

Senator Gardner has done a great job summarizing Judge 

Gorsuch’s professional background. His experience and his approach to his work has earned him the respect of the bench and 

the bar in our State. 

Judge Gorsuch’s family has deep roots in Colorado. His grandfather grew up in an Irish tenement in Denver and began supporting the family at the age of 8. His other grandfather was a lawyer who worked his way through law school, serving as a streetcar 

conductor in Denver. And his grandmother was one of the first 

women to graduate the University of Denver in the 1920s. 

As a person and as a lawyer, Judge Gorsuch exemplifies some of 

the finest qualities of Colorado, a State filled with people who are 

kind to one another, who, by and large, do not share the conceit 

that one party or one ideology is all right and the other all wrong, 

and who are conscious of the legacy we owe the generations who 

forged our State out of a Western territory of the United States. 

If confirmed, Judge Gorsuch will be the first Justice since Sandra 

Day O’Connor from the West. No less an authority than Justice 

Scalia observed this lack of representation when he wrote in dissent that the Court has ‘‘not a single genuine Westerner,’’ and then 

added with parentheses, ‘‘California does not count.’’ 

[Laughter.] 

Senator BENNET. And with respect to our Ranking Member, I 

think I speak for my colleague from Colorado that, on this point, 
60 

and perhaps this point alone, he, I, and Justice Scalia are in agreement. 

[Laughter.] 

Senator BENNET. I am also here because I believe the Senate has 

a constitutional duty to give fair consideration to this nominee, just 

as we had a duty to consider fairly Judge Merrick Garland, President Obama’s nominee to fill this vacancy. 

I am not naive about the reasons the Senate majority denied 

Judge Garland a hearing and a vote. The Senate’s failure to do its 

duty with respect to Judge Garland was an embarrassment to this 

body that will be recorded in history and in the lives of millions 

of Americans. 

And it is tempting to deny Judge Gorsuch a fair hearing because 

of the Senate’s prior failure. But, Mr. Chairman, two wrongs never 

make a right. The Supreme Court is too important for us not to 

find a way to end our destructive gridlock and bitter partisanship. 

In my mind, I consider Judge Gorsuch as a candidate to fill the 

Garland seat on the Supreme Court. And out of respect for both 

Judge Garland and Judge Gorsuch’s service, integrity, and commitment to the rule of law, I suggest we fulfill our responsibility to 

this nominee and to the country by considering his nomination in 

the manner his predecessor deserved but was denied. 

Mr. Chairman, there is a second cloud that hangs over this confirmation hearing. It is President Trump’s reckless attacks on the 

judiciary. These attacks, like the President’s attacks on the free 

press, have no precedent in the history of our Republic. 

The independence of our courts is an essential strength of our democracy. Attacking the judicial branch erodes the public confidence 

that gives force to their judgments. It damages the very foundation 

of our constitutional system. 

Disagreeing with a court’s decision is acceptable. Disparaging a 

judge is always wrong. 

I have no doubt that, unlike the President, Judge Gorsuch has 

profound respect for an independent judiciary and the vital role it 

plays as a check on the Executive and legislative branches. I may 

not always agree with his rulings, but I believe Judge Gorsuch is 

unquestionably committed to the rule of law. 

Mr. Chairman, it is customary for Senators to introduce nominees from their home State, and I am not here today to take a position or persuade any of our colleagues how to vote. That is a matter of conscience for each of us. I am keeping an open mind about 

this nomination and expect this week’s hearings will shed light on 

Judge Gorsuch’s judicial approach and views of the law. Like many 

Americans, I look forward to the Committee’s questions and the 

testimony from the nominee. 

And as one of two Americans privileged to represent the State 

of Colorado in the United States Senate, I am here this afternoon 

to uphold a tradition with the hope that, in some small way, it 

helps restore the Senate’s strong history of comity and cooperation, 

especially in our Nation’s most difficult times. 

Whatever the results of this hearing, we Senators must respond 

in some way to the expectations of most Coloradans and most 

Americans who are eager for us to work together and to treat each 
61 

other with respect, particularly when it comes to extraordinarily 

important decisions like this one. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Bennet appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Senator Bennet, Senator Gardner. Thank you very much, and you are dismissed. 

And we will have Mr. Katyal come to the table now. 

And as I said, he was Acting Solicitor General in the previous 

administration. 

Thank you very much, and you may proceed at your will. 

INTRODUCTION OF HON. NEIL M. GORSUCH, NOMINEE TO BE 

AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE 

UNITED STATES, BY NEAL KATYAL, NEAL KATYAL, FORMER 

ACTING SOLICITOR GENERAL, WASHINGTON, DC 

Mr. KATYAL. Thank you, Mr. Chairman and Senator Feinstein. 

It is my privilege to introduce Judge Gorsuch to this honorable 

Committee. 

Unlike Senators Gardner and Bennet, I am, unfortunately, only 

a part-time Colorado resident, but I am very proud to see this distinguished judge with an excellent first name be nominated for this 

position. 

[Laughter.] 

Mr. KATYAL. Judge Gorsuch was born in Denver in 1967, the 

fourth generation of his family to hail from Colorado. He attended 

Columbia and Harvard Law School, and later clerked for Judge 

David Sentelle and Justices White and Kennedy. Judge Gorsuch 

then spent a decade at a law firm. And after serving in a leadership role at the Justice Department, he returned to Colorado as a 

Federal judge. I suppose the fly fishing in DC just was not good 

enough. 

In the few minutes I have, I would like to bring in my world of 

litigating cases before the Supreme Court of the United States. I 

have argued 32 cases over the last decade, two more arguments 

coming next month. My arguments have been on behalf of the most 

diverse client base imaginable: death penalty inmates, States, the 

Federal Government, Native American Tribes, our Nation’s largest 

corporations, what the great Senator from Hawaii called the socalled little guy, and everyone in between. 

I can tell you the one thing you really want when you are in 

front of the Court is just an opportunity to be treated fairly; to 

have your position listened to, not caricatured, and treated with 

the gravity it deserves; to have jurists who work day and night to 

get the right answer, not motivated by party or politics, but by justice. And honestly, that is how our Supreme Court works. Every 

time I am up there, I get a lump in my throat because I see it firsthand. And I wish the Court would televise its proceedings so that 

the American public would see what I get to see every day. 

[Laughter.] 

Mr. KATYAL. And it is because of that deep need for fairness, on 

the Court that, I am, like so many Americans are, outraged that 

Merrick Garland does not sit on the Court today. I have had the 

pleasure of appearing before him, and he has grilled me, once for 
62 

over an hour. Indeed, I think maybe using the word ‘‘pleasure’’ is 

probably the wrong word to use. 

Garland’s brilliance, his experience, his fairness and meticulous 

attention to detail make him perhaps the most qualified nominee 

ever to have been named to the Supreme Court, and there is no 

doubt in my mind that if Merrick Garland had been confirmed and 

another vacancy had opened up, Judge Gorsuch would be sailing 

through this body with something close to 100–to–0 vote. 

It is a tragedy of national proportions that Merrick Garland does 

not sit on the Court, and it would take a lot to get over that. Indeed, there is less than a handful of people that the President 

could have nominated to even start to rebuild that loss of trust. 

But in my opinion, Neil Gorsuch is one. 

I say that knowing many people in my party will disagree and 

think the damage cannot be repaired, no matter who the nominee 

is. I can understand that sentiment. For those folks, there is nothing I can say about the nominee to make things right. 

But if you have not closed your mind to the possibility of a new 

nominee, despite the undeserved and unprecedented treatment of 

Merrick Garland, I would like to tell you a bit about Judge 

Gorsuch. There is a reason why our Supreme Court Bar has lined 

up behind Judge Gorsuch. There is a reason why the American Bar 

Association has given him the highest rating. I have seen Judge 

Gorsuch in action, and I have seen him hearing cases and studied 

his written opinions. This is a first-rate intellect and a fair and decent man. 

Judge Gorsuch and I served together on the Federal Appellate 

Rules Committee. It is complicated work and, quite honestly, not 

the sort that most people find particularly interesting. But the 

judge commits himself to it fully, and his work reflects his commitment to resolving disputes according to established standards. That 

is, the judge’s work reflects his dedication to the rule of law. 

The judge’s commitment to the rule of law would endear him 

well to our Founders. Ours is a government of laws, not of men and 

women. That principle is the essence of constitutional government 

and the foundation of our freedoms. 

Yet, if ours is to remain a government of laws, the subject of the 

laws must not be allowed to interpret it for themselves. No one can 

be a judge in his own cause. The Founders forged a judiciary independent of the Executive and legislative branches. ‘‘The complete 

independence of the courts of justice is peculiarly essential in a 

limited Constitution,’’ Alexander Hamilton wrote in Federalist 78. 

‘‘Without this, all the reservations of particular rights or privileges 

would amount to nothing.’’ 

We live in a unique time. The current President has displayed 

open contempt for the courts, attacking judges who disagree with 

him and even questioning their legitimacy and motives. Judges 

who have questioned the President’s authority have had to be 

placed under increased scrutiny and protection because of the reaction among some Members of the public. 

Between the President’s attacks on the judiciary and his controversial policies, he seems intent on testing the independence and 

integrity of our court system, and that brings me back once again 

to my support of Judge Gorsuch. As a judge, he has displayed a 
63 

resolute commitment to the rule of law and the judiciary’s independence. Even those who disagree with him can see the judge’s 

decisions are meticulously crafted and grounded in the law and our 

Constitution. And when the judge believes the Government has 

overstepped its powers, he is willing to rule against it. 

It is very difficult to make the transition to Justice. I have seen 

Justices Kagan and Breyer go through it firsthand. It is not just 

the massive power all of a sudden that one wields. It is also the 

glare of the spotlight, an awareness of becoming part of history, 

and, most important, getting along with eight new colleagues who 

will be at your side for decades. 

To do this well is hard. It requires equal parts and equal 

servings of humility and ability. That is what Justices Kagan and 

Breyer brought to their transitions, and what Judge Gorsuch has. 

In short, to make up a word, Judge Gorsuch has ‘‘humibility,’’ humility and ability. 

In sum, Judge Gorsuch and I come from different sides of the political spectrum. We disagree about many things, but we agree on 

the most important things, that all people are equal before the law 

and that a judge’s duty is to uphold the law and uphold these principles and the Constitution above all. 

The judge has done that during his time on the bench, and I 

know he will continue to do so as a Justice on the Supreme Court. 

It is, therefore, my honor to recommend that his nomination be reported favorably to the Senate. 

[The prepared statement of Mr. Katyal appears as a submission 

for the record.] 

Chairman GRASSLEY. Thank you, Mr. Katyal. I know you have 

a busy schedule. Thank you for being here. 

We will wait until—do you want to change everything that you 

have to do? 

Judge, will you come forward? And before you sit, would you 

raise your right hand to be sworn? 

[Witness sworn.] 

Chairman GRASSLEY. Thank you. Please be seated. And you may 

tell us what you want us to hear at this point. 

STATEMENT OF HON. NEIL M. GORSUCH, NOMINEE TO BE AN 

ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE 

UNITED STATES 

Judge GORSUCH. Mr. Chairman, Senator Feinstein, Members of 

the Committee, I am honored and I am humbled to be here. 

Since coming to Washington, I have met with over 70 Senators. 

You have offered me a warm welcome and wise advice. Thank you. 

I also want to thank the President and the Vice President. They 

and their teams have been so gracious to me, and I thank them for 

this honor. 

I want to thank Senators Bennet and Gardner and General 

Katyal for their kind introductions, reminding us that long before 

we are Democrats or Republicans, we are Americans. 

Sitting here, I am acutely aware of my own imperfections. But 

I pledge to each of you and to the American people that, if I am 

confirmed, I will do all my powers permit to be a faithful servant 

of the Constitution and laws of this great Nation. 
64 

Mr. Chairman, I could not even attempt to do this without Louise, my wife of more than 20 years. The sacrifices she has made, 

and her open and giving heart, leave me in awe. 

I love you so much. 

We started off in a place very different than this one, a tiny 

apartment and little to show for it. When Louise’s mother first 

came to visit, she was concerned by the conditions—understandably. As I headed out the door to work, I will never forget her whispering to her daughter, in a voice I think intended to be just loud 

enough for me to hear, ‘‘Are you sure he is really a lawyer?’’ 

[Laughter.] 

Judge GORSUCH. To my teenage daughters watching out West, 

bathing chickens for the county fair, devising ways to keep our determined pet goat out of the garden, building a semi-functional 

plyboard hovercraft for science fair, driving 8 hours through a Wyoming snowstorm with high school debaters in the back arguing the 

whole way, these are just a few of my very favorite memories. I 

love you girls impossibly. 

To my extended family here and across Colorado, when we gather, it is dozens of us. We hold different political and religious views, 

but we are united in our love. And between the family pranks and 

the pack of children running rampant, whoever is hosting is usually left with at least one drywall repair. 

To my parents and grandparents, they are no longer with us. But 

there is no question on whose shoulders I stand. My mom was one 

of the first women graduates of the University of Colorado Law 

School. As the first female Assistant District Attorney in Denver, 

she helped a program to pursue deadbeat dads. And her idea of 

daycare sometimes meant I have to spend the day wandering the 

halls or tagging along behind the police officers. She taught me 

that headlines are fleeting, courage lasts. 

My dad taught me that success in life has very little to do with 

success. Kindness, he showed me, is a great virtue. He showed me 

too that there are few places closer to God than walking in the wilderness or wading a trout stream, even if it is an awfully long drive 

home with the family dog after he encounters a skunk. 

To my grandparents, as a boy, I could ride my bike to their 

homes. They were a huge influence. My mom’s father, poor and 

Irish, worked to help support his family as a boy after losing his 

own dad. But the nuns made sure he got an education, and he became a doctor. 

Even after he passed away, I heard stories for years from grateful patients who recalled him kneeling by their bedsides so they 

might pray together. His wife, my grandmother, grew up on a Nebraska farm, where an icebox was not something you plugged into 

the wall but something you lowered into the ground. With 7 children, she never stopped moving, and she never stopped loving. 

My dad’s father made his way through college working on Denver’s trolley cars. He practiced law through the Great Depression. 

And he taught me that lawyers exist to help people with their 

problems, not the other way around. His wife came from a family 

of pioneers. She loved to fish, and she is the one who taught me 

how to tie a fly. 
65 

I want to thank my friends, so many of whom are here, liberals 

and conservatives and independents from every kind of background 

and belief. Many hundreds have written this Committee on my behalf, and I am truly touched by their support. 

They have been there for me always, not least when we recently 

lost my Uncle Jack, a hero of mine and a lifelong Episcopal priest. 

He gave the benediction when I took an oath as a judge 11 years 

ago. I confess I was hoping he might offer a similar prayer soon. 

As it is, I know he is smiling. 

I want to thank my fellow judges across the country. Judging is 

sometimes a lonely and hard job. But I have seen how these men 

and women work, how hard they work, with courage and 

collegiality, independence, and integrity. It is their work that helps 

make real the Constitution and laws of the United States for all 

of us. 

I want to thank my legal heroes. Byron White, my mentor, a 

product of the West, he modeled for me judicial courage. He followed the law wherever it took him, without fear or favor to anyone. War hero, Rhodes Scholar, and, yes, the highest paid NFL 

football player of his day. In Colorado today, there is God, there is 

John Elway, and there is Peyton Manning. In my childhood, it was 

God and Byron White. 

I also had the great fortune to clerk for Justice Kennedy. He 

showed me that judges can disagree without being disagreeable, 

that everyone who comes to court deserves respect, that a case is 

not just a number or a name but a life’s story and a human being 

with equal dignity to my own. 

Justice Scalia was a mentor too. He reminded us that words matter, that the judge’s job is to follow the words that are in the law, 

not replace them with those that are not. His colleagues cherished 

his great humor too. Now, we did not agree on everything. The Justice fished with the enthusiasm of a New Yorker. He thought the 

harder you slapped the line on the water, somehow the more the 

fish would love it. 

Finally, there is Justice Jackson. He wrote so clearly that everyone could understand his decisions. He never hid behind legal jargon. And while he was a famously fierce advocate for his client 

when he was a lawyer, he reminded us that, when you become a 

judge, you fiercely defend only one client—the law. 

By their example, these judges taught me about the rule of law 

and the importance of an independent judiciary, how hard our forebears worked to win these things, how easy they are to lose, how 

each generation must either take its turn carrying the baton or 

watch it fall. 

Mr. Chairman, these days, we sometimes hear judges cynically 

described as politicians in robes, seeking to enforce their own politics rather than striving to apply the law impartially. But if I 

thought that were true, I would hang up the robe. The truth is, I 

just do not think that is what a life in the law is about. 

As a lawyer for many years working in the trial court trenches, 

I saw judges and juries, while human and imperfect, striving hard 

every day to fairly decide the cases I put to them. 

As a judge now for more than a decade, I have watched my colleagues spend long days worrying over cases. Sometimes the an-
66 

swers we reach are not the ones we personally prefer. Sometimes 

the answers follow us home at night and keep us up. But the answers we reach are always the ones we believe the law requires. 

And for all its imperfections, I believe that the rule of law in this 

Nation truly is a wonder, and that it is no wonder that it is the 

envy of the world. 

Of course, once in a while, we judges do disagree. But our disagreements are not about politics, but about the law’s demands. 

Let me offer an example. The first case I wrote as a judge to 

reach the Supreme Court divided 5–to–4. The Court affirmed my 

judgment with the support of Justices Thomas and Sotomayor, 

while Justices Stevens and Scalia were in dissent. 

Now that is a lineup some might think unusual. But actually, it 

is exactly the sort of thing that happens, quietly, day in and day 

out, in the U.S. Supreme Court and in the courts across this country. 

I wonder if people realize that Justices Thomas and Sotomayor 

agree about 60 percent of the time, or that Justices Scalia and 

Breyer agreed even more often than that, all in the very toughest 

cases in our entire legal system. 

And here is another example about my record. Over the last decade, I have participated in over 2,700 appeals. Often these cases 

are hard, too. Only about 5 percent of all Federal lawsuits make 

their way to decision in a Court of Appeals. I have served with 

judges appointed by President Obama all the way back to President Johnson. And in the Tenth Circuit, we hear cases from six different States covering two time zones and 20 percent of the continental United States. 

But in the West, we listen to one another respectfully. We tolerate. We cherish different points of view. And we seek consensus 

whenever we can. My law clerks tell me that 97 percent of those 

2,700 cases I have decided were decided unanimously, and that I 

have been in the majority 99 percent of the time. That is my 

record, and that is how we do things in the West. 

Of course, I make my share of mistakes, too. As my daughters 

never tire of reminding me, putting on a robe does not make me 

any smarter. And I will never forget my first day on the job. Carrying a pile of briefs up the steps to the bench, I tripped on the 

hem of my robe and just about everything went flying. 

But troublesome as the robe can be, the robe does mean something to me, and not just that I can hide coffee stains on my shirt. 

Putting on a robe reminds us judges that it is time to lose our egos 

and open our minds. It serves, too, as a reminder of the modest station we judges are meant to occupy in a democracy. In other countries, judges wear scarlet, silk, ermine. Here, we judges, we buy our 

own plain black robes. And as Senator Sasse knows, I can attest 

the standard choir outfit at the local uniform supply store is a pretty good deal. Ours is a judiciary of honest black polyester. 

When I put on the robe, I am also reminded that, under our Constitution, it is for this body, the people’s representatives, to make 

new laws, for the Executive to ensure those laws are faithfully executed, and for neutral and independent judges to apply the law in 

the people’s disputes. 
67 

If judges were just secret legislators, declaring not what the law 

is but what they would like it to be, the very idea of a government 

by the people and for the people would be at risk. And those who 

came before the court would live in fear, never sure exactly what 

the law requires of them, except for the judge’s will. 

As Alexander Hamilton said, liberty can have nothing to fear 

from judges who apply the law, but liberty has everything to fear 

if judges try to legislate, too. 

In my decade on the bench, I have tried to treat all who come 

before me fairly and with respect, and afford equal right to poor 

and to rich. I have decided cases for Native Americans seeking to 

protect Tribal lands, for class actions like one that ensured compensation for victims of a large nuclear waste pollution problem 

produced by corporations in Colorado. I have ruled for disabled students, for prisoners, for the accused, for workers alleging civil 

rights violations, and for undocumented immigrants. Sometimes, 

too, I have ruled against such persons. My decisions have never reflected a judgment about the people before me, only a judgment 

about the law and the facts at issue in each particular case. 

A good judge can promise no more than that, and a good judge 

should guarantee no less, for a judge who likes every outcome he 

reaches is probably a pretty bad judge, stretching for policy results 

he prefers rather than those the law compels. 

Mr. Chairman, as a student many years ago, I found myself 

walking through the Old Granary burial ground in Boston. It is 

where Paul Revere, John Hancock, and many of our Founders are 

buried. And there, I came across the tombstone of a lawyer and 

judge who today is largely forgotten, as we are all destined to be 

soon enough. His name was Increase Sumner. And written onto his 

tombstone over 200 years ago was this description of the man: ‘‘As 

a lawyer, he was faithful and able; as a judge, patient, impartial, 

and decisive. In private life, he was affectionate and mild; in 

publick life, he was dignified and firm. Party feuds were allayed by 

the correctness of his conduct; calumny was silenced by the weight 

of his virtues; and rancour softened by the amenity of his manners.’’ 

Mr. Chairman, those words stick with me. I keep them on my 

desk. They serve for me as a daily reminder of the law’s integrity, 

that a useful life can be led in its service, of the hard work it takes, 

and an encouragement to good habits when I fail and when I falter. 

At the end of it all, I could ask for nothing more than to be described as he was. And if confirmed, I pledge to you that I will do 

everything in my power to be that man. 

[The prepared statement of Judge Gorsuch appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Judge. 

I have just a few words to say, to read, but before I do that, we 

will convene tomorrow at 9:30. Each person will have 30-minute 

rounds. I want to finish the first round tomorrow, so not taking 

into consideration any of the judge’s needs to get away from the 

table for time to eat and do other things, I would suggest that we 

have at least 10 hours of work to do, in addition to whatever the 

judge needs. So I ask you to be prepared for that. 
68 

And the way I would like to do it, since each person has a halfhour, if you start your last question before the time runs out, I will 

ask the judge to give a short answer. But I think we have to move 

on very quickly and get it done. 

And then the next day, we have 20-minute rounds, and there will 

be as many rounds as people need, because I would like to get done 

by Wednesday night. And if we can get it so I can get to bed at 

9 o’clock like I like to, I would appreciate it. 

We have questions for the record being due at 5 p.m. This 

timeline is consistent with how we have handled past Supreme 

Court nominations. I want everybody to know that now so that 

Members and their staffs can be working on written questions 

throughout the week. 

With that, we will recess until—— 

Senator FEINSTEIN. When? 

Senator LEAHY. Five p.m. when? 

Chairman GRASSLEY. Oh, I am sorry. Friday at 5 p.m. 

With that, the meeting is adjourned. 

[Whereupon, at 3:15 p.m., the Committee was recessed.] 

[Additional material submitted for the record for Day 1 follows 

Day 4 of the hearing.] 
(69) 

CONTINUATION OF THE 

CONFIRMATION HEARING ON THE 

NOMINATION OF HON. NEIL M. GORSUCH 

TO BE AN ASSOCIATE JUSTICE OF THE 

SUPREME COURT OF THE UNITED STATES 

TUESDAY, MARCH 21, 2017 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 9:35 a.m., in Room 

SH–216, Hart Senate Office Building, Hon. Charles E. Grassley, 

Chairman of the Committee, presiding. 

Present: Senators Grassley, Hatch, Graham, Cornyn, Lee, Cruz, 

Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy, Durbin, 

Whitehouse, Klobuchar, Franken, Coons, Blumenthal, and Hirono. 

OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Chairman GRASSLEY. Welcome back, Judge Gorsuch. Glad to 

have you back, and I am sure you are glad to be here. 

Good morning, everybody. I would like to welcome everyone and 

especially our nominee, as I just did. 

This is day two of the Supreme Court nominee’s hearing. We 

have a long day in front of us. So we will immediately turn to 

Members’ questions. It is my intention to get through all Members’ 

first round of questions today. So it is important that we all stick 

to our time limit so that we can stay on that schedule. 

I realize that 10 hours is a long time for you to sit there and answer questions for 20 of us. So I am going to defer to you when 

you might need a break. In the meantime, I would anticipate a 

break about 30 minutes for lunchtime. And I hope for the Members 

of the Committee, I have not made up my mind on this yet, but 

we do have a vote scheduled at noon. And I might—I am sorry? 

Senator LEAHY. There are two votes. 

Chairman GRASSLEY. Two? Okay. We have two votes at noon. So 

it might be appropriate to use that period of time for our lunch 

break. I will make a decision on that later on. 

So with that understanding with you and to accommodate you 

because you are the person that has to sit there and answer questions, and so whatever your needs are, you let us know. 

Judge GORSUCH. Thank you, Senator. 

Chairman GRASSLEY. I started yesterday morning, Judge and audience, with Justice Scalia’s comments that our Government of 
70 

laws and not men is the pride of our constitutional democracy. Our 

democracy requires judges to let the people’s elected representatives do the lawmaking. 

You, Judge, said that Justice Scalia’s great accomplishment was, 

to quote you, ‘‘remind us of the differences between judges and legislators.’’ Legislators, in other words, consult their own moral convictions to shape law, as we best think it to be. But you said that 

judges cannot do those things, rightly so from my point of view. 

Our Constitution is also our charter of liberty. Justice Scalia said 

that our Constitution guarantees our liberties primarily through its 

structure. That happens to be the separation of powers. You, 

Judge, said much the same thing, you, ‘‘What would happen to 

disfavored groups and individuals’’ if we allowed judges to act like 

legislators? ‘‘The judge would need only his own vote to revise the 

law willy nilly in accordance with preferences.’’ 

The separation of powers in our system requires an independent 

judiciary made of judges respectful of the other two branches, but 

not beholden to them. Judges must be equally independent of the 

President who nominates them and us Senators who confirm the 

same judiciary Members. 

Let us start with independence from the Executive. No one, not 

even the President, is above the law. One of the most remarkable 

things about your nomination is the broad bipartisan support that 

you have received. 

You have earned great praise from individuals who are not exactly staunch supporters of the President, but who strongly supported your nomination. Yesterday, we heard from one of them, 

Neal Katyal. President Obama’s former Solicitor General said that 

you ‘‘will not compromise principle to favor the President.’’ 

In 2006, former Colorado Senator Salazar, a Democrat, said that 

you have ‘‘the sense of fairness and impartiality that is a keystone 

of being a judge.’’ And legal commentator Jeffrey Rosen similarly 

praised you for your independence. 

So let us start with my first question. I would like to have you 

describe, in any way you want to, what judicial independence 

means and specifically tell us whether you would have any trouble 

ruling against a President who appointed you. 

Judge GORSUCH. That is a softball, Mr. Chairman. I have no difficulty ruling against or for any party other than based on what the 

law and the facts in the particular case require, and I am heartened by the support I have received from people who recognize that 

there is no such thing as a Republican judge or a Democratic judge. 

We just have judges in this country. 

When I think of what judicial independence means, I think of 

Byron White. That is who I think of. I think of his fierce, rugged 

independence. He did his—he said, ‘‘I have a job.’’ People asked 

him what his judicial philosophy was, I will give the same answer. 

I decide cases. 

It is a pretty good philosophy for a judge. I listen to the arguments made. I read the briefs that are put to me. I listen to my 

colleagues carefully, and I listen to the lawyers in the well. 

And this experience has reminded me what it is like to be a lawyer in the well. It is a lot easier to ask the questions, I find, as 

a judge than it is to have all the answers as the lawyer in the well. 
71 

So I take the process, the judicial process, very seriously. And I 

go through it step by step and keeping an open mind through the 

entire process as best as I humanly can, and I leave all the other 

stuff at home. And I make a decision based on the facts and the 

law. 

Those are some of the things judicial independence means to me. 

It means to me the judicial oath that I took—to administer justice 

without respect to persons, to do equal right to the poor and the 

rich, and to discharge impartially the duties of my office. It is a 

beautiful oath. It is a statutory oath written by this body. That is 

what judicial independence means to me. 

Happy to talk about the separation of powers, too, if you would 

like, Mr. Chairman, which you referenced in there. Or I am happy 

to answer another question. Entirely up to you. 

Chairman GRASSLEY. Well, your record made clear that you are 

not afraid to fulfill your role independently, and you just emphasized that. You vacated orders of administrative agencies acting 

outside their authority, and you have ruled on cases where Congress has overstepped its bounds. 

So I think you can maybe speak about the separation of powers, 

but at the same time, maybe you could give me a couple of your 

cases that demonstrate your commitment to that independence of 

the executive branch of government? 

Judge GORSUCH. Sure. On the first point, you know, I have decided, as I noted yesterday, over 2,700 cases, and my law clerks tell 

me that 97 percent of them have been unanimous. Ninety-nine percent I have been in the majority. 

They tell me as well that, according to the Congressional Research Service, my opinions have attracted the fewest number of 

dissents from my colleagues of anyone I have served with that they 

have studied over the last 10 years. Now the Congressional Research Service speculates whether that is because I am persuasive 

or I believe in collegiality. I do not see why it has to be a choice. 

My law clerks also tell me that in the few cases where I have 

dissented that I am as likely almost to dissent from a Democratappointed colleague as a Republican-appointed colleague, and that 

is again because we do not have Democrat or Republican judges. 

According to the Wall Street Journal, I am told that of the eight 

cases that they have identified that I have sat on that have been 

reviewed by the U.S. Supreme Court, our court was affirmed in 

seven of them. Now I think Louise might argue for the eighth because in that case, the Supreme Court did not like a procedural 

precedent of our court that, as a panel, we were bound to follow. 

So they remanded it back. 

We decided it on the merits, as the Court instructed. Cert. denied. Eight out of eight? 

On the separation of powers, it is, Mr. Chairman, the genius of 

the Constitution. Madison thought that the separation of powers 

was perhaps the most important liberty-guaranteeing device in the 

whole Constitution, and this is a point of civics that I do think 

maybe is lost today, how valuable the separation of powers is. 

That you have in Article I the people’s representatives make the 

law. That is your job. And I do not think it is an accident that the 

Framers put Article I first. Your job comes first. You make the law. 
72 

Article II, the President’s job is to faithfully execute your laws. 

And our job, Article III, down at the bottom, is to make sure that 

the cases and controversies of the people are fairly decided. 

And if those roles were confused and power amalgamated, the 

Founders worried that would be the very definition of tyranny. And 

you can see why. Judges would make pretty rotten legislators. 

We are life tenured, right? You cannot get rid of us. It only takes 

a couple of us to make a decision, or 9, or 12, depending on the 

court. That would be a pretty poor way to run a democracy. 

And at the same time, with respect, legislators might not make 

great judges because they are answerable to the people. And when 

you come to a court with a case or a controversy about a past— 

past facts, you want a neutral, rigidly neutral, fair, scrupulously 

fair decisionmaker. You want somebody who is going to put politics 

aside. 

So the separation of powers I do not think has lost any of its genius over 200 years. In fact, it has proven it. 

Chairman GRASSLEY. Thank you. 

I have heard my colleagues and people not in the Senate say that 

now more than ever we need a Justice who will be independent of 

the President who nominated him or her. So I would like to ask 

about your nomination and your independence. 

A lot has been made about the list of judges then-candidate 

Trump proposed as possible nominees. To me, it was the most 

transparent that we have had in history, and we did not have Secretary Clinton give out such a list. 

Of course, you were not on the first group that came out and otherwise added later. So I am curious. When did you first learn that 

you were on candidate Trump’s extended list? 

Judge GORSUCH. Well, Mr. Chairman, you are right. There were 

two lists, as I recall, over the summer. And I was not on the first 

list. And I remember having breakfast one day with a friend, who 

may be here. Bryan? There you are. You remember this? 

[Laughter.] 

Judge GORSUCH. We were having breakfast one day, and he said, 

‘‘Neil, you are not on the list.’’ And I said, ‘‘You are right. I am not 

on the list.’’ He said, ‘‘You should be on the list.’’ 

And I said, ‘‘I love my life in Colorado. I would not change a 

thing. I am a happy man. I have a loving wife, beautiful home and 

children, a great job with wonderful colleagues. I am a happy person.’’ 

I am walking away from breakfast, and I get an email from 

Bryan saying, ‘‘There is a new list—’’ 

[Laughter.] 

Judge GORSUCH. ‘‘And you are on it.’’ That was the first I heard 

of it. 

Chairman GRASSLEY. And I assume you thanked him. 

Judge GORSUCH. I do not know about that. 

[Laughter.] 

Judge GORSUCH. I do not think he—you did not know? I do not 

think we—we were all surprised. 

Chairman GRASSLEY. I am kidding. 

Judge GORSUCH. And at any rate, we are where we are. 
73 

Chairman GRASSLEY. Okay. Tell me about the process that led 

to your nomination. Did anyone ask you to make any promises or 

assurances at all about your view on certain legal issues or the way 

that you would rule in certain cases? 

Judge GORSUCH. Senator, I think you would be reassured by the 

process that unfolded. I try to live under a shell during the campaign season, watch baseball and football, go about my business. 

But I did hear lots of talk of litmus tests from all around. It was 

in the air. 

And I do not believe in litmus tests for judges. I have written 

about that years ago. I was not about to become party to such a 

thing. 

And I am here to report that you should be reassured because 

no one in the process, from the time I was contacted with an expression of interest for a potential interview to the time I was nominated, no one in that process, Mr. Chairman, asked me for any 

commitments, any kind of promises about how I would rule in any 

kind of case. 

Chairman GRASSLEY. And that is the way it should be. 

So we have just discussed your independence from the President, 

but there is also independence from the legislative branch. It is odd 

that some of the same folks who will claim that you are not independent from the President will turn around and try to extract 

from you promises and commitments before they pass judgment on 

your nomination. The irony, of course, is that extracting commitments during the confirmation process is exactly what would undermine your independence as a judge. 

One way that they will do this is asking you about precedent. So 

let us talk about that. For starters, I have a book here that you 

co-wrote, an 800-page book on precedent. Your 12 co-authors included judges from across the ideological spectrum, such as Bill 

Pryor, who was also on President Trump’s Supreme Court list, and 

Diane Wood, who was reportedly on President Obama’s list. 

You have also touched on the value of precedent in speeches that 

you have given or in your opinions. For instance, in the speech you 

gave honoring Justice Scalia last year, you said this. ‘‘Even when 

a hard case does arise, once it is decided, it takes on the force of 

precedent, becomes an easy case in the future, and contributes further to the determinacy of our law,’’ especially if more recent opinions have called into question the rationale of the original case. 

But you have also suggested that there may be circumstances 

where it is appropriate to revisit precedent. Specifically, you wrote 

that it may be appropriate to reconsider a decision where it has become a ‘‘presidential island surrounded by a sea of contrary law.’’ 

So there may be times where it is appropriate to reconsider certain decisions, especially if more recent opinions have called into 

question the rationale of the original decision. 

I think all of us would agree, for instance, that Brown v. Board 

of Education, which finally overruled a repugnant ‘‘separate, but 

equal’’ standard in Plessy, is a textbook example of this. So with 

these things in mind, I would like to explore the approach that you 

take to Supreme Court precedents. Could you tell us what you believe is the value of precedent in our legal system? 
74 

Judge GORSUCH. Absolutely, Senator. And if I might, Mr. Chairman, go back just a moment to promises? I have offered no promises on how I would rule in any case to anyone, and I do not think 

it is appropriate for a judge to do so, no matter who is doing the 

asking. 

And I do not because everybody wants a fair judge to come to 

their case with an open mind and to decide it on the facts and the 

law. One of the facts and one of the features of law that you have 

to decide it on is the basis of precedent, as you point out. And for 

a judge, precedent is a very important thing. 

We do not go reinvent the wheel every day. And that is the 

equivalent point of the law of precedent. We have an entire law 

about precedent, the law of judicial precedent. Precedent about 

precedent, if you will. 

And that is what that 800-page book is about. It expresses a 

mainstream consensus view of 12 judges from around the country 

appointed by, as you point out, Presidents of both parties, great 

minds. Justice Breyer was kind enough to write a foreword to it. 

It makes an excellent doorstop. 

[Laughter.] 

Judge GORSUCH. And in it, we talk about the factors that go into 

analyzing precedent, any consideration of precedent, and there are 

a bunch of them. You have alluded to some of them. The age of the 

precedent, very important factor. 

The reliance interests that have built up around the precedent, 

has it been reaffirmed over the years? What about the doctrine 

around it? Has it built up, shored up, or has it become an island, 

as you point out? 

Those are all relevant considerations. Its workability is a consideration, too. Can people figure out how to abide it, or is it just too 

confusing for the lower courts in their administration? Those are 

all factors that a good judge will take into consideration when examining any precedent. You start with a heavy, heavy presumption 

in favor of precedent in our system. 

Alexander Hamilton who said that is one important feature. I 

think it was Hamilton who said one important feature of judges, 

if we are going to give them life tenure and allow them that extraordinary privilege, they should be bound down by strict rules 

and precedents. 

Francis Bacon called precedent the anchor of the law. So you 

start with that heavy presumption in favor of precedent. You consider those factors in that light. And yes, in a very few cases, you 

may overrule precedent. It is not an inexorable command, the Supreme Court has said. 

That is the law of precedent, as I understand it and I believe is 

expressed in that book with my very highly respected colleagues. 

Chairman GRASSLEY. As a lower court judge, you are bound by 

not only Supreme Court precedent, but as you have demonstrated, 

the precedent of your own court. But as a Supreme Court Justice, 

part of your job will be to decide when existing Supreme Court 

precedent need not be reconsidered. How will you decide when you 

revisit existing precedent? 

Judge GORSUCH. Mr. Chairman, I do not think the considerations 

change. It is the same analysis that I would have as a Supreme 
75 

Court Justice, if I am fortunate enough to be confirmed, that I have 

when I am considering Circuit precedent as a Circuit Judge. It is 

the exact same process. The exact same rules apply. 

Chairman GRASSLEY. Okay. This is the fourteenth Supreme 

Court hearing that I have participated in. So I have a pretty good 

idea of some of the questions that you are going to get today. You 

are going to be asked to make promises and commitments about 

how you will rule on particular issues. 

Now they will not necessarily ask you that directly. For instance, 

how will you rule on this issue or that issue? Instead, they will 

probably ask you about old cases, whether they were correctly decided. Of course, that is another way of asking the very same question. They know that you cannot answer, but they are going to ask 

you anyway. 

I have heard Justices nominated by Presidents of both parties 

decline to answer questions like these. That is because, as the 

nominee put it, ‘‘A judge sworn to decide impartially can offer no 

forecasts, no hints, for that would show not only disregard for the 

specifics of this particular case, it would display disdain for the entire judicial process.’’ 

Now you probably know that is what Justice Ginsburg said at 

her hearing, and it is what we call ‘‘the Ginsburg standard.’’ The 

underlying reason for this is, of course, is that making promises or 

even giving hints undermines the very independence that we just 

talked about. 

I would like to ask you if you agree with what I just said? 

Judge GORSUCH. I do, Mr. Chairman. 

Chairman GRASSLEY. So let me ask you about a couple of Supreme Court cases. In Heller, Supreme Court held that the Second 

Amendment protects an individual’s right to bear arms. If I ask 

you to tell me whether Heller was rightly decided, could you answer that question for me? 

Judge GORSUCH. Senator, I would respectfully respond that it is 

a precedent of the U.S. Supreme Court, and as a good judge, you 

do not approach that question anew, as if it had never been decided. That would be a wrong way to approach it. 

My personal views, I would also tell you, Mr. Chairman, belong 

over here. I leave those at home. 

Mr. Katyal yesterday said that what he wants is a fair judge, 

and that is what I wanted as a lawyer. I just wanted a judge to 

come in and decide on the facts and the law of my client’s case and 

leave what he had for breakfast at the breakfast table. 

And part of being a good judge is coming in and taking precedent 

as it stands, and your personal views about the precedent have absolutely nothing to do with the good job of a judge. 

Chairman GRASSLEY. Let me ask you about Citizens United. In 

this case, the Supreme Court held that the Government cannot restrict independent political expenditure by a nonprofit corporation. 

Do you agree with that decision? 

Judge GORSUCH. And Senator, I would give you the same response. I know people have their views personally about lots of Supreme Court decisions and about a lot of other things. We are all 

human beings. I get that. I am not an algorithm. They have not 
76 

yet replaced judges with algorithms, though I think eBay is trying 

and maybe successfully. 

We are all human beings. But the judge’s job is to put that stuff 

aside and approach the law as you find it, and that is part of the 

precedent of the U.S. Supreme Court that I am sworn as a sitting 

judge to give the full weight and respect to due precedent. 

Chairman GRASSLEY. Those two cases were 5–4 decisions. So let 

me ask you about something that was unanimous, Hosanna-Tabor. 

The Supreme Court ruled 9–0 that the Obama administration 

could not tell a church who its ministers can be. 

The only thing controversial about that case was that the Obama 

administration actually tried to convince the Supreme Court that 

a bunch of Government bureaucrats could tell a church who its 

ministers could be. Like I said, that case was 9–0. 

Can you tell me if that case was decided correctly? 

Judge GORSUCH. Respectfully, Senator, I would give you the 

same answer. 

Chairman GRASSLEY. Okay. Those are relatively recent cases. Let 

us talk about cases that have been around for a while. Let us look 

at Gideon v. Wainwright. It was decided unanimously a long time 

ago, 50 years or more. 

It says a criminal defendant has the right to an appointed attorney if he cannot afford one. Everyone who watches cop TV shows 

know this law. Does that make a difference? Can you tell me if you 

agree with the principle of Gideon? Is it the same answer, the same 

reason? 

Judge GORSUCH. Mr. Chairman, it is certainly a seminal decision 

of the U.S. Supreme Court. There is no doubt about it. It is a very 

old decision of the Supreme Court now. It has been reaffirmed 

many times. There is a lot of reliance interest built around it. 

So I could talk to you about the factors that a good judge considers in analyzing precedent and the weight due a precedent, but 

I am not in a position to tell you whether I personally like or dislike any precedent. That is not relevant to my job. 

Gideon is a seminal precedent of the U.S. Supreme Court, and 

it deserves respect on that basis. Precedent is kind of like our 

shared family history as judges. It deserves our respect because it 

represents our collective wisdom. And to come in and think that 

just because I am new or the latest thing and know better than everybody who comes before me would be an act of hubris inappropriate to the judicial role. 

Chairman GRASSLEY. What if I asked you about Bush v. Gore? 

Judge GORSUCH. I know some people in this room have some 

opinions on that, I am sure, Senator. But as a judge, it is a precedent of the U.S. Supreme Court, and it deserves the same respect 

as other precedents of the U.S. Supreme Court when you are coming to it as a judge. And it has to be analyzed under the law of 

precedent. 

Chairman GRASSLEY. Well, let us go to kind of a more controversial issue, but along the same lines I have been asking you. I think 

the case that most people are thinking about right now and the 

case that every nominee gets asked about, Roe v. Wade, can you 

tell me whether Roe was decided correctly? 
77 

Judge GORSUCH. Senator, again, I would tell you that Roe v. 

Wade, decided in 1973, is a precedent of the U.S. Supreme Court. 

It has been reaffirmed. The reliance interest considerations are important there, and all of the other factors that go into analyzing 

precedent have to be considered. 

It is a precedent of the U.S. Supreme Court. It was reaffirmed 

in Casey in 1992 and in several other cases. So a good judge will 

consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other. 

Chairman GRASSLEY. What about Griswold, which was decided a 

few years before Roe, the case where the Court found constitutional 

right to privacy? Can you tell me your views on Griswold? 

Judge GORSUCH. Senator, it is a precedent that is now 50 years 

old. Griswold involved the right of married couples to use contraceptive devices in the privacy of their own home. 

And it is 50 years old. The reliance interests are obvious. It has 

been repeatedly reaffirmed. All very important factors again in 

analyzing precedent. 

Chairman GRASSLEY. Well, I think I am going to stop questioning, but I would kind of sum up what you and I just talked 

about in regard to precedent so everybody understands the principles that are at stake here. 

There are two reasons why you cannot give your opinion on these 

cases. One, I believe, is independence, and the other one is fairness 

to future litigants. Is that the way you see it? 

Judge GORSUCH. It is, Senator. If I were to start telling you 

which are my favorite precedents or which are my least favorite 

precedents or if I view precedent in that fashion, I would be tipping 

my hand and suggesting to litigants that I have already made up 

my mind about their cases. That is not a fair judge. 

I did not want that kind of judge when I was a lawyer, and I 

do not want to be that kind of judge now. And I made a vow to 

myself I would not be. That is the fairness problem. 

And then the independence problem. If it looks like I am giving 

hints or previews or intimations about how I might rule, I think 

that is the beginning of the end of the independent judiciary, if 

judges have to make, effectively, campaign promises for confirmation. And respectfully, Senator, I have not done that in this process, and I am not about to start. 

Chairman GRASSLEY. Thank you. I will yield back 8 seconds. 

[Laughter.] 

Chairman GRASSLEY. Senator Feinstein. 

Senator FEINSTEIN. Thank you very much, Mr. Chair. 

Welcome, Judge, and good morning to you again. 

Judge GORSUCH. Good morning, Senator. 

Senator FEINSTEIN. Since we are on Roe, I was not going to begin 

with this, but I well recall the time we spent in my office, and we 

talked about precedent. And in my opening remarks, I indicated 

that if anything had super precedent, Roe did in terms of the numbers, and I have put that in the record. Here is why it becomes of 

concern. 

The President said that he would appoint someone who would 

overturn Roe. You pointed out to me that you viewed precedent in 
78 

a serious way, in that it added stability to the law. Could you 

elaborate on the point that you made in my office on that? 

Judge GORSUCH. I would be delighted to, Senator. 

Part of the value of precedent, it has lots of value. It has value, 

in and of itself, because it is our history, and our history has value 

intrinsically. 

But it also has an instrumental value in this sense. It adds to 

the determinacy of law. We have lots of tools that allow us to narrow the realm of admissible dispute between parties so that we 

can—people can anticipate and organize their affairs. It is part of 

the reason why the rule of law in this country works so well. 

We have statutes. We have rules. We have a fact-finding process 

and a judicial system that is the envy of the world. And precedent 

is a key part of that because, as the Chairman pointed out when 

he quoted an old piece of mine, once a case is settled, that adds 

to the determinacy of the law. 

What was once a hotly contested issue is no longer a hotly contested issue. We move forward. And Senator, the value of that is 

the U.S. Supreme Court takes something like 70 or 80 cases a year. 

That is a tiny fraction of all the disputes in our Federal legal system, right? 

Senator FEINSTEIN. Right. 

Judge GORSUCH. My law clerks tell me it is something like .001 

percent, and they are unanimous in those cases, which have divided Circuit Judges. That is why the Supreme Court largely takes 

the case, because it has divided us. It is one of the rare cases where 

we disagree. They are unanimous 40 percent of the time. 

Senator FEINSTEIN. One other question. 

Judge GORSUCH. Sure. 

Senator FEINSTEIN. Do you view Roe as having super precedent? 

Judge GORSUCH. Well, Senator, super precedent is—— 

Senator FEINSTEIN. In numbers? 

Judge GORSUCH. It has been reaffirmed many times. I can say 

that. 

Senator FEINSTEIN. Yes. 

Judge GORSUCH. Yes. 

Senator FEINSTEIN. Yes, dozens. 

All right. I would like now to go to—to take you back to 2005, 

when you were in the Justice Department, and I want to explain 

to you why I am going here. This has to do with torture. 

The Intelligence Committee was informed in 2006, and Attorney 

General Gonzales played a role in this, of the nature of the enhanced interrogation techniques, and we were given a very soft 

view. Senator Rockefeller became the Chairman of the Committee 

in 2007 and began a study of three detainees and the enhanced interrogation techniques. 

When I became Chairman in 2009, I added that, and we took all 

of the major detainees and looked at them in a 6-year study. The 

staff spent long hours analyzing every cable, every email, looking 

at more than 100 interviews, and essentially putting in a 7,000- 

page report, 32,000 footnotes documenting where the information— 

there are no conclusions. There are just facts. 

That 7,000-page report has remained classified. I have read it. 

We have put out a 450-page summary, which is public. And in that 
79 

summary, we indicated that those cases that the administration 

spelled out where torture produced operable intelligence was simply not so. We elaborate on that in the big report, and my hope is 

that one day, not too distant, that report will be declassified so the 

American people can actually see. 

But I wanted to ask you some questions along these lines. It is 

my understanding that a set of talking points were prepared for a 

press conference for the Attorney General on November 22, 2005. 

The talking points asked whether, ‘‘aggressive interrogation techniques employed by the administration yielded any valuable information.’’ And in the margin next to this question, you hand-wrote 

one word, ‘‘yes.’’ 

What information did you have that the Bush administration’s 

aggressive interrogation techniques were effective? 

Judge GORSUCH. Senator, I would have to see the document. I do 

not recall. I have been sitting here. 

Senator FEINSTEIN. All right. That is fair enough. 

Judge GORSUCH. It has been a long, long time. 

Senator FEINSTEIN. Why do we not do this? I would be happy to 

share the documents with you. I took these pages out of my binder. 

I think they were there—— 

Judge GORSUCH. Fair enough. 

Senator FEINSTEIN [continuing]. So I would not have to pause, 

and I—but let me just hold up that answer. 

Judge GORSUCH. Sure. 

Senator FEINSTEIN. And we will get you the documents on that. 

Judge GORSUCH. Thank you. 

Senator FEINSTEIN. Because—let me do the next question. In December 2005, after the passage of the Detainee Treatment Act, you 

advocated that President Bush should issue a signing statement to 

accompany the law. In an email you sent to Steven Bradbury and 

others, you said the signing statement would—this is your quote— 

‘‘help inoculate against the potential of having the administration 

criticized sometime in the future for not making sufficient changes 

in interrogation policy in light of the McCain portion of the amendment. This statement clearly and in a formal way would be hard 

to dispute later, puts down a marker to the effect that McCain is 

best read as essentially codifying existing interrogation policies.’’ 

To be clear, the context was that earlier in 2005, the Justice Department’s Office of Legal Counsel had concluded that CIA interrogation tactics like waterboarding and sleep deprivation did not 

amount to cruel, inhuman, or degrading treatment. I read your 

email as advocating a continuation of these interrogation techniques and, worse, saying that Senator McCain’s amendment actually codified them, which it did not. 

Is that true? And does it not mean that when you wrote this in 

an email that you were condoning waterboarding as lawful? 

Judge GORSUCH. Senator, I would want to see the email. Again, 

I do not feel comfortable commenting on documents that are not in 

front of me. But I can say this, that I do remember—— 

Senator FEINSTEIN. My staff has the documents here. 

Judge GORSUCH. Great. 

Senator FEINSTEIN. They can bring them down to you—— 

Judge GORSUCH. That would be great. 
80 

Senator FEINSTEIN [continuing]. Right now. 

Judge GORSUCH. Thank you. That would be wonderful. 

Senator FEINSTEIN. Okay. And then I will put aside this part. 

Judge GORSUCH. Okay. 

Senator FEINSTEIN. You will have the documents because there 

are more—and I will go on to the next subject. 

Judge GORSUCH. No, that is fine. I am happy to—— 

Senator FEINSTEIN. Is that all right? 

Judge GORSUCH. Of course. 

Senator FEINSTEIN. I know, I want you to look at the documents. 

Judge GORSUCH. I would like to just know what I am talking 

about. My recollection generally from 12 years ago—— 

Senator FEINSTEIN. Eric, bring him the documents, please. 

Judge GORSUCH. Thank you, Eric. 

[Laughter.] 

Judge GORSUCH. My recollection generally, working on the Detainee Treatment Act, Senator, was that at that time after Rasul 

was issued by the Supreme Court, there were a lot of habeas petitions coming in from detainees at Guantanamo Bay. Some brought 

by my friend Neal Katyal. 

And there was an effort by some in the administration, along 

with many on Capitol Hill, to try and provide a regime for the processing of those claims in a way that would conform with the 

Youngstown ideal of Congress and the President acting together in 

unison, and that Senator McCain and Senator Graham put together legislation that emphasized that not only was torture unacceptable, which it always had been under U.S. law, but that cruel, 

inhuman, and degrading treatment was also unacceptable under 

U.S. law. 

Senator FEINSTEIN. Let me help you here. I know from the documents that you worked on the Graham effort. 

Judge GORSUCH. Yes. 

Senator FEINSTEIN. For example, a self-assessment that you 

wrote said that you ‘‘helped coordinate the legislative effort on the 

Graham amendment within DOJ and in consultation with DoD and 

others.’’ 

Judge GORSUCH. That is absolutely right, Senator. I sure did, 

and I am proud of it because we managed to come up with a bipartisan bill that I think passed this body with over 80 or maybe 90 

votes, I do not remember, which did two things. One, affirmed this 

country’s commitment to prevent cruel, inhuman, and degrading 

treatment and, second, which provided a regime that was agreed 

by the Congress and the President on how Guantanamo detainees 

should have their claims processed. 

Senator FEINSTEIN. Except after you read the documents, just so 

you know, the conclusion that we come away with is that when the 

bill on the McCain amendment was about to be voted on, you forwarded press articles explaining what having these two provisions 

together meant. That was the McCain amendment prohibiting torture and confining it to the Army Field Manual. 

Judge GORSUCH. Yes. 

Senator FEINSTEIN. And the Graham amendment, which would 

bar habeas. In other words, a detainee could not use the habeas 

corpus right to file in a court of law and challenge their conditions 
81 

of detention. So that was looked at as offsetting McCain, but basically preventing habeas corpus from being used. And of course, it 

was overturned by the Court. 

Judge GORSUCH. Senator, you are absolutely right that it was 

eventually litigated, as all these things are. It was a bipartisan effort, and it was between the Department of Defense—Department 

of Defense wanted congressional approval for something so that 

they knew what the rules would be. They were desperate to have 

some congressional involvement and investment in this process. 

And as a lawyer—that is all I was. I was a lawyer for a client, 

right? I was advising them on how to go about doing that legally 

in conjunction with Senator Graham’s office and others. 

And it was a bipartisan effort, and we put together our best effort. The D.C. Circuit upheld it. The Supreme Court of the United 

States, eventually many, many years later, found that the process 

was insufficient, and that is the Boumediene case, as you know, 

Senator. 

But to say that there was no process would be inaccurate, too, 

because the Detainee Treatment Act had a long list of prescribed 

processes, and the question just simply was whether they were 

adequate enough under the suspension clause. And that was a 

close case that divided the Court very closely, and I respect that 

decision as a precedent of the U.S. Supreme Court no less than any 

other, Senator. 

Senator FEINSTEIN. One last question on this. 

Judge GORSUCH. Sure. 

Senator FEINSTEIN. When President Bush signed the Detainee 

Treatment Act, he issued a statement that basically said he would 

only construe the law consistent with his powers as Commanderin-Chief. According to press reports, administration officials confirmed, ‘‘The President intended to reserve the right to use harsher 

methods in special situations involving national security.’’ 

In other words the signing statement reflected the President’s belief that he had the power to not comply with the law he had just 

signed. According to emails, and this you will verify, and you were 

involved in preparing that signing statement, and you advocated 

for the issuance of the signing statement. 

They even showed you saying to the top State Department lawyer that Harriet Miers, the White House counsel, ‘‘needs to hear 

from us. Otherwise, this may wind up going the wrong way.’’ 

Judge GORSUCH. Well, Senator, I can tell you what I recall. I 

have not read—— 

Senator FEINSTEIN. Okay. That is fair enough. 

Judge GORSUCH. I need to read the email. But my loose recollection of something that happened I think 11, 12 years ago is that 

there were individuals in maybe the Vice President’s office who 

wanted a more aggressive signing statement along the lines that 

you have described and that there were others, including at the 

State Department, who wanted a gentler signing statement. 

And my recollection, sitting here, as best I can give it to you 

without studying the email, is that I was in the latter camp. John 

Bellinger, among others, I would have associated myself with there. 

And I do not know what was in the President’s head when he 

wrote the signing statement. I cannot tell you that. I do not know. 
82 

I can only tell you what I remember, and I certainly would never 

have counseled anyone that they could disobey the law. 

Senator FEINSTEIN. Okay. I have no reason not to believe you, 

but if you will read those. 

Judge GORSUCH. Sure. 

Senator FEINSTEIN. And then in my second round, we will go 

back to it. 

Judge GORSUCH. Sure. 

Senator FEINSTEIN. And I would be very happy to—because I 

think you will see that we did not make this up, okay? 

Judge GORSUCH. Senator, I am not suggesting you are. And I 

am—there was a tug of war among parties in the White House. 

Senator FEINSTEIN. Oh, I am sure of that. 

Judge GORSUCH. Right. And—— 

Senator FEINSTEIN. I wanted to know which side you were on. 

Judge GORSUCH. Well, count me in with John Bellinger most of 

the time on these things, okay? 

Senator FEINSTEIN. Okay. 

Judge GORSUCH. All right? 

Senator FEINSTEIN. Okay. 

Judge GORSUCH. And that is my recollection. And Matt Waxman 

would be another one. And so that is my recollection, Senator, sitting here, and I will study these. 

Senator FEINSTEIN. Okay. Let me ask you a question on wiretapping. In December 2005, news broke that President Bush had 

ordered the NSA to intercept the content of certain communications 

of Americans without a court order, outside of the requirements of 

the Foreign Intelligence Surveillance Act, known as FISA. 

You helped prepare the public defense of the program. For example, in draft testimony that you prepared for Attorney General 

Gonzales defending the program, you wrote this: ‘‘These authorities 

are vested in the President, and they are inherent in the office. 

They cannot be diminished or legislated away by other co-equal 

branches of government.’’ 

Paul Clement, President Bush’s Solicitor General, ‘‘found this 

proposition unconvincing, and it was removed from the testimony.’’ 

Do you still believe that the President has inherent authority— 

this is important—to intercept the communications of Americans in 

the United States that cannot be legislated away by Congress? 

Judge GORSUCH. Goodness, no, Senator. 

Senator FEINSTEIN. Good. 

Judge GORSUCH. And I did not believe it at the time. What I was 

serving at the time, as I recall—again, my recollection, and I would 

be happy to review whatever you have before you—is that I was 

acting in the capacity as a speechwriter and taking material produced by the components that were responsible for litigating these 

issues, including Mr. Clement, Paul Clement, a dear friend of mine, 

and the Office of Legal Counsel and others and assembling it to put 

words together that sounded like English. 

And I think people like my writing, and that was my job. I think 

I was the scribe. 

Senator FEINSTEIN. Okay. Let us move on. I would like to go to 

the Heller case. 
83 

When we met in my office, we discussed the Heller decision, 

which you said you were open to discussing since the case had been 

decided. At that time, you said you thought both the majority opinion, written by Justice Scalia, and the dissent, written by Justice 

Stevens, were brilliant examples of originalism, where both Justices sought to explain their reasoning by looking at the original 

public meaning of the Second Amendment. Which decision did you 

agree with and why? 

Judge GORSUCH. Well, Senator, I think we have alluded to my 

difficulty here. I do think everything you just said is accurate. Both 

Justice Scalia and Justice Stevens wrote excellent opinions in that 

case. 

I am not here, though, to grade my bosses’ work. That would be 

kind of impertinent of me, I suspect, and certainly, I am sure they 

would think so. I also worry that saying I agree with one or the 

other will indicate to clients or to litigants in future cases—because 

it is now a precedent of the U.S. Supreme Court. It is binding. It 

is the law. 

Senator FEINSTEIN. Right. 

Judge GORSUCH. Whether we like it or not, it is the law. And if 

I start saying I like one opinion or I like the other opinion, I am 

signaling—— 

Senator FEINSTEIN. All right. I will let you off the hook. Let me 

go to another one. 

Judge GORSUCH. Thank you. 

[Laughter.] 

Judge GORSUCH. Thank you, Senator. 

Senator FEINSTEIN. In D.C. v. Heller, the majority opinion, written by Justice Scalia, recognized that—and I am quoting—‘‘Of 

course, the Second Amendment was not unlimited.’’ Justice Scalia 

wrote, for example, laws restricting access to guns by the mentally 

ill or laws forbidding gun possession in schools were consistent 

with the limited nature of the Second Amendment. 

Justice Scalia also wrote that ‘‘weapons that are most useful in 

military service, M16 rifles and the like, may be banned’’ without 

infringing on the Second Amendment. 

Do you agree with that statement that under the Second Amendment, weapons that are most useful in military service, M16 rifles 

and the like, may be banned? 

Judge GORSUCH. Senator, Heller makes clear the standard that 

we judges are supposed to apply. The question is whether it is a 

gun in common use for self-defense, and that may be subject to reasonable regulation. That is the test, as I understand it. There is 

lots of ongoing litigation about which weapons qualify under those 

standards, and I cannot prejudge that litigation sitting here. 

Senator FEINSTEIN. No. I am just asking you, do you agree with 

his statement? ‘‘Yes’’ or ‘‘no’’ would be fine. 

Judge GORSUCH. Are the statements out of the Heller decision 

from the United States—— 

Senator FEINSTEIN. Justice Scalia’s statement. 

Judge GORSUCH. Well, whatever is in Heller is the law, and I follow the law. 

Senator FEINSTEIN. Do you agree with that? 
84 

Judge GORSUCH. Well, it is not a matter of agreeing or disagreeing, Senator, respectfully. It is a matter of it being the law. 

And my job is to apply and enforce the law. 

Senator FEINSTEIN. All right. Fair enough. Let me give you another one. The Fourth Circuit. Judge Harvie Wilkinson authored a 

separate concurrence in the Fourth Circuit case Kolbe v. Hogan. 

Here is what he said. 

‘‘No one really knows what the right answer is with respect to 

regulation of firearms. I am unable to draw from the profound ambiguities of the Second Amendment, an invitation to courts to preempt this most volatile of political subjects and arrogate to themselves decisions that have been historically assigned to other, more 

democratic actors. 

‘‘Disenfranchising the American people on this life and death 

subject would be the gravest and most serious of steps. It is their 

community, not ours. It is their safety, not ours. It is their lives, 

not ours.’’ 

Do you agree with Judge Wilkinson that the Second Amendment 

is ambiguous? If so, should the ambiguity be decided by the courts 

or by legislatures? 

Judge GORSUCH. I would begin by saying I hold Judge Wilkinson 

in high regard. He is a very fine man and a very fine judge. 

Senator FEINSTEIN. Can you do a ‘‘yes’’ or ‘‘no’’? 

Judge GORSUCH. No, I wish I could. 

Senator FEINSTEIN. I wish you could, too. 

Judge GORSUCH. But you know, the Supreme Court of the United 

States is not final because it is infallible, as Justice Jackson reminds us. It is infallible because it is final. And Judge Wilkinson 

had his view, and the Supreme Court has spoken, and Heller is the 

law of the land. 

And Judge Wilkinson may disagree with it, and I understand 

that. And he may—but he will follow the law no less than any 

other judge in America. I am confident of that. He is a very fine 

judge who takes his oath seriously. 

Senator FEINSTEIN. Okay. I asked you that question on super 

precedent, and let me end with one on workers’ rights, if I might? 

As you know, there have been a number of Supreme Court cases 

where court has made it harder for workers to hold their employers 

accountable when they have experienced discrimination or be injured on the job, and we have discussed that one case, TransAm, 

I think three or four of us. 

Let me give you a short list. Ledbetter v. Goodyear Tire, which 

limited the ability of women to seek equal pay. Gross v. FBL Financial Services, 2009, which made it more difficult to prove age 

discrimination. And The University of Texas Southwestern Medical 

Center v. Nassar in 2013, which made it more difficult for employees to prove they have been retaliated against for reporting discrimination, including based on race, gender, national origin, religion, and other factors. 

Vance v. Ball, which made it more difficult for workers to prove 

just plain discrimination claims. As Senator Whitehouse pointed 

out, each of these cases was 5–4, and Justice Scalia voted with the 

majority against the employee in every case. 
85 

President Trump and others have said you are the next Scalia. 

So I think it is only fair to ask you, do you disagree with any of 

the majority opinions that Justice Scalia joined in these cases? If 

so, which ones do you especially disagree with and why? These 

have already been decided. 

Judge GORSUCH. I understand, Senator. But again, if I indicate 

my agreement or disagreement with a past precedent of the U.S. 

Supreme Court, I am doing two things that worry me sitting here. 

The first thing I am doing is I am signaling to future litigants 

that I cannot be a fair judge in their case because those issues keep 

coming up. All of these issues, as you point out, keep coming up. 

Issues around all of these precedents will be continued to be litigated and are hotly litigated. I have had post-Ledbetter Act cases 

in my court, for example. 

Senator FEINSTEIN. Then how do we have confidence in you that 

you will not just be for the big corporations? 

Judge GORSUCH. Oh—— 

Senator FEINSTEIN. That you will be for the little man. This is 

the question that Senator Hirono, I think, so well asked yesterday. 

You know, those of us, I think, on both sides care very much about 

workers’ rights, but the record is such that one questions whether 

the Court is capable in its present composition to give a worker a 

fair shot. 

So I am just looking for something that would indicate that you 

would give a worker a fair shot. Maybe it is in your background 

somewhere that I do not know about, but I would like to have you 

respond to it any way you can. 

Judge GORSUCH. Senator, I really appreciate that, and I think 

there is a way you can take a look at this question without me potentially prejudging a case. And I appreciate your respect for that. 

And just to finish that thought. I am concerned that I have to 

look the litigant in the eye in the next case. And if I prejudge that 

case, they can look at me and say you are not a fair judge, and I 

have no answer for that. I have no answer for that. 

So what I think can give you comfort in this area is, Senator, I 

know a case or two has been mentioned yesterday. Respectfully, I 

would suggest that does not represent the body of my work. I have 

written 2,700—I have participated in 2,700 opinions over 101⁄2

years, and if you want cases where I have ruled for the little guy 

as well as the big guy, there are plenty of them, Senator. 

The Ute Indian Tribe—— 

Senator FEINSTEIN. Would you be willing to submit some of 

them? 

Judge GORSUCH. Oh, goodness. 

Senator FEINSTEIN. It is hard to read 2,700 cases. 

Judge GORSUCH. I will name a bunch of them right now. 

Senator FEINSTEIN. It took me a long time on TransAm. 

Judge GORSUCH. I am sorry, Senator. Of course. Ute 5 and 6. 

Fletcher. The Rocky Flats case, which vindicated the rights of people who had been subject to pollution by large companies in Colorado, uranium pollution. 

I point you to the Magnesium case, similar pollution case in the 

Salt Lake City area. Colorado’s effort with renewable energy, 
86 

upheld that. Orr v. City of Albuquerque, involving pregnancy discrimination in the police department in Albuquerque. 

W.D. Sports, a discrimination claim. Casey, Energy West, Crane. Simpson v. CU, involving young women who had been harassed by 

the football team. A.M., Browder, Sutton—I can give you a long, 

long list, Senator. 

Senator FEINSTEIN. That is helpful. Well, that is helpful. And we 

will find them, and we will read them. 

Judge GORSUCH. And Senator, the bottom line, I think, is that 

I would like to convey to you from the bottom of my heart that I 

am a fair judge. And I think if you ask people in the Tenth Circuit 

‘‘Is he a fair judge?’’ you are going to get the answer that you got 

yesterday from both Senator Bennet and Senator Gardner and 

from General Katyal, and the same answer you got from Senator 

Allard and Senator Salazar 10 years ago. 

And Senator, I cannot guarantee you more than that, but I can 

promise you absolutely nothing less. 

Senator FEINSTEIN. Okay. I have a minute and 21 seconds. Let 

us talk Chevron. That has been used, you know, thousands of 

times, and it really perplexes me. 

Olympia Snowe and I did something that took me 12, 13 years 

to get to, and that is changing the corporate fuel economy standards. And thanks to Senator Inouye and Senator Stevens, they put 

it finally in a Commerce bill, and it passed. So now we are on our 

way to 54 miles a gallon. Here is the point. 

We could do the rules for the first 10 years, but who knew we 

needed the experts to do them from that point on? So what we said 

in the legislation was that science would prevail, and that is still 

the law. It is working. The goal is—I have read articles that say 

there will be 54 miles by 2025 if this continues. 

What is wrong with that? How else could we have done it? 

Judge GORSUCH. I am not aware of anything wrong with that, 

Senator. I have never suggested otherwise. 

Senator FEINSTEIN. But what you have said is, the Congress 

could not legislate by leaving some of the rules up to the scientists 

or other professionals in departments, as I understood it, in Chevron. 

Judge GORSUCH. I appreciate the opportunity to correct this misunderstanding, Senator. 

Senator FEINSTEIN. Sure. Appreciate it. 

Judge GORSUCH. The case I think you are referring to is Gutierrez. 

Senator FEINSTEIN. That is correct. 

Judge GORSUCH. It involved an undocumented immigrant to this 

country, okay? And the question was, there were two conflicting 

statutes. One said he could apply for immediate discretionary relief 

in this country from the Attorney General. The second said he had 

to wait outside the country for 10 years. 

We had a judicial precedent that said the first statute controls. 

That was the ruling of our court. 

After that, 3 or 4 years, I cannot remember exactly, the Board 

of Immigration Appeals, in its infinite wisdom, says our interpretation is wrong. Chevron—you have to undo your precedent, the judicial precedent that this man had relied upon and that he now had 
87 

to wait outside the country not just 10 years, but 13 or 14 because 

it took them so long to make up their mind. 

Well, Senator, that reminded me of, you know, when Charlie 

Brown is going in to kick the ball, and Lucy picks it up at the last 

second. And that struck me as raising serious due process concerns, 

fair notice and separation of powers concerns when an Executive 

bureaucracy can overturn a judicial precedent without an act of 

Congress. 

That is what the case was about, and it suggested, respectfully, 

Senator, that under the APA, the Administrative Procedures Act, 

this body tasked judges to decide legal questions and left to administrative agencies great deference when it comes to fact-finding, 

okay? 

That is how I read Section 706 is, fact-finding by scientists, biologists, chemists. The experts get great deference from the courts. 

The only question is who decides what the law is? And can a man 

like Mr. Gutierrez, the least amongst us, be able to rely on judicial 

precedent on the books, or can he have the ball picked up as he 

is going in for the kick? 

Senator FEINSTEIN. I think I have exceeded my time. 

Judge GORSUCH. Oh, I am sorry. 

Senator FEINSTEIN. I apologize. Thank you very much. 

Judge GORSUCH. No, I apologize. 

Senator FEINSTEIN. Thank you. 

Chairman GRASSLEY. I want to make clear to everybody you did 

not exceed your time because I said if you asked your question before the last second is up, and you did, that we would give whatever time it took for that to be done. If everybody follows that rule, 

I think we will be treating everybody fairly. 

Before I call on Senator Hatch, I would like to enter into the 

record an article in the Wall Street Journal editorial titled this: 

‘‘Neil Gorsuch: How Would You Vote? Democrats Demand the 

Nominee Declare Himself on Cases,’’ end of the title. 

I will just quote the first paragraph. ‘‘Democrats have come up 

empty trying to find something scandalous that Neil Gorsuch has 

said, so now they are blaming him for what he will not say: To wit, 

they want him to declare how he would rule in specific areas of 

law, questions that every Supreme Court nominee declines to answer.’’ 

Without objection, I enter that in the record. 

[The information appears as a submission for the record.] 

Chairman GRASSLEY. Senator Hatch. 

Senator HATCH. Well, thank you, Mr. Chairman. Judge, as I said 

yesterday, my goal in this confirmation process is to get an understanding or a handle on your understanding of the proper role of 

judges in our system of government. 

Now, you gave an interesting lecture last year at Case Western 

Reserve School of Law about Justice Scalia’s legacy. ‘‘Justice 

Scalia,’’ you explained, ‘‘emphasized the difference between judges 

and legislators. He reminded us,’’ as you put it, ‘‘that legislators 

may appeal to their own moral convictions and to claims about social utility to shape the law as they think it should be in the future. But the judges should do none of these things in a democratic 

society.’’ 
88 

I think that accurately describes Justice Scalia’s view. Is that 

also your own view? 

Judge GORSUCH. Senator, it is, though I have to confess, that lecture was attended by about 20 people, and it has a lot more attention since. 

[Laughter.] 

Senator HATCH. Well, we are making sure it gets some more. 

In your opinions on the Appeals Court, you take great care to 

identify what issues the court may or may not address. In one opinion last year, for example, you used phrases such as, ‘‘It is not our 

job,’’ and, ‘‘It simply is not our business.’’ What is an appellate 

court’s job in your view? 

Judge GORSUCH. It is a limited, vital role in our separated powers. A judge is there to make sure that every person, poor or rich, 

mighty or meek, gets equal protection of the law. It is chiseled 

above the Supreme Court entrance in Vermont marble, though I 

believe the Lincoln Memorial is made out of Colorado marble. 

And that is a—that is a profound and radical promise, that every 

person is protected by our laws equally, and in all of human history, that may be the most radical promise in all of law. And what 

it means to me is that when I sit on the bench and someone comes 

to argue before me, I treat each one of them equally. They do not 

come as rich or poor, big guy or little guy. They come as a person. 

And I put my ego aside when I put on that robe, and I open my 

mind, and I open my heart, and I listen. And I tell my clerks that 

their very first and most important job is to tell me I am wrong 

and to persuade me I am wrong as I read the briefs and listen to 

the arguments. And if they manage to do that, I tell them their 

next job is to try and persuade me I am wrong again, because I 

want to make sure I leave no stone unturned. I want to get to the 

bottom of it. 

I have one client. It is law. And it is a great joy, and it is a great 

privilege, and it is a daunting responsibility to come in every day 

and to try and get it right. 

And then, I go listen to the arguments of the lawyers. I do not 

treat them as catspaws. They are not there to be toyed with. I treat 

them, I hope, always as respected colleagues who have lived with 

the arguments, studied the cases, know the facts far better than I 

do. I might actually learn something from them. 

I go in with the questions I actually have that I want answered, 

and then I sit and I listen to my colleagues after that. And, Senator 

Hatch, I cannot tell you how many times in the Tenth Circuit I 

have gone through that whole process. I go to conference, and I 

think I know my mind. And then one of my colleagues—Harris 

Hartz was here yesterday—he is often the one. There are plenty of 

others, who say something absolutely brilliant, changes my mind. 

And that is the judicial process, and that is the role I see for the 

appellate judge. 

Senator HATCH. Well, thank you. That is very good explanation. 

We held a confirmation hearing for Justice Sonia Sotomayor in 

2009. Senator Charles Schumer, now the Minority Leader, was a 

Member of this Committee and praised the nominee in this way. 

‘‘Judge Sotomayor puts the rule of law above everything else. Judge 

Sotomayor has hewed carefully to the text of statutes, even when 
89 

doing so results in rulings that go against so-called sympathetic 

litigants.’’ Do you agree with Senator Schumer that your duty as 

a judge is to follow the law even when it requires ruling against 

sympathetic litigants? 

Judge GORSUCH. Yes, Senator. I cannot tell you that when I go 

home and take off the robe I am not a human being and that I do 

not think about some of those cases. But my job is to apply the law 

as fairly as I can in each and every case without respect to persons. 

That is my oath. 

There is not every law in the book I love, you love. I am sure 

of that. But my job is not to write the laws, it is to apply the laws. 

And I try to do that, and that enough is enough for a day’s work, 

and it is enough for a life’s work. 

Senator HATCH. In my opening remarks yesterday, I mentioned 

a letter we received from dozens of your peers at Harvard Law 

School. And, Mr. Chairman, I ask consent of this letter be included 

in the record at this point. 

Chairman GRASSLEY. Without objection, it will be included. 

[The information appears as a submission for the record.] 

Senator HATCH. The signers were of all parties and ideologies 

and represented many different faiths, lifestyles, and views. They 

all support—strongly support your nomination. The letter said that 

you ‘‘personify a disinterested philosophy that respects judicial 

modesty combined with compassionate appreciation of the lives impacted by your decisions.’’ Now, how can you do both? 

Judge GORSUCH. Senator, I am just a person, and I remember 

how hard it is to be a lawyer. I remember what it was like to represent clients who had problems. I told my kids when they asked 

me what my job was when I was young, it is to help people with 

their problems, and as a judge, I have to resolve their problems. 

One of the hard things about being a judge is that somebody has 

to win and somebody has to lose. You make half the people unhappy 100 percent of the time. That is the job description. But you 

have to believe in something larger than yourself and that you are 

part of something larger than yourself. 

And I believe in the rule of law in this country, and I believe an 

independent judiciary is one of the keys to it. And I feel it has been 

a calling to be part of it and an honor. 

Senator HATCH. Well, the Fourth Amendment protects the right 

to be free from ‘‘unreasonable searches and seizures.’’ It was written in the late 18th century when the tools used by law enforcement to investigate crime and monitor suspects were radically different than they are today. 

In your view, how should a judge approach interpreting and applying constitutional provisions like the Fourth Amendment in 

cases where the technologies or—and/or methods at issue were obviously not even imagined by the Founders? 

Judge GORSUCH. May I offer an example, Senator, I think might 

be helpful? 

Senator HATCH. Sure. Sure. 

Judge GORSUCH. I take United States v. Jones, a recent case from 

the U.S. Supreme Court, involving whether police officers might attach a GPS tracking device to a car, modern technology. How do 

you apply the original Constitution written 200 years ago to that? 
90 

And the Court went back and looked at the law 200 years ago. 

And one of the things it found was that attaching something to 

someone else’s property is a trespass to chattels, a common law, 

and would be considered a search. And the Court held that if that 

is a trespass to chattels in a search 200 years ago, it has to be 

today, though the technology is obviously different. 

So, the technology changes, but the principles do not. And it cannot be the case that the United States Constitution is any less protective of the people’s liberties today than it was the day it was 

drafted. 

Senator HATCH. Well, you were—you authored the opinion in 

Meshworks v. Toyota Motor Sales. Now, this 2008 case applied 

principles from earlier cases involving photography, a relatively old 

technology, to determine the intellectual property protections for 

digital modeling, a new medium. 

How should judges approach questions of intellectual property in 

cases that involve new technologies or new applications of old technologies? Should they confine themselves to analogous technologies, 

or may judges create new doctrines or case law that they believe 

better addresses the changing technological landscape? 

Judge GORSUCH. Well, Senator, I think it is actually a very similar sort of question, right? We look back, we find what the law was 

at the time, the original understanding, if you will, and we make 

analogies to our current circumstance. We judges love analogies. 

We work with analogies, and that is how lawmaking through the 

judicial process happens. That is proper judicial decisionmaking. 

It is a very different thing if you want to create a revolution in 

the area and change the law dramatically. That is for this body to 

do. It is for judges to interpret the law as best they can from the 

original understanding to current circumstances, and apply it to 

current circumstances. 

So, in Meshworks that is exactly what we did, and looked at old 

case law having to do with copyright and applied it to digital 

media, the same principles from the beginning of the Copyright 

Act, just applied to a new medium. 

Senator HATCH. Well, several of your writings have called into 

question the so-called Chevron doctrine that has been raised here 

already. Most Americans probably wonder why a Supreme Court 

nominee would talk about a gas station, but the concept of Chevron 

is very straightforward. It commands Federal judges to defer to an 

agency’s interpretation of the law. 

In effect, this deference allows unelected, unaccountable bureaucrats to rewrite the law. Any middle schooler, however, should be 

able to see how Chevron is inconsistent with the basic duty of 

judges under the Constitution. 

Now, as you probably know I am a Chevron skeptic, and have led 

the fight to overturn this decision legislatively with my Separation 

of Powers Act. I introduced this bill last Congress with the support 

of several colleagues on this Committee and will soon reintroduce 

it. 

Now, I chose its title for a reason. Reexamining Chevron is not 

about being anti or pro-regulation. Rather, it is about restoring the 

constitutional allocation of powers between the three branches. It 

is about maintaining fidelity to the laws passed by Congress and 
91 

the exact bounds of authority granted to regulatory agencies. And 

it is about ensuring that the bureaucracy abides by the law, no 

matter what its policy goals, liberal or conservative. 

Judge, do you agree that there is nothing extreme or inherently 

ideological when the Supreme Court said in Marbury v. Madison 

that, ‘‘It is emphatically the province and duty of the judicial department to say what the law is?’’ 

Judge GORSUCH. Senator, Marbury v. Madison is the cornerstone 

of—— 

Senator HATCH. It sure is. 

Judge GORSUCH. Of the law in this country. I do not know anybody who wants to go back and reconsider that. I hope not. 

Senator HATCH. I feel the same way. Last week, The New York 

Times reported that the primary line of attack against you is that 

you are ‘‘no friend of the little guy.’’ We have had that come up 

time and again in these proceedings in the last couple of days. 

Harvard Law School professor, Noah Feldman, who does call 

himself a liberal, wrote an opinion piece on the subject that appeared last week on Bloomberg.com. He opens this way: ‘‘I do not 

know who decided that the Democratic critique of U.S. Supreme 

Court nominee Judge Neil Gorsuch would be that he does not side 

with the little guy.’’ It is a truly terrible idea. 

Now, Mr. Chairman, I ask that this column by Professor Feldman be placed in the record at this point. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator HATCH. Now, Judge, some of your critics question whether you have a solid track record of judicial independence and objectivity. In particular, they question whether you would stand up to 

the current President if he were to exceed his authority under the 

Constitution and laws Congress has enacted. 

So, Mr. Chairman, I ask consent to place in the record an essay 

I wrote on the subject that appeared at Scotusblog.com. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator HATCH. Now, Judge, how would you respond to that type 

of criticism? 

Judge GORSUCH. Senator, a good judge does not give a whit 

about politics or the political implications of his or her decision, decides where the law takes him or her fearlessly. I walk past every 

day a bust of Byron White in my courthouse. My courthouse is 

named for Byron White. And when I do that, I think about his absolute determination just to get it right, no matter where it took 

him. He said, it is a job. You do your very best, and you go home, 

and that is how I approach things. 

And if you look at my record, Senator, respectfully, I think it 

demonstrates that. According to my law clerks again, when I do 

dissent, which is very rarely, I do so in about equal numbers between judges who happen to be appointed by Democrat Presidents 

and who happen to be appointed by Republican Presidents. And I 

hate to even use those words because they are all just to me 

judges. I do not think of them that way. 

But my decisions have always been independent, regardless of 

who I am agreeing or disagreeing with. And have I ruled against 
92 

the Government? My goodness. Ask the U.S. Attorney’s Office in 

Colorado. I give them a pretty hard time. I make them square their 

corners, Senator Hatch, all right? And if you want to some examples, I would point you to Carloss, Krueger, Ackerman, three recent 

Fourth Amendment cases ruling for the accused, the least amongst 

us, against the Government. 

Senator HATCH. Well, in 2005, before being appointed to the Appeals Court, you wrote an op-ed piece for National Review in which 

you criticized the reliance on the courts by litigants seeking to 

achieve policy results that they could not achieve through the regular political process. Not that long ago, there was a consensus 

that courts are not the appropriate place to make policy. 

Now you are criticized for that same common sense idea, and I 

want to give you a chance to respond. How does relying on courts 

to make policy undermine both democracy and the legitimacy of the 

Federal judiciary? 

Judge GORSUCH. Well, again, it goes to our separation of powers. 

Judges would make very poor legislators. We are not equipped for 

it. We are not responsive to the people. Cannot elect us, cannot get 

rid of us. You are stuck with us. And we do not have the opportunities to talk to people, to have hearings like this one in places like 

this. 

I am permitted four law clerks for 1 year at a time right out of 

a law school. It is kind of an evanescent crowd. It replenishes itself 

every year. Now, if you were to make laws, I do not think you 

would design a system where you let three older people with four 

young law clerks straight out of law school legislate for a country 

of 320 million. That is just not how anyone would design the railroad. And so, those are some of the problems I see, Senator. 

Senator HATCH. Well, thank you. And that—— 

Judge GORSUCH. With all respect to my law clerks. I love them 

very much. 

[Laughter.] 

Judge GORSUCH. They are like family, but they are not the same 

as your staffs and the investigative powers you have. 

Senator HATCH. Well, they are lucky to be with you is all I can 

say. 

In that same—in that National Review piece, you pointed out 

some liberal policies of lawyers have sought to achieve through litigation. Some of your critics have tried to turn this into one of those 

gotcha moments, claiming that your real qualm was with those 

policies that were liberal, not that they were achieved through litigation. Again, I want to give you a chance to respond. 

Judge GORSUCH. Well, I would say that in that article—I would 

say a couple things about it. First, as I pointed out and I believe, 

the courts are a very important place for the vindication of civil 

rights and for minorities. 

Senator HATCH. Yes. 

Judge GORSUCH. It is a place where unpopular voices get heard 

the same as popular voices. In a democracy and the legislature, 

majorities win. That is not the case in courts. The best argument 

should prevail. So, they play an important role. 

And, second, I pointed out that one thing that we lack as judges 

to make good policy decisions as legislators is the ability to com-
93 

promise. These bodies, legislative bodies, you can put together a 

compromise. Judges, somebody has to win, somebody has to lose, 

Senator. It is not a great place to compromise, and, again, we are 

not great—we are not well-equipped to do your work. 

At the same time, I did criticize—I pointed out a column by a liberal columnist, self-identified liberal columnist, very fine man, and 

I agreed with him that his side had done some—spent perhaps too 

much time in court instead of in front of the legislature. I can report to you, having lived longer, as I did report to you in 2006, that 

the problem lies on both sides of the aisle, that I see lots of people 

who resort to court perhaps more quickly than perhaps they 

should. 

Senator HATCH. Well, some liberal organizations are claiming 

that in private practice you represented only big corporations. Your 

former law partner, David Frederick, who happens to be on the 

board of directors of the liberal American Constitution Society, has 

a very different take. 

In an opinion piece published in The Washington Post, he describes your work at the firm this way: ‘‘Over the course of his career, he has represented both plaintiffs and defendants. He has defended large corporations, but also sued them. He has advocated 

for the Chamber of Commerce, but also filed and has prevailed 

with class actions on behalf of consumers. We should applaud such 

independence of mind and spirit in Supreme Court nominees.’’ 

Now, Mr. Chairman, I ask consent that this column appropriately titled, ‘‘There is No Principled Reason to Vote Against 

Gorsuch,’’ be included in the record at this point. 

[No response.] 

Senator HATCH. Mr. Chairman. 

Chairman GRASSLEY. Without objection, it is ordered. 

[The information appears as a submission for the record.] 

Senator HATCH. Judge, is that an accurate description of your 

work in private practice? 

Judge GORSUCH. It is, and I am grateful that David is here today 

with me. 

Senator HATCH. Well, I am grateful he is here, too. 

Judge GORSUCH. Senator, I represent—I wanted to go to a place 

where I could represent plaintiffs as well as defendants, not pick 

one side of the ‘‘v.’’ I thought that would make me a better lawyer, 

and I would see more of life that way, and I did. 

And we represented small plaintiffs. My very first trial, I represented a man who bought a gravel pit, and the prior owner would 

not leave, and he stole the gravel, and we had to kick him out. And 

then he brought a bunch of lawsuits, we thought malicious use of 

process, trying to kick my guy out. Well, we found an old statute 

that said when you furtively mine another person’s property, you 

get statutory damages. 

It was quite an unexpected find. It was like a hundred-year-old 

law, no furtive mining, the no furtive mining statute. And we 

brought suit, and we won a claim for conversion and malicious use 

of process, among other things, in county court. It may have been 

one of the highlights of my career when one of the jurors came up 

afterwards and said to me, son, you are a young Perry Mason. 

[Laughter.] 
94 

Judge GORSUCH. That was my first trial, Senator. I represented 

large defendants. I represented large plaintiffs as well, along with 

a very significant team, my partners. We won what was at that 

time—I do not know if it still is, they probably have done better 

now—the largest plaintiff side antitrust verdict that had been affirmed in American history. 

We represented class actions of consumers, some dry holes, some 

successful, all sorts of clients—individuals, companies, nonprofits. 

Represented pension funds, public employee pension funds, a variety of clients. It was a great and wonderful practice, and I loved 

every minute of it. 

Senator HATCH. You are a person with great experience for your 

young age, I have to say. 

Liberal groups also claim that you favor employers over employees. In fact, they suggest that you actually—you are actually biased 

in that direction. An analysis published in the Stanford Law Review, however, came to a very different conclusion. 

Now here is the conclusion: ‘‘After surveying his labor and employment decisions, it is clear that Judge Gorsuch does not favor 

or oppose employees, employers, unions, or the NLRB. His opinions 

do not show pro-labor or anti-labor tendencies.’’ The author says 

that parties who come before you, ‘‘can rely on a record of fair analysis and resistance to simply rubber stamping business interests or 

Executive agency actions.’’ 

Now, Mr. Chairman, I ask that this essay be included in the 

record at this point. 

Chairman GRASSLEY. Without objections, so ordered. 

[The information appears as a submission for the record.] 

Senator HATCH. Judge, is that your goal to focus only on the 

facts on the law in every case? 

Judge GORSUCH. Sir, I am heartened by that article. I had not 

read that one, and—— 

Senator HATCH. It is a good article. 

Judge GORSUCH. But to answer your question, when I became a 

judge, they gave me a gavel, not a rubber stamp, and nobody comes 

to my court expecting a rubber stamp. 

Senator HATCH. That is good. The Supreme Court recently decided two cases coming from your court that involved the Religious 

Freedom Restoration Act, a bill that I was instrumental in. I was 

one of its authors. I talked Senator Kennedy into coming on board. 

When Clinton signed it on the South Lawn, Kennedy was the biggest duck in the puddle. He was very proud of that particular bill. 

RFRA makes it difficult for the Government to substantially burden the exercise of religion, and applies this protective standard to 

everyone and to every exercise of religion. Now, these cases addressed whether the Affordable Care Act’s birth control mandate 

violated RFRA, or the Religious Freedom Restoration Act. You 

were in the majority deciding that RFRA applied to the plaintiffs 

in both cases, and that the birth control mandate failed to meet 

RFRA standard. 

Opponents of your nomination do not like this result, and they 

accuse you of being anti-woman. That, of course, is not true at all, 

and any fair person would have to conclude it is not true. Your critics simply demand that as a judge, you must follow of their polit-
95 

ical priorities that availability of birth control is more important 

than religious freedoms. 

Now, I have two questions about your decision. Is that not really 

a policy dispute that should be addressed by Congress, and was 

your job in these cases to impose your or anyone else’s priorities, 

or to interpret and apply those statutes the way Congress enacted 

them? 

Judge GORSUCH. Senator, our job there was to apply the statute 

as best as we could understand its purpose as expressed in its text. 

And I think every judge who faced that case, everyone, found it a 

hard case and did their level best, and that is all any judge can 

promise or guarantee. I respect all of my colleagues who addressed 

that case. 

Senator HATCH. Well, we respect you for doing so. 

You wrote a concurring opinion in the Hobby Lobby case. You 

wrote about the Religious Freedom Restoration Act this way: ‘‘It 

does perhaps its most important work in protecting unpopular religious beliefs, vindicating the Nation’s longstanding aspiration to 

serve as a refuge of religious tolerance.’’ In other words, Congress 

enacted RFRA to apply broadly and robustly to ensure that, among 

other things, the little guy would be protected as much as the big 

one. Is it fair to say that the Court’s decision in Hobby Lobby and 

your concurring opinion upheld this purpose, and in doing so, effectively promoted religious tolerance? 

Judge GORSUCH. Well, I might give you even a couple other examples of RFRA’s application that I have been involved in that 

might shed some light on this. It is the same statute that applies 

not just to Hobby Lobby. It also applies to Little Sisters of the Poor 

and protects their religious exercise. And it has also been applied 

in a case where I appointed counsel because I saw something potentially meritorious there. And our court held it applied to a Muslim prisoner in Oklahoma who was denied a halal meal. 

Senator HATCH. Right. 

Judge GORSUCH. It is also the same law that protects the rights 

of a Native American prisoner who was denied access to his prison 

sweat lodge, and appeared solely in retribution for a crime that he 

committed, and it was a heinous crime, but it protects him, too. 

And I wrote those decisions as well, Senator, yes. I wrote the Native American prisoner case, and I participated in and I wrote a 

concurrence in the Muslim prisoner case. 

Senator HATCH. Well, thank you for doing so. I also want to give 

you a chance to answer and respond to a few things that were said 

during statements on Monday. One of my Democratic colleagues 

said, ‘‘It is important to know whether you are a surrogate for 

President Trump or for particular interest groups.’’ Are you? 

Judge GORSUCH. No. 

Senator HATCH. Of course not. Another Senator mentioned just 

a few of the thousands of cases in which you participated and said, 

‘‘I am troubled by the results in those cases.’’ He never took issue 

with how you applied the law in those cases. He said only that the 

results troubled him. And as I described Monday in my opening 

statement, I contrasted judges who focus on the process or arriving 

at a result with judges who focus on what they want the result to 

be. Which approach do you associate with? 
96 

Judge GORSUCH. I associate myself with the approach I think all 

good judges attempt, to follow the law wherever it leads. 

Senator HATCH. My time is up, Mr. Chairman. I am sorry. 

Chairman GRASSLEY. Senator Leahy. 

Senator LEAHY. Well, thank you, Judge Gorsuch. Good to have 

you back. 

Now, you know from our earlier discussions, and I had told you 

very frankly that, of course, I felt that if the Republicans had followed the Constitution and practice, Chief Judge Merrick Garland 

would be on the Supreme Court today. I also respected you for calling Chief Judge Garland when your nomination was announced, 

and I understand you respect him as a jurist. Is that correct? 

Judge GORSUCH. Very much so, Senator. Whenever I see his 

name attached to an opinion, it is one I read with special care. He 

is an outstanding judge. 

Senator LEAHY. Do you think he was treated fairly by this Committee, yes or no? 

Judge GORSUCH. Senator, as I explained to you before, I cannot 

get involved in politics. And there are judicial canons that prevent 

me from doing that, and I think it would be very imprudent of 

judges to start commenting on political disputes between themselves or the various branches. 

Senator LEAHY. The reason I ask that question, since this Committee began holding hearings—public hearings of Supreme Court 

nominations began in 1916. I was not here at that time, but it has 

never denied a hearing or a vote to a pending nominee ever until 

Chief Judge Garland. 

I can express an opinion. I think it was shameful. I think it has 

severely damaged the reputation of this Committee. I think it has 

severely damaged the reputation of Senators who concurred with 

that. We were anything but the conscience of the Nation in that 

regard, and those who proudly held their hand up and swore that 

they would uphold the Constitution of the United States did not. 

Now, it becomes more of a problem because it appears the President outsourced your selection to the far right, big money, special 

interest groups. And you may not like that terminology, but even 

Republican Senators have praised the fact that the President had 

gone to this group and had a list when he was running for office 

of who he could select from. A list given not by—prepared by him, 

but by these special interest groups, and they want—they have an 

agenda. 

They are confident you share their agenda. In fact, the first person who interviewed you for this nomination said they sought a 

nominee who understands things like we do. And, Mr. Chairman, 

I would ask that an article in the Wall Street Journal entitled 

‘‘Trump’s Supreme Court Whisperer,’’ be included in the record. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator LEAHY. And another one which The New York Times, ‘‘In 

Gorsuch, Conservative Activist Sees Test Case Reshaping the Judiciary,’’ that those be included in the record. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 
97 

Senator LEAHY. Now, the two far right interest groups that recommended you to the President, and I want you to have a chance 

to talk about this, the Federalist Society and the Heritage Foundation, applauded the Citizens United decision, which allowed unrestricted corporate money to pour into elections. 

You have suggested that the Constitution and laws should be 

grounded solely in the original meaning of the text. You said judges 

should, I quote, ‘‘should strive to apply the law as it is, focusing 

backward, not forward.’’ If they do that—let us go to the First 

Amendment. Do you believe that James Madison and the other 

drafters of the First Amendment understood the term ‘‘speech’’ to 

include corporate money being funneled into campaigns? 

Judge GORSUCH. Senator, I can tell you that the Supreme Court 

of the United States has a lot of precedent in this area, as you are 

well aware, quite a lot of it permitting Congress to compel disclosure, to limit contributions, and a lot of other case law in this area. 

There is a lot of precedent in this area. 

Senator LEAHY. Well, is there—is there precedent from the drafters that ‘‘speech’’ include corporate money being put into corporations and being put into campaigns? 

Judge GORSUCH. Senator, that was exactly what was at issue in 

part in Austin, and then again in Citizens United. And the Supreme Court issued a variety of opinions on that subject, on that 

very subject, looking back to the original understanding of the First 

Amendment to see whether it embraced the speech at issue in 

those cases. And different Justices came to different conclusions on 

that score. 

Senator LEAHY. But nothing in the Federalist Papers that talked 

about corporate money going into campaigns. Is that correct? 

Judge GORSUCH. Well, Senator—— 

Senator LEAHY. That is an easy ‘‘yes’’ or ‘‘no.’’ 

Judge GORSUCH. I think there is an awful lot in the Federalist 

Papers and elsewhere that were relevant to and considered by both 

concurrences and dissents in Citizens United. 

Senator LEAHY. But nothing about corporate money. 

Judge GORSUCH. I do not remember that term, no, Senator. 

Senator LEAHY. Trust me—trust me, there was not. 

Judge GORSUCH. I trust you. 

Senator LEAHY. Okay. 

Judge GORSUCH. Entirely. 

[Laughter.] 

Senator LEAHY. No, you do not have to. 

Judge GORSUCH. Not that much? 

[Laughter.] 

Senator LEAHY. I will let it go. 

[Laughter.] 

Senator LEAHY. In Citizens United, Justice Kennedy indicated 

that restrictions on campaign donations could only be justified by 

concerns about quid pro quo corruption. Now, President Trump has 

said, that the reason he made campaign donations was so that 

when he needs something from them, ‘‘they are there for me.’’ His 

campaign contributions buy favors. 
98 

Shouldn’t Congress, not the courts, make the determination 

about the potential for corruption, especially if we are talking 

about quid pro quos? 

Judge GORSUCH. Senator, I think there is lots of room for legislation in this area that the Court has left. The Court indicated that 

if, you know, proof of corruption can be demonstrated, that a different result may be obtained on expenditure limits. 

Senator LEAHY. You do not believe that putting an unlimited 

amount of money by somebody who has a particular interest in the 

outcome of actions by the Congress, putting an unlimited amount 

of money into specific campaigns, that is not enough to show the 

intent to buy favors, or enough to show corruption? 

Judge GORSUCH. I am not sure I tracked the question, Senator. 

I am sorry. 

Senator LEAHY. If you have corporate money that is basically unlimited under Citizens United that can be funneled through various 

special interest groups, does that at least raise concerns about quid 

pro quo corruption? 

Judge GORSUCH. I think Citizens United made clear that quid 

pro quo corruption remains a vital concern and is subject for potential legislation. And I think there is ample room for this body to 

legislate, even in light of Citizens United, whether it has to do with 

contribution limits, whether it has to do with expenditure limits, 

or whether it has to do with disclosure requirements. 

Senator LEAHY. If somebody were to out and out buy a vote or 

buy a favor, we would all agree that is corruption, is it not? 

Judge GORSUCH. I think Justice Kennedy would agree with you, 

yes. 

Senator LEAHY. Well, would you agree with me? 

Judge GORSUCH. I would follow the law, and that is my understanding—that would certainly fall within my understanding of the 

law. 

Senator LEAHY. When I was a prosecutor, we would call that corruption. 

Judge GORSUCH. All right. I will trust you there, too, Senator. 

Senator LEAHY. And I did. Now, but influence is different ways. 

For example, when you became a judge, you were here in Washington. You were working in Washington. I understand there were 

three extremely well-qualified Coloradan women attorneys who 

were on the short list being considered by the Bush White House. 

The Denver Post did a profile of these women, and at that 

point—and your name was not on that list. At that point, a billionaire, a conservative donor, intervened. He lobbied the White House 

to appoint you. You were his lawyer. He liked you. He made donations to the same far right interest groups that were on the list 

that recommended you to President Trump. Are these areas of concern? 

Judge GORSUCH. Senator, with respect to my nomination, as I recall—— 

Senator LEAHY. I am talking about the Circuit. 

Judge GORSUCH. Yes, yes. As I recall, all of my clients, or an 

awful lot of them, came out of the woodwork to say nice, supportive 

things about me. And Phil Anschutz was one, and I think there are 
99 

probably letters in there from the fellow with the gravel pit, too, 

and—— 

Senator LEAHY. Which one do you think the White House listened to the most, Mr. Anschutz or a gravel pit owner? I mean, let 

us—— 

[Laughter.] 

Judge GORSUCH. Senator—— 

Senator LEAHY [continuing]. Let us be realistic. 

Judge GORSUCH. Senator, I think what they probably listened to 

was the fact that they had seen me in action at the Department 

of Justice. That is my guess if you ask me to guess, but that is a 

guess because I did not make the decision. 

Senator LEAHY. I raise this because some of these same people 

helped to fund the group that put you on the list for President 

Trump. 

Now, President Trump, as you know, has attacked judges who 

dared to uphold the Constitution. He is going after them. He has 

said things that I do not think any one of us would do. So, you 

have to prove that you will be an independent judge. You have 

heard that from both sides here. 

Let me ask you a question in this—in this regard. You are a person who believes in religious freedom. You said that before. In December 2015, the Senate Judiciary Committee adopted my sense of 

the Senate that ‘‘The United States must not bar individuals from 

entering into the United States based on their religion.’’ This 

passed almost every Senator with the exception of then-Senator 

Sessions, and a couple others voted for it. Now, does the First 

Amendment allow the use of a religious litmus test for entry into 

the United States? 

Judge GORSUCH. Senator, this is an issue that is currently being 

litigated actively, as you know, and I—— 

Senator LEAHY. Well, I am not asking about the litigation in the 

Ninth Circuit or anything. I was—I am asking about the fact, is 

a blanket religious test, is that consistent with the First Amendment? 

Judge GORSUCH. Senator, we have a free exercise clause that 

protects the free exercise of religious liberties by all persons in this 

country. If you are asking me how I would apply it to a specific 

case, I cannot talk about that for understandable reasons. 

Senator LEAHY. Well, because the President—— 

Judge GORSUCH. The understandable reasons, just so I am frank 

and candid with you as I can be. Senator, when you ask me to 

apply it to a set of facts that look an awful lot like a pending case 

in many Circuits now, my worry—— 

Senator LEAHY. I will try a hypothetical. Would the President 

have the authority to ban all Jews from the United States or all 

people that come from Israel? 

Judge GORSUCH. Senator—— 

Senator LEAHY. Would that be an easy question? 

Judge GORSUCH. We have a Constitution, and it does guarantee 

free exercise. It also guarantees equal protection of the laws and 

a whole lot else besides. And the Supreme Court in Zadvydas has 

held that due process rights extend even to undocumented persons 

in this country, okay? I will apply the law. I will apply the law 
100 

faithfully and fearlessly, and without regard to persons. I do not 

care—— 

Senator LEAHY. How about with regard to religion? 

Judge GORSUCH. Anyone, any law is going to get a fair and 

square deal with me. My job as a judge is to treat litigants who 

appear in front of me as I wished to be treated when I was a lawyer with my client, large or small. I did not want them discriminated against because they were a large company or a small individual with an unpopular belief. And that is the kind of judge I 

have tried to be, Senator, and I think that is my record. 

Senator LEAHY. Well, Judge, let me ask you this. Do you—do you 

agree with me that there should not be a religious test in the 

United States? 

Judge GORSUCH. I need to know more specifics. 

Senator LEAHY. Well, let me give you an example. Should there 

be a religious test to serve in the military? 

Judge GORSUCH. Oh, Senator, that would—that would be inappropriate, yes. That is against the law. That is against the law. 

Senator LEAHY. Well, of course, we go right back to the—should 

we ban people based solely on their religion, solely on their religion? 

Judge GORSUCH. Senator, we have the Religious—— 

Senator LEAHY. Not on whether they form a threat or something, 

but you ban somebody solely on their religion? 

Judge GORSUCH. Senator, we have not just the First Amendment 

free exercise clause in this country, very important protection. We 

have not just the equal protection guarantee of the Fourteenth 

Amendment, which prohibits discrimination on the basis of race, 

gender, ethnicity. We also have the Religious Freedom Restoration 

Act that Senator Hatch mentioned, which was a bipartisan bill 

passed by this body with the support of Senator Kennedy and Senator Schumer when he was in the House. 

And that imposes an even higher standard on the Government 

than the First Amendment when it comes to religious discrimination. It says that there—if there is any sincerely held religious belief, earnestly held religious belief, the Government must meet 

strict scrutiny before it may regulate on that basis, strict scrutiny 

being the highest standard known in American law. 

Senator LEAHY. Well, the reason I ask these questions, there is 

a legitimate concern. I hear stories from my grandparents when 

signs used to say ‘‘No Irish Need Apply’’ or ‘‘No Catholic Need 

Apply.’’ I am sure Senator Feinstein can speak about those of her 

religion. 

President Trump promised a Muslim ban. He still has on his 

website to this day, he has called for a total and complete shutdown of Muslims entering the United States. And a Republican 

Congressman recently said, ‘‘The best thing the President can do 

for his Muslim ban is to make sure he has Gorsuch on the Supreme 

Court before the appeals get to that point.’’ 

Judge GORSUCH. Senator, a lot of people say a lot of silly things. 

Senator FEINSTEIN. That sounds silly. 

Judge GORSUCH. My grandfather—— 
101 

Senator LEAHY. Well, that is more than silly. That is a—he 

wants—this Congressman wants you on the Court so they can uphold a Muslim ban. 

Judge GORSUCH. Senator, he has no idea how I would rule in 

that case. And, Senator, I am not going to say anything here that 

would give anybody any idea how I would rule in any case like that 

could come before the Supreme Court or my court of the Tenth Circuit. It would be grossly improper of a judge to do that. 

It would be a violation of the separation of powers and judicial 

independence if someone sitting at this table, in order to get confirmed, had to make promises or commitments about how they 

would rule in a case that is currently pending and likely to make 

its way to the Supreme Court. 

Senator LEAHY. Well, the President’s national security determinations, are those reviewable by the Court? 

Judge GORSUCH. Senator, no man is above the law. 

Senator LEAHY. Okay, because they have asserted that their national security determinations are unreviewable by the Court. I 

have heard Presidents—other Presidents say that in the past. I disagree when they say that. Do you disagree? 

Judge GORSUCH. Senator, as a judge—as a judge, I apply the 

law, and the law here I think is Youngstown. I look to Justice Jackson, okay, and Justice Jackson wrote a brilliant opinion in Youngstown. Now, it is really important to know who he was. He was the 

fiercest—— 

Senator LEAHY. I wrote a paper on that, so I know it. 

Judge GORSUCH. I know you did. I know you did. Well, I know— 

we talked about it. And, you know, here was the fiercest advocate 

of Executive power as FDR’s Attorney General. Fierce advocate of 

Executive power. And when he became a judge, he said, ‘‘The robe 

changes a man or it should.’’ And you go from being an advocate 

to being a neutral adjudicator. 

In the Youngstown system of analysis when it comes to presidential power and foreign affairs, has three categories. One, the 

President acting with the concurrence of Congress. That is when 

the President is acting at his greatest strength because there are 

shared responsibilities in our Constitution. He has Commander-inChief power. This body has power of the purse and the power to 

declare war assigned to it in Article I. 

When the—when the Congress and the President are in disagreement, that is the other end of the spectrum. The President there 

is acting with the—at the lowest ebb of his authority. And when 

Congress is silent, that is the gray area in between. That is how 

a court, as opposed to a lawyer or advocate, approaches the problem. 

Senator LEAHY. Well then, let us go to that then. President 

Trump has declared that torture works. And he said, I quote him: 

‘‘Bring a hell of a lot worse than waterboarding.’’ A 2002 memo authored by Jay Bybee from the Office of—— 

Senator FEINSTEIN. Legislative—— 

Senator LEAHY [continuing]. Legal Counsel, claimed that any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief in the President. 
102 

Now, considering the fact that Congress has passed a law on 

this, what controls? 

Judge GORSUCH. Well, have a Convention Against Torture and 

implementing legislation which ban torture. We have the Detainee 

Treatment Act, which we talked about earlier, which bans cruel, inhuman, and degrading treatment. We also happen to have an 

Eighth Amendment. 

Senator LEAHY. Well, let me ask you this. Does the President 

have the right to authorize torture if it violates the laws that have 

been passed by Congress and any other ones you cited? 

Judge GORSUCH. Senator, no man is above the law. 

Senator LEAHY. Well then, let me ask you another question. 

President Bush’s warrantless surveillance program, when you were 

working there, resulted in the illegal collection of thousands of 

Americans’ communications. Now, many of us felt that was a direct 

violation of our surveillance laws. 

Justice Department Attorney John Yoo justified the program. He 

said, ‘‘The statutes passed by Congress cannot infringe on the 

President’s inherent power under the Constitution to conduct national security searches.’’ So, do you believe that President Bush’s 

warrantless surveillance program was justified because the President had ‘‘inherent power’’ to override our surveillance laws to conduct national security searches? 

Judge GORSUCH. Senator, as a judge, before I even try to decide 

a question like that, I would want briefs and argument, and I 

would want to go through the whole judicial process. I would not 

begin to try and attempt to offer an off-the-cuff opinion like that. 

Senator LEAHY. Well, let me ask it a different way. If Congress 

passed a specific law on surveillance, and if a President said I am 

going to violate that law because I am President, does he have that 

power? 

Judge GORSUCH. No man is above the law, Senator. 

Senator LEAHY. Senator Lee, who was here a minute ago—I do 

not know if he—Senator Lee led the efforts to pass the USA Freedom Act to end the NSA bulk collection of Americans’ phone 

records, had a clear decree from Congress that dragnet collection 

of Americans’ phone records is not permitted. Is it still your answer 

that the President does not have the power to supersede that law? 

Judge GORSUCH. Senator, I cannot issue advisory opinions at this 

table in cases or controversies and how they would come out. 

Senator LEAHY. Not—— 

Judge GORSUCH. And I just—I cannot do it. It would not be responsible. 

Senator LEAHY. Is that law—— 

Judge GORSUCH. But every law that this body passes I take seriously. I respect this body, and nobody is above the law in this country, and that includes the President of the United States. 

Senator LEAHY. Well, when you were there, and I do not know 

whether these are among the things that Senator Feinstein gave 

you. But when Jay Bybee wrote, ‘‘Any effort by Congress to regulate the interrogation of battlefield combatants would violate the 

Constitution’s sole vesting in the Commander-in-Chief and the 

President,’’ and you appeared—advocated for a similar view when 
103 

you attempted to give President Bush the flexibility not to be 

bound by Senator McCain’s legislation. 

Judge GORSUCH. Senator, my recollection is that Mr. Bybee was 

long gone from the Department before I ever showed up, and that 

by the time I got there, the Department and the President were 

willing to work with Congress to try and establish a regime that 

would govern operations at Guantanamo. That is my recollection. 

And my role was a lawyer and predominately overseeing litigation filed by others against the Government. I had a role as a lawyer, a significant one, but I was not a policymaker, Senator. 

Senator LEAHY. Were you involved in Hamdan v. Rumsfeld? 

Judge GORSUCH. Senator, Hamdan, I recall, was a decision that 

passed in the first instance on the Detainee Treatment Act. So, to 

the extent I was involved and providing advice as a lawyer about 

the Detainee Treatment Act, I am sure, yes. 

Senator LEAHY. You have read the Shelby County decision. If you 

were on the Court, which side would you have voted with? 

Judge GORSUCH. Senator, I admire the various ways—— 

[Laughter.] 

Judge GORSUCH. You would be a formidable companion in the 

courtroom. 

Senator LEAHY. Yes, Senator Feinstein said, ‘‘Do not let it go to 

your head, Pat.’’ 

[Laughter.] 

Judge GORSUCH. Oh, he should. 

Senator LEAHY. And I am not. I am not. I am just—I am a lawyer from a small town. 

Judge GORSUCH. Yes, right. I have heard that story. 

[Laughter.] 

Judge GORSUCH. Whenever a lawyer says, ‘‘I am just a lawyer 

from a small town,’’ watch out. He is about—last time—you got to 

watch your wallet, because it is gone quickly in my experience. And 

I might have played that line once or twice myself. 

Senator LEAHY. No, but I ask these questions because there 

were—both Justice Alito when he was before us and Justice Roberts, and Judge Alito and Judge Roberts, answered some precedent 

questions. And you say there are no precedent questions you could 

answer? 

Judge GORSUCH. Well, no, Senator, I am happy to say Shelby is 

a precedent of the U.S. Supreme Court. It is a recent one. It is a 

controversial one. I understand that. What its precedential reach 

will prove to be remains to be seen because, for example, as I read 

it, the decision left room for Congress to legislate in this area if it 

wishes, to make new findings, and to express a new possible regime for Section Four and Section Five coverage. And that possibility is live and could yield further litigation, undoubtedly would. 

Senator LEAHY. You have been critical of class actions, and Justice Scalia in the Ledbetter case and the Wal-Mart v. Dukes case 

made it more difficult, I believe, for Americans to have their day 

in court. Would you join Justice Scalia’s decision in Wal-Mart? Just 

whatever answer you want. 

Judge GORSUCH. Senator, I would tell you that my record on 

class actions, I think, will reflect, if you look, and I know you have, 

that I represented class actions. I represented people fighting class 
104 

actions. I have ruled against class actions, and I have ruled for 

class actions. And in each case, it depends upon the facts and the 

law presented to me. 

The most recent class action case, significant one that I can 

think of, involved residents who live near Rocky Flats, a uranium 

processing plant that made nuclear weapons outside of Denver. 

And those folks filed a class action for damage to their property, 

and it took 25 years for that case bouncing up and down and back 

and forth across the legal system before I finally issued a decision 

saying stop, enough, they win. They had a trial, a jury found for 

them, and they win. Finish the lawsuit. 

And I believe it has been finished, and I believe they have been 

finally paid, though, of course it has been so long, many of them, 

it is their children who are getting the money. 

Chairman GRASSLEY. Before Senator Graham, I thought I would 

give some directions. We have this vote at noon. It is just one roll 

call vote, and Senator Graham should finish about 12:11 or 12:12. 

And then we will adjourn, depending on when your last word is— 

answer to his question, 30 minutes later. So, somewhere around 

12:40, 12:45, I will gavel the Committee back into session. 

And you need to be reminded that you should not be offended as 

Members go to vote, and you will have your 30 minutes, and I hope 

that is enough because I want to keep this moving. You can be 

back here around 12:45 or thereabouts. I will wait until you get the 

orders. 

[Laughter.] 

Chairman GRASSLEY. Does that detract from anything? 

Judge GORSUCH. We are okay. 

[Laughter.] 

Chairman GRASSLEY. Okay. 

Senator Graham. 

And, Senator Graham, if I go ahead of time, you will recess the 

Committee? 

Senator GRAHAM. Yes, sir. 

Chairman GRASSLEY. Until that time? 

Senator GRAHAM. Yes, sir. 

Chairman GRASSLEY. Thank you. 

Senator GRAHAM. Judge, I want to read a statement here that I 

associate myself with. ‘‘I certainly do not want you to have to lay 

out a test here in the abstract, which might determine what your 

vote or your test would be in a case you have yet to see that may 

well come before the Supreme Court.’’ 

Does that sound like a reasonable standard? 

Judge GORSUCH. Yes, Senator. 

Senator GRAHAM. That is what Senator Leahy said on July 21st, 

1993. I think it was good then. I think it is good now. 

You are not a political person. I am, so I am going to take a bit 

of a moment here to talk about the fairness of what is going on, 

in terms of you and Judge Garland. 

Judge Garland was a fine man. I am sure I would have voted for 

him. At the time his nomination came about, we were in the middle of selecting a new President. We were in the last year of President Obama’s term. 
105 

To my Democratic colleagues, I want to remind you of some 

things that people on your side have said. 

June 25th, 1992, it was an election year. There was a suggestion 

that maybe one of the judges on the Supreme Court would step 

down before the election in November. This is what the Chairman 

of this Committee, Joe Biden, said about that possibility then. ‘‘It 

would be our pragmatic conclusion that once the political season is 

underway, and it is, action on a Supreme Court nomination must 

be put off until after the election campaign is over. 

‘‘If someone steps down, I would highly recommend the President 

not name someone, not send a name up.’’ If Bush did not send 

someone up, I would ask the Senate to seriously consider—if Bush 

‘‘did send someone up, I would ask the Senate to seriously consider 

not having a hearing on that nominee.’’ 

That was Joe Biden on the possibility of a vacancy coming about 

by somebody stepping down, not dying, once the campaign season 

was afoot. 

Justice Scalia passed away in February. There had already been 

three primaries. The campaign season, in my view, was afoot. 

This is what Senator Reid said on May 19, 2005: ‘‘The duties of 

the United States Senate are set forth in the Constitution of the 

United States. Nowhere in that document does it say the Senate 

has a duty to give presidential nominees’’ a vote. 

This is Senator Schumer in the last—July 27th, 2007: ‘‘We 

should reverse the presumption of confirmation. We should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.’’ 

That was the last year of President Bush’s last term. 

To my Democratic colleagues, on November 21st, 2013, you decided, when you were in charge of this body, by a 52–to–48 vote, 

to change the rules of the United States Senate with the nomination of executive branch appointments and all judges below that of 

the Supreme Court. 

I am not going to ask you whether you think that was fair or not, 

because that is not your job. 

I will say to the public, I thought it was incredibly unfair. I 

thought it was a power grab by our Democratic colleagues that will 

change the nature of the judiciary for the rest of our lives, because 

what you have done is you made it that you can confirm a judge 

now within one party if you have over 50 votes, not having the requirement to reach across the aisle to pick up a vote or two, which 

is a moderating influence. That is lost forever, for all judges below 

the Supreme Court. 

I was in the Gang of 14 that was formed to deal with a wholesale 

filibuster of all Bush nominations. New to the body, I felt it would 

be bad to change a 100-and-something, almost 200 years, I guess, 

plus precedent of how we deal with nominations coming from a 

President. But there was a wholesale filibuster of everything Bush, 

and there were 14 of us—I think I am one of two or three left— 

that believed that it was wrong to filibuster Supreme Court judges 

and judges in general because you do not like the outcome of the 

election. 

And we came up with a standard that you should only filibuster 

in extraordinary circumstances, which I think is consistent with 
106 

what Hamilton had in mind in terms of the role of the Senate, that 

you expect a Republican nominee or a Republican President to pick 

someone different than a Democrat President because that is what 

the campaigns are all about. 

Qualified judges—and I believe that Sotomayor and Kagan were 

well within the reasonable mainstream of judges who would be to 

the left of center in the judicial philosophy world. That is why I 

voted for them. 

But now things are different. I believe that vote November 21st, 

2013, forever changed the way the Senate works when it comes to 

Executive appointments of judicial nominations and will do longterm damage to the judiciary as a whole because the most ideological will be rewarded. 

We do not have that requirement yet for the Supreme Court, and 

I hope we never will. Time will tell. I am not optimistic. 

At the time of that vote, the Senate had confirmed 19 of President Obama’s judicial nominations. That same time in President 

Bush’s second term, there had been four confirmed. I thought it 

was a manufactured crisis. I thought it was politically motivated. 

And when it comes to cries of being unfair, they fall on deaf ears. 

As to Judge Garland, a fine man. 

I fully expected Trump to lose. He won. I think he deserves the 

right of every President to pick qualified people. And that is just 

not me saying that. 

This is what the Federalist Papers No. 76 said about the requirement of advise and consent. This is what Mr. Hamilton wrote a 

very long time ago, in 1788. ‘‘The Senate could not be tempted, by 

the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person 

they might wish would be brought forward by a second or by any 

subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them. . . . To what purpose then require the co-operation 

of the Senate? . . . It would be an excellent check upon a spirit of 

favoritism in the President, and would tend greatly to prevent the 

appointment of unfit characters from State prejudice, from family 

connection, from personal attachment, or from a view to popularity.’’ 

That was the check and balance, advise and consent rules of the 

game that were established in 1788. 

When you look at the history of the Senate’s role in confirming 

Justices to the Supreme Court, it has changed dramatically. Many 

of the judges to the Supreme Court were confirmed without a hearing, some without even a recorded vote. 

I am not here to say that my party is without fault in the area 

of judges. We are not. I am here to say that, in 2013, November 

2013, the game changed in a way that I think Mr. Hamilton would 

be very disappointed in. And it is not that I do not understand. I 

very much do. 

When my time came for Sotomayor and Kagan to appear before 

this Committee, I knew what awaited me if I applied the Hamilton 

standard. Partisan people abound on both sides of the aisle. The ferocity by which people wanted me to vote ‘‘no’’ was real, apparent, 

and I could feel it. 
107 

I believed that if Strom Thurmond could vote for Ginsburg, and 

that 98 Senators could vote for Scalia, that there was a point in 

time where it was expected that you would vote for somebody you 

would not have chosen. You would use the qualifications of that 

person. 

So we find ourselves here today, confronting a nomination of one 

of the most qualified people, I think, President Trump could have 

chosen from the conservative world. 

You are not an unfit person. I do not think there is any reason 

to suggest that you are his favorite. 

Had you ever met President Trump personally? 

Judge GORSUCH. Not until my interview. 

Senator GRAHAM. In that interview, did he ever ask you to overrule Roe v. Wade? 

Judge GORSUCH. No, Senator. 

Senator GRAHAM. What would you have done if he had asked? 

Judge GORSUCH. Senator, I would have walked out the door. It 

is not what judges do. They do not do it at that end of Pennsylvania Avenue, and they should not do it at this end either, respectfully. 

Senator GRAHAM. This is what the Democratic Leader in the 

House said about you: ‘‘Neil Gorsuch is a very hostile appointment 

and a very bad decision, well outside the mainstream of American 

legal thought. If you breathe air, drink water, eat food, take medicine, or in any other way interact with the courts, this is a very 

bad decision.’’ 

I want to ask you to respond to what I think is complete, absolute political garbage. 

And statements like that were also directed against Justices 

Sotomayor and Kagan. I remember Sotomayor being called a racist 

because she gave a speech that was edgy. I remember Elena Kagan 

being called unpatriotic because she was involved in a decision at 

Harvard to kick the ROTC unit off the campus. 

And the reason I did not buy one was a racist and the other was 

unpatriotic is because I took the time to look at the way they lived 

their lives, and I listened to what people had to say who had 

interacted with them all their lives. 

To my Democratic colleagues, if you take the time to listen to 

people who have interacted with Judge Gorsuch throughout his entire career, you will find pretty quickly that he is a fine, decent 

man who has tried to be a good father, a good husband, a good lawyer, and a good judge. And if you do not want to take the time, it 

says more about you than him. 

All I can say is, it is impossible to conclude that what Nancy 

Pelosi said about you is anything other than political talk because 

there are no facts to justify that. 

The ABA gave you the most highly qualified rating they could 

give anybody. I just want you to know that I believe you have led 

a life you should be proud of, that you have tried your best to be 

a good father, a good husband, a good lawyer, and a good judge. 

Now, let us talk about our interaction a long time ago. 

Judge GORSUCH. Thank you, Senator, for those very kind words. 

Senator GRAHAM. Well, it was something you have earned, not 

something that you need to thank me for. 
108 

The bottom line is, are we at war, in your view, as a Nation? 

Judge GORSUCH. Senator, all I know is that there are a lot of 

young men and women out there in harm’s way so that we may 

sit here and have this conversation. 

Senator GRAHAM. It would be news to them we are not at war. 

Judge GORSUCH. I am sure that is right. 

Senator GRAHAM. It would be news to the families who have lost 

a loved one in this fight. So I think we are at war. 

Would you agree with me it is not a traditional war? 

Judge GORSUCH. Certainly not, Senator. 

Senator GRAHAM. There is no capital to conquer, no air force to 

shoot down, and no navy to sink. There is no taking of Berlin and 

Japan. 

Do you agree with me it would be hard to determine when the 

war is actually over? 

Judge GORSUCH. Senator, that was a question that the Court 

struggled with in the Hamdi case, as you know. 

Senator GRAHAM. And we had a lot of conversations about how 

to proceed forward when you were in the Bush administration. Is 

that correct? 

Judge GORSUCH. We did. 

Senator GRAHAM. And you were in the camp of the—the Youngstown steel camp, that if Congress is involved, the President is 

stronger, not weaker. Is that right? 

Judge GORSUCH. That is right, Senator. 

Senator GRAHAM. But there are some authorities that the President as Commander-in-Chief has that cannot be taken away by the 

Congress. They are inherent to the job. Is that true also? 

Judge GORSUCH. There are certainly people who believe that, 

Senator. 

Senator GRAHAM. Well, I am one of them. 

Having said that, because you cannot have 535 Commanders-inChief, Senator McCain and myself were trying to pass legislation 

that basically codified the practices of the Bush administration 

post-waterboarding. Is that a fair summary of the conflict? 

Judge GORSUCH. Yes, Senator. I believe it is. 

Senator GRAHAM. There were people in the Bush administration 

who did not want to go down the road that waterboarding was torture. That was not the view of Senator McCain or myself. 

At the end of the day, the Detainee Treatment Act codified how 

we treat enemy combatants in a time of war, in terms of practices 

we can employ in terms of interrogation standards. Is that correct? 

Judge GORSUCH. Yes. 

Senator GRAHAM. And it also tried to come up with a system of 

judicial review. I was in the camp that we are at war, and, in past 

wars, you do not give enemy prisoners lawyers. I do not remember 

any German or Japanese prisoner having a lawyer when they were 

captured. 

So, traditionally, is it the Commander-in-Chief’s job to determine 

who the enemy force is? 

Judge GORSUCH. There is certainly legal authority suggesting 

that, Senator. 

Senator GRAHAM. And it is the Court’s job to determine if the 

procedures in question pass muster. 
109 

Judge GORSUCH. That is correct, Senator. Of course, this body 

plays a role too. 

Senator GRAHAM. So the dilemma was that I believed it was the 

Department of Defense, the Commander-in-Chief’s job to determine 

the enemy force, because that is their expertise. And Congress 

could regulate the naval and land forces, and we had a say about 

how they could do that, and the courts have a say as to whether 

or not the procedures used by the President or Congress pass constitutional muster. Is that the general layout of this situation? 

Judge GORSUCH. That is the separation of powers at work. 

Senator GRAHAM. And there was a crosscurrent here. 

There was an email that you were not part of, you were not included on the email, but it says: Neil and I have just been told separately this is not what the White House wants. We have been 

given authorization to engage on the Graham amendment, not just 

authorization. They want us to engage to eliminate, if possible, but 

if not, to fix. DoD, not DOJ, has lead, which may be what led to 

DOJ–LA’s confusion. But the key point for us is that we have 

greenlight to engage on Graham. 

And what I was trying to do was preserve the Combatant Status 

Review Tribunal concept, the ARB, Administrative Review Board 

concept, and allow the courts to judge the work product at the D.C. 

Circuit Court of Appeals, to have judicial review, but let the CSRT 

go first. 

Do you remember that? 

Judge GORSUCH. I do. 

Senator GRAHAM. Okay. And it was settled in the Congress 

where the Combatant Status Review Tribunal would have the first 

shot at determining whether somebody is an enemy combatant and 

the D.C. Circuit Court of Appeals could review their work product 

to see if it was capricious, arbitrary, if it made sense. 

The Supreme Court in Boumediene struck that down, saying it 

was not an adequate substitute for habeas. Is that correct? 

Judge GORSUCH. That is absolutely correct, Senator. 

Senator GRAHAM. And your role in all this was trying to find out 

a way to engage Congress on the Detainee Treatment Act, because 

it was your view that Congress being involved would strengthen 

the President’s hand. 

Judge GORSUCH. As a lawyer? 

Senator GRAHAM. Yes. 

Judge GORSUCH. I was not a policymaker, but I did advise. 

Senator GRAHAM. As a lawyer. 

Judge GORSUCH. As did many others. There were many other 

very fine lawyers too, Senator, who advised the administration that 

engaging Congress would be a good idea, because we had read our 

Youngstown and our Justice Jackson. 

Senator GRAHAM. Any lawyer, I think, who understands this 

area of the law would suggest the President is stronger when he 

has congressional support. 

The signing statement, is it fair to say there was a conflict between the Vice President’s office and other parts of the Bush administration about what the signing statement should say or look 

like? 
110 

Judge GORSUCH. That is my recollection, and that is about all I 

can recall. 

Senator GRAHAM. I remember it very well because Vice President 

Cheney’s signing statement was going to be, we have inherent authority to do whatever we think we need to do. And there were a 

lot of other people saying, no, you do not have the authority just 

to set aside a law. You have to have a reason to object to it. 

So I just want the public to understand that, when it comes to 

this man, I have seen him in action in very complicated, emotional 

matters, where you had one group of people who could give a damn 

about the terrorist and another group of people that wanted to 

criminalize what I thought was a real-world fight. And we tried to 

find that middle ground. 

And in a 5–4 decision, the Supreme Court struck down my proposal, and we fixed it later with a huge bipartisan vote so that 

every enemy combatant today has a habeas proceeding where the 

Government has to prove by a preponderance of the evidence you 

are, in fact, an enemy combatant. Then if they reach that conclusion, you can be held under the law of war as long as you are a 

threat to our Nation. 

Is that a fair summary of where we are at? 

Judge GORSUCH. That is my understanding, Senator. 

Along the way, your legislation did prevail in the D.C. Circuit, 

and in the Supreme Court, of course, it was a close call. It was 5– 

4, as I recall. 

Senator GRAHAM. And that just proves that five people can be 

wrong. 

[Laughter.] 

Senator GRAHAM. While I disagree, I certainly respect the Court’s 

decision. 

Judge GORSUCH. You are not going to get me to commit on that 

one either. 

Senator GRAHAM. No, do not worry. I am not even going to try. 

The bottom line here is, there will be more legislation coming regarding the role of the Government in gathering information. But 

from sort of a civics point of view, which Senator Sasse is going to 

take you through, there is a difference between the law of war and 

domestic criminal law. Do you agree with that? 

Judge GORSUCH. Yes, Senator. 

Senator GRAHAM. That a common criminal, the goal of the law 

is to prosecute a crime that one individual or group committed 

against another individual or group. That is correct? 

Judge GORSUCH. That is right. 

Senator GRAHAM. The law of war is about winning the war. 

Judge GORSUCH. Well, Senator, there are—— 

Senator GRAHAM. How you fight the war. 

Judge GORSUCH. There are, as you know, rules about that, too. 

Senator GRAHAM. Right. 

Judge GORSUCH. Laws about that. 

Senator GRAHAM. Yes. And we are fighting an enemy who has no 

rules that would do anything. And I have always been in the camp 

that I do not want to be like them. I think that is their weakness. 

And the strongest thing we could do is stand up for a process that 

stood the test of time, which is intelligence-gathering in a humane 
111 

way. Because they would cut our heads off, it does not make us 

weak because we will not cut their heads off. It actually makes us 

stronger, over the arc of time. So that is my commercial about that. 

So there will be more litigation, and there are no bad guys or 

girls when it comes to challenging precedent. Do you agree with 

that? People have the right to do that. 

Judge GORSUCH. To challenge precedent? 

Senator GRAHAM. Yes. 

Judge GORSUCH. Every person is allowed to come to court to 

bring whatever claim they have. That is how our system works. 

Senator GRAHAM. That is how Brown v. Board of Education came 

about. 

Judge GORSUCH. You are exactly right, Senator. 

Senator GRAHAM. Okay. Let us talk about Roe v. Wade. 

What is the holding of Roe v. Wade, in 30 seconds? 

[Laughter.] 

Judge GORSUCH. The holding of Roe v. Wade, in 30 seconds, Senator, is that a woman has a right to an abortion. It developed a 

trimester scheme in Roe that specified when the state’s interests 

and when the woman’s interests tend to prevail. 

Senator GRAHAM. Okay. So let me just break it down. 

The Court said there is a right to privacy, that the Government 

cannot interfere with that right in the first trimester. Beyond the 

first trimester, the Government has more interest as the baby develops. Is that fair to say? 

Judge GORSUCH. That was the scheme set forth. 

Senator GRAHAM. And I think medical viability was the test that 

the Court used. 

Judge GORSUCH. Well, that is the test that the Court came 

around and applied in Casey in 1992. 

Senator GRAHAM. Okay. 

Judge GORSUCH. And so viability became more of the touchstone 

rather than a rigid—— 

Senator GRAHAM. Is it fair to say that medical viability in 1992 

may be different than it is in 2022, medically? 

Judge GORSUCH. Senator, I am not a scientist or a doctor. 

Senator GRAHAM. I would suggest that medical viability may 

change as science progresses, so you may have people coming in 

and saying, in light of scientific medical changes, let us look at 

when medical viability occurs. 

That is one example of litigation that may come before you. I 

have legislation that says, at 20 weeks, the unborn child is able to 

feel excruciating pain. And the theory of the legislation is that the 

state has a compelling interest to protect an unborn child from excruciating pain, which is caused by an abortion. 

I am not asking you to agree with my legislation. I am saying 

that I am developing—we are one of seven nations that allow 

wholesale, on-demand, unlimited abortion at 20 weeks, the fifth 

month of pregnancy. I would like to get out of that club. 

But we are going to have a debate in this body and the House 

about whether or not we want to change the law to give an unborn 

child protection against excruciating pain at 20 weeks because you 

can—the standard medically is that, if you operate on an unborn 

child at 20 weeks, the medical protocols are such that you have to 
112 

provide anesthesia because you do not want to hurt the child in the 

process of trying to save the child. So medical practice is such that, 

when you operate on an unborn child at 20 weeks, which you can 

do, you have to provide anesthesia. 

And my theory is, well, let us just look at it the other way. 

Should you allow an abortion on-demand of a child that can feel 

excruciating pain? Is that what we want to be as a Nation? Does 

that run afoul of Roe v. Wade? 

I am going to make the argument that there is a compelling state 

interest at that stage of the pregnancy to protect the child against 

death that is going to be excruciatingly painful. 

You do not have to say a word. I am just letting everybody know 

that, if this legislation passes, it will be challenged before you, and 

you will have to look at a new theory of how the state can protect 

the unborn. 

And here is what I think. You will read the briefs, look at the 

facts, and make a decision. Am I fair to conclude that? 

Judge GORSUCH. Senator, I can promise you no more than that, 

and I guarantee you no less than that, in every single case that 

comes before—— 

Senator GRAHAM. Well, this is a real-world situation that may 

develop over time because 70-something percent of the American 

people side with me on the idea that, at 20 weeks, we should not 

be in the club of seven nations that allow abortion on-demand, because that is in the fifth month, and that does not make us a better 

nation. 

There will be people on the other side saying, no, that is an erosion of Roe, and it will go to the Court, maybe, if it ever passes 

here. 

And the only reason I mention this is that everybody who wants 

to challenge whatever in court deserves a person like you, a person 

like you, no matter what pressures are applied to you, will say over 

and over again: I want to hear what both sides have to say. I want 

to read their legal arguments, look at the facts, and I will decide. 

That, to me, is reassuring, and that is exactly the same answer 

I have from Sotomayor and Kagan, no more, no less. And we can 

talk forever about what you may or may not do. If you do anything 

different than that, I think you would be unworthy of the job. 

Now, about what is going on in the country with President 

Trump, whether you like him or you do not, he is President. But 

you have said several times that he is not above the law as President. Is that correct? 

Judge GORSUCH. Yes, Senator. 

Senator GRAHAM. You told Senator Leahy, if there was a law 

passed that a Muslim could not serve in the military, you believe, 

based on current law, that would be an illegal act. 

Judge GORSUCH. Senator, yes. I see that having all sorts of constitutional problems, under current law. 

Senator GRAHAM. So if we have laws on the book that prevent 

waterboarding, do you agree with me that the Detainee Treatment 

Act prevents waterboarding? 

Judge GORSUCH. Yes, Senator. That is my recollection of it. 
113 

Senator GRAHAM. So in case President Trump is watching, which 

he may very well be, one, you did a good job from picking Judge 

Gorsuch. Number two, here is the bad part—— 

[Laughter.] 

Senator GRAHAM [continuing]. If you start waterboarding people, 

you may get impeached. 

Is that a fair summary? 

Judge GORSUCH. Senator, the impeachment power belongs to this 

body. 

Senator GRAHAM. Okay, that is even better. 

Would he be subject to prosecution? 

Judge GORSUCH. Senator, I am not going to speculate. 

Senator GRAHAM. But he is not above the law? 

Judge GORSUCH. No man is above the law. 

Senator GRAHAM. Okay. 

Judge GORSUCH. No man. 

Senator GRAHAM. Thank you. I think you are a man of the law, 

and I really want to congratulate the President that picked you. 

Quite frankly, I was worried about who he would pick. Maybe 

somebody on TV. 

[Laughter.] 

Senator GRAHAM. But President Trump could not have done better in choosing you, and I hope people on the other side will understand that you may not like him—I certainly did not agree with 

President Obama, but I understood why he picked Sotomayor and 

Kagan. And I hope you can understand why President Trump 

picked Neil Gorsuch. I hope you will be happy with that, because 

I am. 

Judge GORSUCH. Thank you, Senator. 

Senator GRAHAM [presiding]. We will recess until 12:45. 

[Recess.] 

Chairman GRASSLEY. Senator Durbin. 

Senator DURBIN. Thanks, Mr. Chairman, and thanks, Judge. 

Just to be clear, going back to Senator Graham’s line of questioning, you helped draft the provision stripping the courts of jurisdiction which was struck down by the Supreme Court in Hamdan, and you were not involved in the drafting of the McCain section of 

the bill on the Detainee Treatment amendment. 

Judge GORSUCH. Senator, that would not fit quite with my recollection. 

Senator DURBIN. Please. 

Judge GORSUCH. My recollection is that Senator McCain and 

Senator Graham wrote the legislation with input from the Department of Defense and the Department of Justice, and a whole lot 

of others besides. And I was one voice among a great many, and 

that in terms of when it was struck down, Hamdan held that the 

Detainee Treatment Act did not apply retroactively, it only applied 

prospectively; and then several years later—gosh, I want to say it 

was 2008, maybe?—the Court came back around in Boumediene. Senator DURBIN. So what I am driving at, though, is the McCain 

section relative to cruel, inhuman, and degrading treatment. And 

I assume or I hope you have had a chance to take a glance at the 

emails that Senator Feinstein gave you. You said in your email you 

wanted a signing statement to the effect that the view is that 
114 

McCain is best read as essentially codifying existing interrogation 

policies. 

So what interrogation policies did you think the McCain amendment was essentially codifying? 

Judge GORSUCH. Senator, I have not had a chance to look at 

that. I am sorry. I just scarfed down a sandwich over the break, 

and I will be happy to read it, but I am not sure what I can answer 

you, here sitting, off the top of my head. It was 12 years ago, and 

I am doing the best I can with my recollection. My recollection—— 

Senator DURBIN. I am trying to get this leap from your memory 

of this email, which I understand there were 100,000 pages of 

emails. 

Judge GORSUCH. Exactly. 

Senator DURBIN. In fairness to you. 

Judge GORSUCH. I think the Department of Justice has produced 

something like 200,000 pages of stuff. 

Senator DURBIN. I will concede that point. But your lack of memory at the moment, and contrast that with your clear statement 

that you believe that the McCain bill, which I supported, outlawed 

waterboarding. 

Judge GORSUCH. Sitting here, that would be my understanding, 

Senator. 

Senator DURBIN. The problem with what I have just described is 

when you were talking about a signing statement, waterboarding 

was still happening, and you were saying in your email, ‘‘I want 

to essentially codify existing interrogation policy.’’ There is an inconsistency there which we are going to have to wait until the second round to resolve. 

Judge GORSUCH. Okay. 

Senator DURBIN. Okay. Let me read something to you and ask 

you for a reaction. It is a statement that was made about 8 days 

ago by a Congressman named Steve King of Iowa, and here is what 

he said: ‘‘You cannot rebuild your civilization with somebody else’s 

babies. You have to keep your birth rate up, and that you need to 

teach your children your values. In doing so, you can grow your 

population, you can strengthen your culture, and you can strengthen your way of life.’’ 

The reaction to that statement was overwhelming. Civil rights 

leader Congressman John Lewis called it ‘‘bigoted’’ and ‘‘racist.’’ Republican House Speaker Paul Ryan said he clearly disagreed with 

King’s comments, went on to say, the Speaker ‘‘clearly disagrees 

and believes America’s long history of inclusiveness is one of its 

great strengths.’’ 

What would your reaction to that statement be? 

Judge GORSUCH. Senator, I can talk about my record, and I can 

tell you that as a Federal judge, when a defendant comes to court 

with an allegation that the sentencing judge made improper comments based on his ethnicity, me and my colleagues—my colleagues and I have removed that judge from the case. 

I can tell you that when an immigration lawyer fails to provide 

competent counsel time and time again, I have sent him to the bar 

for discipline. 

I can tell you that when it comes to access to justice, I have written on this topic; I have worked on this topic for the last 6 years, 
115 

together with many wonderful people on the Rules Committee, trying to make our civil litigation system cheaper and faster, because 

it takes too long for people to exercise their Seventh Amendment 

liberties. 

And I can tell you together with my colleagues, when we found 

that the level of representation of inmates on death row was unacceptable in our Circuit, a whole bunch of us—I cannot take too 

much credit—tried to do something about it. 

I can tell you that when prisoners come to court, pro se, handwritten complaints, and I see something that might be meritorious 

in them, I appoint counsel. That is my record, Senator. 

Senator DURBIN. Can you describe your relationship with Professor John Finnis? 

Judge GORSUCH. Sure. He was my dissertation supervisor. 

Senator DURBIN. When did you first meet him? 

Judge GORSUCH. Whenever I went to Oxford, so it would have 

been 1990—— 

Senator DURBIN. 1992. 

Judge GORSUCH. Well, it could have been two or three. Somewhere in there. 

Senator DURBIN. And what was his relationship with you or you 

with him? 

Judge GORSUCH. He was my dissertation supervisor, and I would 

describe that as a relationship between teacher and student, and 

he was a very generous teacher, particularly generous with his red 

ink on my papers. I remember sitting next to the fire in his Oxford 

office, like something out of ‘‘Harry Potter,’’ and he always had a 

coal fireplace burning, and sometimes whether I was being raked 

over the coals. He did not let an argument that I was working on 

go unchallenged from any direction. 

Senator DURBIN. So that was over 20 years ago that you first met 

him? 

Judge GORSUCH. Whatever it is, it is, yes. 

Senator DURBIN. Do you still have a friendship, a relationship 

with him? 

Judge GORSUCH. Last time I saw him, gosh, when he—I know I 

saw him when he retired, and there was a party held in his honor. 

And I remember seeing him then, and that was a couple of years 

ago. 

Senator DURBIN. Did he know you were from Colorado? 

Judge GORSUCH. I do not know. It must have at some point come 

out in our conversations. I do not know when. 

Senator DURBIN. And do you recall saying some words of gratitude for his help in writing your book? 

Judge GORSUCH. He did not write my book, Senator. 

Senator DURBIN. Help write? 

Judge GORSUCH. He did not help write my book. I wrote my 

book. I certainly expressed gratitude to my dissertation supervisor 

in a book that is basically my dissertation. 

Senator DURBIN. I think you were quoted as saying, in 2006, you 

thanked Finnis for his ‘‘kind support through draft after draft.’’ 

Judge GORSUCH. And there were a lot of drafts, Senator. I mean, 

golly, that was a very tough degree. That was the most rigorous 

academic experience of my life, and I had to pass not just him but 
116 

an internal examiner and an external examiner, and that was 

hard. That was hard. 

Senator DURBIN. In 2011, when Notre Dame ran a symposium to 

celebrate his work, you recalled your study under him, and you 

said, ‘‘It was a time when legal giants roamed among Oxford’s 

spires.’’ 

Judge GORSUCH. Oh, yes. Yes. 

Senator DURBIN. You called him one of the great scholars. 

Judge GORSUCH. Well, and Oxford has a stable—and it is part 

of the reason why it was such a privilege. I mean, here I was a kid 

from Colorado, and I have a scholarship to go to Oxford. I had 

never been to England, to Europe before. And at Oxford at that 

time, they had John Finnis, Joe Raz, Ronald Dworkin. H.L.A. Hart 

was even still alive then. 

Senator DURBIN. So let me, if I can, read a couple statements 

from Professor Finnis. In 2009, Professor Finnis wrote about England’s population. He said England’s population had ‘‘largely given 

up bearing children at a rate consistent with their community’s 

medium-term survival.’’ He warned they were on a path to ‘‘their 

own replacement, as a people, by other peoples, more or less regardless of the incomers’ compatibility of psychology, culture, religion, or political ideas and ambitions, or the worth or viciousness 

of those ideas and ambitions.’’ 

He went on to say, ‘‘European states in the early 21st century 

move . . . into a trajectory of demographic and cultural decay . . . 

population transfer and replacement by a kind of reverse colonization.’’

Had you ever read that before? 

Judge GORSUCH. Nope. 

Senator DURBIN. Had you heard it before? 

Judge GORSUCH. Nope. Not to my recollection. 

Senator DURBIN. Could you distinguish what he said with what 

Congressman Steve King said? 

Judge GORSUCH. Senator, I am not here to answer for Mr. King 

or for Professor Finnis. We—— 

Senator DURBIN. But I am asking your reaction to these things. 

Do you feel that what Professor Finnis wrote about purity of culture and such is something that we should condemn or congratulate? 

Judge GORSUCH. Senator, before I expressed any view on that, I 

would want to read it, and I would want to read it from beginning 

to end—— 

Senator DURBIN. I just read it to—— 

Judge GORSUCH. Not an excerpt. And, Senator, I have had a lot 

of professors. I have been blessed with some wonderful professors. 

And I did not agree with everything they said, and I would not expect them to agree with everything I have said. 

Senator DURBIN. Well, let me ask you this specific one. It was 

1993, and you were at Oxford, and this is when you believe you 

first met this professor. Professor Finnis was tapped by the thenColorado Solicitor General, Timothy Tymkovich, to help defend a 

1992 State constitutional amendment that broadly restricted the 

State from protecting gay, lesbian, and bisexual people from discrimination. 
117 

During the course of the deposition which he gave in support of 

that effort, Finnis argued that antipathy toward LGBT people, specifically toward gay sex, was rooted not just in religious tradition 

but Western law and society at large. He referred to homosexuality 

as ‘‘bestiality’’ in the course of this as well. 

Were you aware of that? 

Judge GORSUCH. Senator, I know he testified in the Romer case. 

I cannot say sitting here I recall the specifics of his testimony or 

that he gave a deposition. 

Senator DURBIN. I guess the reason I am raising this is this is 

a man who apparently had an impact on your life, certainly your 

academic life, and I am trying to figure out where we can parse his 

views from your views, what impact he had on you as a student, 

what impact he has on you today with his views. 

Judge GORSUCH. Well, I guess, Senator, I think the best evidence 

is what I have written. I have written over—oh, gosh, written or 

joined over 6 million words as a Federal appellate judge. I have 

written a couple of books. I have been a lawyer and a judge for 25 

or 30 years. That is my record, and I guess I would ask you respectfully to look at my credentials and my record, and some of the 

examples I have given you are from my record about the capital 

habeas work, about access to justice. I have spoken about overcriminalization publicly. Those are things I have done, Senator. 

Senator DURBIN. And what about LGBT and Q individuals? 

Judge GORSUCH. Well, Senator, there are—what about them? 

Senator DURBIN. Well, the point I made is—— 

Judge GORSUCH. They are people, and—— 

Senator DURBIN. Of course. But what you said earlier was that 

you have a record of speaking out, standing up for those minorities 

who you believe are not being treated fairly. Can you point to 

statements or cases you have ruled on relative to that class? 

Judge GORSUCH. Senator, I have tried to treat each case and 

each person as a person—not a this kind of person, not a that kind 

of person. A person. Equal justice under law. It is a radical promise 

in the history of mankind. 

Senator DURBIN. Does that refer to sexual orientation as well? 

Judge GORSUCH. Senator, the Supreme Court of the United 

States has held that single-sex marriage is protected by the Constitution. 

Senator DURBIN. Judge, would you agree that if an employer 

were to ask female job applicants about their family plans but not 

male applicants, that would be evidence of sex discrimination prohibited by Title VII of the Civil Rights Act? 

Judge GORSUCH. Senator, I would agree with you it is highly inappropriate. 

Senator DURBIN. You do not believe it is prohibited? 

Judge GORSUCH. Senator, it sounds like a potential hypothetical 

case that might be a case or controversy I might have to decide, 

and I would not want to prejudge it sitting here at the confirmation 

table. I can tell you it would be inappropriate. 

Senator DURBIN. Inappropriate. Do you believe that there are 

ever situations where the costs to an employer of maternity leave 

can justify an employer asking only female applicants and not male 

applicants about family plans? 
118 

Judge GORSUCH. Senator, those are not my words, and I would 

never have said them. 

Senator DURBIN. I did not say that. I asked you if you agreed 

with the statement. 

Judge GORSUCH. And I am telling you I do not. 

Senator DURBIN. Thank you. 

In Hwang v. Kansas State, the case involved a cancer-stricken 

professor. You wrote an opinion that noted that EEOC guidance 

commands deference ‘‘only to the extent its reasoning actually 

proves persuasive.’’ 

EEOC’s enforcement guidance on pregnancy discrimination provides as follows: ‘‘Because Title VII prohibits discrimination based 

on pregnancy, employers should not make inquiries into whether 

an applicant or employee intends to become pregnant. The EEOC 

will generally regard such an inquiry as evidence of pregnancy discrimination where the employer subsequently makes an unfavorable job decision affecting a pregnant worker.’’ 

Do you find this instruction to be persuasive? 

Judge GORSUCH. Senator, there are a lot of words there, and if 

you are asking me to parse them out and give you a legal opinion— 

and I fear that you may be—I would respectfully say I would have 

to study it in the course of a judicial case. 

Senator DURBIN. Well, let me bring it right down to the operative 

words: whether employers should or should not make inquiries into 

whether an applicant or employee intends to become pregnant. 

Judge GORSUCH. Senator, I would need to—it sounds like you are 

asking me about a case or a controversy, and with all respect, 

when we come to cases and controversies, a good judge will listen. 

Socrates said the first virtue of a good judge is to listen courteously 

and decide impartially. 

Senator DURBIN. I think you know why I am asking these questions. 

Judge GORSUCH. No. This one I do not. 

Senator DURBIN. The reason I am asking about your views on 

pregnancy, women, and 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 an April 19th class. It was a gender-targeted discussion regarding the hardship to employers 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 did not 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 administrators shortly after 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, so 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 
119 

benefits from a company and then left the company after having 

a baby? 

Judge GORSUCH. No, Senator, and I would be delighted to actually clear this up. 

Senator DURBIN. Please. 

Judge GORSUCH. 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 7 or 8 years. It has been a great 

honor and pleasure. I teach from a standard textbook that every 

professor—well, I do not know if every professor—a number of professors at CU and elsewhere use. It is an excellent textbook, Professors Lerman and Schrag. 

One of the chapters in the book confronts lawyers with some 

harsh realities that they are 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, and 

that is 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 teacher’s manual so that you can see 

for yourself, Senator, which asks a question, and it is 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—the hypothetical is that it is 

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. That is a choice, 

too. It is a hard choice. 

Or you can push back in some way, shape, or form. And we talk 

about the pros and the cons in a Socratic dialogue so that they can 

think through for themselves how they might answer that very difficult question. And, Senator, I do ask for a show of hands—not 

about the question you asked but about the following question, and 

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? 

And I am shocked every year, Senator, how many young women 

raise their hand. It is 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 O’Connor, could not get a job 

as a lawyer when she graduated Stanford Law School and had to 

work as a secretary. I am shocked 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. 

Senator DURBIN. 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. 
120 

You made a point yesterday of talking about your four heroes, 

and one of them was Justice Jackson. And I went back to look at 

some of his cases. I just know of him. I do not know much about 

him. And I found his dissent in Korematsu, and this was a case 

which I thought was fascinating because his dissent was not that 

long, but it had an impact. It was profound. 

The question, of course, was the military orders in the United 

States and the treatment of Japanese Americans. Fred Korematsu 

was caught up in it and was basically told he had no choice, he had 

to go off to the internment camp, and that whole military directive 

was challenged in this case. And it was interesting that it was 

upheld in an opinion by Justice Black, but among the dissenters 

was Robert Jackson. In his dissent, he said some things that I 

thought were pretty interesting, and I would like to ask your 

thoughts on them. 

He gave a constitutional condemnation of what he considered the 

military’s racist exclusion orders, but what he articulated in the 

second half of the opinion is what I would 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. 

So 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 confirmed that as well. Are we up to it in terms of 

constitutional protection and the role of the Court? 

Judge GORSUCH. 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 does not happen everywhere else around the 

world. We take it for granted in this country. It is a remarkable 

blessing from our forefathers, and it is a daunting prospect 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. And 

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. 

Senator DURBIN. Let me ask you about another case that has 

been referred to. Yesterday, many of us mentioned Al Maddin sitting in that truck—it was about 3 in the morning—on I–88, west 

of Chicago. I have driven it many times. It was in January. The 

temperature in the cab was 14 degrees below zero. He had no heater in his cab. His dispatcher told him, ‘‘Sit tight. You either drag 

that trailer with the frozen brakes behind you out onto that highway, or you wait.’’ And so he waited for hours, and finally, feeling 

numb and life-threatening cold, he unhitched the 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 Al Maddin’s side, except for one: you. Why? 
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Judge GORSUCH. Senator, this is one of those you take home at 

night. The law said that the man is protected and cannot be fired 

if he refuses to operate an unsafe vehicle. The facts of the case, at 

least as I understood them, was that Mr. Maddin chose to operate 

his vehicle, to drive away and, therefore, was not protected by the 

law. He would be protected if he refused to operate, but he chose 

to operate. Now, Senator—— 

Senator DURBIN. But you know the distinction, though, because 

his dispatcher told him, ‘‘Do not leave unless you drag that trailer.’’ 

Judge GORSUCH. Right. 

Senator DURBIN. And he said, ‘‘I cannot do it. You know, the 

brakes are frozen.’’ And he went out there in 14 below and 

unhitched that trailer, he thought, because he was in danger. And 

when you wrote your dissent in this, you said it was an unpleasant 

option for him to wait for the repairman to arrive. 

Judge GORSUCH. I said more than that, Senator. I said—— 

Senator DURBIN. I know you did. You went on to say that you 

thought that the statute which we thought protected him, you said, 

especially ends in the ephemeral and generic phrase ‘‘health and 

safety.’’ You went on to write, ‘‘After all, what under the sun, at 

least at some level of generality, does not relate to ‘health and safety’?’’ 

We had a pretty clear 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. You are fired, buddy.’’ And, you 

know, he was blackballed from trucking because of that. Never got 

a chance to drive a truck again. 

Judge GORSUCH. Senator, all I can tell you is my job is to apply 

the law you write. The law as written said that he would be protected if he refused to operate. And I think by any plain understanding, he operated the vehicle. And 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. It is 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 a highway in Wyoming in a snowstorm. I 

know what is involved. I do not make light of it. I take it seriously. 

But, Senator, this gets back to what my job is and what it is not. 

And if we are 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 of an agency of some sort 

for a worker or otherwise. 

You know, I would point you, for example, to W.D. Sports or 

Casey, Energy West, Crane, Simpson v. CU. That is just a few that 

come to mind that I have scratched down here on a piece of paper. 

Senator DURBIN. Judge, we up here are held accountable for our 

votes, and I have been in Congress for a while, and I have cast a 

lot of them. Some of them I am not very proud of; I wish I could 

do it all over again. I have made mistakes. But your accountability 

is for your decisions, as our accountability is for our votes. And if 

were picking and choosing, it is to try to get to the heart of who 
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you are and what you will be if you are given a chance to serve 

on the 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, 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, did the Court spend 

a lot of time twisting and turning and trying to find some way to 

take RFRA and say that Congress really meant corporations like 

Hobby Lobby when they said ‘‘person.’’ It was the Dictionary law 

and so many different aspects of this. 

What I was troubled by—and I asked you then, and I will 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 what is right and 

wrong when it comes to family planning, and the Court says that 

is what will 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 beliefs 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 closed-in 

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, ‘‘There is some kind of family planning I like and some I do not like’’? 

Judge GORSUCH. Senator, I take every case that comes before me 

very seriously. I take the responsibility entrusted in me in my current position very grave. I think if you ask the lawyers and judges 

at the Tenth Circuit am I a serious and careful judge, I think you 

will hear that I am. And I am delighted to have an opportunity to 

talk to you about that decision. 

As you know, in RFRA, the Religious Freedom Restoration Act, 

Congress was dissatisfied with the level of protection afforded by 

the Supreme Court under the First Amendment to religious exercise. The Court, in a case called Smith v. Maryland, written by 

Justice Scalia, said any neutral law of general applicability is fine. 

That does not offend the First Amendment. So laws banning the 

use of peyote, Native Americans, tough luck, even though it is essential to their religious exercise, for example. 

This Congress decided that was insufficient protection for religion and, in a bill sponsored by Senator Hatch, Senator Kennedy, 

Senator Schumer when he was in the House, wrote a very, very 

strict law, and it says that any sincerely 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, RFRA and RLUIPA—they 

are companion statutes—to Muslim prisoners in Oklahoma who 

seek halal meals, to Native Americans who wish to use an existing 
123 

sweat lodge in Wyoming, and to Little Sisters of the Poor. Hobby 

Lobby came to court and said, ‘‘We deserve protections, too. We are 

a small family held 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. And they came to court and said, ‘‘We are entitled to 

protection, too, under that law.’’ 

It is 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 did not 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. That is what a good judge 

does. He does not make it up. He goes to the Dictionary Act. 

In the Dictionary Act, Congress has defined ‘‘person’’ to include 

corporation. So you cannot rule out the possibility that some companies can exercise religion. And, of course, we know churches are 

often incorporated, and we know nonprofits like Little Sisters or 

hospitals can practice religion. In fact, the Government in that case 

conceded that nonprofit corporations can exercise religion. Conceded that. So that is the case. 

Then we come to the strict scrutiny side. 

Senator DURBIN. I do not want to cut you off. 

Judge GORSUCH. Oh, I am sorry. 

Senator DURBIN. I am going to get in big trouble with the Chairman—— 

Judge GORSUCH. Oh, I do not want to get you in trouble. 

Senator DURBIN [continuing]. From Iowa here. 

Chairman GRASSLEY. I think I would want you to continue your 

answer to his question. 

Judge GORSUCH. I am sorry, Mr. Chairman. 

Chairman GRASSLEY. No, please. I want you to continue. 

Judge GORSUCH. Okay. All right. So then you have the religion, 

the first half of the test met. All right? So then you go to the second half. Does the Government have a compelling interest in the 

ACA in providing contraceptive care? The Supreme Court of the 

United States said we assume yes; we take that as given. 

And then the question becomes: Is it narrowly tailored to require 

the Green family to provide it? And the answer there the Supreme 

Court reached, and precedent binding on us now, and we reached 

in anticipation, is no, that it was not as strictly tailored as it could 

be because the Government had provided different accommodations 

to churches and other religious entities. 

The Greens did not want to have to write down and sign something saying that they were permitting the use of devices they 

thought violated their religious beliefs. And the Government had 

accommodated that with respect to other religious entities and 

could not provide an explanation why it could not do the same 

thing here. And that is the definition of ‘‘strict scrutiny.’’ 

Now, Congress can change the law. It can go back to Smith v. 

Maryland if it wants to, eliminate RFRA altogether. It could say 

that only natural persons have rights under RFRA. It could lower 
124 

the test on strict scrutiny to a lower degree of review if it wished. 

It has all of those options available, Senator, and if we got it 

wrong, I am sorry. But we did our level best, and we were affirmed 

by the U.S. Supreme Court, and it is a dialogue like any statutory 

dialogue between Congress and the courts. 

Senator DURBIN. Thank you, Judge, and thank you, Mr. Chairman. 

Chairman GRASSLEY. The Senator from Texas. 

Senator CORNYN. Thank you, Mr. Chairman. 

Before I start, yesterday in my statement I mentioned an op-ed 

in The New York Times written by Neal Katyal. My apologies to 

him if I have butchered his name. With a name like Cornyn, I am 

used to it, but I apologize. 

Judge GORSUCH. I get a lot worse. I have a lot worse the other 

day. 

Senator CORNYN. The title of the op-ed is ‘‘Why Liberals Should 

Back Neil Gorsuch.’’ I would like to ask consent that this be included in the record, along with other supportive letters. 

Chairman GRASSLEY. Without objection, all documents will be included. 

[The information appears as submissions for the record.] 

Senator CORNYN. So, 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? 

Judge GORSUCH. That is the easiest question of the day, Senator. 

Thank you. No. 

And I have to correct myself. Senator Durbin, it is not Smith v. 

Maryland. That is third-party doctrine. It is Employment Division 

v. Smith that we are talking about. I apologize to you for that. 

Senator CORNYN. Well, I am 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, that 

you look at who the litigants are and who you would like to win, 

the little guy, as we have heard—and I will get to that again in 

a minute—and then go back and try to justify the outcome. But I 

agree with you; that is 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 crystal clear. 

I remember back when George W. Bush was President of the 

United States. There was a practice of signing statements that 

went along with his signing legislation into law that was criticized 

by some of our friends on the other side of the aisle as somehow 

undermining Congress’ intent or the President’s own signature enacting a bill into law. And so Senator Feinstein raised the question 

of back when you worked with Senator McCain and Senator 

Graham on the Detainee Treatment Act, the signing statement 

that the President ultimately issued that went along with his signing that legislation into law. 

Did I characterize that correctly? 

Judge GORSUCH. I think so, Senator, to the best of my recollection. 

Senator CORNYN. Okay. So the question is this, Judge: There 

were some in the administration who wanted a single statement 
125 

basically that the President was signing the law, but, you know, if 

you could find an argument that the President did not have to pay 

attention to the law, or perhaps had authorities that were not otherwise laid out in the statute, that the President could disregard 

what Congress has passed and what the President had signed into 

law. 

On the other hand, there were those like you in an email who 

laid out the case for a more expansive signing statement. You made 

the point that on the foreign public relations front, allowing us to 

speak about this development positively rather than grudgingly 

would be helpful. You said that while we all appreciate the appropriate limitations and the usefulness of legislative history, it would 

be helpful, as this provision is litigated—which it inevitably would 

be—to have a statement of policy from the executive branch on why 

this law was enacted. 

And, third, that you said it would help inoculate against the potential of having the administration criticized in the future for not 

making sufficient changes when, in fact, all the bill did was to codify existing law with regard to interrogation practices. Senator 

McCain made that comment. 

So you at least—I hate to put it in these terms. You lost that argument in a sense because the Vice President’s lawyer prevailed in 

that argument, and they had a single statement in the signing 

statement basically making reference to—well, here, I will just 

read it. It says, ‘‘The executive branch shall construe Title X of the 

act in a manner consistent with the constitutional authority of the 

President to supervise the unitary executive branch and as Commander-in-Chief and consistent with the constitutional limitations 

on judicial power.’’ 

So that is the statement in the signing statement that you 

sought to make more expansive and accommodate the three concerns that you raised. Is it not correct? 

Judge GORSUCH. Senator, your understanding of events is a lot 

fresher than mine, but sitting here, I cannot disagree with anything you have said. 

Senator CORNYN. Well, and I understand this is, what, 12 years 

ago. 

Judge GORSUCH. Something like that. 

Senator CORNYN. And you were asked questions initially by Senator Feinstein without the benefit of actually being able to refresh 

your memory from reading the emails. But I think we have covered 

that enough, I hope, and laid that to rest. 

I want to talk a little bit about the little guy. You know, in these 

confirmation hearings, sometimes very complicated and complex 

issues are dealt with in a rather simplistic and misleading sort of 

way. But, first of all, I want to talk to you a little bit about an article that you wrote in the Judicature magazine called ‘‘Access to Affordable Justice.’’ And I know as somebody who has actually practiced law in the trenches, as you said you have and you did, you 

were concerned and write in this article about your concerns for access to justice for the little guys—and little gals, I guess. And you 

point out that litigation had become so expensive and so time-consuming that essentially it was out of reach. Justice in our courts 
126 

of law to resolve legitimate disputes was out of reach for people of 

modest means. 

Could you expand on those concerns that you raise in that article? 

Judge GORSUCH. I really appreciate this opportunity and venue 

to be talking about these things because these I care about and I 

can talk about as a judge. 

I wrote that article in conjunction with some input from a lot of 

wonderful people, so I cannot take total credit for it. And I thank 

them, and you can see who I thank. 

My point there was threefold, starting with the fact that too few 

people can get to court with legitimate grievances today. That is a 

fact. Too few people can get lawyers to help them with their problem. I teach young folks law who leave law school unable to afford 

their own services. Think about that. Think about that. And hundreds of thousands of dollars in debt. How do they go be Main 

Street lawyers? How do they help people who need legal services? 

And I pointed to three potential sources of problems where we 

lawyers maybe should look internally rather than blame others for 

the problem. There is plenty of blame to go around. I am not a big 

blame guy. But I am a look-inside guy. And what do I see in our 

profession? There are three things that I pointed to in that article. 

First, our own ethical rules. It is a very unusual profession 

where we are allowed to regulate ourselves. It is quite an extraordinary privilege. Usually it is the legislature, right? But lawyers 

basically regulate themselves. And do all of our ethical rules necessarily help our clients or do some of them help us more than they 

help our clients? 

And I point to some that, for instance, regarding the unauthorized practice of law, why is it you have to be a lawyer to help parents with disabled children in administrative proceedings to seek 

relief under IDEA? That was an example I pointed to. 

Why is it that every time certain companies that provide online 

legal services for basic things get sued every time they move into 

a new State? 

Why is it I can go to Walmart and get my hair, teeth, eyes taken 

care of but I cannot get a landlord-tenant contract drawn up? 

Those are all results of our ethical rules, and I am not sure 

whether they are worth the price that we pay for them. It is estimated, I have heard—I cannot verify it—that our ethical rules result in a $10 billion a year surplus to lawyers from clients every 

year. That was one. 

Number two was our own rules of procedure which yield cases 

like the one we talked about that took 25 years to resolve. That is 

wrong. That is wrong. We should be able to resolve cases in less 

time than it takes for my law clerks to be born, raised, and get 

through law school. 

And the third thing I pointed to was our legal educational system, where we have 3 years of post-graduate education for everybody who wants to have anything to do with lawyering. The best 

lawyer in the country in this history came from your State, Senator 

Durbin, and he did not ever go to law school. And he always said 

the best way to become a lawyer, read the books. Still true. 
127 

And other countries around the world do not have 3 years of 

post-graduate legal education. Now, this is where Justice Scalia 

and I—this is a disagreement. He thought 3 years was necessary 

for everybody. I am not convinced. In England, where I studied, 

you could become a lawyer through 3 years of an undergraduate 

degree or 1 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 to serve the people they would 

like to serve. 

Those are the problems I talk about in that article. 

Senator 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 of many things more unjust for people 

of modest means in America than being denied access to the courts 

because our system is so expensive and so time-consuming they 

just simply cannot afford it? 

Judge GORSUCH. I think it is a problem when 80 percent of the 

American College of Trial Lawyers, the best lawyers in the country, 

arguably—they certainly think they are. Sorry. 

[Laughter.] 

Judge GORSUCH. When 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 litigation costs rather than the merits of the litigation, that is a problem both ways. And these are lawyers who operate on both sides of the ‘‘v.’’ 

Senator CORNYN. So basically you either have to be able to pay 

a lawyer’s hourly rate or you have to agree to some contingent fee 

arrangement, and lawyers are not going to take a contingent fee 

case unless there is at least some reasonable prospect for their 

being compensated out of any settlement and judgment, ordinarily. 

Judge GORSUCH. Ordinarily. Some do. What we are seeing today, 

though, Senator, is an explosion of pro se, that is, filings by the 

person without a lawyer. And that is 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. 

Senator CORNYN. Judge, let me ask you about another case involving the little guy. This was an immigration case that you will 

recall was a conflict between two provisions of immigration law, 

Gutierrez-Brizuela v. Lynch. I hope I pronounced that approximately correctly. 

Do you recall the case? 

Judge GORSUCH. I do, and we have talked a little bit about it 

with Senator Feinstein, and I would be happy to—— 

Senator CORNYN. Well, I am happy to hear it again because I 

heard, I believe it was, Senator Feinstein—maybe I am mistaken 

there—or maybe one of our other colleagues—I apologize if I misstated that—that talked about this deference to administrative 

agencies as being necessary and a fundamental doctrine. But can 

you explain how that ended up hurting the little guy in that case? 
128 

Judge GORSUCH. So, Senator, in that case there were two statutes that this undocumented immigrant faced. 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 10 years 

out of the country before he could seek relief. 

Now, I am not criticizing Congress’ handiwork 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 trumped, that the man had a right to apply for immediate 

discretionary relief and did not have to wait 10 years out of the 

country. And then some number of years later—I cannot remember 

whether it was 3 or 4, I want to say. Do not hold me to that. The 

Board of Immigration Appeals in its infinite wisdom comes back 

and says we are wrong. The Court of Appeals got it wrong; the 10- 

year statute trumps. 

Okay. It says, though, that we are not just wrong, but we are 

wrong retroactively. So it is as if our decision never existed. And 

this man, who had relied on our holding to apply for immediate 

discretionary relief, was denied the opportunity to do so and told 

now he had to go start his 10-year waiting period. 

Now, instead of 10 years, it is now equivalent of, what, 13 or 14 

years. And to me, that just seemed like he 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 is a matter of due process 

and fair notice. When he is told that is the law, he should be able 

to rely on it. 

And I also think it is 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 is 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. 

Senator CORNYN. In this case the little guy was actually relying 

upon a judgment of a court of law—— 

Judge GORSUCH. Yes, he—— 

Senator CORNYN [continuing]. And was effectively, or at least the 

attempt was to overrule that court decision by an administrative 

regulation or interpretation. Is that correct? 

Judge GORSUCH. Yes. 

Senator CORNYN. And if you had applied the Chevron test—we 

have talked about that a little bit—said if it is ambiguous, the statute is ambiguous, and the agency’s interpretation is a legal one, 

then you are obligated to enforce the agency decision rather than 

the judgment of the court of law. 

Judge GORSUCH. Senator, we did apply the Chevron case faithfully because we had to, and I also wrote separately to ask questions, because I am a Circuit Judge. You know, I never dreamt I 

would be sitting here, I can tell you that, when I wrote this opinion. And part of my job as a Circuit Judge is to tee up questions 

for my bosses. And it struck me, here is a question. Is this result 
129 

consistent with the Administrative Procedures Act? Which says in 

Section 706 that we are supposed to defer to agencies when it 

comes to questions of fact, to the scientists, to the biologists. But 

when it comes to questions of law, APA Section 706 entrusts courts 

to decide what the law is. And is this consistent with our values 

of equal protection, due process, and separation of powers? 

Those are questions I raised, Senator, to tee up for my bosses. 

Senator CORNYN. So you actually applied the Chevron test in 

your judgment and wrote a separate opinion raising these questions perhaps for review by the Supreme Court. 

Judge GORSUCH. I follow precedent. 

Senator CORNYN. It sounds like it, even when you disagree with 

the outcome. 

Judge GORSUCH. Well, we got to an outcome we could live with 

there, too, Senator, and applied Chevron. But I did raise it in the 

separate concurrence to raise these questions. You know, I do not 

know how I would rule if I were a Supreme Court Justice on the 

question. I have to be honest with you, Senator Cornyn, because I 

would want to do what a good judge does. Keep an open mind, read 

the briefs. And I could change my mind. I think here of my old 

boss, Dave Sentelle, who, when I clerked for him, he wrote a panel 

opinion going one way at the beginning of the year, and by the end 

of the year he wrote an en banc opinion, an opinion for the full 

court, reversing his own panel opinion. 

Now, some people say that is a man who does not have a spine, 

something like that. I say that is a judge with an open mind. 

Senator 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 is one part of the Federal Government that is completely out 

of control of the regular voters in this country, it is the bureaucrats 

who do not stand for election like Members of Congress do. And so 

I hope it is something that we legislatively can look at as a way 

to help rein in the regulatory state, which, in my humble opinion, 

hasten 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 is 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 U.S. Supreme Court. I had that 

chance on two occasions when I was Attorney General of Texas. 

This case was called the ‘‘Santa Fe Independent School District v. 

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 inspirational thought before the 

football game. They got sued by the ACLU, and that case ended up 

going to the U.S. Supreme Court where the Court held by a vote 

of 6–3 that student-led prayer was unconstitutional. That led the 

late Chief Justice Rehnquist to make the statement that rather 

than neutrality toward religious expression, that the Court now exhibits ‘‘hostility to all things religious in public life.’’ 

We do not seem to have many limits on expressions of sex, violence, or crime in the public square, but we do seem to have com-
130 

punctions 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 am asking you the question, I am already 

thinking through my head here. I am 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 am very troubled by what Chief Justice Rehnquist called ‘‘hostility to religious 

expression in the public square’’ and what that has done to change 

our country, not in a good way. 

Judge GORSUCH. Senator, I appreciate your thoughts, and it is 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 are guaranteed free exercise of religion, and you are also guaranteed no establishment of religion. 

Those two commands are in tension because, to the extent we accommodate free expression, at some point the accommodation can 

be so great that someone is going to stand up and say you have 

established or you passed a law respecting the establishment of religion. It is a spectrum and it is 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 is 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 has proved a difficult test, according to six Justices at least 

who have expressed dissatisfaction with this test, but 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 is a bit of a challenge 

in this area. We struggle along. 

Senator CORNYN. Well, just as one citizen to another, let me tell 

you I think it is 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. 

My final topic, at least for this round, let me ask a little bit 

about originalism and textualism. Our mutual friend, Bryan Garner, mentioned to me that textualism is not the same thing as 

being a strict constructionist. I know we use that phrase, at least 

colloquially some. But if a judge is not 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? 

Judge GORSUCH. Well, Senator, I hope it is not what he had for 

breakfast. And, you know, when I was a lawyer, all I wanted was 

a judge who put all of his personal things aside, her personal 
131 

views, and come to the law and the facts in each case fairly. And 

I do think when we are 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. 

I used to say she could teach a monkey how to read. I think she 

did: Me. And I think that is 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 are doing.’’ I do not want to have him 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 cannot. It is 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 statutes or laws as Rorschach inkblot tests, I have usurped your role. I have taken away 

the right of self-government by the people, for the people. 

I 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, by the people. Maybe that is the—gosh, 

is that the—— 

Senator WHITEHOUSE. Gettysburg. 

Judge GORSUCH. It is the Gettysburg Address, isn’t it? I read 

them both. Thank you, Senator. It is the Gettysburg Address. It is 

the Gettysburg Address. 

Senator CORNYN. Well, Judge, let me ask you—I am sorry to interrupt you. 

Judge GORSUCH. No. I am sorry. It is just a matter of separation 

of powers. It is not my job to do your job. 

Senator CORNYN. Well, what sort of escapes me is if people who 

argue that somehow judges are not bound by the text of a statute, 

it is the text of a statute that Congress votes on. So how in the 

world, if it is something else other than the text that ought to direct the outcome, how could anybody have that kind of fair notice 

that we depend upon so people can align their affairs consistent 

with the law? 

Judge GORSUCH. Right. And it is not a matter of strict construction. Strict construction in my mind sounds like I am putting the 

finger on the scale toward a particular interpretation, maybe even 

a pro-government interpretation. I do not 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 is a pretty good starting place for fair notice and for 

separation of powers, I think, Senator. 

Senator CORNYN. Thank you, Judge. 

Judge GORSUCH. Thank you. 

Chairman GRASSLEY. Mr. Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. Let me ask unanimous consent to put into the record a letter from over 100 groups 
132 

dated March 14, 2017, regarding what they describe as Judge 

Gorsuch’s troubling money and politics record and a letter from 

Demos 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.’’ 

Chairman GRASSLEY. Without objection, all three documents will 

be included. 

[The information appears as submissions for the record.] 

Senator WHITEHOUSE. Thank you. 

Before we get into that, Judge, let me—since we we are 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 cannot 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 wanderings of 

a court that could make up its own facts and then go in that direction? 

Judge GORSUCH. I have not thought about that, Senator, to be 

honest with you. I know—— 

Senator 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 is not using an expansive question presented to enable itself to wander throughout the 

legal landscape beyond the constraints of the case? 

Judge GORSUCH. Senator, it is 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. 

Senator WHITEHOUSE. Very rare, yes. 

Judge GORSUCH. And that is very—that is a very important 

standard. 

Senator WHITEHOUSE. Yes. 

Judge GORSUCH. It may—I have not thought about it in separation of powers, but it is a very important principle that I take seriously. I was a trial lawyer for a long time. 

Senator WHITEHOUSE. And in terms of the constraint to narrow 

the question, does that have separation-of-powers overtones as 

well? 

Judge GORSUCH. And I give you kind of a similar answer on that, 

Senator. I do not know about that, but I would say it is an important general practice. Sometimes there are exceptions that a court 

can and should go beyond a question presented, but it is pretty 

rare. Usually, we stick within—well, we do not—the questions presented are whatever the parties present to us on an intermediate 

court. They get to choose. We do not get to choose. 

Senator WHITEHOUSE. That is part of what separation of powers 

is about in terms of constraining the judicial branch to actual cases 

and controversies, correct? 

Judge GORSUCH. Well, we generally refrain from examining arguments that have not been adequately developed or made for risk 

of improvident mistakes. 

Senator WHITEHOUSE. Now, let me turn to another topic. Let us 

talk for a minute about money, and in particular, let us talk about 

dark money. Are you familiar with that term? 

Judge GORSUCH. In the loosest sense. 
133 

Senator WHITEHOUSE. How would you describe it in the loosest 

sense just to make sure you and I are on the same wavelength? 

Judge GORSUCH. Senator, I—as I understand it, you may be referring to money that is not spent by a candidate or a party in connection with—— 

Senator WHITEHOUSE. And where you actually do not know who 

the true source of the money is. 

Judge GORSUCH. Okay. 

Senator WHITEHOUSE. Is that a fair enough definition for us 

to—— 

Judge GORSUCH. Sure. 

Senator WHITEHOUSE [continuing]. Agree on? Okay. Could you 

let us know first what you know about the campaign that is being 

run to support your confirmation? There has been a lot of talk 

about how this is outside of politics and we are above politics, but 

there is a group that is planning to spend $10 million on TV ads 

in which their own press release describes as a comprehensive campaign of paid advertising, earned 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 am wondering what you know about that. 

Judge GORSUCH. I have heard a lot about it, Senator, from you, 

from others. I have heard a lot about it. 

Senator WHITEHOUSE. Do you know—what do you know about it? 

Judge GORSUCH. I know that there is a lot of money being spent 

in this by, as I understand it, both sides. I think it is—— 

Senator WHITEHOUSE. Well, I would not leap to that conclusion 

at this point. 

Judge GORSUCH. Okay. I know what I have read; I know what 

I have heard from friends and family and acquaintances. I know 

what you are saying, what you have just indicated. 

Senator WHITEHOUSE. Do you know—— 

Judge GORSUCH. There appears to be a lot of money being 

spent—— 

Senator WHITEHOUSE. Do you know who is spending the money? 

Judge GORSUCH. Senator, I could speculate based on what I have 

read and what I have heard, but I do not know individuals who are 

contributing. I do not know that. 

Senator WHITEHOUSE. Do you know if your friend Mr. Anschutz 

is contributing? 

Judge GORSUCH. I do not know. 

Senator WHITEHOUSE. Do you think that it should matter who is 

contributing? Do you think that there is a public interest in the 

public knowing who is contributing? 

Judge GORSUCH. Well, Senator, I think we have a long tradition 

from Buckley v. Valeo indicating that this body has robust authority to regulate disclosure. And—— 

Senator WHITEHOUSE. Yes, but my question is do you think there 

is a public interest—— 

Judge GORSUCH. Senator—— 

Senator WHITEHOUSE [continuing]. In disclosure of political funds 

in a democracy? That is, I do not think, a prejudgment. That is just 

a values proposition and one of the considerations that you ought 

to be able to answer without much hesitation. 
134 

Judge GORSUCH. And, Senator, what I am prepared to say is I 

recognize that, as a matter of First Amendment interests, the Supreme Court has validated the proposition that disclosure serves 

important functions in a democracy. At the same time the Supreme 

Court has also acknowledged that those disclosure functions can 

sometimes themselves have unintended consequences, as with the 

NAACP case, which I know you are familiar with, where you can 

use disclosure as a weapon to try and silence people. And we have 

a long history in this—— 

Senator WHITEHOUSE. That is hardly the case with respect to the 

dark money operation that is funding this campaign in your favor, 

is it not? 

Judge GORSUCH. Senator, I am not prejudging any case. What I 

am suggesting to you is that there are interests here in this area 

of First Amendment disclosure. That is what we are talking 

about—— 

Senator WHITEHOUSE. Yes. 

Judge GORSUCH. In my mind generally, okay, 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. 

Senator WHITEHOUSE. And in theory so did the Court in Citizens 

United. Judge GORSUCH. And in theory in Citizens United. At the same 

time, the Court has also recognized in NAACP, for example, that 

disclosure can be used as a weapon to silence voices. And we have 

a long history of anonymous speech serving valuable functions in 

this country—— 

Senator WHITEHOUSE. So here is a—— 

Judge GORSUCH. A Publius. 

Senator WHITEHOUSE. Here is a live example right now. We have this $10 million that is being spent on behalf of your confirmation. 

Do you think, for instance, that we on this panel ought to know 

who is behind that and—well, answer that, and then I have will 

go on to a related question. 

Judge GORSUCH. Senator, that is a policy question for this body. 

And this—— 

Senator WHITEHOUSE. Well, it is also a question of disclosure. 

You could ask right now that as a matter of courtesy, as a matter 

of respect to the process, that anybody who is funding this should 

declare themselves so that we can evaluate who is behind this effort. 

Judge GORSUCH. Senator—— 

Senator WHITEHOUSE. Right? That would not be a policy determination. That would be your values determination. 

Judge GORSUCH. It would be a politics question, and I am not, 

with all respect, Senator, going to get involved in politics. And if 

this body wishes to pass legislation, that is a political question for 

this body. And there is ample room for this body to pass disclosure 

laws for dark money or anything else it wishes to that can be tested in the courts. So, Senator, with all respect, the ball is in your 

court. 

Senator WHITEHOUSE. Do you really think that a Supreme Court 

that decided Citizens United does not get involved in politics? 
135 

Judge GORSUCH. Senator, I think every Justice on the Supreme 

Court of the United States is a remarkable person trying their level 

best to apply the law faithfully. I am just not—— 

Senator WHITEHOUSE. And got deeply involved in politics, did 

they not? They changed the entire political environment, the entire 

political ecosystem with one decision. You must recognize that. 

Judge GORSUCH. Senator, it is a precedent of the U.S. Supreme 

Court. There were thoughtful opinions by Justices on both sides. 

Senator WHITEHOUSE. I did not say that they were not thoughtful. I was responding to your question that they do not—your response that they do not get involved in politics. What could be 

more involved in politics than to open this ocean of dark money 

that flooded into our politics? 

Judge GORSUCH. Senator, what I mean to suggest is that I believe every Justice on the Court is trying to apply the First Amendment and the laws of this country faithfully. You may disagree 

with them. Many people do. I understand that. It is hard. Judges 

make half the people unhappy 100 percent of the time. That is our 

job description. And people do criticize judges. I understand your 

criticism. 

Senator WHITEHOUSE. This is a little different. 

Judge GORSUCH. But I do not question their motives, Senator. 

Senator WHITEHOUSE. This is a little different. I think you have 

seen more like 90 percent of the public unhappy with Citizens 

United because they see the problem that it caused in our democracy. And in that case it was not just a question of two parties and 

you are going to make one of them angry because you decided for 

the other. This is the Supreme Court operating in its role as the 

legal constitutional guide to the operation of American democracy. 

And if they get that wrong, that is a much, much bigger deal 

whether their motivations were pure or impure. When or whether 

they got that wrong is a bigger question than just which party won, 

would you not agree? 

Judge GORSUCH. Senator, if a court errs as a matter of law, there 

are various remedies. There is a legislative remedy because there 

is always another law to be passed and another case to test. Every 

case comes on its own facts with its own record and can be analyzed anew. And then there is the law of precedent, which we have 

discussed, I wrote this 800-page book on, makes a great doorstop, 

gift for Christmas. I have a really bad deal on royalties. 

Senator WHITEHOUSE. And another way for the Court to clean up 

after itself if it—— 

Judge GORSUCH. Yes, that is what I am suggesting. There is a 

way to do that, right? Precedent is not an inexorable command, 

and so the Court can reverse itself. It happens. 

Senator WHITEHOUSE. If a question were to come up regarding 

recusal on the Court, how would we know that the partiality question in a recusal matter had been adequately addressed if we did 

not know who was spending all of this money to get you confirmed? 

Hypothetically, it could be one individual. Hypothetically, it could 

be your friend Mr. Anschutz. We do not know because it is dark 

money. But if you were to ever find that out or even if you were 

to have suspicions I think in any challenge as to whether recusal 

was appropriate or not where that to happen say in a lower court, 
136 

these would be facts that would be noteworthy and that we would 

be entitled to have an answer to. 

So it is kind of odd to be sitting here in a U.S. Supreme Court nomination hearing with a $10 million spend taking place for you 

out there in the political world and absolutely no idea who is behind it. Is that any cause of concern to you? 

Judge GORSUCH. Senator, I am not sure what the question for me 

is. 

Senator WHITEHOUSE. Is it any cause of concern to you that your nomination is the focus of a $10 million political spending effort 

and we do not know who is behind it? 

Judge GORSUCH. Senator, there is a lot about the confirmation 

process today that I regret, a lot. 

Senator WHITEHOUSE. Yes? 

Judge GORSUCH. A lot. When Byron White sat here, it was 90 

minutes. He was through this body in 2 weeks, and he smoked 

cigarettes while he gave his testimony. There is a great deal about 

this process I regret. I regret putting my family through this. 

Senator WHITEHOUSE. But to my question—— 

Judge GORSUCH. Senator, the fact of the matter is, it is what it 

is, and it is this body who makes the laws. And if you wish to have 

more disclosure, pass a law and a judge will enforce it, Senator. 

Senator WHITEHOUSE. There are going to be—that is just not— 

that just does not do, Judge Gorsuch. There are going to be questions that you will be asked to decide on the U.S. Supreme Court 

that are going to be dependent on the values you bring to this. I 

do not think you can avoid talking about those values here. You 

are an expert on antitrust law, correct? You are very good at that. 

Judge GORSUCH. I would not count myself an expert, Senator. 

I—— 

Senator WHITEHOUSE. And when you write about antitrust law, 

you understand that there are values to which the law should be 

directed if it is going to be successful. You have written about the 

values of competition, that the antitrust laws should operate in 

such a way as to maximize and support competition and that the 

antitrust laws that should be read in such a way as to maximize 

and support innovation. Those are proper values for a judge applying antitrust law to pursue, are they not? 

Judge GORSUCH. Senator, a judge applying antitrust law looks to 

precedent predominantly for guidance as to what—— 

Senator WHITEHOUSE. A lower judge does? 

Judge GORSUCH. Yes. And so—— 

Senator WHITEHOUSE. The Supreme Court, usually it is a new 

question; otherwise, it would not be there for you. 

Judge GORSUCH. Well, Senator, respectfully, I disagree. A Supreme Court Justice is bound by precedent to. 

Senator WHITEHOUSE. No, but the question likely presented in 

the case is one that is new. Otherwise, it would not be in the Supreme Court. They would not have taken it for review, and it 

would have been settled at the Circuit or Judge—at the District 

Judge level, no? 

Judge GORSUCH. Senator, the precise question may be new but 

the notion that precedent would not bring to bear instructions and 

information on how it should be decided would be mistaken as well. 
137 

Senator WHITEHOUSE. I guess what I am saying is that the part 

of the decision that is guided by precedent is not the part that I 

am asking about. The part that I am asking about is the values 

determination, and I am trying to determine if you think that 

openness with respect to the money that flows around in our democracy in such large numbers right now is a value that is worth 

pursuing. Is it a touchstone, is it a lodestar, or is it just a burden 

on people’s communication? 

Judge GORSUCH. I would refer you again to Buckley v. Valeo and 

the NAACP. 

Senator WHITEHOUSE. I am asking actually you, not—— 

Judge GORSUCH. And I am giving you my answer, Senator, as 

best I can—— 

Senator WHITEHOUSE. Okay. 

Judge GORSUCH. Which is the First Amendment, which I am 

sworn to uphold as a judge. It contains two competing messages 

here. On the one hand, it has regularly recognized the rights of this 

body to legislate in this area if it wishes to do so. If it has not done 

so, with respect, that is not my fault. Okay. It is on legislators to 

legislate. And Buckley recognizes their authority. 

On the other hand, it is recognized there may be limits when it 

chills expression, as it did in the NAACP case. And we have to be 

worried about that because there is room in our democracy—— 

Senator WHITEHOUSE. So if we have to be worried about the 

chilling of expression, which is a value proposition that you have 

just enunciated, should we not—am I not also entitled to ask the 

question about whether we should be worried about the influence 

of dark money essentially corrupting our politics? 

Judge GORSUCH. Senator, what I am saying—— 

Senator WHITEHOUSE. I am taking a lot of time to get what I 

would think would be a fairly simple answer. 

Judge GORSUCH. Well, I am sorry, but I do not think this is simple stuff at all, Senator. I think this is hard stuff. And I think you 

have First Amendment concerns and precedents, all right, in the 

area—— 

Senator WHITEHOUSE. Yes. 

Judge GORSUCH. That would have to be considered. We would 

have to see what law Congress enacted. I would then want to go 

through the full judicial process, Senator. I would want to read the 

briefs. I would want to keep an open mind. I would want to—— 

Senator WHITEHOUSE. But you just asserted right here that the 

value of not chilling speech was something that we should consider, 

right? 

Judge GORSUCH. I said the Supreme Court of the United States 

in NAACP recognized that the First Amendment protections we all 

as people in this country enjoy—— 

Senator WHITEHOUSE. Which is a value that we should consider. 

Judge GORSUCH. Can be chilled sometimes. 

Senator WHITEHOUSE. And not chilling is a value that we should 

consider. 

Judge GORSUCH. It is a First Amendment right we are talking 

about, Senator. 
138 

Senator WHITEHOUSE. And where does anonymity—let us say $1 

billion in anonymous funding into our elections, where does that fit 

in in your—into the values that you bring to this? 

Judge GORSUCH. In the first instance, Senator, it is for this body 

to legislate—— 

Senator WHITEHOUSE. Yes. 

Judge GORSUCH. And then it would come to court and the record 

will be made. 

Senator WHITEHOUSE. Of course, Citizens United did actually 

overrule a law that we had written, so that is hardly the be all and 

the end all. 

Judge GORSUCH. It is a dialogue. It is a separation-of-powers dialogue that we have in all areas. Congress passes a law, a lawsuit 

is brought, a record is made, a factfinder makes facts, judges determine the law, a ruling is issued, Congress responds, and the cycle 

continues. And, Senator, that is our history in this area and so 

many others. 

Our founders were brilliant. They did not give me all the power. 

I do not wear a crown; I wear a robe. They did not give you all the 

power. They provided it—— 

Senator WHITEHOUSE. When it comes to the determination to 

state what the law is, particularly in constitutional matters, they 

actually did give the Supreme Court the power, and that is why it 

is important to us to ask these questions now before you go on to 

the Supreme Court and we have no accountability left. And so the 

values that you bring to that in those areas where you are not just 

implementing Congress’ will but are bringing your own values to 

the constitutional document that we treasure, that is why I think 

these questions are important. 

Let me ask something slightly different. You said you knew 

Judge Garland? 

Judge GORSUCH. I do. I would not claim him as my closest personal friend but someone whom I admire greatly. And it—— 

Senator WHITEHOUSE. And would you describe—how would you 

describe any differences that you may have in judicial philosophy 

with Chief Judge Garland? 

Judge GORSUCH. I would leave that for others to characterize. I 

do not like it when people characterize me, and I would not prefer 

to characterize him. He can characterize himself. 

Senator WHITEHOUSE. What is interesting is that this group sees 

a huge difference between you that I do not understand. The darkmoney group that is spending money on your election spent at least 

$7 million against him getting a hearing and a confirmation here 

and indeed produced that result by spending that money, and then 

now we have $10 million going the other way. That is a $17 million 

delta, and for the life of me I am trying to figure out what they 

see in you that makes that $17 million delta worth their spending. 

Do you have any answer to that? 

Judge GORSUCH. You would have to ask them. 

Senator WHITEHOUSE. I cannot because I do not know who they 

are. It is just a front group. 

There is a—it has been I think fairly and fully documented that 

there is a small group of billionaires who are working very hard 

to influence and even to control our democracy: Kochs, Mercers, 
139 

DeVoses, and, yes, Anschutzes. They often network together. They 

attend planning conferences. They pool their resources. 

As a candidate, President Trump made fun of the beg-a-thon, to 

use his word, that the Koch brothers run every year to bring candidates to their conference. They set up an array of benign-sounding front groups to both organize and conceal their manipulation 

of our politics. And Supreme Court Justices socialize with this 

small group, and then they go and they tender—render decisions 

that give that small group immense political advantage, particularly the ability to hide the political expenditure of their money. 

And then they go back and socialize some more with that group 

and they even speak at the beg-a-thon political retreats. Does that 

look right to you? 

How, as a judge, do you think—as a Justice of the Supreme 

Court should you comport yourself in terms of keeping a distance 

from interests that are before the Court? 

Judge GORSUCH. Senator, I have no information about anything 

you have just described. I do not know about that. 

Senator WHITEHOUSE. And—wow, because guess what? You are 

going to be asked to make decisions on the Supreme Court that if 

you do not know that, you are going to have a very hard time figuring out how to make the right call. That is a—it is a real concern. 

You know, this is the first Supreme Court in the history of the 

United States that has nobody on it who has ever run for political 

office ever, and yet it makes these wild leaps like Citizens United 

that completely deform democracy and then I do not know if they 

do not know what they are doing; I do not know what the motivation is. You—I sure do not know, but I do think it is a concern to 

be asked to make decisions like that without a real grounding in 

what is going on around you. 

Let me ask a little bit just about—to narrow it down more to just 

the judicial branch. What do you think the Court’s approach should 

be to the sort of machinery of corporate influence that surrounds 

the Supreme Court? There are corporate front groups that have 

been described as the think tank—as disguised political weapon 

that surround the Court and constantly pelt it with amicus briefs 

on behalf of big corporate and industrial interests. At this point 

they are—in the 5–to–4 decisions I listed yesterday, their record is 

16–to–0 with the Supreme Court in terms of helping the corporate 

interests, so it looks like they are doing really, really well, these 

frequent-flier corporate front amici. 

When they turn up at the Supreme Court, should they disclose 

more about whose interests they represent? Would it be good for 

the reputation of the Supreme Court and for our democracy if people knew who actually funded them when they turn up? 

Judge GORSUCH. Senator, to your earlier question, I think I can 

talk about my record. I am not a philosopher king, but I can talk 

about my record. And my record is that in the last 10 years I do 

not think there has been a single motion to recuse me. I have tried 

to be very careful in which cases I hear. 

Senator WHITEHOUSE. This is a—— 

Judge GORSUCH. And—— 

Senator WHITEHOUSE. Go ahead. 
140 

Judge GORSUCH. I take that very seriously as part of my obligation as a judge. I cannot claim I am perfect but I have tried awful 

hard, and I have not had a motion filed against me because I do 

take seriously impartiality and the appearance of impartiality. 

Senator WHITEHOUSE. So—— 

Judge GORSUCH. And, Senator, all I can say to you is I commit 

to maintaining my impartiality as best I can and to recuse where 

the law suggests I should. And—— 

Senator WHITEHOUSE. So back to my question about these amicus briefs and not knowing who is behind the front groups who 

turn up and pelt the Court with the briefs. 

Judge GORSUCH. Senator, there is a—— 

Senator WHITEHOUSE. The corporate rule—— 

Judge GORSUCH. Corporate disclosure statement rule as I recall. 

Senator WHITEHOUSE. Yes, but it is not much of one because 

here is what it says. It says that the filers shall identify every person other than the amicus curiae, its Members, or its counsel who 

made a monetary contribution to fund the preparation or submission of the brief. As you know, the preparation and submission of 

a brief is not particularly expensive, and the monetary contribution 

is not ordinarily reported as being the funders of the organization. 

So if an—as I understand it, if an organization gives $100 million 

to a front group and says go in there and do not put my name on 

any of this stuff but this is what I want you to do, as long as the 

front group then pays for the brief itself, there is no filing that reports who the interest is behind it. And I worry that we have an 

operation going—surrounding the Court that the Court itself is actually blind to the true roots of and should the Court not understand what the interests are behind these front groups? 

Judge GORSUCH. Well, I think that is a very interesting suggestion and one I will take to heart, Senator. Obviously, this Congress 

has a role in rulemaking process as well, and there is a rulemaking 

Committee and a Rules Enabling Act process for the lower courts, 

and the Supreme Court has its own rulemaking process. And I appreciate that information for both functions—— 

Senator WHITEHOUSE. And as a—— 

Judge GORSUCH. And welcome your involvement. 

Senator WHITEHOUSE [continuing]. Supreme Court Justice, you 

will also have a role in policing the judiciary as the top court. One 

of the things that has cropped up is special interest training camps 

basically at lush resorts for lower court judges. As much as 40 percent of the Federal judiciary has gone to these special-interestfunded training sessions described by one writer as a ‘‘cross between Maoist cultural re-education camps and Club Med.’’ There 

has been a wide array of condemnation of this practice from editorialists of all stripes. And is that something as a matter of kind of 

protecting the integrity of the courts to which the Supreme Court 

should attend itself? 

Judge GORSUCH. Senator, I know as a sitting judge I disclose 

every trip I take that is not official business that anybody else pays 

for. 

Senator WHITEHOUSE. And to your credit you went to none of 

these as far as I can tell. 
141 

Judge GORSUCH. Thank you, Senator. I appreciate that acknowledgment. I do go to a lot of moot courts and things like that and, 

you know, and everything I have done is disclosed. So that is—it 

is all there, there. You have all the information. 

Senator WHITEHOUSE. Yes. I will just note that some of the editorializing about this, ‘‘It creates an egregious ethical conflict of interest bordering on wholly improper out-of-court communication 

with special interest lobbyists or representatives of people who 

have filed lawsuits.’’ Another said, ‘‘It looks like an interest group 

has put part of the Federal judiciary in its saddle.’’ A third said, 

‘‘The conflict is clear and the judge’s participation is mindboggling.’’ 

And, by the way, all of those came from newspapers below the 

Mason-Dixon line. That is not just Yankee elitists talking. 

So my time is expired, but I look forward to further rounds. And 

I appreciate your time with me. 

Judge GORSUCH. Thank you. 

Chairman GRASSLEY. Who am I to tell you how you should answer questions, but if I were sitting where you were and values 

were brought up, it seems to me it is the Congress that deals with 

values, as Representatives are people and you look at the law. 

And when it comes to briefs, I would assume that you do not care 

who paid for them. You are only interested in what the brief says. 

Senator Lee. 

Senator LEE. Thank you, Mr. Chairman, and thank you, Judge. 

What you are seeing here is the confluence that occurs by operation of the Constitution between law and politics. And you as a 

textualist understand as well as anyone where the word politics 

comes from. You break the word down into its two Greek roots and 

you have poly, which means many, and ticks, which are bloodsucking parasites. 

[Laughter.] 

Senator LEE. It works out. 

I would also like to echo something said by our Chairman a moment ago. When we are focused on the identity of the parties, on 

the identity of those speaking to the Court, the identity of those 

people might matter more if your focus is on their identity. If, on 

the other hand, your focus is on the law and what the law requires, 

the focus is likely to be different. 

Judge Gorsuch, are you a lawmaker? 

Judge GORSUCH. No, Senator. 

Senator LEE. Have you ever held a position as a State legislator? 

Judge GORSUCH. No, Senator. 

Senator LEE. Have you ever held a position as a Member of Congress? 

Judge GORSUCH. Goodness, no. 

Senator LEE. Have you ever held any public office in a policymaking arena outside the Federal judiciary? 

Judge GORSUCH. I have served on my kids’ schoolboard—— 

Senator LEE. Have you—— 

Judge GORSUCH. But that is about as close to policy as I care to 

get. 

Senator LEE. Have you had any role in setting Federal—in establishing and making laws governing Federal campaign finance? 

Judge GORSUCH. No, Senator. That is this body’s province. 
142 

Senator LEE. Okay. It seems to me, Judge, that it would be unfair for anyone to state or to imply that you then are responsible 

somehow for the expressive conduct of third parties, third parties 

who are not you. It would be unfair for me to attribute to you 

something that someone else is saying. 

And it would seem to me to be especially unfair to say to you as 

a sitting Federal judge and nominee for Supreme Court of the 

United States to say to you that you have to tell someone else 

something that they should not say because otherwise that might 

cause problems for you when you did not make the set of laws to 

begin with. 

By the way, were you involved in the Citizens United case? 

Judge GORSUCH. Senator, I was not involved in the Citizens 

United case, and I appreciate the opportunity to clarify that fact. 

I would also like to clarify that nobody speaks for me, nobody. I 

speak for me. I am a judge. I do not have spokesmen. I speak for 

myself. 

Senator LEE. Thank you for clarifying that for us. 

Judge, yesterday, you referred to the fact that you had some of 

your law clerks here with you yesterday. I suspect some of them 

are here today as well. Tell us a little bit about the relationship 

that exists between a judge and the judge’s law clerks. It is more 

than just a job, is it not, more than just a job or an adventure? It 

is sort of part of the legal education experience that many lawyers 

are able to go through, is that right? 

Judge GORSUCH. As your father knew well. It is one of the great 

joys of this job and one of the great surprises, right? You practice 

law for 20 years, you are used to working with pretty senior people, 

and then all of a sudden you show up, as I did my first day, and 

there is a pile of briefs waiting in a tiny office that has not been 

decorated, there is a chair, have at it. And you get to hire four 

brand-new young folks straight out of law school who do not know 

a darn thing. Have at it. Have fun. 

Senator LEE. Did you acknowledge that when you were a law 

clerk? 

Judge GORSUCH. Well, you know, part of the reason why I am 

a judge is because of my experience as a law clerk, a shared experience with the same fellow your dad clerked for, Byron White, and 

we used to race writing opinions. And this is the humility of maybe 

the smartest lawyer I knew. I am talking about a Rhodes Scholar, 

first-in-his-class-from-Yale type stuff. And he would say first one 

done with the draft wins. What does it mean to win drafting an 

opinion? That was not real clear to me. 

But he was a pretty competitive guy, and what it meant was 

whoever got the first draft done, the other one went in the bin and 

we worked off the draft of the guy who won. I never won. And he 

could only type with these big paws—he had these big hands, 

thick, you know, pulling up sugar beets. And so he would hunt and 

peck and he could still beat me. 

It is a very close relationship. It is an intimate working relationship. And it becomes one of the great joys of your life. You see 

these young people—I have been out to pasture for 10 years. I 

thought I was done, you know. That was my life. I love my life. I 

love my home State. I hope I am making them proud. 
143 

And you see these young people come and go and you get to see 

what they go on to do, and they go on to do such wonderful things. 

I have had young people who go on to clerk for the Supreme Court, 

about a dozen of them, for all kinds of Justices, Justices Scalia and 

Thomas, Justices Kennedy, Kagan, and Sotomayor. And that is a 

deep and inspiring thing. 

And you watch them go on beyond that, some of them are teaching, kids at Harvard, Vanderbilt, Notre Dame. Some people—a 

young lady who is doing fishery policy in South Africa, all sorts of 

really wonderful things, and it just gives you hope and heart for 

the future. 

You know, as I tell my students, somebody has to run the zoo, 

and you want it to be the best and the brightest. And it is so heartening to see these young people, some of whom are the first in 

their family to go to college, immigrants to this country, rise to the 

very top. 

Senator LEE. Winston Churchill was known to have said that we 

shape our buildings, and then our buildings shape us. There seems 

to be a corollary here with law clerks, and you shape your law 

clerks. They end up probably having an influence on you as well. 

At a minimum I would think that you develop the kind of relationship with them to where they know you. They know your jurisprudential style. They know your quirks. They know most likely what 

you like to have for lunch. But you would say there develops a 

pretty close relationship between a law clerk and the judge during 

a clerkship. Would you agree with that? 

Judge GORSUCH. I always think that a family that skis together, 

stays together. We skied together. 

Senator LEE. Yes. And it is much more true of skiing than 

snowboarding I think. Just snowboarding is a lot more painful. 

Judge GORSUCH. That is a value judgment I am happy to make. 

Senator LEE. Yes. One of the reasons I ask about this is because 

I have some letters that I would like to introduce for the record. 

There is a piece written by three lawyers who clerked both for you 

and Justice Scalia. I tried really hard to think of a great term for 

this, the Scalia-Gorsuch combo or something like that, but I could 

not come up with anything interesting. But that is a good duo for 

whom these lawyers had clerked. And they have written a great 

piece talking about you. It is entitled ‘‘A Principled and Courageous 

Choice.’’ I would like to submit that for the record. 

Chairman GRASSLEY. Without objection, it will be submitted. 

[The information appears as a submission for the record.] 

Senator LEE. They write, ‘‘Judge Gorsuch’s opinions reflect the 

principle Justice Scalia spent his career defending, that in a democracy the people’s elected representatives, not judges, get to decide 

what the laws should be and what laws we should have.’’ They go 

on to say that they believe that you, Judge Gorsuch, will be, quote, 

‘‘as principled, as courageous, and as committed to the Constitution 

and our country,’’ close quote, as Justice Scalia was. So they go on 

to urge that we confirm you to the Supreme Court. 

I would also like to enter into the record another letter that is 

written by someone else who clerked for you, Judge Gorsuch, and 

who also clerked for Justice Kagan on the Supreme Court. He 

writes, quote, ‘‘Gorsuch will make an exceptional Supreme Court 
144 

Justice. He possesses a rare combination of intelligence, humility, 

and integrity, not to mention a fierce commitment to the rule of 

law. In fact, he is remarkably similar on these metrics to Supreme 

Court Justice Elena Kagan.’’ He also goes on to write, quote, ‘‘This 

zeal for the rule of law gives me every confidence that Gorsuch, 

like Kagan, will stand firm against any effort by the Trump Administration to abuse Executive power,’’ close quote. He writes that 

‘‘Liberals should welcome a nominee like Gorsuch.’’ I would like to 

enter this one into the record also, Mr. Chairman. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator LEE. Thank you, Mr. Chairman. 

Let us move on. One of my colleagues earlier today asked some 

questions about remarks that you assisted in preparing, remarks 

that were prepared for delivery by then-Attorney General Alberto 

Gonzales in connection with the Senate Judiciary Committee Oversight hearing concerning the terrorist surveillance program. This 

was a hearing that occurred on February 6, 2006. One of my colleagues referred to this this morning. Are you familiar with what 

I am describing? 

Judge GORSUCH. Very vaguely. 

Senator LEE. Okay. My understanding is that at the time you 

were serving as the Principal Deputy Associate Attorney General. 

Would that be correct to say you were in that position? 

Judge GORSUCH. Quite a mouthful. 

Senator LEE. Yes, quite a mouthful. That is why it is commonly 

known as the PDAAG, but most people might not immediately recognize the term PDAAG, as I am sure they would in your household. 

So the issue in that hearing as I understand it was whether or 

not this TSP program was unlawful. And you were involved, as I 

understand it, not on the basis of your expertise in this area but 

on the basis of your writing ability, based on the fact that people 

recognized your ability to write, a talent that has now become apparent to many of us as we have reviewed your judicial writings. 

You were brought in as a scrivener of sorts, someone who would 

give voice so to speak to what the Attorney General might say and 

not based on your expertise of this TSP program. Is that consistent 

with your recollection of these events? 

Judge GORSUCH. It is, Senator. 

Senator LEE. Okay. It is also my understanding that not only 

were you not thoroughly familiar with this TSP program, but you 

legally could not have been. It was impossible for you to be familiar 

with that program for the simple reason that you did not even have 

the clearance necessary to know the details of the program and 

therefore could not speak to those details. 

Judge GORSUCH. Sitting here, that is my recollection, too. 

Senator LEE. Okay. So as a result of that, any work that you did 

on those prepared remarks, it would have been done based on your 

limited understanding, based on a limited set of facts that you were 

given in preparing. And then anything you would have done from 

that moment forward you would have said, look, I do not know the 

facts of this, I cannot know the facts of this, you all are going to 

have to fill in the details. I have done the best I can based on as-
145 

sumptions I have drawn and the limited facts I have been given 

about this program. 

Judge GORSUCH. Yes. That is my recollection, too. 

Senator LEE. Thank you. Some of my colleagues have suggested 

that your rulings reflect a particular bias, a bias in favor of the big 

guy and against the little guy. It is not always apparent in every 

case whether there is in fact a big or a little party. I suppose in 

some cases it is open to dispute. In other cases it might be very 

apparent that one out-powers the other in terms of economic heft 

and access to good lawyers and so forth. 

But I have reviewed your work, and I would like to say that, yes, 

in some instances it is easy to identify a party that might thusly 

be described as little. And I cannot discern any bias in your work 

that favors one type of party over another. In fact, there are a 

whole lot of cases where you have ruled in favor of the little guy. 

Among those cases was one discussed just a few minutes ago in 

your conversation with my colleague Senator Cornyn in GutierrezBrizuela v. Lynch. That was a ruling that was most decidedly in 

favor of a little guy. In fact, it does not get much more little guy 

than a David going against a Goliath that is the Federal Government, a David who is someone in a very precarious position relative to the Federal Government against the entity with more 

money and more lawyers than any enterprise that has ever existed 

on planet Earth. 

Other cases in which I know you have ruled in favor of the little 

guy include but are by no means limited to Fisher v. City of Las 

Cruces and Holmes, Orr v. City of Albuquerque, Williams v. W.D. 

Sports, and Walton v. Powell. Now, these cases do not all fit into 

a common framework. In fact, they involve a pretty wide range of 

issues, including cases involving qualified immunity against police 

officers, cases arising under the Family Medical Leave Act, sex discrimination cases, and cases involving politically motivated firings. 

So these are just a few examples, but just to be clear and going 

into this as a judge, do you have any bias that you can detect? How 

do you approach a case? Do you look at a case and say this person 

is well-represented and powerful; this one is less well-represented 

and not powerful? Does that influence how you approach the law 

in any case? 

Judge GORSUCH. Senator, you try to treat each person as a person. We are all just people at the end of the day. And that equaljustice promise, the equal protection under law is the most radical 

guarantee I am aware of in the history of human law, a recognition 

that no one is better than anyone else. 

And, Senator, all I can tell you are some facts. These are the 

facts of my record. Ninety-seven percent of the time out of 2,700 

cases, we have ruled unanimously. Ninety-nine percent of the time, 

I am in the majority. According to the Congressional Research 

Service, as I understand it, of the judges studied in the Tenth Circuit, my opinions attract the fewest dissents. They are not sure 

whether it is because I seek consensus or because I am persuasive. 

I do not care which it is. 

My law clerks tell me as well that I am as likely to dissent from 

a Democrat as a Republican-appointed colleague, not that that 

matters. 
146 

Senator LEE. By the way, what if this were not the case? What 

if you were dissenting in a lot more cases? What if you were a lot 

more likely to dissent from one type of judge versus another? 

Would that—— 

Judge GORSUCH. Senator, I know the men and women of the 

Tenth Circuit. I know the judges with whom I served. I question 

the motives of none, ever. We disagree sometimes, but when we 

disagree, it is about the law, not politics. 

And I think sometimes really in this country we are kind of like 

David Foster Wallace’s fish. He wrote about a fish swimming in an 

aquarium, and it spent so much time in water and is so surrounded 

by it that the fish does not even realize it is in water. And I feel 

like sometimes when we nitpick and we complain about the quality 

of justice in this country—which leaves a lot to be desired; there 

is much room for improvement. I am not here to say it is perfect 

or anywhere close to it. We are a work in progress. But the rule 

of law in this country is so profoundly good compared to anywhere 

else in the world that we can complain and know that we are protected because of the rule of law. 

I think we are a little bit like David Foster Wallace’s fish. We 

are surrounded by the rule of law. It is in the fabric of our lives 

so much so we kind of take it for granted. 

You know, just to go on, you know, my work on Access to Justice 

in the Rules Committee and outside the Rules Committee, speaking on it, I mean we are talking about overcriminalization, capital 

habeas. I have removed judges and lawyers when I have had to or 

sought their removal. I believe in our Seventh Amendment jury 

trial right. I have ruled for the least amongst us when it comes to 

immigrants—we have talked about a couple of examples—and 

criminal defendants. 

I can give you a whole long line of cases I can cite where I have 

ruled for Fourth Amendment claimants and other criminal defendants: Ford, Makkar, Farr, Games-Perez, Sabillon-Umana’s, 

Spaulding, Carloss, Ackerman, Krueger. That is just criminal that 

I have just jotted down here. 

Environmental cases: Rocky Flats, Magnesium in the renewable 

energy case. Civil rights you mentioned: Orr, W.D. Sports, K.C., 

Energy West, Crane, C.U. v. Simpson. Those are just some that 

come to mind. 

Senator LEE. So does this tell us that you are in fact objective 

or does it just tell us that you are really, really good at covering 

up the fact that you are not objective? I mean, it seems to me that 

if you were biased and determined to rule only for the big guy, only 

for large, wealthy corporations, it would be an awful lot of work to 

go to, in order to rule for the little guy as often as you have. 

Judge GORSUCH. Senator, I am not buying into any of that, with 

respect. With respect, I view my job to be fair. It is what General 

Katyal said to you all yesterday. What he wants is a fair judge. 

That rang true to me when I heard it. I did not know he was going 

to say that. That is exactly what I thought when I was a lawyer. 

I just wanted to go into court and have the judge hear my client, 

hear them, really hear them as a person on the facts and the law 

and leave everything else alone, at home where it belongs. 
147 

And that is hard. I am not here to tell you it is easy and I am 

not here to tell you I am perfect, okay? I am a human being. I am 

not an algorithm. But I try really hard, and it is almost like an 

athlete. It is something judges practice. And hopefully, we get better at it with time. 

Senator LEE. When you say fair, you are not talking about fairness necessarily in some abstract ethereal sense, in some Solomonic way in which you are just being wise in your own mind. You 

are being fair in a manner that is consistent with and dictated by 

your judicial oath and your oath to uphold and protect and defend 

and operate within and subject to the constraints of the United 

States Constitution, a Constitution that puts the power to prescribe 

laws with prospective general applicability in the political branches 

of government, in the legislative branch and in the executive 

branch insofar as the Executive is involved in the lawmaking process and then insofar as the Executive is involved in the execution 

of those laws. 

The judicial branch, on the other hand, is there to give effect and 

meaning to those words not just based on what is fair in some abstract sense but also what is fair in the sense that you have to decide who the decisionmaker is, who makes the law and how to give 

effect to those words. 

One of the many cases that comes up from time to time is one 

called TransAm Trucking v. Administrative Review Board. You 

wrote in that case, ‘‘It might be fair to ask whether TransAm’s decision’’—meaning the decision to fire the driver in question—‘‘was 

a wise or kind one.’’ But then you say, ‘‘It is not our job to answer 

questions like that.’’ 

So you do not have to respond to this, but let me tell you how 

I interpret the language that was an issue in that case as someone 

who has served as a law clerk in the Federal judiciary and as 

someone who has litigated cases. If I were involved in that case, 

a case in which the judge wrote those words, I might think to myself, regardless of whether I like the law and regardless of whether 

I like the decision made by the employer in that case, this is a 

judge who is bound by the law and is acknowledging as much in 

his opinion. 

So I would like to ask about the law in that case, in the 

TransAm Trucking case. The applicable statute said that you cannot fire someone for, quote, ‘‘refusing to operate a vehicle.’’ Is that 

consistent with your recollection? 

Judge GORSUCH. Sitting here, that is my recollection. 

Senator LEE. In that case, the trucker was fired because he operated his vehicle, the vehicle that he was assigned to, against company orders. Is that a fair summary based on what you remember 

from that case? 

Judge GORSUCH. Yes, Senator. 

Senator LEE. So one could argue—and I think one could argue 

conclusively, and I think it was argued and decided in that case, 

that this was a fairly clear application of the law because if what 

the law said that the person could not be fired for refusing to operate a vehicle and that statute were being invoked not in the context of where the person was fired for refusing to operate a vehicle 
148 

but where the person in fact operated a vehicle, those are two different things, are they not? 

Judge GORSUCH. I thought so, Senator. That was my judgment 

in that case. 

Senator LEE. Dickens wrote that the law is an ass, and sometimes you might encounter cases where that is true. Sometimes you 

can look at those who make the laws and say, exhibit A, Your 

Honor, as to why this law is an ass, but it is not your job to rewrite 

the law. It is not your job to write it in the first place, and it is 

not your job to rewrite it after the fact, is it? 

Judge GORSUCH. I do not believe so, Senator. 

Senator LEE. You had another case under the same statue that 

was involved in the TransAm case. It is a 2007 case called Copart, 

Inc. v. Administrative Review Board. In that case a trucker had 

been fired for refusing to drive a truck that he considered unsafe. 

You wrote an opinion ruling in favor of the trucker and awarding 

him attorney’s fees, is that right? 

Judge GORSUCH. Senator, your recollection is better than mine 

on the attorney’s-fees issue. 

Senator LEE. Courts do not always award attorney’s fees, but as 

I recall, the Court did in that case. 

So I do not really understand the argument that some are making or the implication some are trying to raise that you were somehow unfair in the TransAm case because, after all, in the TransAm 

case you applied the law, it did not apply in the way the terminated employee wanted it to apply in that case, but you applied it 

fairly in the other case. 

I also wanted to bring your attention to another case that has 

been mentioned by some of my colleagues, and that is the Hwang 

case. It is the case where a professor with cancer wanted to extend 

her leave. The university said no, and the professor sued. The 

panel ultimately concluded that the law required her to show that 

she could continue to perform her job if the university provided an 

accommodation. And all the parties in that case agreed that she 

could not, that she could not continue to perform it. 

That, as I recall, was a unanimous opinion. Is that correct? 

Judge GORSUCH. Senator, that was another very hard case to go 

home after. The individual there had—was sick, very sick and had 

been given I think 6 months off I think already if I remember correctly. And I cannot remember whether it was University of Kansas or Kansas State. And then she was asking for another 6 

months off and the university said no, and she sued under the Rehabilitation Act, which prescribes that reasonable accommodations 

must be provided to workers to perform their essential job functions. But to prevail, they have to show they can perform their essential job functions. 

And it was undisputed in that case she just could not through 

no fault of her own. And the District Court said that is just not a 

claim under the Rehabilitation Act, maybe for breach of contract, 

maybe something else, but not under Federal statutory law. That 

is my recollection sitting here. And my panel of three judges unanimously agreed that was the correct application of law in those 

facts. No one is here to say that—love the law in every case and 

the results it yields. 
149 

I am here to say that I promise to apply the law faithfully, and 

I can guarantee you no more and promise you no less than that, 

Senator, in every case. 

Senator LEE. If I am remembering that case correctly, Judge 

Lucero was on that panel with you, is that right? 

Judge GORSUCH. I do not recall. 

Senator LEE. I will check to make sure. I think he was, and 

Judge Lucero was not nominated by a Republican President. 

Judge GORSUCH. Judge Lucero is one of my dear friends and colleagues, and he was appointed by President Clinton. That is true. 

He did an excellent job. 

Senator LEE. So if you were wrong in this case, then so was he. 

You did write in that case also something that I thought showed 

a fair amount of reflection on the plight of the plaintiff in that case, 

writing, quote, ‘‘By all accounts, the plaintiff was a good teacher 

suffering a wretched year,’’ close quote, indicating that you were 

aware of her plight. This is hardly the kind of statement made by 

a judge who is unsympathetic. This is in context the kind of statement made by a judge who understands the deeply human context 

of every case and also understands the deeply sacred nature of the 

oath you took to uphold and protect and defend the Constitution 

of the United States and to operate within the constraints of the 

Constitution. For that, I thank you and I respect you. 

Judge GORSUCH. Thank you, Senator. 

Chairman GRASSLEY. Thank you, Senator Lee. 

I want to make an announcement that we will take a 10-minute 

break after Senator Klobuchar. 

Judge, just so you know the plan, we are going to take that 10- 

minute break, and I hope it will not be 11 or 12 minutes. 

Senator Klobuchar. 

Senator KLOBUCHAR. All right. Thank you very much, Mr. Chairman. 

Thank you, Judge. As I said yesterday, your nomination comes 

before us during an unprecedented time in our Nation’s history. In 

recent months, foundational elements of our democracy have been 

challenged and questioned and even undermined, and for that reason I just cannot look at your nomination in the comfort of a legal 

cocoon, and I believe we should evaluate your record and philosophy against the backdrop of the real world today. 

So starting with something easy with the real world, Senator 

Grassley and I are leading a bill on cameras in the courtroom. I 

am not going to ask you specifically about that bill for Federal 

courts, but a number of your fellow people who are sitting at that 

table in years past, including Justice Sotomayor, have said that 

they were open to it and were positive about bringing cameras into 

the Supreme Court. And just to give you a sense of why this is so 

interesting, only a few people can get in there, yet the decisions affect everyone in America. 

Even just last month, 1.5 million Americans tuned in to CNN’s 

broadcast when the Ninth Circuit heard arguments challenging the 

President’s refugee and travel ban. 

So what is your opinion on having cameras in the Supreme 

Court? 
150 

Judge GORSUCH. Senator, that is a very important question. I appreciate the opportunity to discuss it with you. 

I come to it with an open mind. It is not a question that, I confess, I have given a great deal of thought to. I have experienced 

more cameras in the last few weeks than I have in my whole lifetime by a long, long way. I have to admit, the lights in my eyes 

are a bit blinding sometimes, so I would have to get used to that. 

Senator KLOBUCHAR. But would you favor it or not? 

Judge GORSUCH. Senator, I would treat it like I would any other 

case or controversy. That is what I can commit to you, that I would 

want to hear the arguments. I know there are Justices on both 

sides of this issue, right? 

Senator KLOBUCHAR. I think Justice Souter said over his dead 

body would they have cameras, but I was hoping that things have 

changed. I was hoping that things have changed since then and 

that we see just more and more interest in these decisions, and I 

hope that you will remain open to it and will favor it. 

My second question, which also pertains to transparency, is a 

discussion you had with Senator Whitehouse about the Federal 

rules for Federal judges in terms of disclosing trips and things like 

that, and you had said that you had not taken those trips, but if 

you had you would have disclosed them, and I appreciate that. 

Do you think that there should be that same kind of Federal ethics standard for Supreme Court Justices? 

Judge GORSUCH. Well, Senator, what I said is I disclosed every 

trip that is reportable. 

Senator KLOBUCHAR. Okay, I am sorry. Yes. But the specific 

question is on Supreme Court Justices. 

Judge GORSUCH. Yes. I know that the rules are different. I do not 

know how different they are. I have not studied that, Senator. 

Senator KLOBUCHAR. Would you favor them having the same set 

of rules that apply to you right now? 

Judge GORSUCH. Senator, I would say two things. First, I have 

no problem living under the rules I have lived under. I am quite 

comfortable with them. And I have had no problem reporting every 

year, to the best of my abilities, everything I can. So I can tell you 

that. It does not bother me what I have had to do. I consider it part 

of the price of service, and it is a reasonable and fair one. 

I would also say I do not know what the arguments are. I have 

not studied them, and I would want to commit to you that I would 

give it very fair consideration, and I would want to hear what my 

colleagues have to say. 

Senator KLOBUCHAR. Okay. Yes. It is pretty straightforward to 

me, because it applies to the other Federal judges. I do not think 

this is a matter of precedent or what has happened. You are going 

to be, in the words of Hamilton, if you get confirmed, in the room 

where it happens. So all we are trying to do is to make this as 

transparent as possible of what people’s interests are. So I just 

hope you will consider that. 

Judge GORSUCH. Of course I will. 

Senator KLOBUCHAR. And I think I will move on to some of the 

harder stuff here. 

Judge GORSUCH. I pledge to you I will consider both of those 

things. 
151 

Senator KLOBUCHAR. Okay. Thank you. 

On the issue of precedent, I think this idea of an independent judiciary is important, now more than ever, so I want to start with 

that. When you accepted the President’s nomination you said, ‘‘A 

judge who likes every outcome he reaches is very likely a bad 

judge.’’ And in your book you said again that good judges often decide cases in ways antithetical to their own policy preferences when 

the law so requires. 

So I want to ask, can you give me an example of a Supreme 

Court case that you believe was wrongly decided under the law but 

that you will continue to follow if you are confirmed because the 

precedent is so strong? 

Judge GORSUCH. Senator, I think that is just another way, honestly, of trying to get at which Supreme Court precedents I agree 

with and I disagree with. 

Senator KLOBUCHAR. I do not think it is. It is something that you 

actually said when the President nominated you, and you said it 

in public. You said that this is a definition of a judge, someone who 

respects precedent so much that they are still going to enforce the 

law. So I just thought there could be one example, even if it is a 

really old one. 

Judge GORSUCH. Well, I think Senator Lee and I were just talking about a couple of cases where the results were not attractive 

to me as a person where I followed the law to the best of my abilities, and did so with my colleagues. 

Senator KLOBUCHAR. Yes. One of the reasons I am asking this 

is that several past nominees have made this promise about respecting precedent before this Committee, and these are people you 

respect and admire, Justices. At the same time they said they 

would respect precedent, and then they later became Justices with 

a lifetime appointment and they overturned precedent. 

One of those examples is Citizens United. Two past nominees 

who later became Justices stated they would honor precedent during their hearings, and then they joined an opinion that not only 

broke from precedent but gutted a law passed by Congress, releasing this unprecedented wave of money. 

So do you view Citizens United as a departure from prior precedent? 

Judge GORSUCH. Senator, Citizens United did overrule Austin. So 

in that respect, it is an example of a court that, in part, overruled 

a precedent, and that is part of the law of precedent too, as we 

have talked about, that you start with a strong presumption in 

favor of precedent. That is the anchor of the law. It is the starting 

point. But there are instances when a court may appropriately 

overrule precedent after considering a lot of factors, and we have 

talked about them, and I am happy to discuss them with you again 

if you would like, but I do not want to waste your time either, so 

you tell me. 

Senator KLOBUCHAR. So you see this as something where there 

was precedent—I mean, you can go back to Buckley v. Valeo. As 

you know, parts of that, as you discussed earlier with my colleagues, stayed in place, but it overturned parts of that: Austin, McConnell. There was just a number of cases that it overturned. 

To us up here, it was a major overturning of precedent. So that is 
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why we are so concerned when people say, oh, we are going to respect precedent, and then they come in and do that. 

And, actually, you have suggested that you would actually go further than Citizens United, and that was in Riddle v. Hickenlooper, 

a 2014 case. While it was a narrow case about campaign finance 

caps on individual contributions to major political candidates, the 

outcome of the case is not really one I want to talk about. That was 

all the judges—I think there was an agreement on the case. 

But you alone wrote a concurring opinion, and that is what I 

wanted to focus on, suggesting that making a political contribution 

was a fundamental right that should be afforded the highest level 

of constitutional protection, which is strict scrutiny. If the Supreme 

Court adopts the standard that you suggested, the few remaining 

campaign finance limitations that we have in place and left on the 

books could fall. 

So do you believe that strict scrutiny is the appropriate standard 

for reviewing campaign finance regulations? 

Judge GORSUCH. Senator, I welcome the opportunity to clarify 

Riddle v. Hickenlooper. In that case, the law in Colorado allowed 

individuals to contribute more money to major-party candidates 

than to minor-party candidates. 

Senator KLOBUCHAR. I know, I really do. I read the case. I understand that. But I just want to, with my limited time, focus on that 

concurring opinion, because that is what the actual opinion said. 

But then you took it a step further to talk about this possibility. 

You cited an opinion by Justice Thomas in your concurrence, 

joined by Justice Scalia, suggesting that all contribution limits 

should be subject to strict scrutiny. So could you clarify for us, do 

you think there is any basis for applying strict scrutiny to contribution limits that apply evenly across the board? Why else would you 

have cited that opinion? 

Judge GORSUCH. I am happy to try and explain again. So, the 

facts of the case, and that is what I was deciding, were uneven contribution limits. It was permissible to give more to major-party candidates than to minor-party candidates. And the law, as I know you 

are well aware, Senator, under Buckley, says the contribution to 

candidates is a First Amendment, fundamental right. It says that, 

and I was quoting Buckley, I am sure, or citing Buckley to that effect. 

And then the question becomes what level of scrutiny should we 

apply to that case? Buckley suggests that it is something less than 

strict scrutiny in the First Amendment context for contributions. 

That is the instruction that I as a lower court judge have in the 

First Amendment context. But this was an equal protection challenge, okay? Saying it is not just contributions. It is the inequality 

of contributions that is the problem here, that this system favors 

major-party candidates over minor-party candidates. And normally 

when we have a fundamental right in equal protection analysis, we 

apply strict scrutiny. 

So I was faced with a situation where do you take this little less 

than strict scrutiny out of the First Amendment context and import 

it into the equal protection context, or do you apply the normal 

strict scrutiny of the equal protection context? And I pointed to two 
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excellent opinions by wonderful District Judges in the area, Judge 

Boasberg and Judge—— 

Senator KLOBUCHAR. All right, all right. I really did read it. 

Okay, okay. I understand that, but here is the deal, that the other 

judges were happy to just decide it on that narrow basis, right? So 

then you write the concurring opinion to bring up this other issue, 

and I think again about Justice White, who is your mentor or was 

your boss, and there is a Law Review article by the Dean of 

Tulane: ‘‘Time and time again, Justice White avoided broad theoretical bases for a decision when a narrow fact-specific rationale 

would suffice.’’ And yet you write this concurrent—— 

Judge GORSUCH. Can I answer you, Senator? 

Senator KLOBUCHAR. Yes. 

Judge GORSUCH. Because I am almost there, okay? So I write to 

point out this conflict in the Supreme Court’s directions that I saw. 

Senator KLOBUCHAR. Okay. 

Judge GORSUCH. All right? And then I said in our case, Byron 

White, it does not matter, because Colorado could not meet even 

a rational basis test. Forget about whether it is strict scrutiny or 

something close to strict scrutiny. It could not meet rational basis 

test because Colorado could not articulate any good reason, any— 

maybe there is one out there. I do not know. But I said they have 

articulated nothing. 

Senator KLOBUCHAR. Okay, but let us just continue on now with 

some other cases, because it is a bit of a pattern. 

Judge GORSUCH. Okay. 

Senator KLOBUCHAR. Not a concurring opinion, but in the Hobby 

Lobby case you found that corporations were legal persons and 

could exercise their own religious beliefs. And for me, when it 

comes to campaign finances, it opens up the possibility that you 

would strike down, then, this idea that corporations should not be 

giving money directly to campaigns. 

Do you think these creatures of statute have the same constitutional rights as living, breathing human beings? 

Judge GORSUCH. Goodness no, Senator. Hobby Lobby had nothing 

to do with the First Amendment of the Constitution. 

Senator KLOBUCHAR. But it was about corporations. 

Judge GORSUCH. It was, under RFRA. 

Senator KLOBUCHAR. So you do not think, then—maybe we can 

end this line here. So you do not think that they would have these 

rights, a corporation would have these rights under the First 

Amendment? 

Judge GORSUCH. I do not think Hobby Lobby speaks to the question of the First Amendment at all. What it speaks to is a question 

of the Religious Freedom Restoration Act, and what a person is, is 

defined under that statute by reference to the Dictionary Act, 

which is Congress’ direction to us, when we are dealing with statutes, what words we are supposed to use and what definitions are. 

And, Senator, if in RFRA, again, if this body wishes to say only 

natural persons enjoy RFRA rights, that is fine, and I will abide 

that direction. I am not here to make policy; I am here to follow 

it. 

Senator KLOBUCHAR. Okay. On to another policy that is pretty 

important. That is the Chevron case. In your Gutierrez concurrence, 
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and this is where you wrote the actual opinion and then wrote your 

own concurring opinion, which I noted is better than writing a dissent to your own opinion, but you wrote a concurrence to your opinion, and to me this move, as you imply in your concurrence—you 

do not imply; you say—it could have titanic real-world implications 

when it comes to our rules, 13,500 cases on the books since 1984. 

In your book you say you do not overturn precedent unless it is 

universally accepted, affirmed by courts repeatedly, and people 

have extensive reliance on the decision. 

So my question is why, in your concurring—and Senator Feinstein asked you about the facts of the case. I do not want to talk 

about that because she already did and I have your answer. That 

was good. But in the concurring opinion you say, ‘‘There is an elephant in the room with us today.’’ Sorry, guys, he was not referring 

to the Republican Party. ‘‘There is an elephant in the room with 

us today. We have studiously attempted to work our way around 

it and even left it unremarked. But the fact is Chevron and Brand 

X permit Executive bureaucracies to swallow huge amounts of core 

judicial and legislative power and concentrate Federal power in a 

way that seems more than a little difficult to square with the Constitution of the Framers’ design. Maybe the time has come to face 

the behemoth.’’ 

That sounds to me like, again, you are going a step further and 

talking about overturning a major precedent, and I want to know 

if that is what you mean, if you think it should be overturned, and 

if you have considered the ramifications of that when Justice Scalia 

himself was the original champion of the Chevron doctrine. 

Judge GORSUCH. Senator, all I can do is explain to you why I was 

concerned about Chevron in that case. And I was concerned because, again, we had an undocumented immigrant who was following judicial precedent—— 

Senator KLOBUCHAR. I really do understand the facts, but I want 

to know why you did a concurring opinion to your own opinion in 

order to make this broader sweep and talk about—you said the 

time has come to face the behemoth. You were clearly talking 

about overturning Chevron. 

Judge GORSUCH. Senator, I am trying to answer your question as 

best I can. And I was concerned about the due process implications 

that arise in cases like Mr. Gutierrez where an individual, who is 

not aided by an army of lawyers or lobbyists, can they anticipate 

changes in law by agencies back and forth, willy nilly, even to the 

point of overruling judicial precedent? And that is a due process 

concern I raised. I raised an equal protection concern about the 

ease with which individuals like Mr. Gutierrez can be singled out 

by the political branch in a way that judges are supposed to protect. I raised a separation of powers concern about whether judges 

should be the ones saying what the law is. 

Senator KLOBUCHAR. But as a Supreme Court Justice, if you 

were to make this decision to overturn Chevron, would you consider 

the implications on all of the cases in the U.S., and the rules and 

the uncertainty that it would create? 

Judge GORSUCH. Goodness, Senator, yes. 
155 

Senator KLOBUCHAR. And would you overturn it? Is that what 

this means when you talk about maybe it is time to face the behemoth? 

Judge GORSUCH. Senator, my job as a Circuit Judge is when I 

see a problem, I tell my bosses about it, like any good employee. 

And my job there as I conceived it was to say, hey, listen, look at 

some of the implications, the real-world implications of what we 

are doing here. 

Senator KLOBUCHAR. Okay, but you would be the boss if you 

were the Supreme Court Justice, and what rule do you think 

should replace it? Should we have de novo review? Is that better? 

What do you think should replace Chevron deference? 

Judge GORSUCH. Senator, I do not pre-judge it. I can tell you 

what did pre-exist it. It was Skidmore deference, which was an 

opinion written by Justice Jackson, actually. That is what pre-existed. So there was deference before, and we had the administrative state for 50 years, and agencies would issue rules and decisions. I do not know what all the consequences would be, and I 

would pledge to you—I was not thinking about being a Supreme 

Court Justice then. I was identifying an issue for my bosses. 

If I am so fortunate as to become a Justice, I would try and come 

at it with as open a mind as a man can muster. And I would tell 

you, remind you, what I bear in mind would be David Sentelle. 

When I was with him as a law clerk, he issued a panel opinion at 

the beginning of my year with him, going one way; and then by the 

end of the year wrote for the en banc court, the full court, reversing 

himself. Now, some people think that does not show a lack of sufficient steel. I think that shows an open mind and a lack of ego that 

a judge should bring to bear when he or she puts on the robe, and 

that is what I would commit to you. 

Senator KLOBUCHAR. Okay. Let us go to another piece of this philosophy, and that is originalism; in other words, where the words 

and phrases in the Constitution should be interpreted according to 

their original public meaning or how the Founders and their contemporaries would have understood them. Regardless of whether 

you characterize yourself as an originalist, you have applied 

originalism in several decisions, including last year in Codova v. 

City of Albuquerque, where in a separate concurring opinion you 

described the Constitution as a ‘‘carefully crafted text judges are 

charged with applying according to its original public meaning,’’ 

which are the buzzwords for originalism. 

Criticisms of the principles underlying originalism are not new. 

In fact, I believe some lines from Chief Justice John Marshall’s 

opinion in McCulloch v. Maryland in 1819, almost two centuries 

ago, are still relevant to our discussion of the point today. He wrote 

that, ‘‘The Founders must have intended our Constitution to endure for ages to come, and consequently to be adapted to the various crises of human affairs.’’ He continued, ‘‘To have prescribed 

the means by which government should, in all future time, execute 

its powers would have been to change entirely the character of the 

instrument and give it the properties of a legal code. It would have 

been an unwise attempt to provide immutable rules for exigencies 

which, if foreseen at all, must have been seen dimly and which can 

be best provided for as they occur.’’ He added, ‘‘If we apply this 
156 

principle of construction to any of the powers of the Government, 

we shall find it so pernicious in its operation that we shall be compelled to discard it.’’ 

Do you agree with the point that Justice Marshall made in 

McCulloch? 

Judge GORSUCH. Well, Senator, I would certainly agree that the 

Constitution must endure, and that it is a lot bigger than any of 

us, and it will live in that sense, hopefully, a very great deal longer 

than any of us, our children’s children. 

I do think it is important to try and understand law according 

to its original understanding, public meaning. Words have meaning. 

Senator KLOBUCHAR. So you do not agree with McCulloch about 

adapting to the crises of human affairs—— 

Judge GORSUCH. No, Senator. 

Senator KLOBUCHAR. So you do agree. 

Judge GORSUCH. I am trying to answer—— 

Senator KLOBUCHAR. I just want a yes or no, that is all. 

Judge GORSUCH. Well, I think it takes—these are complicated 

things that take more than a yes or no, respectfully. What I would 

say is the Constitution does not change. The world around us 

changes, and we have to understand the Constitution and apply it 

in light of our current circumstances. That is what we are trying 

to do as judges. 

So, for example, one of my favorite cases in this area is Jones, 

right? The Supreme Court of the United States is faced with a GPS 

tracking device attached by the police onto a car. Is that a search? 

And the Court goes back and looks, at the time of the founding, 

what qualified as a search, and found that would have qualified as 

a trespass to channels and a search by the Government, and says 

if that would have been offensive 200 years ago, that sort of thing, 

it has to be offensive now. The Constitution is no less protective of 

the people’s liberties now than it was 200 years ago. 

Senator KLOBUCHAR. So when the Constitution refers 30-some 

times to ‘‘his’’ or ‘‘he’’ when describing the President of the United 

States, you would see that as, well, back then they actually 

thought a woman could be President even though women could not 

vote? 

Judge GORSUCH. Senator, I am not looking to take us back to 

quill pens and horses and buggies. 

Senator KLOBUCHAR. Okay. But if you could just answer that 

question? It is pretty important to me. 

Judge GORSUCH. I am trying to. 

Senator KLOBUCHAR. Okay. 

Judge GORSUCH. Of course women can be President of the United 

States. I am the father of two daughters, and I hope one of them 

turns out to be President of the United States. 

Senator KLOBUCHAR. Great. Okay, that is wonderful. How about 

the Air Force? I agree with you; that is good. So in that case you 

would say, well, we cannot take it at its literal words. So then the 

Constitution also says Congress has authority to oversee the land 

and naval forces, but there is no mention of the Air Force, and I 

assume you believe that would also include the Air Force because 
157 

if they knew an Air Force existed, they would have included the 

Air Force back then. 

Judge GORSUCH. Senator, I think the generals in the Air Force 

can rest easy. 

Senator KLOBUCHAR. Okay, great. 

Judge GORSUCH. Let me give you another—— 

Senator KLOBUCHAR. How about Virginia—let us keep going here 

because I am almost out of time here. In United States v. Virginia, the Court held that the Virginia Military Institute violated the 

Equal Protection Clause of the Fourteenth Amendment by excluding all women from VMI’s military training. In his dissent, Justice 

Scalia stuck to his signature originalism and criticized the majority, saying the decision is not the interpretation of a Constitution 

but the creation of one. 

Is the interpretation of the Equal Protection Clause in U.S. v. 

Virginia consistent with the original public meaning? 

Judge GORSUCH. And the majority in that case argued that it 

was. 

Senator KLOBUCHAR. Okay. 

Judge GORSUCH. And the majority said that the words ‘‘equal 

protection of the laws,’’ whatever the secret, harbored intentions of 

the writers, had an original public meaning that is quite radical 

and significant, and that was what the majority of the Supreme 

Court of the United States held. 

Senator KLOBUCHAR. So would you agree, then, that when you 

look at other things, would you be willing to apply this same approach to equal rights for minority groups, women, LGBT, including transgender people, racial minorities, the same approach you 

used when you just made the statement about the ‘‘he’’ and ‘‘his’’ 

in the Constitution, about not having the Air Force, about the Virginia Military decision? 

Judge GORSUCH. Senator, a good judge applies the law without 

respect to persons. That is part of my judicial oath. 

Senator KLOBUCHAR. Okay. So do you see it—your textualism, 

the original public meaning, then, would you apply it to these other 

contexts as well that I just mentioned? 

Judge GORSUCH. Senator, what I am trying to say to you is I do 

not take account of the person before me. Everyone is equal in the 

eyes of the law. 

Senator KLOBUCHAR. Okay. I am just trying to figure out this, 

because I think for some things, a lot of people who subscribe to 

this theory, they say we can have originalism for some cases but 

not for others, and I call it selective originalism. It just seems to 

me when you look at some of the opinions that use originalism that 

you have and some do not, but I have one—— 

Judge GORSUCH. Senator, if I might respond to that? 

Senator KLOBUCHAR. Yes. 

Judge GORSUCH. I would ask you to take a look at Jones again; 

Kyllo, the search of a home using a heat-seeking device. I would 

ask you to maybe take a look at Crawford, the right to confront 

witnesses, maybe as well the Apprendi–Booker line written by Justice Stevens, a very originalist opinion about the right of an accused to be able to have all of the elements of an offense that increases his sentence tried by a jury of his peers. Those are all what 
158 

one might characterize as originalist opinions protecting individual 

liberties. 

Senator KLOBUCHAR. You know what? We could do it on the second round. That would be good. 

Judge GORSUCH. All right. 

Senator KLOBUCHAR. Just some minor things here at the end. 

When the Supreme Court temporarily blocks a lower court ruling, 

they need five votes. A practice known as the ‘‘courtesy fifth’’ has 

developed in which a fifth Justice will provide the vote needed to 

stay the lower court ruling even if that Justice might not have otherwise been inclined to do so. Do you think the practice of the courtesy fifth is a good thing? 

Judge GORSUCH. Senator, I have not studied that, and it would 

be presumptuous of me to offer an opinion in a court that I have 

not sat upon. 

Senator KLOBUCHAR. Okay. Well, it may be very relevant when 

this refugee case comes up, so you might want to study up on it. 

I am going to end here. I am going to do a lot of work on antitrust in the next round. I know you are an expert. Senator Lee and 

I have been heading up that Subcommittee for a long time. But I 

am going to end with freedom of the press in honor of my dad. He 

was a newspaper reporter his whole life, and I am especially concerned in today’s world, where we are seeing these attacks on the 

media, about maintaining the press’ role as a watchdog. 

Our Founders enshrined freedom of the press in the First 

Amendment. As Thomas Jefferson said, our first objective should 

be to leave open all avenues to truth, and the most effective way 

to do that is through the freedom of the press. 

In New York Times v. Sullivan, the Court issued a landmark ruling in support of First Amendment protections for the press by affirming that when newspapers report on public officials, they can 

say what they want—maybe we do not always like that, but they 

can—unless they say something untrue with actual malice. 

Do you believe under New York Times v. Sullivan that the First 

Amendment would permit public officials to sue the media under 

any standard less demanding than actual malice? And can you explain to the people here today and those watching on TV what that 

standard means to you? 

Judge GORSUCH. New York Times v. Sullivan was, as you say, a 

landmark decision, and it changed pretty dramatically the law of 

defamation and libel in this country. Rather than the common law 

of defamation and libel, applicable normally for a long time, the 

Supreme Court said the First Amendment has special meaning and 

protection when we are talking about the media, the press in covering public officials, public actions, and indicated that a higher 

standard of proof was required in any defamation or libel case. 

Proof of actual malice is required to state a claim. That has been 

the law of the land for, gosh, 50, 60 years. 

I could point you to a case in which I have applied it, and I think 

it might give you what you are looking for, Senator, in terms of 

comfort about how I apply it, Bustos v. A&E Network. It involved 

a prisoner who was concerned that he had been misrepresented as 

a member of the Aryan Brotherhood. He claimed he was not a 

Member, just a fellow traveler, and sought damages for that. Our 
159 

court declined to grant that relief, saying that substantial truth is 

protected even if it is not strictly true, and much more is required 

by the First Amendment in order to state a claim. 

Senator KLOBUCHAR. Okay. In Branzburg v. Hayes, a Supreme 

Court case, they did not recognize the reporter’s privilege, at least 

in the context of criminal grand jury testimony. Could you just end 

here by talking about the scope of the Branzburg decision and 

whether there are instances where courts should recognize a reporter’s privilege? 

Judge GORSUCH. Senator, I know those cases come up from time 

to time, so I have to be very careful. 

Senator KLOBUCHAR. Okay. 

Judge GORSUCH. Your description of the case is entirely accurate. 

Senator KLOBUCHAR. Thank you very much. 

Judge GORSUCH. Thank you. 

Chairman GRASSLEY. Okay. Before we recess, I would like to 

enter into the record a commentary in the Chicago Tribune called 

‘‘Crying Wolf Over Neil Gorsuch,’’ written by Dennis Hutchison, a 

lifelong registered Democrat. Specifically, he talks about concerns 

over Chevron deference. 

He writes, ‘‘There are two sides to deference, however. My guess 

is that pro-Chevron advocates will soon be begging Federal courts 

not to defer to interpretive findings of agencies.’’ End of quote. 

I enter that in the record without objection. 

[The information appears as a submission for the record.] 

We will recess for 10 minutes, so that means we will reconvene 

at 3:31. 

[Recess.] 

Chairman GRASSLEY. Senator Cruz, it is your turn now. 

Senator CRUZ. Thank you, Mr. Chairman. 

Judge Gorsuch, congratulations on making it through more than 

half of a long day and making it through with flying colors. And 

I think this hearing has been helpful for illustrating the proper 

temperament and approach that we should expect of a Federal 

judge, and I think you are acquitting yourself in an excellent manner. 

This hearing has focused on a lot of weighty matters. So let me 

start with something lighter and a topic on which I believe you 

have some familiarity. What is the answer to the ultimate question 

of life, the universe, and everything? 

[Laughter.] 

Judge GORSUCH. Forty-two. 

Senator CRUZ. Thank you, Judge. 

And for those who are watching who may be a bit confused at 

this exchange, could you explain what it is to which we are referencing? 

Judge GORSUCH. Well, Senator, sometimes we have young people 

who come to court to be sworn in. Often, they are my law clerks. 

There are a couple of them right there. They have not enjoyed this 

privilege yet, and they come to court and they are very nervous. 

And the clerk tells us about their career and their record and 

submits them to the court. I move their admission to the bar. Are 

there any questions from the bench? And it is sort of like this. It 
160 

is a bit intimidating. This has been a reminder to me of what it 

is like to be down here rather than up there. 

And the last time I had this kind of interaction with Senator Lee, 

it was when he was down here and I was up there. Any rate, I 

sometimes ask them that question to put them at ease, and they 

all know the answer, and they all know the answer because they 

have all read Douglas Adams’ ‘‘Hitchhiker’s Guide to the Galaxy.’’ 

And if you have not read it, you should. It may be one of my 

daughters’ favorite books, and so that is a family joke. 

Senator CRUZ. Well, it is a book I very much enjoyed as well, and 

it is, I think, a delightful example of the humanity of a judge that 

we—that your record has demonstrated. 

You began your career with the opportunity to serve as a law 

clerk to Byron White. Byron White was an extraordinary man. 

Byron White was the only Justice that John F. Kennedy put on the 

Supreme Court. Byron White is, I believe—in fact, I am quite certain—the only Supreme Court Justice in history to lead the NFL 

in rushing and also to graduate first in his class from Yale Law 

School. 

Could you share with this Committee what it was like to be a 

law clerk for Byron White and to interact with him every day during your clerkship? 

Judge GORSUCH. You know, as I said, he really was my childhood 

hero. And to actually get picked out of the pile to spend a year with 

him, as Senator Lee’s dad did—that is something we share in common, too—was and remains the privilege of a lifetime. And it has 

everything to do with why I am here. 

I would not have become a judge, but for watching his example. 

And the humility with which he approached the job, and I do not 

mean a phony humility. I mean real humility, every day. He always said two heads were better than one. 

He would sit down in my office, plunk himself down in a chair 

across the desk. He would be talking about a case and say, ‘‘Ugh.’’ 

It always started with a grunt. I mean, that is how he started a 

conversation. It was like ‘‘hello’’—‘‘ugh.’’ ‘‘So what does the great 

Judge Gorsuch think about this one?’’ 

And you were expected to have a view about pretty much anything and everything that he asked, and he would just sit there 

and chuckle at you. And he would laugh at you, and you were wondering what he thought. He never revealed his hand, and he would 

just walk out of the office. He would say, ‘‘Oh, that is what Judge 

Gorsuch thinks. Okay.’’ 

And then he would go back, and he would think about it himself. 

And then he would come back in again, and just the whole thing 

would repeat itself as he was working through each case himself. 

He would want to bounce ideas off of this know-nothing 20-yearold, 20-something-year-old kid. 

And that, to me, taught me everything about what it means to 

be a judge and the fact that when asked his judicial philosophy in 

this sort of setting, he said it is to decide cases. And I know a lot 

of people think that is just mundane or maybe cover dishonesty in 

some way. It is just not true. It was the humility of the man. 

He knew that lawyers worked really hard because he had been 

a lawyer, a workaday lawyer for 14 years, I think it was, in a law 
161 

firm. He tried cases—small cases, big cases—and he knew what it 

was like to have to be the lawyer in the well and how hard it is 

to have all the answers, how easy it is to ask the questions. 

Senator CRUZ. Now you and I both had the experience of clerking 

at the Supreme Court after Justice White had ended his time on 

the basketball court. 

Judge GORSUCH. Yes. Well—— 

Senator CRUZ. Or maybe you were luckier than I? For those who 

do not know, above the Supreme Court, above the roof of the courtroom, is a basketball court, which is referred to tongue-in-cheek as 

‘‘the highest court in the land.’’ And Justice White, for many years, 

would play in the basketball games, NFL Hall of Fame football 

player with a bunch of pencil-necked law clerks. 

Judge GORSUCH. Yes. 

Senator CRUZ. And his elbows and fouls were legendary. When 

I was clerking, he was no longer playing. Were you lucky enough 

to get him up on the basketball court? 

Judge GORSUCH. He would come up for a game of horse with the 

clerks, former law clerks at reunions. 

Senator CRUZ. How is his jump shot? 

Judge GORSUCH. His best shot at that age, and we are talking 

in his seventies, late seventies, was from the free throw line back 

up over his head like that. And he could hit it pretty regularly. 

[Laughter.] 

Judge GORSUCH. His eye-hand coordination was just uncanny. So 

I remember those, those law clerk reunions at the basketball court 

where he would come up and stiffly throw it up and sink it. 

I remember walking through with him in the basement, arm in 

arm, liked to walk arm in arm at that age, and we walked past all 

the portraits of all the former Supreme Court Justices, which are 

down at ground level. And he would ask me, ‘‘Ugh,’’ grunt, ‘‘how 

many of these guys do you honestly recognize?’’ 

And I was one of those pencil-necked law clerks, and the truth 

was I thought I knew a lot about the Supreme Court, the law, and 

the answer was about half, the honest answer. And he said, ‘‘Me, 

too.’’ And he said, ‘‘The truth is we will all be forgotten soon 

enough, me included.’’ 

And I remember saying, ‘‘Justice, that is impossible. You are one 

of the greats. No way you are going to be forgotten.’’ His portrait 

now hangs down in the basement. 

Senator CRUZ. Well, there is wisdom in that humility. 

Let us shift to another topic, a topic that has been raised some 

in this hearing, which is there are some Democratic Senators on 

this Committee who have raised a challenge to the notion of 

originalism and, indeed, have painted originalism as some quaint 

and outdated mode of interpreting the Constitution. 

Have suggested that their view of the Constitution, it is a living, 

breathing, changing document, flexible enough to become—to accommodate whatever policy outcome the particular judge might desire. The alternative is that a judge is obliged to follow the Constitution, the text of the Constitution as informed by the original 

understanding at the time it was adopted. 
162 

Do you share the view of the Democratic attacks that originalism 

is somehow a quaint and outdated notion of reading the Constitution for what it says? 

Judge GORSUCH. Senator, I want to say a few things about that, 

and I appreciate the opportunity. The first is that sometimes we, 

in our discourse today, our civil discourse, use labels as a way to 

not engage with other people, to treat and divide us and them. 

And as a judge, I just do not think that is a very fair or appropriate or useful way to engage in discourse. So I am worried about 

using labels in ways that are sometimes an excuse for engagement 

with the ideas, sometimes pejoratively. 

The truth is I do not think there is a judge alive who does not 

want to know about whatever legal text he or she is charged with 

interpreting something about its original meaning, as enacted. And 

I do not think this is an ideological thing. I look at decisions like 

Jones, which we have talked about, or decisions like Kyllo, the 

thermal imaging of a home. Is that a search under the Fourth 

Amendment? 

The Supreme Court goes back and looks at the original history 

and says it is equivalent to Peeping Toms, which, of course, would 

be a search under the Fourth Amendment. The Constitution is no 

less protective today of the people’s liberties than it was 200 years 

ago. 

Or when we look at Crawford and the right to confront witnesses 

and not just have pieces of paper flying in evidence that you cannot 

confront reasonably. To cross-examine your opponent, fundamental 

right of the Sixth Amendment. Look back to the original understanding. That informs us. 

Or in the Fifth Amendment, Justice Stevens in Apprendi wrote 

a very fine examination of the original history of the Constitution 

and said it is not right that an individual should be sentenced to 

prison and then hand sentence on the basis of facts a jury has not 

found. Those are all originalist, if you want to put that label on it, 

opinions. Every one of them. 

You could look at Powell v. McCormack about the qualifications 

of Members of Congress. That was written by Chief Justice Warren. It is a very careful—you might agree or disagree with it, but 

it is a very careful examination of the original history and understanding of the relevant provisions of the Constitution. 

Or Heller, Second Amendment case. Justice Scalia and Justice 

Stevens both, majority and dissent, wrote opinions that are profoundly thoughtful in examining the original history of the Constitution. I guess I am with so many other people who have come 

before me, Justice Story, Justice Black, and yes, Justice Kagan, 

who, sitting at this table, said we are all originalists in this sense, 

and I believe we are. 

Senator CRUZ. Well, Judge, I thank you for that very scholarly 

and erudite answer. You are right that Justice Kagan gave an answer that had many similar aspects and said we apply what they 

say, what they meant to do. So in that sense, we are all 

originalists. 

And you know, you referenced the Kyllo case. I think it does— 

it serves well to rebut the caricature that some on the left try to 

paint of originalism. There, dealing with thermal imaging, you 
163 

know, the notion that, gosh, how could the Framers possibly imagine modern contrivances, modern contraptions? 

Well, thermal imaging did not exist in the 1700s. 

Judge GORSUCH. Right. 

Senator CRUZ. The Framers had no idea what it was. And so 

under the caricature that some of the Democrats have suggested, 

you would assume the originalists in the case would all line up on 

the side of saying, well, gosh, the Fourth Amendment does not 

cover that. And yet, the Kyllo case, the majority opinion, 5–4, was 

written by Justice Scalia, perhaps the leading originalist on the 

Court. 

It was joined by Justice Thomas, and indeed, Justice Stevens dissented in that case. And so I think that case illustrates that any 

judge doing his or her job, a thorough understanding of the original 

understanding of the language is essential to effectively doing your 

job. 

Would you share your thoughts about how the Constitution intersects with modern technology? How a 200-plus-year-old document 

can possibly be applied in a world of internet and technology and 

changing—changing reality? 

Judge GORSUCH. Well, it is just these discussions we have been 

having, right? You go back and you look to the evidence of what 

it was understood at the time to protect. Of course, Madison did 

not know about thermal imaging or GPS tracking devices or DNA 

or email. And no one is looking to take us back to the horse and 

buggy day or quill pens or to turn back the clock on anything. 

The point is to apply the law in a way that allows us to be able 

to say as judges it is not what we wish. It is what the law was understood to mean. It has a fixed meaning, as Madison said, in the 

fixed meaning canon of construction. That the Constitution should 

have a fixed meaning, all right? 

And the judges may disagree over what that is. We disagree once 

in a while. Not as often as some would like to portray, once in a 

while. But our disagreements are not political disagreements. They 

are disagreements over what the law is. That has been very important to me. 

And the other thing it does is it is a due process value. We are 

interpreting the law in a way that we can charge people with notice of because we are judging them for their past conduct. People 

lose their liberty, their property on the basis of our interpretations 

of the law. That seems to me that it should only be fair that there 

are interpretations we can charge them with notice of, right? 

Similar thing when we come to statutory interpretation, right? 

What does that text mean? What could a reasonable reader understand that text to mean? 

You know, my favorite case in statutory interpretation when I 

teach this stuff and talk to my law clerks about it is the fish case. 

There the statute read something like, I am not going to get it exactly right, but if you destroy email documents or other tangible 

objects when you know the cops are after you, you go to jail. 

Well, what does that mean in the context of a fisherman who 

knows that the Coast Guard is after him, and he has an illegal 

catch and he throws it overboard? That case went to the U.S. Su-
164 

preme Court. It is a great case. And it divided in a way that people 

do not expect, right? 

Justice Ginsburg wrote the majority opinion and along with Justice Alito writing a concurrence, saying fish? This statute is about 

email. Nah, no, no. Justice Kagan and Justice Scalia wrote a dissent, saying fish? That is a tangible object, right? He had notice. 

He should not have done it. 

And so these things do not divide along any kind of ordinary ideological line. I am confident that there are Justices who in that 

case or in Heller or in any of these cases would, as a matter of policy, have come out differently than they did as in a matter of judging. And that, to me, is all the difference in the world. We are not 

doing what we would like, but what we think the law is. 

Senator CRUZ. Let us turn to another topic. Some of my colleagues on the Democratic side have raised some questions about 

the Federalist Society and have raised it with a tone that suggests 

it is some nefarious and secret organization. Indeed, I was waiting 

to see the question ‘‘Are you now or have you ever been a member 

of the Federalist Society?’’ 

[Laughter.] 

Senator CRUZ. And given that context, for the sake of candor, I 

will go ahead and self-report now. I am and have been a member 

of the Federalist Society since I was 21 years old and a first-year 

law student, when I happily joined. And indeed, there are over 

60,000 Members, law students and lawyers and, indeed, those just 

interested in the Constitution and the rule of law. 

And one of the things that has struck me about the Federalist 

Society is the incredible range and diversity of opinions within the 

Federalist Society. You have conservatives. You have libertarians. 

You have those with—who believe in fidelity to law and would not 

ascribe to either of those labels. 

And I understand you gave a talk at a Federalist Society event 

at the problems of over-criminalization. Can you tell us a bit about 

that talk? 

Judge GORSUCH. Yes, I think it is fun to go into audiences and 

challenge them sometimes a bit. I think it is important. And as to 

the Federalist Society, I do not have a card either, and I really do 

not want a back statement for past dues. 

[Laughter.] 

Judge GORSUCH. But I attend maybe one event a year or something like that. It is all alumni forums that you all have. And at 

that speech, I did talk to the society about the problem of overcriminalization as I saw it. 

On the Federal statutory books today, we have approximately 

5,000 criminal laws. That does not count, of course, all the criminal 

laws at the State and local level, and Congress pours out a lot of 

new criminal laws all the time. Most of those laws are of relatively 

recent vintage. 

I asked my law clerks to go find out, okay, now how many of 

those—how many laws do we have that have criminal penalties 

that are in regulations, too, right? Just out of curiosity. And I 

thought they’d be able to come back with a number. 
165 

And apparently—they reported back, and I trust them. They are 

pretty smart. They came back and said that scholars have given up 

trying to count the number. They gave up at around 300,000. 

And Madison warned, you know, he lived in a time when there 

were too few written laws, so that the king could pretty much do 

as he wished. Tyrannical king. That is the experience they had. 

But he foresaw a world and warned about a world in which we 

have too many laws to the point where the people cannot know 

what the law is. 

And of course, there is the great example of Caligula, right, who 

posted laws, ancient Roman emperor, deliberately posted laws written in a hand so small and up so high that nobody could tell what 

the law was. Better to keep the people on their toes. Sorry. 

And that is a problem, too, right, for due process, fair notice. And 

the truth is in like so much else in life, we are aiming for the golden mean. Not too much, not too little. A point where people have 

enough fair notice, but are not overwhelmed. That is what I spoke 

about. 

Senator CRUZ. Well, and I agree with you. It is a significant 

problem, one that this Committee has addressed multiple times, 

and I hope will continue to address. Indeed, I am reminded of one 

legal thinker who famously observed, ‘‘In heaven, there is no law, 

and the lion lies down with the lamb. In hell, there is nothing but 

law, and due process is meticulously obeyed.’’ 

And living in a situation where, by the account you just shared, 

there are over 300,000 potential crimes in a regulatory sense, at 

some point makes it exceedingly difficult for an honest citizen to 

conduct himself or herself in a way that does not run afoul of the 

law. And then that is something that should concern all of us. 

You know, I would note when you gave this speech, would you 

say it is fair to say that not everyone at the Federalist Society who 

heard your speech agreed with everything you said? 

Judge GORSUCH. Oh, goodness. That was the whole point of this 

speech, Senator. 

Senator CRUZ. Well, and in my experience, a great many Federalist Society debates—events are structured as debates, where 

you have sometimes sharply contrasting views for the purpose of 

intellectual discussion and, hopefully, thinking in addressing hard 

problems. 

Judge GORSUCH. And there is a counterpart to the Federalist Society now, the American Constitutional Society. One of my friends 

who was just here is on the board. It does similar good work. 

Senator CRUZ. Sure. 

Judge GORSUCH. I think these societies, debating societies, useful 

to ideas percolating, being shared in a civic way, in a way that we 

can discuss with one another calmly, coolly, thoughtfully. Not 

yelling at one another, not using labels to dismiss one another. 

That is what I get out of it. I learn things. 

Senator CRUZ. I would note that the Federalist Society describes 

its purpose as ‘‘It is founded on the principles that the state exists 

to preserve freedom, that the separation of governmental powers is 

central to our Constitution, and that it is emphatically the province 

and duty of the judiciary to say what the law is, not what it should 

be.’’ 
166 

And I can think of very few people qualified to be a judge who 

would not agree with those basic precepts about the foundation of 

our country. 

Let me turn to a different topic, which is several of my colleagues 

on the Democratic side have focused on corporations and have been 

critical of decisions such as the Supreme Court decisions in Citizens United or Hobby Lobby and have put forth the proposition 

that corporations are not people and, hence, cannot have First 

Amendment rights, cannot have free speech rights, cannot have religious liberty rights. And while that may be a perfectly fine debating point in a Committee of the United States Senate, in a courtroom, it runs foursquare into decades, if not centuries, of precedents on the other side. 

The New York Times is a corporation. Judge Gorsuch, is there 

any credible argument that The New York Times enjoys no First 

Amendment protections whatsoever? 

Judge GORSUCH. No, Senator. 

Senator CRUZ. The NAACP is a corporation. Is there any credible 

argument that the NAACP has no First Amendment protections? 

Judge GORSUCH. I think these are long-settled precedents we are 

talking about. 

Senator CRUZ. And the same, I would note, is true for the NRA, 

for La Raza, for the ACLU. Every one of those is corporations, the 

Sierra Club, and every one of those the Supreme Court has for decades held—Simon and Schuster, a major book publisher. There is— 

every one of those, the Supreme Court has held, are protected by 

the First Amendment. 

Is that a fair characterization? 

Judge GORSUCH. I believe it is. 

Senator CRUZ. I think that is important to note in the public debate that part of the reason we have such a robust arena of free 

speech, part of the reason I think it is a good thing that on gun 

issues we have the NRA and the Brady Center debating back and 

forth, citizens of good intentions and morals believing strongly on 

an issue, expressing their First Amendment rights, petitioning 

Congress, speaking out publicly. And the First Amendment exists 

to protect your right on one side or the other to speak and let the 

public domain resolve that issue. 

Let me turn to a different issue and return perhaps to a lighter 

topic. I understand that you like to take your law clerks, some of 

them very much not from the West, to the Denver rodeo every year 

and to have them observe and react to cattle roping and bronc 

riding and mutton busting. Is that true, and can you share a bit 

of your experiences and, even better, theirs in that regard? 

Judge GORSUCH. Well, Senator, I get law clerks from all over the 

country, many from my region. I maybe favor my region, but I get 

plenty from out of the area, too. 

And we have a great rodeo in Denver every year, the Grand National, and it begins with a parade down 17th Street, which would 

be like a parade down Pennsylvania Avenue in DC, where you have 

cattle, it is a cattle drive down the main road in Denver. They shut 

it down. That is how you mark the opening of the Grand National. 

And the closing of the Grand National is celebrated by the prize 

steer getting to spend a little time in the Brown Palace Hotel. Now 
167 

the Brown Palace Hotel is like the Willard or pick your favorite 

fancy, at the Plaza in New York. Yes, they bring the prize steer 

into the lobby of the Brown Palace. 

And in between, there is a rodeo and the stock show, and the 

kids show their animals. My kids never made it to the Grand National. They are more county fair types with their chickens and 

their rabbits and dogs and whatever. But the kids compete to the 

Grand National, this Grand National. This is big time. 

And then there is mutton busting, and I think my children still 

have PTSD from mutton busting. 

[Laughter.] 

Judge GORSUCH. Mutton busting, as you know, comes sort of like 

bronco busting for adults. You take a poor little kid. You find a 

sheep—— 

[Laughter.] 

Judge GORSUCH. And you attach the one to the other and see 

how long they can hold on. And you know, it usually works fine 

when the sheep has a lot of wool, and you tell them to hold on— 

I tell my kids hold on monkey-style, you know, really get in there, 

right, get around it. 

Because if you sit upright, you go flying right off, right? So you 

want to get in. But the problem when you get in is that you are 

so locked in that you do not want to let go, right? And so then the 

poor clown has to come and knock you off the sheep. 

And my daughters, you know, they got knocked around pretty 

good over the years. 

Senator CRUZ. Well, as a Texan, I think everyone’s life could be 

rendered richer by going to the rodeo, and I thank you for sharing 

that experience with your clerks. 

Judge GORSUCH. Well, I am sorry. We could talk mutton busting 

all day. 

Chairman GRASSLEY. Senator Franken. 

Senator FRANKEN. Good to see you, Judge. Evidently, there is no 

animal abuse laws—— 

[Laughter.] 

Judge GORSUCH. You sound like my daughters on that score, 

Senator. 

Senator FRANKEN. You know, I wanted to get to some questions, 

but first I want to talk about TransAm Trucking because Senator 

Durbin brought it up. Then Senator Lee brought it up. And I want 

to just go through the facts real quickly because I understand the 

reasoning behind your dissent, but I am actually kind of puzzled 

by it as well. 

Okay. So Alphonse Maddin is a truck driver. He has made a stop 

off the interstate at 11 p.m.. He comes back on—or he is about to 

come back on, notices his brakes are frozen on his trailer. 

Okay. So he decides I am not going to go on—it is dangerous to 

go with frozen brakes onto the interstate, frozen brakes on my long 

trailer. He is in the cab, and he calls in for—pulls over to the side, 

calls in for a repair. Gets the dispatcher. The dispatcher says, well, 

you know, wait. Hang on there. Wait. 

Okay. A couple hours goes by. The heater is not working in his 

cab. It is 14 below zero, 14 below zero. He calls in and he says, my 

feet, I cannot feel them. I cannot feel my feet. My torso, I am begin-
168 

ning not to be able to feel my torso. And they say hang on, hang 

on, wait for us. 

Okay. Now he actually falls asleep, and at 1:18 a.m., his cousin, 

I think, cousin calls him and wakes him up. And his cousin says 

that he is slurring his speech, and he does not make much sense. 

Now Mayo Clinic in Minnesota says that is hypothermia. And he 

had fallen asleep. If you fall asleep waiting in 14 below zero weather, you can freeze to death. You can die. 

He calls them back, and a supervisor says wait. You have to 

wait. So he has a couple choices here. Wait or take the trailer out 

with the frozen brakes onto the interstate. 

Now when those brakes are locked, and you are pulling that load 

on a trailer with its brakes locked, you can go maybe, what, 10, 15 

miles an hour. Now what is that like on an interstate? Say you are 

going 75 miles an hour. Someone is going 75 miles an hour. They 

come over a hill and slam into that trailer. 

Also he has hypothermia. He is a little woozy. Probably figures 

that is not too safe. I do not think you would want to be on the 

road with him, would you, Judge? 

Judge GORSUCH. Senator—— 

Senator FRANKEN. You would or not? It is a really easy yes or 

no. 

Judge GORSUCH. Would I want to be on the—— 

Senator FRANKEN. Would you like to be on the road with him? 

Judge GORSUCH. Would I want to be on the road with him? 

Senator FRANKEN. Yes. 

Judge GORSUCH. With the hitched trailer or the unhitched trailer, Senator? 

Senator FRANKEN. Well, either, but especially with the hitched 

trailer with the locked brakes. 

Judge GORSUCH. No. I do not think that was a serious option. I 

agree with you. 

Senator FRANKEN. Okay. I thought that was—I would not want 

to be there either. 

Judge GORSUCH. Yes. An unhitched trailer—— 

Senator FRANKEN. So what he does is he unhitches it—- 

Judge GORSUCH. Right. 

Senator FRANKEN [continuing]. And goes off in the cab. 

Judge GORSUCH. And then I believe he comes back 15 minutes 

later. 

Senator FRANKEN. And he comes back after he gets warm so that 

he can be there when it gets repaired. 

Judge GORSUCH. Right. 

Senator FRANKEN. Okay. He gets fired. He gets fired. And the 

rest of the judges all go that is ridiculous. He should not—you cannot fire a guy for doing that. It was—there were two safety issues 

here. 

One, the possibility of freezing to death or driving with that rig 

in a very, very dangerous way. Which would you have chosen? 

Which would you have done, Judge? 

Judge GORSUCH. Oh, Senator, I do not know what I would have 

done if I were in his shoes, and I do not blame him at all for a 

moment for doing what he did do. 

Senator FRANKEN. But what—— 
169 

Judge GORSUCH. I empathize with him entirely. 

Senator FRANKEN. Okay. Just we have been talking about this 

case. You have not decided what you would have done? You have 

not thought about for a second what you would have done in his 

case? 

Judge GORSUCH. Oh, Senator, I thought a lot about this case because I—— 

Senator FRANKEN. And what would you have done? 

Judge GORSUCH. I totally empathize and understand—— 

Senator FRANKEN. I am asking you a question. Please answer the 

questions. 

Judge GORSUCH. Senator, I do not know. I was not in the man’s 

shoes, but I understand why he did—— 

Senator FRANKEN. You do not know what you would have done? 

Okay. I will tell you what I would have done. I would have done 

exactly what he did. 

Judge GORSUCH. Yes. I understand—— 

Senator FRANKEN. And I think everybody here would have done 

exactly what he did, and I think that is an easy answer, frankly. 

I do not know why you had difficulty answering that. 

Okay. So you decide to write a thing in dissent. If you read your 

dissent, you do not say it was like subzero. You say it was cold out. 

The facts that you describe in your dissent are very minimal. But 

here is the—here is the law that—and you go to the language of 

the law, and you talk about that. ‘‘I go to the law.’’ 

A person may not discharge an employee who refuses to operate 

a vehicle because the employee has reasonable apprehension of serious injury to the employee or the public because of the vehicle’s 

hazardous safety or security condition. That is the law. 

And you decided that they had the right to fire him, even though 

this law says you may not discharge an employee who refuses to 

operate a vehicle because he did operate the vehicle. Is that right? 

That is your—that is how you decided, right? 

Judge GORSUCH. That is the gist of it. 

Senator FRANKEN. Well, no. Is that how you decided? That is 

what you decided, right? 

Judge GORSUCH. Well, Senator, there are a lot more words in the 

opinions, both in the majority by my colleagues and in dissent, but 

that—I am happy to agree with you that is the gist of it. 

Senator FRANKEN. Right. Well, that is what you have said. And 

I—look, I am not a lawyer, but I have been on this Committee for 

about 8 years, and I have paid some attention. So I know that what 

you are talking about here is the plain meaning rule. Here is what 

the rule means. 

When the plain meaning of a statute is clear on its face, when 

its meaning is obvious, courts have no business looking beyond the 

meaning to the statute’s purpose. And that is what you used, right? 

Judge GORSUCH. That is what was argued to us by both sides, 

Senator. 

Senator FRANKEN. But that is what you—that is what you used? 

Judge GORSUCH. Yes, both sides argued that the plain meaning 

supported their—— 

Senator FRANKEN. Yes, and you used it to come to your conclusion. 
170 

Judge GORSUCH. But both sides did. 

Senator FRANKEN. But the plain meaning rule has an exception. 

When using the plain meaning rule would create an absurd result, 

courts should depart from the plain meaning. 

It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death 

or causing other people to die possibly by driving an unsafe vehicle. 

That is absurd. 

Now I had a career in identifying absurdity. 

[Laughter.] 

Senator FRANKEN. And I know it when I see it, and it makes 

me—you know, it makes me question your judgment. 

You stopped by my office a few weeks ago. I asked you about 

Merrick Garland. I had read somewhere that after you accepted the 

nomination, it has been talked about, one of the first calls you 

placed was to Chief Judge Garland. And you said to me, ‘‘I think 

the world of Merrick Garland.’’ 

And I asked you a couple times if you are bothered by the way 

the Senate treated Merrick Garland, who you clearly have a great 

deal of respect for? You said something to the effect of, ‘‘Senator, 

I try to stay away from politics.’’ 

Now you had been on the bench for 10 years. So that sounded 

fair to me, and I decided to leave well enough alone, and I moved 

on to another topic. 

But your relationship with politics came up against yesterday. 

My good colleague Senator Lee lamented the extent to which the 

confirmation process has become political and suggested that you 

and other nominees are not equipped to navigate that process because confirmation politics are, in his words, ‘‘still a little foreign 

to you, are still quite unfamiliar to you.’’ 

But it turns out that is not really entirely accurate. After you 

were nominated, this Committee made a formal request for documents relating to your previous nomination and to your time at the 

Department of Justice. This is standard procedure. Those documents include emails back and forth between former Bush administration officials and you in 2004, back before you joined that administration. 

And the Neil Gorsuch in those emails seems to be very, very familiar with politics. The Neil Gorsuch in those emails was looking 

for a job. Here is a message you sent to Matt Schlapp, President 

Bush’s political director. This was in November 2004, just after 

President Bush won re-election. 

‘‘I spent some time in Ohio working on the election.’’ This is you. 

‘‘What a magnificent result for the country. For me personally, the 

experience was invigorating and a great deal of fun.’’ 

Now that does not sound like someone who steers clear of politics 

to me. You went on to write, ‘‘While I have spent considerable time 

trying to help the cause on a volunteer basis in various roles, I 

have concluded that I would really like to be a full-time member 

of the team.’’ 

You attach your re ́sume ́, which describes in detail your work in 

support of political campaigns and candidates. Basically, you had 

worked on Republican political campaigns since 1976. You worked 

for Reagan, Bush 1, Bush 2. You were cited for distinguished serv-
171 

ice to the United States Senate for work in support of President 

Bush’s judicial nominees by the Senate Republican Conference, 

which suggests that even the political aspects of confirming judicial 

nominees is something that you are not unfamiliar with. 

Now when we met earlier, I asked you what you thought of the 

way Senate Republicans treated Merrick Garland, and rather than 

answer the question, you replied, ‘‘I try to avoid politics.’’ But here 

you are in 2004, pledging your allegiance to the cause and shopping 

around a re ́sume ́, touting your work on political campaigns dating 

back to 1976. 

These messages establish that for a good deal of your prior career, you did not avoid politics. Quite the contrary, you were very 

politically active. So in light of that, I would like to ask my question again. Do you think Merrick Garland was treated fairly by the 

United States Senate? 

Judge GORSUCH. Senator, a couple of things in response to that, 

if I might? Going back, the absurdity doctrine argument was never 

presented to the Court, and it usually applies in cases where there 

is a scrivener’s error, not when we just disagree with the policy of 

the statute. So I appreciate the opportunity to respond there. 

Senator FRANKEN. When there is a scrivener there? 

Judge GORSUCH. Scrivener’s error. 

Senator FRANKEN. Error? 

Judge GORSUCH. Error, yes. 

Senator FRANKEN. Okay, I am sorry. 

Judge GORSUCH. Not when we just disagree with the policy. With 

respect to campaigns—— 

Senator FRANKEN. Well, if I read my statutory interpretation 

from, let us see, this is from the Notre Dame Law School National 

Institute for Trial Advocacy, this is a pretty well-known exception 

to the plain meaning rule. 

Judge GORSUCH. Oh, yes. 

Senator FRANKEN. And I think you can apply it without it—I 

mean, do you not think it is absurd that this man was put—given 

that choice and then fired for it? Do you not think that was absurd? 

Judge GORSUCH. Senator, my heart goes out to him. 

Senator FRANKEN. Okay, never mind. 

Judge GORSUCH. My heart goes out to him, but it is just not my 

job to write—— 

Senator FRANKEN. How do you think Merrick Garland was treated by the Republicans? 

Judge GORSUCH. And Senator, since I became a judge 10 years 

ago, I have a canon of ethics that precludes me from getting involved in any way, shape, or form in politics. They are the reason 

why judges do not clap at the State of the Union and why I cannot 

even attend a political caucus in my home State to register a vote 

in the equivalent of a primary. 

Senator FRANKEN. Okay. But I do not think that this is—you 

have to state your political views. That is not what—this is about 

how a Supreme Court Justice who is nominated by the President 

of the United States, this is like in the Constitution. I think you 

are allowed to talk about what happened to the last guy who was 

nominated in your position. 
172 

You are allowed to say something without being—without getting 

involved in politics. You can express an opinion on this. 

Judge GORSUCH. Senator, I appreciate the invitation, but I know 

the other side has their views of this, and you, your side has your 

views of it. That, by definition, is politics. 

Senator FRANKEN. Okay, okay. 

Judge GORSUCH. And Senator, judges have to stay outside of politics. I think the world of Merrick Garland. I think he is an outstanding judge. 

Senator FRANKEN. Okay, I understand. 

Judge GORSUCH. I have told you what I think about him. 

Senator FRANKEN. I understand. Thank you. Thank you. 

I do not mean to cut you off, but you know, we have time. I think 

it is really important for us to understand how your political work 

and your political views might inform the views of the law, and I 

know—I do not hold it against you that you did political work. Lots 

of people did. 

Judge GORSUCH. 1976, I was walking the district with my mom. 

Senator FRANKEN. Yes. 

Judge GORSUCH. When she was running for State house. 

Senator FRANKEN. Looking again at the emails 5 or so months 

after your message to Mr. Schlapp you emailed Ken Mehlman. Mr. 

Mehlman was your law school roommate, and at the time you 

emailed him, he was the Chairman of the Republican National 

Committee. You had just interviewed for a job at the Department 

of Justice, and you wanted him to put in a good word. So he did. 

Mr. Mehlman emailed the White House, and he wrote, ‘‘Neil is 

a wonderful guy, was my law school roommate, did the 72-hour effort in Ohio for us, and was part of Lawyers for Bush.’’ Mr. 

Mehlman wrote, ‘‘He is a true loyalist.’’ 

Now again, being politically active or a loyal Republican are not 

disqualifying characteristics for a Supreme Court nominee, not in 

my book anyway. Let us think back to the 2004 election. Let us 

look at Ohio, where you volunteered. 

Ohio is one of 11 States in 2004 where Republicans working to 

support the re-election campaign also worked to put anti-gay marriage amendments on the ballot. These State constitutional amendments passed, all 11 of them. The text varied State by State, but 

generally, the amendments defined marriage as being between a 

man and a woman. The amendments sent a clear message to lesbian and gay couples that their unions were not equal in the eyes 

of the law. 

Now you were a campaign worker in Ohio. You were a member 

of the group Lawyers for Bush-Cheney. As a lawyer and as a student of the Constitution, how did you feel about the right to marry 

being put to a popular vote? 

Judge GORSUCH. Senator, I do not recall any involvement in that 

issue during that campaign. I remember going to Ohio—— 

Senator FRANKEN. Were you aware of that issue at all? 

Judge GORSUCH. Oh, certainly, I was aware of it. 

Senator FRANKEN. And how did you feel about it? 

Judge GORSUCH. Well, Senator, my personal views? Any revelation of my personal views about this matter would indicate to peo-
173 

ple how I might rule as a judge, mistakenly, but it might. And I 

have to be concerned about that. 

Senator FRANKEN. These discriminatory amendments were part 

of a deliberate effort to drive up the turnout, and we know that because—we know that because your friend Ken Mehlman said so. 

Mr. Mehlman was interviewed by The Atlantic in 2010 and said 

that the Bush campaign had ‘‘been working with the Republican to 

make sure that anti-gay initiatives and referenda would appear on 

November ballots in 2004 and 2006 to help Republicans.’’ 

Now to be clear, there is nothing to suggest that you were involved in crafting that strategy. But at the time, this tactic received a lot of attention, including in Ohio, where you worked on 

the campaign. It has a profound impact on people’s lives. 

But a lot has changed. Since 2004, Mr. Mehlman announced publicly that he is gay, for one. He also voiced regret about what happened. He apologized. He said, ‘‘At a personal level, I wish I had 

spoken out against the effort. As I have been involved in the fight 

for marriage equality, one of the things I have learned is how many 

people were harmed by the campaigns in which I was involved. I 

apologize to them and tell them I am sorry.’’ 

That is a brave thing to say. It is hard to admit regret. Mr. 

Mehlman had a personal connection to the issue, to be sure. But 

our country has come a long way in a relatively short amount of 

time. A lot of folks have changed their view about marriage equality, Republicans and Democrats alike. 

In the meantime, the Supreme Court has settled this issue. Marriage equality is now the law of the land. So you should not have 

any problem answering this question. How have your views of marriage equality changed, if at all, since the 2004 election? 

Judge GORSUCH. Senator, my personal views, if I were to begin 

speaking about my personal views on this subject, which every 

American has views on, would send a misleading signal to the 

American people that my—— 

Senator FRANKEN. It is settled law. 

Judge GORSUCH. It is absolutely settled law. There is ongoing 

litigation about its impact and its application right now, and I cannot begin to share my personal views without suggesting mistakenly to people—— 

Senator FRANKEN. Okay. Can I move on to something else then? 

Thank you. 

Judge GORSUCH. Well, if I might finish? 

Senator FRANKEN. I understand. You have given a version of this 

answer before. So I understand. I understand. 

I would like to return to something I raised in my opening statement, and that is your view of administrative law. Standing before 

conservative activists gathered at CPAC, the Conservative Political 

Action Committee, President Trump’s chief strategist, Steve 

Bannon, and his White House chief of staff, Reince Priebus, outlined the President’s agenda. 

Two topics were featured prominently, deregulation and your 

nomination. Now I do not think that is a coincidence. 

Reince Priebus started by explaining why nominating you was so 

important for the President to do right out of the gate. He said, referring to your nomination, ‘‘Number one, we are not talking about 
174 

a change over a 4-year period. We are talking about a change of 

potentially 40 years of law, number one.’’ 

That is change of potentially 40 years of law. Change the law. 

You and your colleagues here have said the job of a judge is to follow the law, even if he dislikes the results. You have said that. Not 

change the law or change 40 years of the law. 

But that is what Reince Priebus said this is about. When the 

White House chief of staff was talking to his friends at CPAC, he 

says that Justice job, that your job is to change 40 years of law. 

Yet my colleagues and you say it is to follow the laws as written. 

Well, it cannot be both. So which is it? 

Judge GORSUCH. Senator, it is to be a judge, to be fair, to follow 

the law. To apply it to the facts and circumstances of each case and 

to live out my judicial oath on whichever court I serve on, whether 

it is the Tenth Circuit, where I have served for the last 10 

years—— 

Senator FRANKEN. Okay. 

Judge GORSUCH. And where my opinions have been unanimous 

97 percent of the time, Senator. 

Senator FRANKEN. I know. 

Judge GORSUCH. I have been in the majority—— 

Senator FRANKEN. I understand, and again, you have given many 

times that answer. So if you will indulge me? 

Mr. Priebus went on to say your nomination was central to President Trump fulfilling his policy objectives. ‘‘Neil Gorsuch represents the type of judge that has the vision of Donald Trump, and 

it,’’ referring to your nomination, ‘‘fulfills the promise that he made 

to all of you,’’ speaking to the conservative activists gathered at 

CPAC. 

What do you think that Mr. Priebus was talking about? Was he 

suggesting that, if confirmed, you would be positioned to shape the 

Court’s decisions for the next 40 years, or was he suggesting you 

could reach back 40 years? Roe v. Wade turned 44 this year, and 

President has promised to nominate judges who would overturn 

Roe. 

Chevron is 33 years old. I think this is a legitimate question. 

Was Mr. Priebus suggesting that you go back and change 40 years 

of settled law or have an effect on the law moving forward? 

Judge GORSUCH. Respectfully, Senator, Mr. Priebus does not 

speak for me, and I do not speak for him. I do not appreciate when 

people characterize me, as I am sure you do not appreciate it when 

people characterize you. I like to speak for myself. 

I am a judge. I am my own man. 

Senator FRANKEN. Okay. I just want to just, you know, we have 

had some talk about this. I do not think we are crazy to think that 

the administration and Reince Priebus, I do not think he was lying. 

And does it not—are you comfortable with your nomination being 

described in such transactional terms? 

Judge GORSUCH. Senator, there is a lot about this process I am 

uncomfortable with, a lot. But I am not God. No one asked me to 

fix it. I am here as a witness, trying to faithfully answer your questions as best I can, consistent with the constraints I have as a sitting judge. 

Here to answer questions about my qualifications and my record. 
175 

Senator FRANKEN. I have it. Well, I find it unsettling that the administration is talking about—the chief of staff is talking about the 

Supreme Court that way. But I want to get back to the panel at 

CPAC. 

After Mr. Priebus discussed your nomination, Steve Bannon 

talked about the President’s agenda. He described three priorities, 

and one of them was ‘‘the deconstruction of the administrative 

state.’’ Now here is what Mr. Bannon meant by that. 

He said that regulation was a problem from his perspective. 

‘‘Every business leader we have had in is saying not just taxes, but 

it is also regulation.’’ He said that if you look at the President’s appointees, ‘‘They were selected for a reason, and that is 

deconstruction. The way the progressive left runs is if they cannot 

get it passed, they are just going to put in some sort of regulation 

in an agency. That is all going to be deconstructed.’’ 

Taking Steve Bannon at his word, do you think only Cabinet appointees were selected to bring about this deconstruction, or do you 

think the White House also sees a role here for its judicial nominees? 

Judge GORSUCH. Senator, respectfully, I believe that is a question best directed to Mr. Bannon. 

Senator FRANKEN. He is not here. I am just quoting him. That 

is all. 

I think the White House does see judges as a part of this 

deconstruction, and I think that they are seeing your nomination 

as an important step toward achieving this goal. You have shown 

a willingness to disregard agencies’ interpretations of statutes. You 

did that in TransAm Trucking with a Department of Labor regulation, for example. 

You have done it in other cases as well, and in August, you wrote 

that concurrence to your own unanimous opinion in which you describe Chevron, the Supreme Court’s landmark administrative law 

case, as ‘‘permitting Executive bureaucracies to swallow huge 

amounts of core judicial and legislative power.’’ You wrote, ‘‘Maybe 

the time has come to face the behemoth.’’ 

Now generally speaking, as we have discussed, Chevron provides 

the courts should defer to an agency’s interpretation of the Federal 

laws that it is tasked with administering. When Congress passes 

laws that require agencies to implement them, say, by issuing safety standards for children’s toys or rules to ensure that pharmaceuticals or medicines are safe, those agencies turn to experts to 

develop those policies, experts like scientists at the FDA, for example. 

And I think that is a good thing. We want experts doing the 

work. What we Senators do not want to be doing is deciding how 

much lead can be in your water or what the distance in the slats 

are in a baby’s crib. I do not trust Senator Coons to do that. 

[Laughter.] 

Senator FRANKEN. Chevron provides that when agencies do that, 

courts should be wary of stepping in to overrule them without a 

good reason. This is—Scalia agreed with Chevron. But I am concerned that this administration sees common sense 

health and safety rules as a burden on big business, and I am concerned that they want to appoint pro-corporate judges who are will-
176 

ing to substitute their own judgment on these matters for those of 

experts. Do you believe that Chevron was wrongly decided? 

Judge GORSUCH. Senator, I am a Circuit Judge. I do not tell my 

bosses what to do. I do, when I see a problem, raise my hand and 

tell my bosses I see an issue here. And I did in that case not because of any big corporate interest, but because of what happened 

to Mr. Gutierrez, an undocumented immigrant to this country. 

And the whipsaw that he was placed in by a change in law affected by an administrative agency, a bureaucracy, overruling a judicial precedent and telling him he now had to wait not 10 years 

out of the country, but 14, something like that. 

And Senator, that is part of my job to say these things when I 

see problems like that. It is a due process problem I saw, and no 

one, Senator, is suggesting that scientists should not get deference, 

or chemists or biologists. Section 706 of the APA is quite clear that 

on facts—— 

Senator FRANKEN. Well, you want to address this behemoth, and 

that suggests that the comments made by Mr. Priebus and Mr. 

Bannon know exactly what they—what you think about these 

issues. And I think some of my colleagues on the other side of the 

aisle do as well. 

This is a big deal. During the entire Fourteenth Congress, Chevron deference was mentioned only twice on the Senate floor. But 

between the announcement of your nomination on January 31st 

and last week, that decision was mentioned 30 times by 4 different 

Senators. Each of those four Senators discussed the case while 

speaking in support of your nomination. Three of those Senators 

are Members of this Committee. 

So I know you are choosing your words very carefully, and I 

know you are trying not to signal how you might rule in certain 

cases, but I think some of the signals have already been sent. 

Thank you. 

Chairman GRASSLEY. Senator Sasse. 

Senator SASSE. Thank you, Mr. Chairman. Judge, I—you mentioned that there are a number of things about this that have been 

disappointing to you in the process. I am disappointed in Senator 

Cruz partly because he stole a lot of my originalism plan of questioning, but also because he went to mutton busting. 

[Laughter.] 

Senator SASSE. I was convinced that I was the only guy that had 

mutton busting in today’s pool. So, my wife also sent me a text a 

little bit ago and said, and I am sure she did not expect me to read 

it, but how in the world is Gorsuch able to go so many hours at 

a time without peeing. 

[Laughter.] 

Senator SASSE. I will not make you answer, but the SCOTUS 

bladder is something the whole country stands in awe of. You are 

over halfway through your 11 hours today, so congratulations. 

Judge, let us do biography for just a second. You are a father. 

Remind me of the ages of your children. 

Judge GORSUCH. Boy, I do not even know what to say now. 

[Laughter.] 

Judge GORSUCH. You really caught me off guard there, Senator 

Sasse. 
177 

Senator SASSE. You are welcome. 

Judge GORSUCH. My daughters are 17 and 15. 

Senator SASSE. Okay. So, besides fishing, have they ever played 

sports? 

Judge GORSUCH. Oh, my goodness, yes. 

Senator SASSE. Have you ever gotten to a Little League game 

early, pulled the umpire aside in the parking lot, and asked him 

or her to commit in advance that they will decide the games for the 

underdog? 

Judge GORSUCH. No, but I think some of my buddies have. 

[Laughter.] 

Senator SASSE. Have you—have you ever asked a referee underneath the zebra stripes of their jersey to wear your kid’s Little 

League jersey as the undershirt, the referees? 

Judge GORSUCH. No, it would not have helped any. My kids were 

pretty rotten at basketball. 

Senator SASSE. We are obviously not going to pursue this very 

far, but I do want to make sure that everybody at home knows a 

little bit of what has been happening in the room over the course 

of the last six or 7 hours, because some of my colleagues are asking 

a bunch of tough questions that are really important for you to 

have to answer. At the same time, there are a whole bunch of questions that have been asked today that are really asking you to take 

your legal career and your legal ethics, and set them aside, and 

play politician on TV today. And that really is not your job. 

And some of this questioning really has not been a fruitful use 

of our time. It is well meaning to talk about the outcome objectives 

of a whole bunch of these cases, but I would submit that it is dead 

wrong. I want to give you just a couple of the questions we have 

heard earlier today at different times. 

‘‘How can we have confidence that you will not be for the big 

guy?’’ At another point, ‘‘how can we know—how can we know that 

you feel for the little guy?’’ This sounds noble, but it is fundamentally a corruption of what the judge’s job is. To seek assurances 

from you like this is like seeking assurances from a referee before 

the game that they will pledge to a certain outcome before the tip 

off. 

If the law is wrong, and I am somebody who believes that lots 

of our laws are wrong and overreaching around here, the question 

should be directed back at us on this panel and on this dais why 

we do not fix the laws that are wrong. We would not be asking you 

as the judge to commit that when our laws are clunky, and bad, 

and in conflict, you will divine how to change the law on the fly. 

That is not the oath that you will take, that is not the Constitution 

that we have all taken an oath to and pledged to, and it is not 

what the American people want. 

So, frankly, I applaud you for your perseverance and patience 

with us as we have continually gone down a path of asking you to 

answer questions, many of which are fundamentally political questions, and that you should not be answering, and that we should 

not be asking. So, thank you for your endurance. 

I would like to go back to something that is a little more productive for the Committee, and, frankly, I think productive for the 

moms and dads at home. And I would like to talk a little bit more 
178 

about the judge’s robe. We both spoke about it yesterday, I would 

note, with no coordination. It turns out we both just read your stuff 

from the past. And the judge’s black robe reminds us of the meaning of your job. It reminds the plaintiffs that stand before the 

court, it reminds the judges as he or she dresses in the morning, 

and it reminds our kids or it gives us an opportunity to teach our 

kids. And you have spoken eloquently about it in the past, but I 

think it is fitting for you to unpack it a little bit more in light of 

some of today’s questioning. 

Earlier today you were implored to tell us a little bit more about 

what is in your heart. And I think that is fundamentally a confusing question for us to be asking of a judge except insofar as we 

would ask you, are you a man of your word, who, when you take 

an oath, in your heart are pledging to keep your word and to keep 

your oath. And I think we all know that the answer to that question is yes, and it is why you are going to be confirmed, because 

people believe you to be a good and fair-minded judge. 

But every American in a more fundamental way needs to know 

what is in the heart of legislators because we are supposed to 

speak for the hearts, and minds, and hopes, and dreams of 320 million American people. We are supposed to cast a vision for the 

country, those things we want to conserve and preserve, and those 

things that we should argue about and change. We are the ones 

who are supposed to weigh the pros and cons of various legislative 

options that are available to us. 

Judges, on the other hand, are supposed to be following the law 

impartially. Your heart is supposed to be inclined neither toward 

the rich, nor toward the poor, nor toward Black nor White, nor people with big bank balances or small bank balances. But your heart 

is supposed to be your commitment to the law as you find it. 

So, let us engage in a little thought experiment. Thirty or 40 

years from now when you retire and hang up your robe, and you 

are out fishing or sitting on the front porch of your surely lovely 

home, and you look back over your career, how will you know if you 

were a good judge? 

Judge GORSUCH. Senator, that is a question I ask my kids every 

semester when I teach ethics, finish the semester with asking them 

to spend 5 minutes writing their obituary. They hate it. They think 

it is corny, and it might be a little corny. And then I ask them if 

they will volunteer to read some of them, and people want to be 

remembered for the kindnesses they showed other people by and 

large. 

And what I point out to them—what I try to point out is it is 

not how big your bank account balance is. Nobody ever puts that 

in their draft obituary, or that they billed the most hours, or that 

they won the most cases. It is how they treated other people along 

the way. 

And for me, it is the words I read yesterday from Increase Sumner’s tombstone. And that means as a person I would like to be remembered as a good dad, a good husband, kind and mild in private 

life, dignified and firm in public life. And I have no illusions that 

I will be remembered for very long, none, if Byron White is nearly 

forgotten, as he is now as he said he would be. I have no illusions 

I will not last 5 minutes. That is as it should be. 
179 

‘‘The great joy in life,’’ Shaw said, ‘‘is devoting yourself to a cause 

you deem mighty before you are thrown on the scrapheap.’’ An 

independent judiciary in this country, I can carry that baton for as 

long as I can carry it, and I have no illusions I am going to last 

as long as you suggest. And that will be good enough for me. 

Senator SASSE. Well said. And would it be that more who taught 

legal ethics, and business ethics, and medical ethics, and theological ethics, would assign their students the obituary challenge. 

We might live less in the soundbite culture and more in a way that 

thinks about service, and duty, and calling. It is a great assignment. 

Neither Cory Gardner nor Michael Bennet have to fear that you 

are going to challenge them for a Senate seat from Colorado in the 

future? 

Judge GORSUCH. Senator, I admire them both, and I think it is 

a wonderful fact they were both here to introduce me, and that 

they follow a tradition, the West, where Senator Salazar and Senator Allard, Republican, Democrat, introduced me last time around. 

And, frankly, 10 Circuit nominations, thanks to—he is not here at 

the moment—but Senator Hatch cares about the Tenth Circuit, Republican and Democrat, generally going very smoothly. 

And it shows. It shows that you all have picked—I do not know 

how it works. I do not know how this crazy process works, but the 

colleagues you have selected for me over the years are wonderful 

colleagues, wonderful people. And I have been richly blessed to 

spend 10 years with every one of them. 

Senator SASSE. So, when you distinguish between the rearview 

mirror of a Justice later or a judge later in life looking back, and 

the rearview mirror of a Senator, we have different callings. And 

so, I think, without putting words in your mouth, you are going to 

be able to say that you can be proud of your career, even if you 

failed to advance your policy preferences in this calling. 

But unpack that for the American people. Help them understand 

how the retrospective look of a Senator and her or his career is different than a judge’s retrospective look. 

Judge GORSUCH. I suspect, but I do not know because I have not 

sat where you sit. I would not presume to be able to walk in your 

shoes. But I presume gingerly that you will look back on your career and say I accomplished this piece of legislation or that piece 

of legislation and changed the lives of the American people dramatically as a result. 

I was fortunate enough to serve as a page in this body many 

years ago. It is an experience every young person should have. It 

will give them a lifelong love of this body. It the greatest deliberative body in the world. I believe that even sitting here. 

A judge looking back, the most you can hope for is you have done 

fairness to each person who has come before you, decide their case 

on the facts and the law, and that you have just carried on the tradition of a neutral, impartial judiciary that each person can come 

to with some sense that they are going to receive a fair hearing for 

their disputes. That is what we do. We just resolve cases and controversies. And lawyers are supposed to be fierce advocates, and I 

was once a fierce advocate for my clients. But a judge is supposed 

to rule impartially, to listen courteously, and rule impartially. 
180 

So, frankly, my legacy should look and will look a lot smaller 

than yours, and that is the way the design of the Constitution 

works. 

Senator SASSE. In an earlier line of question, you were asked 

about 2004, and the presidential election, and your participation in 

it. I just want to clarify, you were not a judge in 2004. 

Judge GORSUCH. Goodness no, Senator. 

Senator SASSE. Correct. 

Judge GORSUCH. I was a private attorney. 

Senator SASSE. And when you went on to the bench, what 

changed in your life? 

Judge GORSUCH. Justice Jackson says, ‘‘A robe changes a man or 

it should.’’ Now, I am sure you would add ‘‘woman’’ today, too. A 

psychological change comes over that person. He was the fiercest 

possible Advocate Attorney General for FDR, and he wrote a dissent, as we have talked about earlier, in Korematsu. He wrote the 

Steel Seizure concurrence. He was a brave man. That is a judge’s 

judge, calling it like he sees it in each case as it comes, and writing 

clearly so that people can understand exactly what he is up to, and 

he is not hiding behind jargon, legalese, or four million footnotes. 

That is the best I can do on that. 

Senator SASSE. Senator Cruz earlier asked you a series of questions about originalism, and I appreciated your—I will probably 

paraphrase you inartfully. But you said you worry that the labels 

sometimes put us into boxes that eliminate the requirement or reduce the requirement we have to actually engage each other’s 

ideas. So, I will not pin you down hard on the term ‘‘originalism.’’ 

But many have critiqued originalism, including in some statements 

yesterday and today here, as backward focused, or ‘‘too rigid’’ in 

adapting to our changing culture. 

Do you believe that originalism is just one judicial philosophy 

among many, or is it a description of what judges do? 

Judge GORSUCH. I am with Justice Kagan on this. I think it is 

what we all want to know. I do not know a judge who would not 

want to know what the original understanding is of a particular 

term in the Constitution or a statute. That is information that 

would be valuable to any judge and considered by a judge. 

Again, in Heller, for example, Second Amendment case, deeply 

thoughtful opinions by both sides on that question. It does not necessarily decide the case, but it provides us a language to talk to 

one another in which we are trying to seek something outside of 

ourselves, outside of our own personal beliefs, about what the Constitution or the statute at hand means. 

We are trying to do it in a way that is neutral and that we can 

say provides fair notice to those whose lives we are affecting, so 

that we are interpreting the law in a way that we can say they 

should have known. They were on notice. We are not putting a person in prison willy nilly based on our preferences. We are taking 

away their liberty, but we are preserving it in accordance with the 

Constitution as it was written. 

Senator SASSE. I would like to talk a little bit about cultural catechesis, or civics. As you and I have discussed in previous meetings, I am of the view that we have a crisis. We are not passing 

on the meaning of America to the next generation. Something like 
181 

40 percent of Americans under age 35 tell pollsters that they think 

the First Amendment might be dangerous because you might use 

your freedom of speech to say something that would hurt somebody 

else’s feelings. 

Actually, that is quite the point of America, right, that there are 

all sorts of things people might differ about and they might want 

to argue about. Our Founders came here, and they did not have the 

same views of heaven and hell and how you achieve salvation. And 

they came together, and they forged out of the many one polity 

where we have a shared framework for ordered liberty, where we 

protect each other’s rights, even to be wrong about fundamental 

things, wrong in our own views as we wrestle with these things. 

But we debate big and important questions in Washington, but, 

more fundamentally, in Boulder, or in Fremont, or in Omaha, Nebraska. And you do it in the town square, and do it at the church 

or the synagogue, you do it in the bar. And you fight about questions, but fight free from violence, and so, we protect each other’s 

rights to argue and to dissent. 

And we are not explaining that First Amendment to the next 

generation. And I believe that all three branches—the legislative, 

Executive, and judicial branches—are led by people who are taking 

an oath to a Constitution that is about limited government. It is 

about principled pluralism. It is about intentionally distinguished 

and divided powers. And I think all three branches have an obligation to do some of that teaching about civics. 

President Reagan, long before he was a Republican President, before he was a Republican Governor, when he was a Democratic 

labor union organizer, Ronald Reagan used to say, ‘‘In any republic, 

you are always only one generation away from the extinction of 

freedom.’’ If we do not pass along the meaning of America to the 

next generation, it means the next generation of our rulers are not 

going to understand why we have this beautiful inheritance that 

we have in a constitutional system of limits. 

As a judge on the Tenth Circuit, and soon to be as a Justice on 

the Supreme Court, can you explain what you think your responsibilities and freedoms are to teach civics to the American people? 

Judge GORSUCH. Senator, as a judge on the Tenth Circuit, I have 

tried hard to do that, literally teaching class, speaking where I am 

invited when I am invited, going to law schools, talking to students, and visit the courthouse, and it has been a great privilege 

and a joy. 

I think here of Justice O’Connor—Sandra Day O’Connor—and 

when she retired she did an awful lot of this. She has done an 

amazing amount of work. And I do think that there is a need to 

remind people how to talk to one another, how we talk to one another, and more fundamentally about how brilliant the design of 

this Constitution is. Not perfect, but e pluribus unum. From many, 

one. 

And we are all not Republican judges, Democratic judges. We are 

judges, and I think we do have an opportunity, and that is one of 

the things I look forward to as a Justice. My little talks might be 

a little better attended on civics, and I hope to do that. 

Maybe that is a Western thing, I do not know, or a MidWestern 

thing, Senator. But I really believe in this country, and I am opti-
182 

mistic about its future. I see the young people. I teach them. I get 

law clerks that really care about this country, and they give me 

hope every day. 

Senator Coons and I share the distinction of being Truman 

Scholars, and we go through the selection process of picking the 

next crop every year. Harry Truman did not want a monument as 

a memorial here in Washington. Think about that, the humility of 

that. Instead, he wanted a living monument, a scholarship to 

young people who go on to do public service. 

Well, you got two of them here. And every year when I go do that 

selection process, I do not know about Senator Coons, but it is one 

of the best days of the year for me because I see young people full 

of enthusiasm for this country and anxious to make it better. 

I look forward to working, if I am so fortunate to be confirmed, 

on just this topic, Senator, with you, with Senator Coons, and anyone else. 

Senator SASSE. Talk a little bit about the role of writing in the 

life of a Justice. Justice Scalia was obviously a writer with a flourish. You have discussed having been tapped in the past to participate in speech writing. Talk about the purposes of both concurring 

dissents and traditional dissents, and what you think the objectives 

are at the appellate level in your opinions, and is there a distinction when you are on SCOTUS. 

Judge GORSUCH. When I sit down to write an opinion, people 

sometimes ask me who I am writing for. I am writing for myself. 

I am trying to convince myself that I have it right. And I go 

through a lot of drafts, and I sometimes, as my law clerks know, 

change tack as I am—I am drafting. I do not know how many 

drafts I have gone through on some opinions, 30? More. 

Senator SASSE. He actually said 130, but whatever. 

[Laughter.] 

Judge GORSUCH. Because I am trying to get it right, and I find 

I test ideas as I write. It is one thing to say to somebody else, oh, 

go write this up. It is another thing to have to sit down and write 

it yourself. And it exposes holes and gaps in your own thinking, 

causes you to question yourself, wonder whether you have it right. 

So for me, it is an exercise of getting it right, and persuading myself at the end of the day, and writing in a language that persuades 

me. A lot of gobbledygook, and us lawyers are guilty of a lot of gobbledygook, that does not persuade me. I want to know through a 

clear line. I want to be able to see my argument or my topic sentences. 

And maybe it is Sister Rose Margaret, I do not know, but I want 

to see the argument flow. I want to see how it fits together, and 

then I want it torn apart by my law clerks who tell me I am wrong. 

So, it is an iterative process because at the end of the day, that is 

what it is all about. 

And then it is about the test of my colleagues, and I take their 

comments very seriously. I believe in collegiality. I believe that two 

heads, three heads, nine heads are better than one. 

And so, I think a good judge cannot have too much pride of authorship. He has to accept criticism, constructive criticism, and try 

and incorporate or deal with that criticism. Maybe that is why my 
183 

opinions have attracted relatively few dissents, I do not know, but 

I take collegiality very seriously. 

As to writing separate opinions, I do not do it very often, and 

when I do it, it is usually because I am just stuck. I might be 

wrong, but I am just stuck. Something does not seem right to me, 

and I have tried to discuss it with my colleagues, I have tried to 

work it out. I have bent as far as I can bend, but at the end of the 

day I have—I take the oath to follow the law where it leads me. 

And I try hard to reach a collegial consensus, but when I cannot, 

I write up what I can as respectfully as I can, and usually in as 

few words as I can, a dissent or a separate concurrence. Sometimes 

because it is back bound, but it is just where I am stuck. Sometimes it is because I see an issue that my bosses need to be aware 

of, like any good employee. Hey, boss, you might want to think 

about this one, it seems kind of tough to me. And I think that is 

part of the process of a good judge. 

Senator SASSE. I am a historian by background, and when I was 

writing my dissertation to your audience question, one of my advisors just kept pounding me saying, I do not know who you are writing for here, it seems scattered all over the place. And he finally 

persuaded me to put a picture of my aunt on the farm next to my 

computer, and she is smarter than I am, but she knows nothing 

about my topic. And he said, if you recognize that your audience 

should be smarter than you, but ignorant of the subject matter, you 

are finally going to find your voice. 

Judge GORSUCH. Yes. 

Senator SASSE. Is there something analogous in the writings of 

the Supreme Court where you are not just writing for other Justices, but you have an obligation to write for the American people? 

Judge GORSUCH. I think if you are sitting and writing your dissertation for yourself with a picture of your aunt, you are right on 

target, because I think if I am writing for myself and trying to persuade myself, then I figure everybody will be able to at least track 

what I did. Maybe not agree with every opinion, every single one 

of the 2,700 decisions I have issued, but they will understand why 

I have where I have. I was candid about it. I did not hide. I stood 

up. I was clear. I was honest. I was forthright, plain-spoken. 

And you can judge my opinions for better or worse on their merits. And I think that is what a good judge does is candor, the duty 

of candor. 

Senator SASSE. We finished voting a day early last week, and so 

a lot of us were back in our States traveling and doing town halls, 

and Rotary clubs, and schools. I ran into three different teachers 

who planned to use these hearings on C-SPAN to teach civics. 

I wonder if you could help those teachers explain, as one of them 

asked me, about why we have a Bill of Rights. To remind the 

American people, the Constitution is a negative document. It is not 

the Government giving us freedoms. It is us giving the Government 

a limited set of enumerated powers, and originally there was no 

Bill of Rights, and as a part of a compromise, we added one. Today 

most people when they think about our Constitution think of the 

Bill of Rights first. 

Why do we have a Bill of Rights, and what fundamental difference would it make if we did not have one? 
184 

Judge GORSUCH. That is a big question. For us adults—— 

Senator SASSE. The Chairman said I could have an extra hour, 

so take your time. 

[Laughter.] 

Judge GORSUCH. Yes, I have 4 minutes and 19 seconds on that. 

That is a big question for us adults who are where we are. It is 

a big question for my middle school- and high school-age kids. 

The Constitution as a negative document, the theory behind it, 

in short order, was to divide liberty—to divide power the better to 

protect liberty. That is the theory, that if you put all power in one 

set of hands, are going to get tyranny. And our Founders had too 

much evidence of that in their own time. 

It is kind of a hard-won inheritance, part Enlightenment theory, 

right, part on the battlefield. They saw what it was like to have 

power amalgamated in one set of hands, dangerous, so they divided 

it. They divided it three ways on our—in our Federal system. You, 

Article I, write the laws, and it is tough. It is supposed to be tough 

to protect liberty. We do not just have one house. We have two 

houses. 

And then, it has to be signed by the President, too. Really hard. 

Bicameralism and presentment is designed to make legislation difficult the better to protect liberty. The President’s powers are to 

execute the laws, not make them, not adjudicate disputes. 

Our role is to decide cases and controversies between the people 

under law as it is, not as we would wish it to be. We are not legislators. We are judges. The legislative power is invested in this 

body. 

That is not all. Then we divide power in a way that was quite 

unique—well, unusual: Federalism. So, you can think of separation 

of powers as having a horizontal axis and a vertical axis so that 

the Federal Government has certain enumerated powers and authorities. And what the Federal Government does not enjoy, the 

States do as sovereigns. 

This country as well, we have Tribes which also bear sovereignty 

in our part of the world, and bear recognition as such. And I am 

glad to have the opportunity to recognize that fact here as a Westerner. 

So, we have the separation of powers between horizontally, 

vertically. And that was not thought enough to protect liberty. The 

drafters of the Constitution, many of them thought that would be 

more than sufficient, that, in fact, was the main way to preserve 

liberty. 

But our Founders were very suspicious and very jealous of their 

liberties, so they added the Bill of Rights, and they enumerated 10 

of them, as you know, starting with freedom of speech, the freedom 

of religion, no establishment of religion, right to bear arms. The 

Third Amendment, which I am glad we do not litigate much. I wonder how many of the high school kids now watching know what the 

Third Amendment is about. Go look it up. 

[Laughter.] 

Senator SASSE. And get 20 bucks out of your pocket at the same 

time. 
185 

Judge GORSUCH. So, that is what the Bill of Rights is about—it 

is ensuring not just these negative protections, but some positive, 

affirmative guarantees against governmental encroachment. 

Senator SASSE. Thank you. I want to ask a few more questions 

about the Bill of Rights, but I will save it for my next round since 

we are at 40 seconds remaining. Thank you, sir. 

Chairman GRASSLEY. Thank you. Senator Coons. 

Senator COONS. Thank you. Chairman Grassley, I would like to 

ask unanimous consent to enter into the record a letter from 19 different faith-based and secular organizations expressing concerns 

about Judge Gorsuch’s rulings on the church and state and free exercise. 

Chairman GRASSLEY. Without objection, it is entered. 

[The information appears as a submission for the record.] 

Senator COONS. Thank you. Good afternoon, Judge. 

Judge GORSUCH. Hi, Senator. Good to see you. 

Senator COONS. It has been a very long, and hopefully very informative and instructive day. And I will suggest—— 

Chairman GRASSLEY. I was supposed to announce something. We 

will not take this away from your time, but I want everybody to 

be aware that after you get done, Senator Coons, we are going to 

take a 10-minute break. 

Senator COONS. Thank you, Mr. Chairman. The Third Amendment, some would suggest, was rooted in the Delaware Constitution, so although obscure, it is still beloved by some in the first 

State. 

Let us have a conversation, if we could, about religious free exercise and about liberty interests. There is an enduring tension or 

contest in our history between individual liberty and religious free 

exercise, and the ability of government to enact and enforce neutral 

laws. And I want to better understand how you view the proper 

balance between these competing core values. And to that end, I 

found Hobby Lobby and your contribution to it concerning and interesting. 

The case centrally involves access to healthcare coverage, including contraception, for about 13,000 employees across 500 stores of 

Hobby Lobby, and the religious views of the owners of that corporation. And you, Judge, joined the Tenth Circuit majority opinion 

holding that this for-profit business could, because of the business’ 

religious beliefs, refuse to provide its employees with access to family planning. 

But you went even further than the majority, writing an additional concurring opinion emphasizing that the owners of Hobby 

Lobby, the Green family, were entitled to personally raise their religious objections, notwithstanding that they operated the business 

through trusts and corporations. In coming to that conclusion, you 

opened your opinion by writing, ‘‘All of us face the problem of complicity. All of us must answer for ourselves whether and to what 

degree we are willing to be involved in the wrongdoing of others.’’ 

Complicity is not a concept I have seen widely discussed in free 

exercise jurisprudence. Why did you choose to lead your opinion 

with this concept of complicity, and what does it mean as we are 

trying to assess free exercise reins? 
186 

Judge GORSUCH. So, under the Religious Freedom—Senator, 

thank you. Interesting, good question. I mean, this is—this is—this 

is what it is all about. The Religious Freedom Restoration Act protects this exercise of sincerely held religious beliefs, and affords 

them the highest protection known in American law, strict scrutiny. That is a law that this Congress passed because it was not 

satisfied with the degree of protection that the Supreme Court was 

affording the exercise of religious liberty under the First Amendment under Smith. This Congress found Smith, written by Justice Scalia, to be insufficiently protective of the right to free exercise. 

Senator COONS. If you could, Judge, help me with your choice of 

the term—— 

Judge GORSUCH. Yes. 

Senator COONS [continuing]. ‘‘Complicity,’’ which does not appear 

in that statute, and had not previously appeared in free exercise 

jurisprudence. 

Judge GORSUCH. Thank you for prodding me along. The point is, 

what is a sincerely held religious belief? The individuals there were 

devout Christians, and as they interpreted their religion, it was a 

violation, a sin, for them to participate in any way in signing papers even to allow the provision of certain contraceptive devices, 

those that they believed had the effect of destroying a fertilized 

egg. 

Senator COONS. Right. 

Judge GORSUCH. They were okay—— 

Senator COONS. That is exactly—excuse me, Judge, but that is 

exactly why the question of your use of this term ‘‘complicity’’ is so 

interesting to me—— 

Judge GORSUCH. Yes. 

Senator COONS [continuing]. Is that it opens up a very broad, 

very attenuated, very remote connection between sincerely held religious beliefs by this devout family, through a trust, through a corporation, a for-profit profit corporation, to impact the choices and 

life decisions of 13,000 people. It is a truly unprecedented decision. 

If I could just quote for a moment—— 

Judge GORSUCH. Sure. 

Senator COONS [continuing]. What I suspect is familiar to you, 

the dissent of the Chief Judge in your Circuit, Briscoe. She said, 

‘‘This opinion was nothing short of a radical revision of First 

Amendment law as well as the law of corporations, wholly unsupported by the language of the free exercise clause or the Supreme 

Court’s previous free exercise jurisprudence.’’ She claimed—Judge 

Briscoe—that there was literally no support for the proposition that 

for-profit corporations enjoy free exercise rights in the Supreme 

Court’s previous jurisprudence. 

And I am struck by the extent to which the use of the term ‘‘complicity’’ and your description of a substantial burden on a sincerely 

held religious belief opens possibly floodgates for litigation on behalf of those who have sincerely held religious beliefs. As you mentioned, the issue here was access to family planning. There were 

more than 20 forms of contraception that could potentially be covered. There were only a handful—I think four—that the Greens objected to. 
187 

Judge GORSUCH. Right. 

Senator COONS. How far does this new concept, this newly injected concept of complicity go? 

Judge GORSUCH. Senator, it is not a new concept at all, with respect, because in enacting RFRA, Congress revived some older free 

exercise case law—— 

Senator COONS. That is right. 

Judge GORSUCH. Much of it written by Justice Brennan. Thomas 

would be a leading example involving, I believe it was a Jehovah’s 

Witness. 

Senator COONS. Yes. 

Judge GORSUCH. Okay, who was okay in producing certain goods 

that could be used as armaments, but not others. 

Senator COONS. Right. 

Judge GORSUCH. Complicity in war making was a matter of faith 

that—— 

Senator COONS. The key distinction—the key distinction, if I 

could, Your Honor, between Thomas and this was that in that case, 

here is an individual whose deeply held religious belief made him 

say I cannot make turrets for tanks. 

Judge GORSUCH. Right. 

Senator COONS. So, the question is uniformly applicable law, unemployment insurance, can he benefit? Fine. But it does not in any 

way implicate others’ liberty interests. 

The core concern with the choice to recognize a very large multibillion dollar, nationwide for-profit company, and to privilege the 

religious interests of its owners through the legal fiction of a forprofit corporation, as it impacts 13,000 individuals. That was not 

the case in Thomas. 

Judge GORSUCH. Senator, respectfully I think we are mixing apples and oranges because the first consideration is whether we 

have a substantial burden on a sincerely held religious belief. The 

second is whether the Government has a compelling interest, narrowly tailored, to override it. And I think we are mixing apples and 

oranges because on the first one, complicity is very much in play, 

and it is the same in Thomas as it is with the Greens. 

How far does my religious faith, your religious faith permit us 

to engage in things that our religion teaches are wrong, sinful? 

That is a matter of religious faith. And, in fact, I do not recall anyone doubting or the Government disputing that the Greens’ religious faith was sincerely held on that score. 

Senator COONS. That is right. 

Judge GORSUCH. So, I think it is a given. So, this complicity discussion I think, frankly, Senator, is a red herring, to mix my metaphors, because everyone accepted it. 

Senator COONS. We have apples, oranges, and red herrings. We 

have a full meal—— 

[Laughter.] 

Judge GORSUCH. I know I am mixing—I know it is terrible. I 

would not want to write it down in an opinion. It is terrible. 

Senator COONS. Well, let me—let me take, if I could—let me take 

you to a number of things because several other Senators have referenced Hobby Lobby. One of the things that Judge Briscoe was 

saying that was sort of category-shattering or precedent-setting 
188 

was the extension to a for-profit corporation, the recognition of a 

for-profit corporation that sells crafts and hobby materials as being 

a religious corporation. Previously only incorporated churches, or 

synagogues, or associations explicitly for—excuse me—nonprofit religiously affiliated organizations have been recognized. 

In the interpretation of RFRA, you choose to define ‘‘person’’ to 

include for-profit corporations. Help me with why you made that 

move. 

Judge GORSUCH. I would be delighted to, Senator, and thank you 

for the opportunity. I think I would point to a couple of things. 

First, RFRA is a statute, and it uses the term ‘‘person,’’ and it does 

not define the term ‘‘person.’’ And when Congress does not offer us 

a specific definition, we go to the Dictionary Act, which Congress 

has passed for just these circumstances. 

And there it says persons include corporations. That is the law 

as Congress wrote it and if Congress wishes to change the law and 

say only natural persons enjoy the rights of RFRA, I am a judge. 

I follow the law. But the law as drafted does not distinguish between natural persons and corporations. It includes them both. 

And the Government, Senator, if I might just finish, conceded, as 

I recall—and my recollection may or may not be great on this, but 

as I recall conceded that nonprofit corporations can exercise religion. 

Senator COONS. That is right, and that is exactly why this was 

seen as such a departure. There was a long-settled expectation that 

religious free exercise rights adhere to individuals, living, breathing people, and to nonprofit corporations. It was a big leap for it 

to for the first time apply to for-profit corporations. 

And I appreciate that the opinion of the majority and your concurrence referenced the Dictionary Act, but the Dictionary Act actually says on its own terms that it applies unless the context indicates otherwise. 

Judge GORSUCH. Right. 

Senator COONS. And the reality is, as I think one of the dissents 

points out, all Congress was intending to do, as expressed by a 

number of Members of Congress, was to simply restore strict scrutiny, not to open up a whole new line of free exercise rights for forprofit corporations. 

So, I think the context clearly indicated otherwise. And to simply 

say all I did was pull a dictionary off the shelf, look it up, ‘‘person’’ 

can include corporations, we are done with the analysis, is in some 

ways tendentious, because the idea that a for-profit corporation 

could have religious free exercise rights was nowhere in the earlier 

case law that Congress explicitly intended to be the narrow purpose of RFRA. 

So, does Congress’ intent when it passes a statute, its clearly 

stated intent, have any relevance to your interpretation, especially 

where something like the Dictionary Act actually urges you to look 

at the context? 

Judge GORSUCH. Senator, I offer you two thoughts on that. First, 

as I recall sitting here, and I have to go study my books, but the 

Supreme Court in an earlier First Amendment case did recognize 

a challenge by an Orthodox Jewish shopkeeper to Sunday closing 

laws. 
189 

Senator COONS. That is right. 

Judge GORSUCH. That was a corporation, for-profit. So, respectfully, I am not sure it is accurate to say there is no precedent for 

it. Second, I would say to you the position you are advocating is 

a fine position, respectable position. It is a good position. It was 

adopted by precisely two Justices of the Supreme Court, and only 

two. 

Senator COONS. So, the question I want to ask you now is, at 

what point, given this newly adopted, fairly broad interpretive 

standard, when do we stop deferring to an employer’s religious beliefs when they conflict with generally applicable laws of neutral 

meaning? When do we allow the right of one to implicate the others? 

I think it was Justice Holmes who was attributed to have said 

that ‘‘your right to swing your arm stops at the end of my nose.’’ 

And part of what I think made Hobby Lobby striking to so many 

was that the choices of 13,000 individuals about their method of 

family planning were overridden by the sincerely held religious beliefs of a very successful family. 

So, I am looking for how you find a limiting principle in this new 

field? What is the limiting principle now? 

Judge GORSUCH. Senator, respectfully, I do not believe that is accurate either because all the Court held was that the Government 

had to come up with another alternative to provide the contraceptive care it wished to provide. The Court acknowledged—the Supreme Court acknowledged that there was a compelling interest in 

providing the contraceptive care, and simply said that an accommodation could be reached that did not involve the Greens or require 

them to give up their sincerely held religious beliefs, much as had 

been done for churches—— 

Senator COONS. That is right. 

Judge GORSUCH. And hospitals, and lots of other entities. And 

the Government could not explain why it could not accommodate 

other entities, like Hobby Lobby, as well or Little Sisters of the 

Poor. 

Senator COONS. But if I might just briefly, Judge, strikingly to 

me in the Tenth Circuit opinion in which you participated, you did 

not recognize as a compelling interest gender equity in providing 

health insurance to millions. The Supreme Court did. They balanced these equities differently. Why did you not think that was 

a compelling interest to provide access to healthcare for millions? 

Judge GORSUCH. Senator, I think it was just a matter of what 

had been—what the record was in that particular case before us. 

Senator COONS. That is also a striking point for me. This was a 

preliminary injunction. 

Judge GORSUCH. Correct. 

Senator COONS. It is a significant groundbreaking opinion where 

one of your colleagues, one of the other Tenth Circuit Judges, said 

we really should not be deciding something of this import on a PI. 

We ought to be remanding to develop the facts below. The facts 

were not really well explored. And the larger point I am trying to 

make is that I think this could lead to some very troubling applications. 
190 

So, let us just take a minute and look at a few of the contours 

of what this, I think, precedent-setting decision might mean. So, let 

us imagine the Greens were from a different religious perspective, 

if they were Scientologists, for example, who reject the use of 

antidepressants, or Jehovah’s Witnesses, who reject the use of 

blood transfusions, or Christian Scientists, who reject really modern medicine largely altogether. Could their sincerely held religious 

beliefs as Scientologists, or Jehovah’s Witnesses, or Christian Scientists lead to the conclusion that 13,000 employees could reasonably be denied access to antidepressants, or to blood transfusions, 

or to healthcare whatsoever? 

Judge GORSUCH. No, Senator, not necessarily. It does not mean 

that at all. All it means is the Government under the law, as 

passed by this Congress with overwhelming bipartisan support at 

the time—— 

Senator COONS. Well, the ACA was not passed with overwhelming bipartisan support. 

Judge GORSUCH. I am sorry; speaking of RFRA. 

Senator COONS. Right, the accommodation is in the ACA. 

Judge GORSUCH. Oh, and the ACA, you can override RFRA any 

time you want. Congress could say RFRA does not apply to the 

ACA. That is another alternative. You can abandon RFRA. You can 

say it does not apply to this particular statute. You can say it applies only to natural persons. You can say it does not apply to contraceptive care. Congress controls this decision, Senator. 

Senator COONS. That is right. 

Judge GORSUCH. It is your decision. It is not mine, with all respect. We are just trying to implement what you have asked us to 

do. 

Senator COONS. So—— 

Judge GORSUCH. And, Senator, on your hypotheticals, okay? 

Senator COONS. Yes. 

Judge GORSUCH. Justice Brennan wrote these First Amendment 

cases that you are seeking to revive, I would remind you that, all 

right? 

Senator COONS. Yes. 

Judge GORSUCH. Justice Brennan, all right? And the fact of the 

matter is sometimes the Government can prove a compelling interest, and then it has the most narrowly tailored way to get there, 

and sometimes it cannot. And each case has to be taken on its facts 

in the particular context in which it arises. 

Senator COONS. Well then, help me—help me walk through, if 

you would, given we already know how you draw the compelling interest line in this particular instance of access to family planning 

or contraception. How else might you weigh these equities or draw 

these lines? If the Greens, for example, in Hobby Lobby knew that 

several of their employees would spend their paychecks on other 

things they might say were immoral, like gambling or prostitution. 

Could they refuse to endorse their paychecks? 

Judge GORSUCH. Senator, it would—it would go back—we would 

do the analysis. 

Senator COONS. Right. 
191 

Judge GORSUCH. The same analysis. Do they have a sincerely 

held religious belief? Sometimes people do not. I have had claims, 

for example, of individuals—— 

Senator COONS. But in this instance, would you not agree that 

their sense of the complicity that you referenced in your opinion 

would likely apply? 

Judge GORSUCH. It depends. 

Senator COONS. Even though it is very attenuated—— 

Judge GORSUCH. Well, Senator—— 

Senator COONS [continuing]. The choice of their employee to 

spend their money in a way they disapprove, is not that different 

from the choice of the employee to choose among two dozen forms 

of contraception, one of which they strongly disapprove? 

Judge GORSUCH. Senator, I think it depends on the facts of the 

case. So, for example, I have had a case where a number of people 

came before us and said we have a sincerely held religious belief 

that marijuana is God. 

Senator COONS. Okay. 

Judge GORSUCH. It turned out it was a drug distribution ring, all 

right? 

Senator COONS. Right. 

Judge GORSUCH. And what they really worshipped was the almighty dollar. 

Senator COONS. Many of us have teenagers at home watching. 

Judge GORSUCH. Well. 

[Laughter.] 

Judge GORSUCH. And they were really just trying to make a 

buck, okay? And the District Court found that was not a sincerely 

held religious belief. So, you can get off the train there. That is one 

place where you may get off the train in your hypothetical. 

You have another place to get off the train. It is substantial burden. 

Senator COONS. Right. 

Judge GORSUCH. Another place is compelling interest by the Government. Another place is narrowly tailoring. So, there are four 

steps in the process, and you have to go through all four of them 

as a good judge with the facts of each case as it comes. And, Senator, again, it is all statutory. You could abolish it tomorrow. 

Senator COONS. Well, let us take an example that I think was 

central to a lot of this analysis, United States v. Lee. It is an older 

case, 1982. It was a unanimous case. It is one where an Amish 

businessman declines to pay for Social Security taxes—— 

Judge GORSUCH. Right. 

Senator COONS [continuing]. Not just for himself, but for a few 

of his employees. And the Court rejected his claim because the restriction on religious freedom, in their view unanimously, was essential to accomplish an overriding governmental interest. Is Lee 

still good law? 

Judge GORSUCH. I think Lee would be the sort of law you look 

at when you are applying RFRA, absolutely. 

Senator COONS. Because RFRA simply restored—— 

Judge GORSUCH. Yes. 

Senator COONS [continuing]. The strict scrutiny standard that 

Lee was decided under. 
192 

Judge GORSUCH. The Religious Freedom Restoration Act, exactly. 

So, that is a very good example, Senator, of where the Government 

was able to prove compelling interest in their own tailoring, yes. 

Senator COONS. Because the ability to have a Social Security 

scheme nationally that is sustainable is a compelling interest. 

Judge GORSUCH. Yes. 

Senator COONS. But a nationwide plan to provide access to 

healthcare is not. 

Judge GORSUCH. No, Senator. Again, I think we are mixing our 

apples and oranges because the Government in the ACA was spotted the compelling interest. The problem was the narrow tailoring. 

You could get there without forcing the Greens to do something 

their religion prohibited. So, it was not like the system of Social Security, which depends upon everyone’s participation. That was the 

distinction the Supreme Court drew. 

Senator COONS. Let me just quote, if I could, Justice Scalia, who 

addressed this same issue in Employment Division v. Smith. And 

he said, ‘‘it is precisely because we are a cosmopolitan Nation made 

up of people of every conceivable religious preference, and precisely 

because we value religious divergence, that we cannot afford the 

luxury of deeming presumptively invalid, as applied to the religious 

objector, every regulation of conduct that does not protect an interest of the highest order.’’ 

Now obviously, the law has changed in terms of the review 

standard, but do we because of Hobby Lobby now have to deem 

every law to be presumptively invalid if it offends any conceivable 

religious preference? 

Judge GORSUCH. Under the Religious Freedom Restoration Act, 

it is a four-part test effectively. 

Senator COONS. Right. 

Judge GORSUCH. All right? And for every challenge, you ask 

those questions. Is there a sincerely held religious belief? Is there 

a substantial burden on it? If check, check, then you go to the Government side of the ledger. Do they have a compelling interest, and 

is it narrowly tailored? 

And that is the law you have set forth, Senator, because this 

body did not like, frankly, Justice Scalia’s decision in Smith. And 

if this court—sorry—if this—the old trial lawyer in me. Sorry, getting tired. If this Congress wishes to say Justice Scalia was right 

in Smith and we have changed our minds, that is entirely up to 

this Congress. 

Senator COONS. Well, I am going to move on to another line of 

questioning, but I just want to say that one of the challenges I face 

in a couple of different gates through the analysis as laid out was 

how you decided to interpret the underlying RFRA statute, how it 

was extended to for-profit corporations, how the balance was struck 

between what I think are the mediating decisions of thousands of 

individuals versus the free exercise of the Greens. 

You have talked about being a Westerner. You have, I think, entertained us with mutton busting, something I have not seen yet, 

and clearly I should. 

[Laughter.] 

Senator COONS. And I am—I am interested—— 

Judge GORSUCH. I recommend it. 
193 

Senator COONS. I am interested in your view of privacy and the 

autonomy of adults to make their decisions. It was, in fact, I think 

Justice Scalia who said there is not a genuine Westerner on the 

Court, and that California does not count. 

As I shared with you, some of my extended family was from the 

West, and I think of Westerners as steadfastly independent folks. 

Justice Douglas, a famously Western Justice, once said, ‘‘The right 

to be let alone is the beginning of all freedom.’’ 

So, in 2006, you authored a book, ‘‘The Future of Assisted Suicide 

and Euthanasia,’’ a topic of intense personal interest to many. And 

when reviewing your book, I was expecting you to conclude that 

people have the right to be let alone, because I think of that as an 

inherently Western trait, to make important and difficult personal 

decisions without the interference of government, but you did not. 

Instead, you expressed a belief in the inviolability of human life. 

What did you mean by that? 

Judge GORSUCH. Senator, respectfully, I am not sure I would 

agree with your characterization. 

Senator COONS. Of the book or of being a Westerner? 

Judge GORSUCH. Of the book. I agree with your characterization 

of being a Westerner. The book does conclude that Cruzan is absolutely correct, that there is a right to be left alone at the end of 

life. These are hard decisions. 

I do not pretend to have any perfect answers here. I was writing 

this book as my dissertation, trying to contribute to what I thought 

was a very hard question, and I still think a very hard question, 

one we all have had personal struggles with, Senator, as I know 

you have and I have. And this is a human problem. We are mortal. 

Cruzan held that people have a right to be left alone presumptively 

under the common law, presumptively constitutionally, to stop 

care, go home, die in your own bed, as a lot of my family Members 

have done. 

The question is whether you should also have an additional right 

to have someone kill you, involve doctors in killing. And there are 

good arguments on both sides of that ledger, as I explore in the 

book. And—— 

Senator COONS. Well, if I—if I can, Judge, I would like to help 

walk through that exploration of what you—what you looked at in 

the book. 

Judge GORSUCH. Sure. 

Senator COONS. And I think the Cruzan decision is a very important one, because essentially the tension here is between whether 

there is a right for a conscious terminally ill adult to end their own 

life by refusing lifesaving hydration and nutrition, as the Supreme 

Court assumed in Cruzan, or with the help of a doctor. And a lot 

of this rests in whether there is a right to privacy. 

Do you believe the Constitution contains a right to privacy? 

Judge GORSUCH. Yes, Senator, I do. Privacy is in a variety of 

places in the Constitution. The first and most obvious place, back 

to the Bill of Rights, is the Fourth Amendment, the right to be free 

from unreasonable searches and seizures in your homes, papers, 

and effects. That is privacy, right? 

The Third Amendment, which I alluded to, but did not want to 

reveal. 
194 

Senator COONS. Quartering of troops in homes. 

Judge GORSUCH. No quartering of troops. Stay out of my house 

with your troops. Now, happily we do not litigate that much, all 

right? 

The First Amendment, the right to free expression, which we 

have been talking about, the freedom of religious belief and expression, that requires a place of privacy. And the Fourteenth Amendment, Senator, over now about 80 or 90 years, the Supreme Court 

of the United States has held that the liberty prong of the due 

process clause protects privacy in a variety of ways having to do 

with child-rearing and family decisions, going back to Meyer, which 

involved parents who wished to have the freedom to teach their 

children German at a time it was unpopular in this country, and 

Pierce, the right of parents to send their children to a parochial 

school if they wish. 

So, Senator, yes, the Constitution definitely contains privacy 

rights. 

Senator COONS. One of the things that you say in your book unequivocally is that, and I think I quote, ‘‘All human beings are intrinsically valuable, and the intentional taking of human life by 

private persons is always wrong.’’ And I think that is a dividing 

line you draw between the facts in Cruzan and what has been proposed in or adopted in states like Oregon. 

Can you point to any principle of constitutional law that says 

that, or has that principle, as you enunciated it, ever been offered 

by the Supreme Court or recognized by the Supreme Court? 

Judge GORSUCH. Senator, I was speaking as a commentator before I became a judge, not expressing views as a judge, all right? 

My views as a commentator I am happy to talk about, though. I 

found this a very difficult question. The Supreme Court has held 

that this is an issue for the States to decide under Glucksberg and 

Quill, for the people to decide on the State level. I agree with those 

decisions. I say so in the book. 

My concern about legalization that I express in the book as a 

commentator has to do with the equal protection principles we 

have been talking about today, the equal justice under law principles. And I am concerned—in the book I expressed concerns as a 

commentator about what legalization might mean for the least 

amongst us, the most vulnerable, the disabled, the elderly who 

might be pressured into accepting an early death because it is a 

cheaper option than more expensive hospice care, things like that, 

that might cost more. And so, that was a concern I expressed. 

Senator, I do not pretend, though, to have the last word on that 

or to know the right answer. I was contributing as a commentator 

to what I thought was a very hard discussion. 

Senator COONS. It is a very, very hard discussion, as you said, 

something that has an enormous impact on the terminally ill and 

their families. 

Judge GORSUCH. Yes. 

Senator COONS. There was a case that I think was active at the 

time you were at the Department of Justice where the U.S. Attorney General was suing Oregon to block their Death with Dignity 

law that permits in that State physician-assisted suicide. And in 

the documents you produced to this Committee, you sent a message 
195 

expressing hope that the Federal Government would win that particular case. 

Why did you want the Federal Government to win that case? 

Judge GORSUCH. Well, I was an Advocate for the Government at 

the time, Senator. That is my job, all right? When you represent 

the Government, you want the Government to win. When you represent somebody against the Government, you want the Government to lose. And as a judge, Senator, it is a very different 

mindset. 

Senator COONS. And when you are up for consideration for the 

Supreme Court, it is important to know what you view as settled 

precedent. So, let me in my last 2 minutes ask a question or two 

about that. 

Judge GORSUCH. Sure. 

Senator COONS. In the Glucksberg case, which is about physician-assisted suicide, Justice Stevens said in his concurrence that 

‘‘Avoiding intolerable pain and indignity of living one’s final days 

incapacitated and in agony is certainly at the heart of the liberty 

to find one’s own concept of existence,’’ citing the Casey decision. 

What is your view of the application of Casey’s mystery of human 

life language here? 

Judge GORSUCH. Senator, the Supreme Court in Glucksberg, the 

majority held that this issue is for the States to decide and the people to decide. The people of Oregon have made their decision to legalize it, for example. It was just legalized in November in my 

home State of Colorado. That is their right. 

Senator COONS. And how did you feel about that? 

Judge GORSUCH. Senator, my personal views have nothing to do 

with my job as a judge. 

Senator COONS. Let me ask one last question, if I might. There 

was a line in your book that reminded me a great deal of Justice 

Scalia. You said that ‘‘a Libertarian principle legalizing physicianassisted suicide would require the Government inevitably to allow 

sadomasochist killings, mass suicide pacts, duels, the sale of one’s 

own life, not to mention illicit drugs, prostitution, the sale of one’s 

organs.’’ 

Help me understand, in closing, why finding a constitutional 

right to physician-assisted suicide would directly yield to this long 

list of other, perhaps more shocking, constitutional rights to prostitution, or drug use, or the sale of organs. Help me understand 

that leap. 

Judge GORSUCH. Senator, in each chapter I analyzed different 

potential arguments, one of which was this Libertarian argument. 

And applied faithfully to its end, it leads to where it leads, as some 

of the authors of the argument acknowledge. 

I am not making it up. There are other arguments, though, that 

one might deploy that I analyze as well. That is not the only available argument for legalization by any means. 

Senator COONS. Thank you, Judge. Thank you, Mr. Chairman. 

Chairman GRASSLEY. We will recess for 10 minutes, so that 

would be approximately 5:40, and then it will be Senator Flake. 

[Recess.] 

Chairman GRASSLEY. Before I call on Senator Flake, this is how 

I would like to go forth for the rest of the evening. We have a vote 
196 

scheduled at 6:10. That will be about the time that Senator Flake 

will be finishing. I would like to have—Senator Blumenthal would 

be the next one up. 

I would hope, Senator Blumenthal, you could go vote at 6:10 and 

be back here and take over, and I will operate within that. 

And then I would like to suggest that I have Senator Tillis to 

take over about 8 o’clock, so I can be in bed by 9 o’clock because 

I get up at 4 in the morning, and I want to be able to get a good 

night’s sleep so I can run in the morning. 

And so you understand, Judge, that I am not—I hope you will 

understand why Tillis is taking over. 

Judge GORSUCH. I am a little envious, Mr. Chairman. 

[Laughter.] 

Chairman GRASSLEY. Okay. 

Senator Flake. 

Senator FLAKE. Thank you, Mr. Chairman. Thank you. 

This is a long day. I know what it feels like. It reminds me of 

being at the end of the table—I have 10 brothers and sisters—and 

getting there and there are no more questions to ask, no more food 

left on the table either. 

But I appreciate your endurance here. And speaking of my—I 

have 10 siblings, and I have five children as well. I do not know 

about my colleagues, but that is how I get elected in Arizona. It 

helps, not so much for a judge, but for Senators, it does. 

And just like Ben’s family, my family has been texting me 

throughout this process, asking me to ask questions that they 

would ask. I asked a few of them for suggestions, and my son, 

Dallin, a teenager, said, ask him if he would rather fight a hundred 

duck-sized horses or one horse-sized duck. 

[Laughter.] 

Senator FLAKE. I have never heard of it either. Apparently, it 

was a question on Reddit a while ago, but anyway, that is where 

it is going from here, I think. 

Judge GORSUCH. You can tell him I am very rarely at a loss for 

words. 

Senator FLAKE. Okay. All right. 

Judge GORSUCH. But you got me. 

Senator FLAKE. I will tell him. A teenager stumped you there. 

My brother Scott asked if you have ever worn gym shorts and a 

tank top under your robe. 

[Laughter.] 

Judge GORSUCH. Senator, on that one, we have what is called the 

Fifth Amendment, which is part of the Bill of Rights as well, and 

which, of course, protects the right not to self-incriminate. So I 

might have to exercise my rights under the Fifth Amendment to 

that one. 

Senator FLAKE. That is a good answer. 

My mother asked a little more serious question, and this goes to 

how you spend your time, to let people know more about you. How 

do you like to get your hands dirty? You like to ski, but that is kind 

of a pedestrian sport. 

Judge GORSUCH. Wow, spoken like an Arizonan there, the Valley 

of the Sun. 
197 

No, our family loves to ski together. That is one of our favorite 

activities. My daughters are ferocious double black diamond skiers. 

One of them is—— 

Senator FLAKE. That is not pedestrian at all. 

Judge GORSUCH. One of them is right now doing some 

backcountry skiing out near Telluride, as we speak. So that is 

something we love to do as a family. 

Senator FLAKE. Where does your family vacation? 

Judge GORSUCH. Near Winter Park, Colorado. It is a resort 

owned by the City of Denver. And it is where I learned to ski as 

a kid. My parents would put me on a bus or the train. It was their 

idea of getting rid of me for the day on the weekend. And I would 

come back exhausted, which was good, too. They liked to run me 

ragged that way. 

Senator FLAKE. What is the largest trout you ever caught? 

Judge GORSUCH. Oh, now we are talking. I love to fish. And that 

is where I find a lot of solace. You cannot focus on the worries of 

the world when you are only worried about a trout. Everything else 

goes away, just disappears. You are in the most beautiful—trout— 

trout live in beautiful places. 

Senator FLAKE. They do. 

Judge GORSUCH. They are very picky, and they pick well. 

So during the summertime, fishing, hiking. I like to row. I like 

to run. Those are my activities. 

And I like to read. I like to read novels, good fiction. And if you 

want to learn how to write, you have to learn how to read. 

Senator FLAKE. That is great. 

Tell me about your civic involvement, outside of the courtroom. 

You mentioned the school board a while ago. 

Judge GORSUCH. Yes, boy, that I found taxing and loved every 

minute of it. But I have spent a lot of my free time teaching or 

working on the rules Committee. I have been in the rules process 

for the last 6 or 7 years now. The Chief Justice kindly appointed 

me to the standing Committee and then to the appellate rules 

Committee more recently, and trying to make the rules more sensible so that we can get litigation done more sensibly, cheaper, faster, for all people. 

It is a wonderful example of government working. People from a 

variety of walks of life, judges, lawyers, academics coming together 

and operating more or less by consensus. Imagine that. 

Senator FLAKE. I found that, and I think that typifies the West 

and small towns. I grew up in a town called Snowflake. I am a 

fifth-generation Arizonan. You are a fourth-generation Coloradan, 

I understand. That is how it works. People get along. They have 

to. And on a school board, there is no passing the buck there. You 

have to make decisions. Local government is like that. 

Jury duty, have you ever been called up? 

Judge GORSUCH. You know, I have. It was when I was at the Department of Justice, and I thought for sure—— 

[Laughter.] 

Senator FRANKEN. Sorry. 

Judge GORSUCH. Have you served on a jury? 

Senator FRANKEN. No, I just thought it was very odd questions 

for this, but it is great. It is great. 
198 

Judge GORSUCH. You know—— 

Senator FLAKE. I thought it was pertinent. I wanted to know. 

Can a judge be called for jury duty? 

Senator FRANKEN. I am sorry I laughed. It just caught me—go 

ahead. 

Judge GORSUCH. Thank you. 

I actually think it is a very excellent question, because I think 

anyone who has served on a jury appreciates the important civic 

function that is involved. It is a way citizens actually interact with 

their government, right? In a very real way. 

Senator FLAKE. Were you disqualified or did—— 

Judge GORSUCH. No, I thought for sure I would get kicked off. 

And I guess neither side thought I was the worst one, so I made 

it through. And I went to the bathroom when we were sent back. 

And I came out and I had been elected foreman, which I refused 

to serve as. I just did not think that was appropriate, and I did not 

want to have undue influence. 

But the Seventh Amendment and the right to a trial by jury, the 

only disagreement our Founders had over it was whether it was a 

bulwark of liberty or the very palladium of liberty. 

And as a trial lawyer, I had great faith in jurors, in the collective 

wisdom of 12 citizens to adjudicate a case fairly on the facts. In my 

time serving on a jury, I wondered, is it going to prove out my beliefs or am I going to come out more of a cynic? I came out more 

optimistic and a true believer in the jury system than ever. I really 

believe in the wisdom of juries. 

Senator FLAKE. Thanks. 

Senator FRANKEN. That was a great question. 

Senator FLAKE. Thanks, Al. I appreciate it. It is the end of the 

day. 

You mentioned earlier your colleagues on the Tenth Circuit. Can 

you tell me about them? What do you admire about some of them? 

What have you learned from some of them? 

Judge GORSUCH. Oh, there are so many I admire. I admire them 

all. They all bring something to the table, men, women, from every 

kind of background. 

Senator FLAKE. Tell me how it works. Are you bunched up where 

these are Republican-appointed judges, these are Democrat-appointed judges? Do you notice that? Do you forget that? How is it? 

Judge GORSUCH. You know, the nicest gift I have gotten in the 

last few weeks, there have been so many prayers, so many wellwishers, so many kindnesses, but the best gift I have gotten was 

this enormous basket from my four most recent colleagues—I think 

it was four, whatever. It just happens to be my Obama-appointed 

colleagues sent me a gift basket, because they knew I was not eating very well, as I was marching around the Senate halls. They 

said I was looking a little gaunt. 

That is how we work in the Tenth Circuit. And I am sorry for 

outing them, but you touched my heart. Thank you. 

And that is how my colleagues are, all of them. I have served 

with judges appointed by President Johnson, President Nixon, 

President Carter, President Reagan, President Bush the first, Clinton, President Bush the second, and Obama, and we get along. And 

I think you are going to hear in a couple days from two former 
199 

Chief Judges of the Tenth Circuit who have retired now. You are 

going to hear about how we operate in the Tenth Circuit. 

It is often reputed to be the most collegial Circuit in the country. 

Collegial not in some ordinary, pedestrian sense of we are just nice 

to one another, collegial in a real meaningful sense. We listen to 

one another, and we value and we respect different points of view, 

not just tolerate them. 

Senator FLAKE. Just for the record, the Tenth Circuit is seven active judges appointed by Democrats, five by Republicans, yet of the 

2,700 cases for which you have sat, you filed dissents on just 36. 

Is that right, 1.3 percent? And of the 25 dissents that Judge 

Gorsuch has authored, more than half, 52 percent, were from majority opinions written by Republican appointees. 

And it has been said or implied that you act in a partisan way 

somehow, or that former work in the political arena before you became a judge—if that has somehow bled over into your judgeship, 

it certainly is not reflected in what the record shows. 

I think even more telling, as the Congressional Research Service 

shows, 97 percent of the majority opinions that you authored were 

for a unanimous court. As you mentioned, you work together. In 

over 98 percent of all cases in which you sat, you agreed with the 

majority result 99 percent of the time. 

That does not sound like an ideologue. That does not sound like 

someone far out of the mainstream. So when I hear that on television or whatnot, people say that this is a judge way out of the 

mainstream, it simply does not ring true with your record. 

Let me submit for the record a statement from a former law 

clerk. I think she was mentioned earlier. She said that soon after 

you took the bench on the Tenth Circuit, she said, quoting, ‘‘He 

took all of his clerks and office staff, myself included, to visit several Federal prisons. He wanted to see for himself and he wanted 

all of us to understand the importance of applying justice in every 

case, for the lives of others depended on us doing the best job that 

we possibly could.’’ 

Can you tell me about that experience? 

Judge GORSUCH. Senator, Federal criminal law imposes very long 

sentences, and to be a judge complicit in adjudicating criminal 

cases, I thought I could not close my eyes to what the reality is, 

and I wanted to see it for myself firsthand my first year on the 

bench, so I did. 

Senator FLAKE. Can you tell me about the Tenth Circuit capital 

habeas project? 

Judge GORSUCH. Senator, I think it started one day after an argument when a few of us were concerned that the quality of representation of death row inmates in our Circuit was not what we 

would like it to be. And I do not want to take more credit than I 

am due here. Real people deserve credit, my colleagues, Judge 

Tymkovich, Judge Lucero, and a whole lot of our staff, Betsy 

Shumaker, David Tye, many, many others who put together, together with the wonderful judges in Oklahoma, some training sessions, recruited additional lawyers, provided training for those who 

are already in the system, sought and obtained more funds for Federal public defenders to assist. And a lot of people deserve more 

credit than I do. 
200 

Senator FLAKE. Thank you. 

Let us talk about Western issues for a bit. We have talked about 

the importance of geographic diversity on the Court, and people 

say, well, what does that mean? Is there really a difference? Is 

there really a Western perspective that somebody can bring? Let 

me go through a few of the issues that you have encountered, and 

we will flesh that out. 

Let me introduce, for the record, a letter from one of Judge 

Gorsuch’s former clerks. Also, let us do one from a Federal judge 

in Montana. 

But let me talk about for a second some of the policies that have 

come out. In one case, you rejected the idea that the dormant commerce clause prevents Colorado from requiring that 20 percent of 

electricity would come from renewable sources. Now whether or not 

you agree with that policy, and there is a lot of disagreement 

around here about that—but we do not live in Colorado. You do. 

So its wisdom is not really our business. 

Would you agree that the principles of Federalism allow States 

to experiment with policies like environmental protection, in this 

sense? 

Judge GORSUCH. Senator, that was the holding of my court in 

that case. Colorado had passed by voter referendum a law that, as 

I recall, sitting here, indicated that 20 percent of energy in Colorado had to be from renewable sources by a certain date. That law 

was challenged by fossil fuel producers out of State, alleging that 

it violated what is called the dormant commerce clause under the 

Federal Constitution and case law interpreting it. And I did write 

for a unanimous panel that there was no constitutional violation, 

and the State was permitted to proceed with its experiment. 

Senator FLAKE. Is that indicative of the concept of laboratories 

of democracies that States have been described as? 

Judge GORSUCH. Consistent with that principle. 

Senator FLAKE. All right. Thank you. 

One complicated issue that we have in the West that you really 

do not get as much elsewhere is the split estate property rights. It 

is possible that I might own a parcel of land but somebody else 

might own the mineral rights, and still somebody else might own 

the water rights. 

Have you encountered that in your jurisprudence? 

Judge GORSUCH. It is very different than out here, and, yes, I 

have. Split estates, as you know, are a common feature in the 

West. And in part, at least, a byproduct of homesteading acts by 

this Congress, where, initially, as I recall, Congress gave homesteaders rights down to the center of the Earth, as is common out 

here. Then they found out, my gosh, there is some valuable stuff 

under there, and they started splitting the estates, so that homesteaders could do what they wanted to do on the surface estate, but 

that the Congress and the people could control some of the valuable 

mineral rights underneath. Very complicated stuff. And, yes, I have 

encountered those cases too. 

Senator FLAKE. Is that a perspective that you think would be 

useful on the Supreme Court? 

Judge GORSUCH. I think that is for this body to decide. 

Senator FLAKE. Thank you. 
201 

Also, another aspect of living in the American West is that we 

share a lot of land with the Indian Tribes, and the prevalence of 

Tribes out West can complicate things in the legal sense, say deciding between municipalities or local or State government. 

What have you ruled on or have you dealt with in terms of the 

relationship between State and local government and the Tribes? 

Judge GORSUCH. Senator, I have had a number of Tribal cases, 

and Tribes are, as you know, sovereign nations. And our constitutional order affords this body considerable power in dealing with 

those sovereign nations by treaty and otherwise. 

And out West, there are all sorts of variations on that arrangement. There are classic reservations, as many people in the East 

conceive of them. There are also ancient pueblos that predate this 

country by many hundreds of years. Then there are allotments to 

individuals and groups. It depends where you are. That sounds like 

Oklahoma. Pueblo sounds like New Mexico. And then when I think 

reservations, I think of Utah and some places in Colorado and Wyoming. And there are variations all throughout the American West. 

Our history with Native Americans is not the prettiest history. 

And as a judge, you try very hard to administer the law fairly, 

without respect to persons, and equally. I would point you maybe 

to my cases involving the Ute Indian Tribe, where they have had 

a long time trying to control their Tribal lands, or Fletcher, involving the Osage Nation in Oklahoma and the right to an accounting 

of the property due them under agreements with the United States. 

I try to treat all persons who come before me fairly. 

Senator FLAKE. That is also a perspective that a Western Member can bring to the Supreme Court. That is my supposition. I 

know you will not say that, but I think that is useful. 

While the Chairman is here, let me ask for unanimous consent 

to enter into the record a letter from Alaska Senators on behalf of 

Indian Tribes. 

Chairman GRASSLEY. Yes. 

Senator FLAKE. Also, one from a law school clerk, and also one 

from a judge in Montana. 

Chairman GRASSLEY. Those documents, without objection, will be 

entered. 

[The information appears as a submission for the record.] 

Senator FLAKE. Thank you. 

Let us turn for a minute to separation of powers. You have written eloquently about Chevron deference and your concerns. I share 

those concerns. Chevron did not come out of nowhere. There were 

serious concerns in the 1980s with rogue judges making policy from 

the bench. 

Now the idea of agency deference was designed to restrain judicial overreach. I think that the pendulum has swung far too far in 

the other direction, and that the judiciary is insufficiently vigilant 

of Executive overreach. 

What are your thoughts on that? 

Judge GORSUCH. Senator, those are policy considerations. As a 

judge, my job is to look at the law. I would say I do not conceive 

of Chevron deference as a conservative or liberal issue. I do recall 

when Chevron was announced, many people thought it was a very 

conservative decision, because it does advantage whoever has their 
202 

hands on the reins of the administrative state at the particular 

time. And in 1984, that was one party. Today, you know, it may 

be another party. The next day, it may be another party. So a good 

judge does not care who it advantages. A good judge looks at the 

law. 

Senator FLAKE. So setting the boundaries for where deference 

ought to be is the job of the legislature and not the judicial branch. 

Judge GORSUCH. Well, in the first instance, the Administrative 

Procedures Act is the statute that you would look at. 

Senator FLAKE. Right. Thank you. 

With regard to the Second Amendment, you have been asked 

about stare decisis and the role of precedent, and it is usually by 

those who talk about Roe v. Wade or decisions like that, but they 

rarely bring up that might also apply to Heller or other decisions 

like that. 

How do you see it, with regard to precedent? 

Judge GORSUCH. All precedent of the U.S. Supreme Court deserves the respect of precedent, which is quite a lot. It is the anchor of law. It is the starting place for a judge. 

And the Chairman kindly held up my overlong book, right? And 

that is the law of precedent, a very mainstream consensus view by 

a bunch of judges from across the country who got together and we 

wrote it down, and it is all in there. And Justice Breyer was kind 

enough to write a forward to it. And it articulates how a good judge 

goes about assessing the law of precedent in any case. 

Senator FLAKE. Thank you. 

Let me just close with religious liberty, religious freedom. I 

would not ask you your religion or how you practice your faith. If 

you can just talk, in general, about what the role of faith is—people 

of faith coming into the judiciary or on the courts, what role should 

it play? What role should it not play, in your view? 

Judge GORSUCH. Senator, one of the wonders of our constitutional order is the First Amendment and the right of free exercise. 

Not many countries in the world are as pluralistic when it comes 

to religion as this country. It is quite an experiment, really. Most 

nation-states are one culture, one people, one religion. We are 

founded on a very different idea that all voices are heard, that people of all faiths and no faiths are welcome, that we are tolerant. 

It was quite an experiment to launch 200 years ago. It is still an 

experiment today we are working on and learning to live with one 

another and mediate it. 

So the role of religion in our society is profound and always has 

been, and it is a pluralistic commitment we have in this country 

that, well, is very special in the world. 

Senator FLAKE. Well, thank you. 

Mr. Chairman, I will do something very unSenatorial. I have a 

couple minutes left, but I will yield back so people can go vote. 

Chairman GRASSLEY. Okay. 

Senator FLAKE. Or is—he is not back. 

Chairman GRASSLEY. I will stay. I think Senator Blumenthal will 

be here. I will stay here just a few minutes, so we will just stand 

in recess. I hope everybody will kind of stay close by. 

Senator FLAKE. Thank you, Mr. Chairman. 

[Recess.] 
203 

Chairman GRASSLEY. Senator Blumenthal. I will call on him, 

and, Senator Blumenthal, while I am gone, if you have anything 

that you want to put in the record, just ask your permission to do 

it, and you can do it. 

Senator BLUMENTHAL. I thank you very much, Mr. Chairman. I 

have two sets of documents, and with your permission, I will enter 

them into the record. 

Chairman GRASSLEY. Yes, okay. 

Senator BLUMENTHAL. Thank you. 

[The information appears as submissions for the record]. 

Chairman GRASSLEY. I am going to go vote now. 

Judge GORSUCH. It is just us. 

Senator BLUMENTHAL [presiding]. Good evening, Your Honor, 

and thank you for your patience and your perseverance with us. 

You will recall the conversation or visit we had in my office not 

that long ago, and you will, I am sure, recall that I quoted the first 

line in your concurrence in the case of Gutierrez-Brizuela. You remember that first line. 

Judge GORSUCH. Senator, I am sorry. I do not remember the first 

line, but—— 

Senator BLUMENTHAL. The line was, ‘‘There is an elephant in the 

room with us today.’’ 

Judge GORSUCH. Oh, yes. Yes, yes. 

Senator BLUMENTHAL. And cited before—— 

Judge GORSUCH. Yes, yes. 

Senator BLUMENTHAL. And do you recall what I said or who I 

said was the elephant in the room? 

Judge GORSUCH. I am sorry, Senator. I do not. I apologize sincerely. I do not remember. 

Senator BLUMENTHAL. I will refresh your recollection. The initials are D.J.T. 

Judge GORSUCH. Okay. 

Senator BLUMENTHAL. Donald Trump. 

Judge GORSUCH. Yes. 

Senator BLUMENTHAL. He was the elephant in the room with us 

then. I think he is the elephant in the room with us now. And the 

reason is, as I said then, because of his attack on the judiciary. 

And make no mistake, I am not in any way attributing to you that 

attack, but you are familiar with the fact that he referred to the 

Article III judge who ruled against him in the travel ban case as 

a ‘‘so-called judge’’ in one of his tweets? Do you recall that tweet? 

Judge GORSUCH. I do. 

Senator BLUMENTHAL. And do you recall his second tweet when 

he referred to the Court and said that they were to be ‘‘given 

blame’’ if an act of terrorism occurred because of striking down the 

travel ban? Do you recall that tweet? 

Judge GORSUCH. Yes, Senator. 

Senator BLUMENTHAL. And during the campaign, a completely 

different Federal judge, born in this country, he said could not rule 

fairly on his case because the judge was ‘‘a Mexican.’’ Do you recall 

that? 

Judge GORSUCH. I do. 

Senator BLUMENTHAL. What do you think the President meant 

when he used the words ‘‘so-called judge’’? 
204 

Judge GORSUCH. Senator, I do not know what was in his mind. 

You would have to ask him. 

Senator BLUMENTHAL. How would you feel if he called you a ‘‘socalled judge’’? 

Judge GORSUCH. Senator, I care deeply about the independence 

of the judiciary. I cannot talk about specific cases or controversies 

that might come before me, and I cannot get involved in politics. 

But I can say a couple of things about that, as you know. 

The first is judges have to be tough. We get called lots of names 

all over the place. We have to accept criticism with some humility. 

It makes us stronger and better. I take it from my teenage daughters. I take it from litigants. This process, there has been plenty 

of criticism. That is fine. 

Thomas Jefferson did not much like Marbury v. Madison, and he 

did not mind saying so. Presidents have tried to pack the Court. 

That is part of our constitutional history. We have a First Amendment. People can speak their mind. 

But, Senator, I am sorry, I do not mean to interrupt, but I did 

want to add one other point, if I may. 

Senator BLUMENTHAL. Please do. 

Judge GORSUCH. But, Senator, when you attack the integrity or 

honesty or independence of a judge, their motives, as we sometimes 

hear, Senator, I know the men and women of the Federal judiciary, 

a lot of them. I know how hard their job is, how much they often 

give up to do it, the difficult circumstances in which they do it. It 

is a lonely job, too. I am not asking for any crocodile tears or anything like that. I am just saying I know these people, and I know 

how decent they are. And when anyone criticizes the honesty or integrity, the motives of a Federal judge, well, I find that disheartening, I find that demoralizing, because I know the truth. 

Senator BLUMENTHAL. Anyone, including the President of the 

United States? 

Judge GORSUCH. Anyone is anyone. 

Senator BLUMENTHAL. Because no person is above the law, including the President of the United States. 

Judge GORSUCH. That is right, Senator. 

Senator BLUMENTHAL. And is not that reference by the President 

to a ‘‘so-called judge,’’ is not his attack on the same judges who 

struck down that order as playing politics, is not that an attack on 

the judiciary, on its integrity? 

Judge GORSUCH. Senator, I cannot comment on specific cases, 

and I cannot get involved in politics. I have said what I think I 

ethically may in this area. 

Senator BLUMENTHAL. Well, maybe you can share with the President what that wise old judge told you. Maybe you can quote it to 

us again. 

Judge GORSUCH. I think you are going to hear from him yourself 

on Thursday, and I am sure he will not mind, hesitate, or in any 

way have any question or fear about saying it to you himself. But 

I am happy to share it with you, too. The ultimate test of the rule 

of law is whether the Government can lose in its own courts and 

accept the judgments of those courts. 
205 

Senator BLUMENTHAL. And, in your view, was the President of 

the United States showing proper respect when he attacked the 

courts in that way? Was he accepting the rule of law? 

Judge GORSUCH. Senator, I have gone as far as I can go ethically, 

with the canons that restrict me, about speaking on cases. I cannot 

talk about specific cases, and I cannot get involved in politics. Respectfully, I believe I have gone as far as I am able to go. 

Senator BLUMENTHAL. Well, I just want to make clear that I am 

looking for the same kind of expression of outrage that I felt as an 

officer of the court—and I am still an officer of the court—because 

of that attack, because as you well know—and I cited it yesterday—Alexander Hamilton said the courts are the least dangerous 

branch because they have neither the power of the purse nor the 

sword. What they have is respect. When the President of the 

United States attacks the court, attacking you—because when he 

attacks your brethren, he attacks you, the bedrock of our democracy, you as a member of the Tenth Circuit Court of Appeals, as 

a so-called judge, he undermines the bedrock of our democracy, 

which is respect for the courts. Courts do not have armies. They 

do not have police forces. All they have is the respect and credibility. And you made reference earlier to judges having to take the 

barbs and insults. My guess is that if a litigant before your court— 

and the President of the United States was a litigant in that case— 

used that language, you might well entertain a motion for contempt of court. 

Judge GORSUCH. I appreciate the opportunity to talk about my 

record because I can talk about that, Senator. My record is when 

there is a judge who is accused of perhaps using language that 

might bear on a man’s ethnicity, arguably, in the course of sentencing, a panel of my court on which I sat replaced him. My record 

is that when an undocumented alien—immigrant, sorry, is not 

properly represented and there is a history of the lawyer failing his 

clients in that area, sent him, referred him for dismissal from our 

bar. 

Senator BLUMENTHAL. Because you believe that respect for the 

courts is important. 

Judge GORSUCH. Senator, the independence and integrity of the 

judiciary is in my bones. 

Senator BLUMENTHAL. Well, I am going to return to this topic, 

maybe not in this round but later, because as you well know also, 

although judges may be attacked, they really have no way to defend themselves. And we know that as officers of the court, as advocates, and that is why I feel so deeply that not only we but the 

Department of Justice should have been more vigorous in coming 

to the defense of those judges, even though the Department of Justice was the loser in that case, because more is at stake here than 

the President’s immigrant policies or the travel ban. It is the respect and integrity for the courts. 

There is another reason that Donald Trump is the elephant in 

the room, and that is because he established a litmus test, or actually a set of litmus tests, one of them being that his nominee—and 

I do not know whether you saw the debate, the third presidential 

debate, where he promised, and I am quoting, about overturning 
206 

Roe v. Wade, ‘‘That will happen automatically, in my opinion, because I am putting pro-life Justices on the Court.’’ 

Are you familiar with that statement? 

Judge GORSUCH. I am, Senator. 

Senator BLUMENTHAL. Are you familiar with other occasions 

when he promised that he would appoint someone who would overturn Roe v. Wade? For example, November 13, 2017, in an interview with Lesley Stahl on ‘‘60 Minutes,’’ ‘‘I am pro-life. The judges 

will be pro-life.’’ 

On June 28, 2015, an interview on CNN with Jake Tapper, ‘‘I am 

pro-life.’’ He was then asked would that be a litmus test. ‘‘It is. It 

is.’’ 

There are others, but what I am asking you is, are you aware 

of that litmus test? 

Judge GORSUCH. Senator, I cannot say I am aware of each of 

those statements, but I am definitely aware that there was discussion of litmus tests by lots of people during the election process, 

yes. 

Senator BLUMENTHAL. Well, these discussions are by the President of the United States—— 

Judge GORSUCH. Yes. 

Senator BLUMENTHAL [continuing]. Who has nominated you for 

this position. 

Judge GORSUCH. Very aware of it, Senator. 

Senator BLUMENTHAL. And he interviewed you. 

Judge GORSUCH. He did. 

Senator BLUMENTHAL. And you have testified here that there 

was no mention of Roe v. Wade. 

Judge GORSUCH. Senator, what I have testified to is that there 

was no request for me to commit on any case or controversy or anything that might come before me—— 

Senator BLUMENTHAL. Was there any mention of Roe v. Wade? 

Judge GORSUCH. There was, briefly. 

Senator BLUMENTHAL. And what did he say and what did you 

say? 

Judge GORSUCH. Senator, the President recounted to me, among 

other things, how the campaign went in Colorado. He knew I was 

from Colorado, and he was disappointed he had lost Colorado. And 

he said something like if he had had a little more time, he thinks 

he might have won it. And then he said that one of the topics that 

came up during the course of the campaign was abortion and that 

it was very divisive and split people evenly, he found. And then he 

moved on to other topics. 

Senator BLUMENTHAL. Did he mention Roe v. Wade by name? 

Judge GORSUCH. I do not think so, not to my recollection, just 

that abortion was very divisive. And then he moved on to other topics of interest to him. 

Senator BLUMENTHAL. Like what? 

Judge GORSUCH. Senator, the next topic I remember—and this is 

just my recollection—is he expressed concern that our country’s nuclear armaments are old. 

Senator BLUMENTHAL. Has anyone in interviews with you—and 

you mentioned one conversation with Steve Bannon. I understand 
207 

you also met with other advisers. Has anyone else ever mentioned 

Roe v. Wade? 

Judge GORSUCH. No, Senator. That is it. 

Senator BLUMENTHAL. Never a mention of that case or of abortion in any of your conversations with any of the President’s advisers? 

Judge GORSUCH. Not to my recollection, no. 

Senator BLUMENTHAL. And what about with officials of the Heritage Foundation who may have discussed the Supreme Court with 

you? 

Judge GORSUCH. To my knowledge, Senator, from the time of the 

election to the time of my nomination, I have not spoken to anyone 

that I know of from Heritage. Maybe I shook someone’s hand, but 

I have not had any substantive conversations that I am aware of 

that anyone has alerted me to that they are from the Heritage 

Foundation. 

Senator BLUMENTHAL. Well, let me go to a case that I think 

bears on perhaps the President’s and his advisers’ perception of 

your views on Roe v. Wade and on this issue of abortion. I do not 

know whether you recall the case of Planned Parenthood Association of Utah v. Herbert. 

Judge GORSUCH. I do. 

Senator BLUMENTHAL. In that case, as you know, the Governor 

of Utah directed all of his State agencies to end funding for the 

local Planned Parenthood affiliate after a deceptive and false set of 

videos was released. And Planned Parenthood of Utah went to Federal court. They sought a temporary injunction. They won. They 

lost at the District Court, which denied their request, and then on 

your court, a three-judge panel reversed the District Court and 

granted the injunction, stopping the State government from terminating the funding. That restored the funding for Planned Parenthood. 

Judge GORSUCH. Temporarily, as a preliminary matter. That is 

my recollection, yes. 

Senator BLUMENTHAL. As a preliminary matter, the panel of the 

Tenth Circuit restored the funding. 

Judge GORSUCH. Issued a preliminary injunction or a TRO; probably a preliminary injunction. 

Senator BLUMENTHAL. Correct. Preliminary injunction is correct. 

Were you on that panel? 

Judge GORSUCH. No. No, Senator, I was not. 

Senator BLUMENTHAL. Okay. And any of the parties subsequently 

have the right to ask for a rehearing, do they not? 

Judge GORSUCH. They do. 

Senator BLUMENTHAL. Is there a time limit? 

Judge GORSUCH. For the parties there is a time limit prescribed 

by rule. It is also possible for the court, what we call ‘‘sua sponte,’’ 

or on its own, to seek rehearing, and there is no time limit prescribed by rule for that. 

Senator BLUMENTHAL. So the time limit for the parties is 2 

weeks, correct? 

Judge GORSUCH. That sounds right, Senator. I would not swear 

to it, but I trust you. 
208 

Senator BLUMENTHAL. Well, I would never presume to know the 

rules—— 

Judge GORSUCH. I always check the rules on that sort of thing 

because I always think I know, and it is 10 days or 14 days, so I 

always look. 

Senator BLUMENTHAL. I am sure you do. Well, 2 weeks passed, 

and none of the parties requested a rehearing, correct? 

Judge GORSUCH. That is right. That is right. 

Senator BLUMENTHAL. But one of the judges did. 

Judge GORSUCH. That is right. 

Senator BLUMENTHAL. That judge was you. 

Judge GORSUCH. Senator, that is internal deliberative process 

that would not normally be revealed, but I have no problem acknowledging that. 

Senator BLUMENTHAL. That you asked for the rehearing? 

Judge GORSUCH. I did. 

Senator BLUMENTHAL. The parties actually were fine with the result. They settled the case. They were off about their business. And 

you asked for the rehearing, correct? 

Judge GORSUCH. No, Senator. That is not correct. 

Senator BLUMENTHAL. Well, correct me. 

Judge GORSUCH. A preliminary injunction, the Court of Appeals, 

the panel has indicated, should issue, subject to—this court has to 

enter it, I believe. I do not think our court entered it directly. As 

I recall, the parties either reached some sort of agreement with respect to preliminary relief or the court entered it. I do not recall 

which. But the case proceeded and may still be proceeding for all 

I know. 

Senator BLUMENTHAL. But one way or the other, none of the parties asked for any further proceedings. Only you did. 

Judge GORSUCH. That is right. 

Senator BLUMENTHAL. And did the court decide to grant an en 

banc hearing? 

Judge GORSUCH. Very narrowly voted against it, Senator. It was 

a close vote. 

Senator BLUMENTHAL. And you dissented. 

Judge GORSUCH. I did. 

Senator BLUMENTHAL. Now, you know Rule 35 says, and I am 

quoting, ‘‘an en banc hearing is not favored and ordinarily will not 

be ordered.’’ 

Judge GORSUCH. Oh, of course. It is an extraordinary thing. We 

probably hear between zero and three en bancs a year over the 

course of my time. Do not hold me to that, but it is somewhere in 

that range, usually. 

Senator BLUMENTHAL. Out of your 10-plus years, 11 years on the 

court, how many times have you asked, you yourself, sua sponte, 

asked for a rehearing in a case where you were not even on the 

panel? 

Judge GORSUCH. Oh, I have done it, Senator. 

Senator BLUMENTHAL. How often? 

Judge GORSUCH. I cannot tell you how many times, sitting here. 

I just cannot. But I can tell you I have done it. And I can tell you, 

Senator, that about one out of every five en bancs, about 20 percent 

of en bancs in our court are sua sponte. It is not unusual. 
209 

Senator BLUMENTHAL. By this time the funding was going to 

Planned Parenthood, correct? 

Judge GORSUCH. I do not know. I do not know. 

Senator BLUMENTHAL. Well, it is a matter of, I believe, public 

record that it was, in fact, restored. And the parties never asked 

for that en banc hearing. 

Let me ask you, what was the exceptional importance of this case 

that prompted you to seek a rehearing en banc? 

Judge GORSUCH. I appreciate the opportunity to answer that 

question, Senator. En banc rehearings happen sua sponte with regularity in our court, as I say, maybe 20 percent, estimate, of the 

cases that we have heard during my time have been sua sponte. 

It is acknowledged in the Committee reports to the rules. ‘‘Wright 

and Miller,’’ the Bible on civil procedure that every young lawyer 

lives with, acknowledges the regularity and the propriety of the sua 

sponte en banc. So just to put that aside. I just do not see any—— 

Senator BLUMENTHAL. I am asking you about your reasons. And, 

by the way, I know you do not have a number, but maybe you can 

supply it, because I am willing to bet that number is a tiny, minute 

fraction of the 2,700 cases. 

Judge GORSUCH. Of course. 

Senator BLUMENTHAL. And even of all of the cases where you 

have dissented. 

Judge GORSUCH. Of course. I would be very reluctant to reveal 

internal deliberative processes any further, Senator, of a court, and 

I do not think you want us to. But I have gone pretty darn far 

here, and I would be happy to consider any reasonable request that 

we can talk about that. 

Senator BLUMENTHAL. By the way, the judge who dissented from 

the panel opinion was Judge Bacharach, correct? 

Judge GORSUCH. Yes. 

Senator BLUMENTHAL. He voted against the rehearing en banc, 

did he not? 

Judge GORSUCH. He wrote a special concurrence saying that he 

thought the panel decision was gravely wrong. 

Senator BLUMENTHAL. But there was no exceptional reason for 

rehearing en banc. 

Judge GORSUCH. He decided not to vote for en banc. That is correct. But he thought the panel opinion was gravely wrong. 

Senator BLUMENTHAL. I am going to—— 

Judge GORSUCH. And, Senator, if you want me to explain why I 

sought en banc and the reasons, I would be delighted to do so. 

Senator BLUMENTHAL. Well, I am going to give you the opportunity to do it. 

Judge GORSUCH. I appreciate it. 

Senator BLUMENTHAL. And I apologize for interrupting, and you 

will understand our time is limited, and that is why I am sort of 

pressing to move on. 

Judge GORSUCH. I understand, but an implication of impropriety, 

anything like that, Senator, I would appreciate the chance. 

Senator BLUMENTHAL. Absolutely. 

Judge GORSUCH. Okay. 

Senator BLUMENTHAL. I am not even asking for extra time, Mr. 

Chairman. Please proceed. 
210 

Judge GORSUCH. Senator, it is all about standards of review for 

me. In that case, the parties agreed on the law. There was no dispute of law. In that case everyone agreed that if the Governor has 

discontinued funding because he opposed lawful abortions, that 

would be unconstitutional and wrong and would have to be stricken 

by the Court. That was uncontested. 

It was also uncontested that if the Governor discontinued funding because of his reaction to videos that you are well aware of involving alleged unlawful action—alleged—then his conduct was 

lawful and constitutional. The law was agreed by everyone. The 

only question was: What was the Governor’s intention? That is it. 

And the District Court made a factual finding that the Governor’s 

intentions were what he said they were, that he acted in response 

to the videos. That was his testimony. That was the District 

Court’s finding. And in a very unusual, I thought, step, our court 

overturned the factual finding of a District Court and did so on the 

basis of a putative admission from the Governor’s brief as if the 

lawyers for the Governor would concede away their case. 

I read the brief. It did not concede away the case. And it seems 

to me very important, Senator, that we abide our standards of review and we do not pick and choose the areas of law to start abandoning our standards of review. And a standard of review for clear 

error, for factual findings is what I wrote about. And I do not care 

if the case is about abortion or widgets or anything else. When a 

jury or a District Judge makes a factual finding, that deserves our 

respect under a clear error standard of review. And as you point 

out, Judge Bacharach, while he did not think that it rose to the 

level of en banc review, he thought the panel was clearly wrong. 

And he happens to be, as you know, just happens to be a Democratically appointed judge, because we are judges first. And, Senator, there were four judges who wanted en banc in that case. That 

is a large number in our Circuit. There is nothing unusual or untoward about that case at all. It is what we do as judges. 

Senator BLUMENTHAL. Do you recall the date of your dissent? 

Judge GORSUCH. I do not, Senator. 

Senator BLUMENTHAL. Would it surprise you to know that it 

was—well, the case was pending in July 2016, your dissent was 

sometime in that time period at the height of the presidential campaign. 

Judge GORSUCH. I would have said it was in the summer, Senator, yes. I would say I have also, Senator, revived partially a lawsuit brought by Planned Parenthood in another case. I take the 

parties as I find them, and I take the facts and laws that come to 

me. And I do not choose when they come to me or how they come 

to me. 

Senator BLUMENTHAL. I understand. 

Judge GORSUCH. And any other implication would be erroneous. 

Senator BLUMENTHAL. Let me ask you, we talked about precedent, and precedent is important as law, correct? 

Judge GORSUCH. Yes. 

Senator BLUMENTHAL. And people rely on it. That is one of the 

key criteria that you have established for sustaining precedent, and 

I am not even sure that the term has been used here, but stare de-
211 

cisis, which is an important principle of following well-established 

and accepted law. 

Let me ask you, did you agree—or, I am sorry, do you agree with 

the result in Brown v. Board of Education? 

Judge GORSUCH. Senator, Brown v. Board of Education corrected 

an erroneous decision, a badly erroneous decision, and vindicated 

a dissent by the first Justice Harlan in Plessy v. Ferguson, where 

he correctly identified that separate to advantage one race can 

never be equal. 

Senator BLUMENTHAL. And do you agree with the result? 

Judge GORSUCH. In Plessy, no. Absolutely not. 

Senator BLUMENTHAL. No. Do you agree with the result in Brown 

v. Board? 

Judge GORSUCH. Brown v. Board of Education, Senator, was a 

correct application of the law of precedent, and—— 

Senator BLUMENTHAL. So you agree with it? 

Judge GORSUCH. Senator, it is a correct application of the law of 

precedent. 

Senator BLUMENTHAL. By the way, when Chief Justice Roberts 

testified before this Committee and he was asked by Senator Kennedy, ‘‘Do you agree with the Court’s conclusion?’’—meaning in 

Brown—‘‘that the segregation of children in public schools solely on 

the basis of race is unconstitutional,’’ Judge Roberts answered, unequivocally, ‘‘I do.’’ Would you agree with Judge Roberts? 

Judge GORSUCH. Senator, there is no daylight here. 

Senator BLUMENTHAL. Okay. 

Judge GORSUCH. Justice Marshall—sorry, Justice Harlan got the 

original meaning of the Equal Protection Clause right the first 

time, and the Court recognized that belatedly. It is one of the great 

stains on the Supreme Court’s history that it took it so long to get 

to that decision. 

Senator BLUMENTHAL. Do you agree with the Court’s outcome, 

the result, in Griswold v. Connecticut and Eisenstadt v. Baird? And 

you know that they struck down the ban on contraception. I believe 

it has been discussed earlier. Do you agree with the result in those 

cases? 

Judge GORSUCH. So Griswold, Senator, as you know, held that 

the Fourteenth Amendment Due Process Liberty Clause provided 

a right to married couples to the use of contraceptive devices in the 

privacy of their own home. And then Eisenstadt extended that to 

single persons. 

Senator BLUMENTHAL. Right. 

Judge GORSUCH. Senator, those are precedents of the U.S. Supreme Court. They have been settled for 50 years, nearly, in the 

case of Griswold. There are reliance interests that are obvious. 

They have been reaffirmed many times. I do not see a realistic possibility that a State would pass a law attempting to undo that or 

that a court of the United States would take such a challenge seriously. 

Senator BLUMENTHAL. I have a very simple question for you. Do 

you agree with the result? 

Judge GORSUCH. Senator, I will give you the same answer. 
212 

Senator BLUMENTHAL. Again, I just want to tell you what Justice 

Alito said in response to that question. He said very simply, talking 

about Eisenstadt, ‘‘I do agree with the result in Eisenstadt.’’ 

Judge GORSUCH. It was an application of equal protection principles, and—— 

Senator BLUMENTHAL. Well, I know what it was. I am asking you 

for a direct, clear, unequivocal answer. 

Judge GORSUCH. And, Senator, I am trying to give it to you. And 

as I recall, Justice Alito said the same thing, which is that there 

is an equal protection argument. Once you have Griswold in place, 

then it follows as a matter of equal protection that the same—what 

was true for married couples is true for single persons, and that 

was an application of settled equal protection principles. 

Senator BLUMENTHAL. I want to tell you what Chief Justice Roberts said when he was asked the same question about Griswold. He 

said, ‘‘I agree with the Griswold Court’s conclusion that marital 

privacy extends to contraception and availability of that.’’ 

My time is about to expire. I just want to say I hope that when 

we resume questioning, perhaps you can give me somewhat more 

direct and unequivocal answers in the same way that Justices Roberts and Alito and Kennedy did to the same questions. 

Thank you, Mr. Chairman. 

Senator TILLIS [presiding]. The Senator from Idaho. 

Senator CRAPO. Thank you, Mr. Chairman. And, Judge Gorsuch, 

first of all, I want to thank you for preparing yourself for this opportunity and for this service to the United States. You have acquitted yourself very well today. In fact, I am very impressed with 

your knowledge of the cases and your ability to understand and articulate your positions on the issues. 

I have a couple of tough questions for you first. Is it true that 

you have been endorsed by John Elway? 

[Laughter.] 

Judge GORSUCH. You know, Senator, a couple of things have 

made my day recently, and hearing that was definitely one of 

them. You know, in Colorado, I mean, where I come from, that is 

big stuff. 

Senator CRAPO. Well, it is. And, you know, some of us Westerners who do not have a pro team in our State kind of agree with 

that as well. 

Judge GORSUCH. Senator, I will tell you, what meant as much to 

me, though, was an article I saw not too long ago someone put in 

front of me from the Albuquerque Journal, and it quoted two lawyers who appear in front of me all the time. One is a civil rights 

attorney, the other represents indigent criminal defendants routinely in my court. They win some; they lose some. And they both 

went out of their way to say, ‘‘He is a fair judge.’’ And you know 

what? The compliment of the people who work with me day in and 

day out, who win some and who lose some, that means the world 

to me. 

Senator CRAPO. That is very impressive, and at the end of my opportunity to ask questions here, I am going to submit a statement 

for the record that has been submitted by another one of your associates and friends who endorses the way you have conducted your-
213 

self on the bench. It is good to have good friends who will stand 

up for you. 

Another tough question. I appreciated the discussion that Senator Flake and you had about fishing. This is going to test your 

true abilities as a fisherman. Would you tell me where your favorite fishing stream is? 

[Laughter.] 

Senator CRAPO. And do not say, ‘‘No Tell’em Creek.’’ 

Judge GORSUCH. Do I have to answer this question, Mr. Chairman? 

[Laughter.] 

Senator CRAPO. No, you do not have to answer it. At least not 

publicly. 

Judge GORSUCH. I would be happy to share with you privately 

my views on this subject. 

Senator CRAPO. We will talk. 

Judge GORSUCH. My experience is, though, that once the word 

gets out, then it is not my favorite spot anymore. 

Senator CRAPO. Okay. You have just proven yourself as a fisherman. 

I also wanted to just tell you I appreciated the conversation you 

had with one of my other colleagues here about your law clerks. I, 

too, am a law clerk. I do not know that you knew, probably, the 

judge I worked for, Judge James M. Carter on the Ninth Circuit. 

He passed away in 1979. He was appointed by Harry Truman to 

be a District Judge in Southern California and then by Lyndon 

Johnson to be a Circuit Court Judge on the Ninth Circuit. And I 

had the experience as his law clerk that you described your experience to be and those who serve as your law clerks, and I just wanted to tell you, you connected with me on that. I truly appreciated 

that bit of just learning more of your human side in that context. 

You know, this is also a point in this hearing that pretty much 

everything has been said but not everybody hasten an opportunity 

to ask you to say it, and I apologize if some of the things are repetitive. But some issues keep coming up, and I want to get back into 

some of the core issues and just give you an opportunity to restate 

the case. And a couple of those are pretty obvious. In fact, our 

Chairman started out with this first issue, and that is, what is the 

role of a judge? I have before me here the statutory oath that we 

give to judges. I will just read part of it. It is ‘‘to administer justice 

without respect to persons, and do equal right to the poor and to 

the rich.’’ And it also says to ‘‘faithfully and impartially discharge 

and perform all the duties incumbent upon [the judge] under the 

Constitution and laws of the United States.’’ That is some pretty 

high-minded language. 

What is your opinion of the role of a Justice on the Supreme 

Court? 

Judge GORSUCH. Senator, it is the same thing. It does not 

change. It is a more public role. There may be more civic education 

involved, or at least an opportunity somebody might listen to you 

a little bit more. And Justice O’Connor again comes to mind here. 

But the job does not change, and the law is the law. It is what 

we do day in and day out. And the discussions about the judiciary 

I think often miss the fact that judges agree overwhelmingly on the 
214 

disposition of cases. A tiny percentage of the cases go to the Supreme Court of the United States, 70, 80 cases a year, a fraction 

of a fraction of a percent. And even then—even then—the Justices 

of the U.S. Supreme Court are unanimous in their decisions 40 percent of the time. 

Now, think about that. You have not just three judges who have 

to agree, as on the Court of Appeals, generally speaking, but nine. 

Nine Justices who are appointed by five different Presidents right 

now. And people say the world has changed, but in some ways it 

has not because that 40 percent number has been remarkably 

steady since the Second World War. That is a pretty incredible 

thing when you think about it. 

Senator CRAPO. It is. 

Judge GORSUCH. That is a testament to our rule of law. It is 

human, it is imperfect, but it is sure better than anything else anybody has ever devised. 

Senator CRAPO. Well, that commitment to interpreting and applying the law honestly, fairly, and impartially is critical. It is what 

we need in Supreme Court Justices, and, again, I appreciate your 

answer on that question. 

Now, again, I apologize that this is a repetitive question, and, in 

fact, you were just asked it in another way just now, but it is one 

that keeps coming up and which I expect is going to be a discussion 

point for the rest of this process, and that is the litmus test issue. 

You have already said it, but I am going to ask you to say it 

again. Did anyone in the nomination process, the President included, require of you a commitment for any kind of a litmus test 

as to how you would rule on any issue or in any case whatsoever? 

Judge GORSUCH. No, Senator. And if they had, I would have 

walked out of the room, period. 

Senator CRAPO. So to put it another way, if you had to, you 

would—if the requirements of the law were that you had to rule 

against the President of the United States in a case, you would do 

so? 

Judge GORSUCH. Senator, if that is where the law and the facts 

lead me, do it without hesitation. It is—I have done it. I have done 

it many times without respect to who is in charge. I rule for the 

Government sometimes. I rule for the accused, for the prisoner, for 

the immigrant, or the student, for the employee, whomever it is, 

based on the law and the facts of the particular case at hand. And 

I believe respectfully my record demonstrates that. 

Senator CRAPO. I think it does, too. And there has been some 

questioning here today about—this is my characterization of it, but 

I think it is pretty clear—a desire to get you to get involved in the 

politics of the court as though there is an appropriate role for a 

judge to be a politician or to be involved in politics. 

I remember in our meeting in my office that you were quite emphatic about the fact that you would not let your politics get into 

your job as a judge or a Justice. Could you comment on that? 

Judge GORSUCH. Senator, it really comes from my experience as 

a lawyer, and General Katyal put it better than I could. But the 

fact of the matter is I represented plaintiffs, I represented defendants. I represented the big guy, I represented the little guy, however you want to call it. And in each and every case, all I wanted 
215 

was a judge who did not decide the case based on his personal beliefs, her personal religion, his politics, what she had for breakfast. 

I just wanted someone to come in and look at the law and look at 

the facts, study it as hard as they could, and make as neutral and 

dispassionate a judgment as they could. That is what I wanted, a 

human judge, somebody who was a person. It helped if they were 

kind, but I would take a curmudgeon. There were some curmudgeons. A fair curmudgeon any day of the week I would take. 

Senator CRAPO. Yes. 

Judge GORSUCH. I wanted a fair judge. And I resolved to myself 

that I would remember, so long as I was on the bench, I would remember what it was like to be in the well, what it was like to have 

to make the arguments, because I tell you what, asking the questions is a lot easier than having the answers. I sleep a lot better 

the night before argument as a judge than I did the night before 

argument as a lawyer. And so I resolved I wanted to be the kind 

of judge that I wanted when I was a lawyer. 

Senator CRAPO. Well, thank you. Now, let us move on to the 

question of precedent. Could you generally—again, I realize this is 

repetitive. Again, tell us your view of precedent, particularly as a 

Supreme Court Justice, if you are to be confirmed, what you believe the proper role of precedent is. 

Judge GORSUCH. Senator, precedent is the starting point for any 

good judge. Precedent is our history, our shared history, our patrimony; the wisdom of the ages, if you want to think of it that way. 

And it would be foolish of any judge to come in and think that he 

or she knows better than everybody who has come before them. It 

would be an act of hubris. 

So the starting point and the great anchor of the law, as Francis 

Bacon called it, is precedent. As Hamilton said, judges, because we 

are life tenured, need to be bound down by strict rules and precedents. And I take that obligation seriously. 

Senator CRAPO. So that people can know what to expect out of 

the law. 

Judge GORSUCH. Reliance is a huge part of it. 

Senator CRAPO. Now, it does turn out, particularly at the level 

of the Supreme Court, that there are times when precedent is revisited. Could you tell us when it is appropriate, how does a person, particularly a Supreme Court Justice, how should a Supreme 

Court Justice approach that question? 

Judge GORSUCH. The same way a Circuit Judge approaches a 

question with Circuit precedent. We do the same thing. Nothing 

changes. It is the same set of principles. 

Senator CRAPO. So what process do you go through to make the 

decision that you should revisit precedent? 

Judge GORSUCH. Start with a presumption in favor of history, 

and that people who came before you were just as smart or maybe 

even smarter than you are. When you put on the robe, you lose the 

ego. You look at the reliance interests that have formed around the 

precedent. You look at how long it has been around. You look to 

see whether it has been reaffirmed. You look at the quality of the 

initial decision. You look at the doctrine and whether it has been 

built up around it or whether it has eroded away. You look at 
216 

workability. Those are some of the factors a good judge looks at 

when deciding any challenge to a precedent. 

Senator CRAPO. And I assume it is not a decision reached lightly. 

Judge GORSUCH. Senator, no decision should be reached lightly 

as a judge. 

Senator CRAPO. Well said. 

I want to move on now to one that you have been asked a little 

bit about today but not a lot, and that is the Tenth Amendment 

to the Constitution, which says, ‘‘The powers not delegated to the 

United States by the Constitution, nor prohibited by it to the 

States, are reserved to the States respectively’’—and I think some 

people stop there—‘‘or to the people.’’ 

This is the issue of Federalism. I have a few specific questions, 

but could you just discuss with me in general your feelings about 

that amendment and what it means in our American jurisprudence? 

Judge GORSUCH. Well, Senator, it is part of the Bill of Rights, 

like all of the rest of the Bill of Rights, and it was thought important to add as part of the first 10 Amendments to the Constitution 

as a package. And the thought was to emphasize and make very 

clear that the Federal Government is a government of enumerated 

powers, not a plenary government with unenumerated, unlimited 

power, and that there was reserved to the people and to the States 

abundant rights. 

Senator CRAPO. I agree with that. A lot of my constituents and, 

frankly, a lot of people that I talk to around the country believe 

that has pretty much been eroded in the sense that the place 

where there is authority reserved to the States is a very small 

place today. Because of certain Supreme Court rulings, because of 

certain doctrines related to the Commerce Clause and others, it is 

felt that the place in which the Federal Government is free to assert its authority, even to the point of superseding State authority, 

is so large now that the Tenth Amendment has lost much of its 

meaning. 

Could you comment on that? 

Judge GORSUCH. Well, Senator, Tenth Amendment cases do come 

before the Court and related Commerce Clause challenges that are 

kind of an analog here. So I have to be careful. 

Senator CRAPO. Understood. 

Judge GORSUCH. But I would point you to the New York case, 

Justice O’Connor again, pointing out that there are limits to how 

far the Congress and the Federal Government may go to commandeer State governments. And then, of course, there is the Chief 

Justice’s opinion in the ACA case with regard to Medicaid expansion and the limits of the Commerce Clause power there. So there 

are a couple of decisions that are out there that you are aware of 

that discuss this issue. 

Senator CRAPO. I think that the discussions that have been had 

today about the Chevron case get into this arena. Earlier, when you 

were asked questions about it, you indicated that in your—and, 

again, I realize you may not be able to go very far in this answer, 

but I would like to give you an opportunity to explain it as much 

as you can. I believe in the decision that you wrote, you said the 

elephant in the room was the question of deference to Executive 
217 

agency actions. That is a rough paraphrasing of what you were discussing. And I believe you said that there were due process, equal 

protection, and separation of powers issues related to that. 

Could you expand on that a little bit? 

Judge GORSUCH. Well, Senator, I would be happy to, of course. 

In that case, again, it involved an undocumented immigrant, and 

the question was whether an agency could overturn judicial precedent retroactively so that this man who had relied on our precedent 

essentially had the legal rug pulled out from underneath him. And 

it seemed to me that raised a variety of questions. 

First, it meant now that he had to wait not 10 years outside of 

the country but perhaps 13 or 14 because they wanted to retroactively overturn judicial precedent. And I asked in terms of fair 

notice, advance notice, due process, how is a person, the least 

amongst us, anyone, supposed to organize their affairs, rely on the 

law, precedent, if it can be overturned by an agency willy nilly? 

What are the equal protection implications if the person who declares the law is now a political branch rather than the judicial 

branch, where selective picking and choosing of winners and losers 

can be had in the application of the law? I am worried about that. 

I worry about the separation of power. How is it that an agency 

can overturn a judicial precedent effectively without the concurrence of Congress? Congress, of course, has the power to write statutes. The last time I checked, that is the legislative power, though, 

and to overturn judicial precedents on statutory on interpretation, 

that is this body’s role. 

So those were some of the things I worried about, and I worried 

about just the plain old statutory text, too, of the APA in which 

Congress is assigned the task, of course, of fact-finding to the agencies and told us, again, to provide a highly deferential standard of 

review to the agencies, the chemists, the biologists, the scientists; 

but said when it comes to interpreting the law that the courts are 

supposed to do that. So those were some of the questions that I 

found difficult in that case. 

Senator CRAPO. Well, I appreciate the perspective that you have. 

Again, still talking about Federalism and the Tenth Amendment, 

you are familiar with the dormant Commerce Clause concept? 

Judge GORSUCH. Yes. 

Senator CRAPO. Could you describe what that means to you? 

Judge GORSUCH. Well, the Commerce Clause appears in Article 

I. Article I affords this body and the House of Representatives the 

power to legislate interstate commerce, among many other things. 

That is the Commerce Clause, the non-sleeping, the non-dormant 

Commerce Clause. 

Senator CRAPO. Right. 

Judge GORSUCH. But we have this sleeping thing over here, and 

it is the product of judicial interpretation that suggests that sometimes even when Congress has not exercised its powers under the 

Commerce Clause, States infringe Congress’ authority by stepping 

into the regulation of interstate commerce themselves in a way 

that, though Congress has not itself proscribed, would still offend 

congressional authority. That is the doctrine. 

Senator CRAPO. Correct. 

Judge GORSUCH. Okay. 
218 

Senator CRAPO. So that is how I understand it as well, and I realize that you may not be able to go much further in discussing 

your feelings about that doctrine. But if you can, I welcome you to. 

Judge GORSUCH. Well, Senator, I have tried to make clear today 

that my feelings, respectfully, on any of these topics are things I 

try to leave behind, and I try to take the facts and the law and the 

precedent before me very seriously. I come here with no agenda but 

one, no promises but one: to be as good and faithful a judge as I 

know how to be. That is it. And I cannot promise or agree or pledge 

anything more than that to this Congress. I just cannot, not as a 

good judge, not as someone who has to look litigants in the eye and 

tell them I am a fair and impartial judge of their case, not to someone who respects the separation of powers. So that is where I come 

from on that. 

Senator CRAPO. Thank you very much, and I respect that. And, 

frankly, America is very fortunate to have someone who strongly 

holds to that perspective nominated to this critically important position. 

I just want to clear up one other thing, and then there are a few 

issues I just wanted you to also discuss a little bit further with me. 

Back to the Hobby Lobby case, I just wanted to give you an opportunity to clear one thing up, at least for me. Maybe everybody 

else understood this very clearly. That case went to the Supreme 

Court and was resolved in a 5–4 decision. But if I understand the 

rulings correctly, of the four judges who dissented, only two of 

them felt that the issue relating to a for-profit corporation was dispositive. Did I get that right? Or objected to that part of the ruling, 

is that correct? 

Judge GORSUCH. That is right. Yes, two dissenters did not feel 

the need to reach that issue. 

Senator CRAPO. I just wanted to be sure that was—— 

Judge GORSUCH. That is right. 

Senator CRAPO [continuing]. Made clear in the record. 

In the time I have left, which is about 8 minutes, I would just 

like to ask you about several of the things that I believe you have 

written about. The first is the Seventh Amendment right to trial. 

I understand that you have written about that. Is that correct? 

Judge GORSUCH. I have, Senator. 

Senator CRAPO. What are your thoughts about that? 

Judge GORSUCH. Senator, I believe in juries. I liked trying cases 

to juries. I liked being on a jury. I think it is a part of our civic 

engagement that is really valuable. People feel connected to their 

Government. Hamilton and Madison, I think it was—I cannot remember which—in the Federalist Papers debated, you know, is it 

a bulwark of liberty or is it the very palladium of liberty? That is 

what they thought of the Seventh Amendment. And I think it is 

just so difficult for litigants to get to a jury now. And we spend so 

much time in preliminary discovery, what we call discovery, motions practice. Lawyers become poets of the nastygram. They can 

write interrogatories in iambic pentameter. But there just are not 

that many jury trials anymore. And I am not sure that is a good 

thing. 

Senator CRAPO. Does this relate to your writings also about or 

your concerns about access to justice? 
219 

Judge GORSUCH. Yes, Senator. Yes. 

Senator CRAPO. Can you expand on that a little bit? 

Judge GORSUCH. Well, when it becomes so expensive and takes 

so long to get to a jury, to get to a trial, some people do not bring 

good claims. A lot of people are left not bringing good claims to 

court. That is a problem on the one side of the ‘‘v.’’ and I saw that 

as a lawyer. And on the other side of the ‘‘v.’’ defendants, sometimes you feel like you have to settle, not because the case has 

merit but because the cost and the delay to the client are so significant in getting to a decision that you cannot afford to do it. You 

have to get on. 

And as I indicated earlier, the American College of Trial Lawyers—and both represent both plaintiffs and defendants—have indicated both these problems are real in our system and need to be 

addressed. 

Senator CRAPO. Thank you. The last issue I will ask you about 

is your thoughts, which you have already referenced somewhat, on 

overcriminalization in the law. Could you basically just reiterate 

that for us? 

Judge GORSUCH. Yes, Senator. As I indicated earlier, I think the 

number is something like 5,000 Federal criminal statutes on the 

books today and hundreds of thousands in the Federal Register, 

and that 8-point font, I need to bring out my reading glasses for 

when I pull open the Federal Register. And, you know, I have a 

hard time reading it. And I have a hard time imagining the American people can read it, to be honest with you. 

And Madison warned about a world in which law, written law, 

is lacking, and he also warned about a world in which we would 

have too much written law, a paper blizzard, so much so that the 

prosecutor can choose his charges with impunity and the people do 

not have notice really what is expected of them. 

So I think both of those things on both ends of the spectrum are 

a concern, and Aristotle was right there, too. We are looking for a 

golden mean. 

Senator CRAPO. Well, and I think earlier today you also referenced—maybe you meant to in these comments—the regulatory 

explosion of criminal penalties. Is that a part of this as well? 

Judge GORSUCH. I would say it has been part of—I do not know 

about an explosion, but it is just a fact of life that has been with 

us for a while and growing. 

Senator CRAPO. I will not ask you to comment on this, but I 

think it is an explosion, and not just on the criminal side, in the 

civil side as well, just the regulatory growth that we have seen in 

our Government recently. This is not an issue for you, at least to 

discuss with me today, but I think we have a lot of difficulty simply 

because of the complexity that we are creating in our legal system. 

And many of those difficulties will need to be resolved at the policy 

level. I understand that. 

Judge Gorsuch, again, I just want to thank you for being willing 

to step up and do this service. It was notable to me, I think you 

said earlier, that Justice White only spent about 90 minutes in his 

hearing. Is that correct? 

Judge GORSUCH. That is what I am told. 

Senator CRAPO. Remarkable. Thank you again. 
220 

Judge GORSUCH. Enviable. 

[Laughter.] 

Judge GORSUCH. No, this has been a great pleasure, a great 

honor to be here with you, Senator, and with all of your colleagues. 

Senator CRAPO. Well, we understand what you and your family 

and friends are going through. We know the commitment that you 

have made simply to agree to be nominated and move forward 

through this process, and I want to thank you for doing that as 

well. I truly do appreciate it. Thank you very much. 

Before I yield my time, I would like to ask unanimous consent 

first to enter a letter into the record from the president of Colorado 

Farm Bureau endorsing Judge Gorsuch; second, a letter from Todd 

Seelman, managing partner at the Denver office of—I will probably 

mispronounced this—Lewis, Brisbois, Bisgaard, and Smith in support of Judge Gorsuch’s nomination; another letter from the Lincoln’s Inn Society of Harvard Law School, which is a number of 

people who know you from this group and who have commented on 

your humility, thoughtfulness, and intellect, which we have seen 

today; and then, finally, an article from a Colorado District Court 

Judge, John Kane, in which he rebuts basically the notion that 

there is any kind of ideological bias in your record, and I think says 

very positive things about Judge Gorsuch. 

I would ask unanimous consent to put these documents into the 

record. 

Senator TILLIS. Without objection, the documents will be entered 

into the record. 

Senator CRAPO. Thank you very much. 

[The information appears as submissions for the record.] 

Senator TILLIS. The Senator from Hawaii. 

Senator HIRONO. Thank you, Mr. Chairman. 

The end is nearing for today, Judge Gorsuch. We have sat here 

for close to 10 hours now, and you have not told us your understanding of cases already decided by the Supreme Court, except to 

say that they are law and precedent. You have not told us your 

view of cases currently before the Court, and you will not tell us 

your view on issues that might someday be presented to the Court. 

In fact, you have provided us less in the way of answers about 

how you would approach cases than previous nominees to the Supreme Court. So how should we divine what you would bring to the 

Supreme Court in terms of your judicial philosophy? By looking at 

your judicial record, by looking at your writings? 

I see a pattern that is very much on a par with the Roberts 

court’s steady march toward protecting corporate interests over individual rights. That is not protecting the rights of the minority, 

as you told me in our meeting, which is the purpose of Article III. 

So I hope that in answering my questions, you can provide some 

reassurances that you will be a judge or Justice for all Americans. 

You had an extended discussion today with Senator Franken 

about your dissent in the TransAm Trucking case. I want to talk 

to you about another case, Longhorn Service Company v. Perez, in 

which you overruled an agency decision about worker safety. You 

were in the majority in a 2–1 decision—could have gone the other 

way if you had gone that way—that overturned a sanction against 
221 

a company based on a strained distinction between a floor hole and 

a floor opening. 

The dissenting judge, a President George W. Bush appointee, described this distinction as nonsense and said the distinction between a floor hole and a floor opening did not matter in this case 

because the company was in violation of an OSHA standard either 

way. 

Why did you believe it was appropriate to rely on a strained distinction between floor hole and floor opening, at odds with the law’s 

intent and purpose to protect worker safety? 

Judge GORSUCH. Senator, I appreciate the opportunity to address 

that. As I think you have indicated, I was not the author of that 

opinion. I did not write it. One of my colleagues wrote that opinion. 

Another one of my colleagues dissented. You are quite right about 

that. 

I do not have a dog in the hunt when it comes to holes and openings in floors. But apparently, OSHA does. OSHA distinguishes between floor holes and floor openings when it comes to—— 

Senator HIRONO. Excuse me. 

Judge GORSUCH. Spaces—— 

Senator HIRONO. Excuse me, Judge. That case held that you 

overruled the agency decision. 

Judge GORSUCH. Yes. 

Senator HIRONO. Which did not make a distinction. 

Judge GORSUCH. With respect, Senator, OSHA regulations do 

make a distinction between, as I recall, it has been a while—— 

Senator HIRONO. Not in this case, sir. 

Judge GORSUCH. Well, Senator, there are different regulations 

for floor openings and floor holes in—I think this is an oil and gas 

rig or maybe a fracking rig. And what you have to do in terms of 

remediation, cover or a handrail. There are different consequences 

whether it is a hole or an opening, as I recall. 

And the party there, nobody was injured, but they got a fine for 

not doing maybe covering it up, I do not recall, whatever the agency wanted them to do. And the question was whether they had 

been provided notice they were being charged with whether it was 

a hole versus an opening. 

And Senator, all I was trying to do there, I agreed with my colleague who wrote the majority opinion that OSHA charged what it 

charged it had to prove and that it cannot change the charge in the 

middle of the proceedings, as I recall. 

Senator HIRONO. Well, the dissent indicated that this distinction 

was nonsense, and therefore, they—— 

Judge GORSUCH. Well, that might be true. 

Senator HIRONO. Yes. 

Judge GORSUCH. I mean, I do not know. As they say, I do not 

have a dog in that hunt. I am just trying to apply the OSHA regulation. 

Senator HIRONO. If I can go on? So that law, though, was for the 

purpose of worker safety. And I think you responded to one of the 

questions from my colleagues that you do look to the purpose of the 

law and that is what judges should effect. So the purpose of that 

law was worker safety. So I am really not understanding why you 

went with the majority in making that kind of distinction. 
222 

Let me move on. Earlier, you had an extensive discussion, as I 

mentioned, with Senator Franken about TransAm Trucking and 

whether you understood the impossible choice your decision would 

have given to the driver in that case, Alphonse Maddin. And if your 

decision had been the majority, which it was not, it would have 

made a driver like Mr. Maddin choose between endangering his 

own life and health or keeping his job. 

I am hoping that you will share more about your approach to 

cases like TransAm Trucking. Your dissent dismissed the argument 

that the law should be interpreted in light of its purpose of protecting public health and safety, saying that those goals were too 

ephemeral and generic. Did the purposes of this law to protect an 

employee from being fired for acting in response to safety concerns 

play any role in your decision? 

Judge GORSUCH. Senator, I appreciate the opportunity to talk 

about this again. The statute there protected individuals who refused to operate a motor vehicle, and at least as I saw it—and this 

is just one judge, how I saw one case in 10 years—and I saw that 

the individual drove away. He operated the motor vehicle. So I did 

not see how he could claim protection of a statute that hinges on 

a refusal to operate. 

I am relieved to know that he was able—that he was fine and 

was able to meet up with his employer 15 minutes or so later, as 

I remember the record. But my heart goes out to him, and I said 

that in the opinion that he was put in a rotten position. And I go 

home at night with cases where sometimes the law requires results 

that I personally would not prefer. 

Senator HIRONO. I think that you could possibly have interpreted 

the definition or the requirement that he actually refused to drive 

the vehicle. He refused to drive the vehicle with the attached trailer. But you could have held, I would think, that he refused to drive 

the vehicle in an unsafe way. 

So, I mean, the way I look at this decision, and you were not in 

the majority, is that if judges are going to work this hard to strain 

the text of a law to undermine the purpose, which was for the safety and that a driver who made a decision based on that would not 

be fired, I think that makes it pretty tough for any laws that Congress passes or will pass to really be effective in protecting American workers. 

I would like to turn to Citizens United. In this case, the Court 

adopted a narrow view that only quid pro quo corruption counts regarding campaign contributions and that appearance of corruption, 

basically, which had also been a concern, is out the window. This 

has unquestionably changed the landscape of our elections, 

unleashing a flood of corporate money and campaigns. 

If corporations are able to spend unfettered money on American 

elections, what is there to stop a foreign company from funneling 

money into our elections through its American subsidiary? For example, what limits would prevent a Russian oligarch from financing a billion-dollar independent expenditure operation through an 

American middleman? 

Judge GORSUCH. Well, Senator, I appreciate the opportunity to 

answer that. If I might, though, I would just point to my record on 

employment cases. There are plenty of cases where I have ruled for 
223 

the employee and not the employer. We can pick one and talk 

about one, but there are many, many where I have ruled for the 

employee, even overturning the District Court when the District 

Court ruled for the employer. Lots of them, and I would be happy 

to talk about any of them. 

Senator HIRONO. Well, I am not. 

Judge GORSUCH. But if we want to—— 

Senator HIRONO. I am not asking about the others. So let us—— 

Judge GORSUCH. I understand. I understand that. 

Senator HIRONO. Can you respond to my question about Citizens 

United and unfettered foreign money that can come into our campaigns? 

Judge GORSUCH. Senator, I would say that there is lots of room 

for congressional regulation here and that, in fact, the Supreme 

Court has made clear that foreign money in particular is an area 

where Congress has substantial authority available to it. 

I would say this—— 

Senator HIRONO. Are you saying—I would just like a clarification. Then you are saying that Citizens United leaves open for Congress to prohibit foreign money in our elections? Is that not already 

happening? 

Judge GORSUCH. Senator, I would say there is ample room in the 

area of campaign finance for further legislation, all sorts of room 

where the Court’s made clear, remains. It struck down one law. 

That does not mean that every law will be stricken. It does not 

mean that Congress has no role. It means the Congress passed one 

law that, based on one record, the Supreme Court found to violate 

the First Amendment. 

Senator HIRONO. So since, since there is so much concern about 

foreign money and foreign governments attempting to interfere or 

really, no, interfere with our elections and if Congress were to pass 

a law that prohibited foreign contributions through middlemen or 

any other way, you would sustain that law? 

Judge GORSUCH. Senator, I am not making any promises to anyone about how I would rule. I understand people would like me to 

make promises, but I just—that is not what a good judge does. It 

is not fair to the parties. I do not prejudge cases. That would be 

a violation of separation of powers, in my view. It would be the end 

of the independent judiciary. 

Senator, what I would promise you to do is to look carefully at 

the record with deference to the fact-finder, to look at the briefs, 

to go through the whole judicial process and carefully consider all 

the arguments made by both sides, as a good judge does. 

Senator HIRONO. Thank you. You have articulated that many 

times. 

The sheer volume of speech bought by corporate money drowns 

out the voices of everyday Americans on important issues. I am 

concerned with influence-peddling in politics, such as from billiondollar donors like the Mercers or Philip Anschutz. 

Judge Gorsuch, given that you volunteered on numerous Republican political campaigns dating back to the 1970s, were you ever 

concerned with the flood of unfettered money in our elections and 

campaigns? 
224 

Judge GORSUCH. Senator, the first campaign I worked on I was 

about 9 years old. It was my mom’s. She was running for the State 

house, and I think it was, again, her idea of daycare that I would 

walk with her. 

[Laughter.] 

Senator HIRONO. So just—I am sorry. You know, I have only 18 

minutes left. And had you ever been concerned? Because certainly 

you worked on political campaigns when you were beyond 9 years 

old. 

Judge GORSUCH. I did. 

Senator HIRONO. Was there ever a time when you were concerned about unfettered money in our political campaigns? 

Judge GORSUCH. Senator, I have lots of concerns as a person and 

as a citizen. But I am now a judge, and my personal views have 

nothing to do with how I rule on cases. 

Senator HIRONO. Thank you. 

Judge GORSUCH. It is a discipline that a judge learns and exercises and, hopefully, improves upon over time. And I am steadfast 

about that, Senator. It means—it means the world to me as a lawyer and as a judge who cares about an independent judiciary. It 

comes from a place deep in my bones. 

Senator HIRONO. Thank you. I would like to move on. 

Judge GORSUCH. Of course. 

Senator HIRONO. I listened to your conversation with Senator 

Coons about the Hobby Lobby case, and it is a decision that you 

joined in the Tenth Circuit and was supported by the Roberts 

Court. And in that case, you decided that a corporation with 23,000 

employees has rights to the exercise of religious—of religion protected by the Religious Freedom Restoration Act and that it could 

use those rights to deny the thousands of women that it employed 

access to certain kinds of health coverage. 

There was a notable dissent in the Supreme Court’s Hobby Lobby 

decision by Justice Ginsburg, joined by the two other women on the 

Supreme Court. And Justice Ginsburg wrote, ‘‘The exception sought 

by Hobby Lobby and Conestoga would deny legions of women who 

do not hold their employees’ beliefs access to contraceptive coverage.’’ 

How much did you consider the significant need of the 23,000 

Hobby Lobby employees, of which a significant number of them 

were women working paycheck to paycheck, for access to 

healthcare that they would now be denied? 

Judge GORSUCH. Senator, I appreciate that question. The answer 

is I considered it very closely, very carefully. So did the Supreme 

Court of the United States, which affirmed our court. And as you 

know, the Religious Freedom Restoration Act goes above and beyond the First Amendment in protecting religious liberties. 

It is a judgment made by this Congress that it is free to amend 

at any time if it wishes. It can eliminate corporations from coverage. It can eliminate the strict scrutiny that is required. And it 

can eliminate the act at any time. 

But Senator, I gave every aspect of that case very close consideration. That was an en banc decision by our court. 

Senator HIRONO. You did write a concurring opinion on that? 

Judge GORSUCH. I did. 
225 

Senator HIRONO. And I think your concurrent opinion could even 

be deemed an expansion of the plaintiff’s rights in that case. So in 

your view, the corporation did make claims about contraception 

based on religious beliefs, which are directly contravened by scientific research. 

And by accepting as facts these religious beliefs and probing no 

further in agreeing that the corporation could deny coverage, the 

Hobby Lobby decision leaves us in a tough spot. So are there any 

limits, and if so, what are those limits, on what a corporation may 

claim as a belief in justifying its denial of healthcare for its employees? 

Judge GORSUCH. Senator, the sincerity of the belief, I believe, 

was undisputed by the Government, at least in our court. So I just 

do not think that was at issue. 

Are there limits to how far the statute goes? Yes, there are. The 

Government may force someone to forego and accept a substantial 

burden on their sincerely held religious belief if it can prove a compelling interest, which the Supreme Court accepted in this case, 

and can also show that it is the most narrowly tailored way to 

achieve that compelling interest. 

It is strict scrutiny. It is the highest standard known to law. And 

the problem in that case again, as the Supreme Court and my 

court saw it, was that the Government had managed to find a way 

to achieve its compelling interest in providing coverage to women 

in many other cases without requiring any compromise—— 

Senator HIRONO. So I realize that the compelling State interest 

was conceded to the Government, but my question really relates to 

the first part of the test, which is the sincerely held belief. 

Judge GORSUCH. Yes. 

Senator HIRONO. And while that may not have been at issue in 

this case, even though if you were to look at their sincerely held 

beliefs, then there was evidence that some of their beliefs were scientifically not valid. So my question is really how—would you go 

behind the sincerely held belief to determine whether there is really a basis for this belief? 

Judge GORSUCH. You are asking me whether I would, as a judge, 

decide that someone’s sincerely held religious belief is wrong? 

Senator HIRONO. Well, based on scientific evidence or some other 

factual evidence. 

Judge GORSUCH. So that I, as a judge—I just want to make sure 

I understand the question that I would say that the belief is scientifically invalid and, therefore, not protected by the statute? Is 

that the question? 

Senator HIRONO. Well, therefore, could not be a sincerely held belief. 

Judge GORSUCH. Oh, sometimes a court will hold that a belief is 

not sincerely held. That is true. That does happen. I have had a 

case involving just that scenario, and it involved a group of drug 

distributors who claimed they worshipped marijuana. 

Senator HIRONO. Yes. I was here when you responded to that. 

Judge GORSUCH. Okay. All right. Okay. 

Senator HIRONO. And you know, I hate to be rude, but I am 

down to less than 12 minutes. So if you do not mind, sir, I would 

like to go on to another area. 
226 

In 1942, an ordinary American took an extraordinary stand. His 

name was Fred Korematsu, who boldly opposed the forced internment of Japanese Americans during World War II. After being convicted for failing to report for relocation, Mr. Korematsu took his 

case all the way to the Supreme Court, and the high court ruled 

against him. It took 39 years before a California judge overturned 

Mr. Korematsu’s conviction in another proceeding, but the Supreme 

Court never overruled Korematsu. So Korematsu has joined the short list of the most regrettable decisions in the Court’s history. And even though most American citizens of Japanese ancestry were loyal, the Court in Korematsu 

found that the Government’s curfew and internment program was 

constitutionally acceptable because some unknown faction or fraction of that group posed a special statistical risk of disloyalty and 

danger. 

Today, if the Court were to assess special restrictions on U.S. 

citizens of Iranian, Yemeni, Somalian, Syrian, Libyan, and Sudanese ancestry, do you believe Korematsu would be applicable precedent for the Court to consider? 

Judge GORSUCH. No. And let me compliment Neal Katyal. When 

he was Acting Solicitor General of the United States, he confessed 

error by the Government in that case. That was an admirable 

move. 

Senator HIRONO. Thank you for that ‘‘yes’’ and ‘‘no’’ answer. I appreciate that. 

Going on to Hamdan, during a time as a senior official in the 

Bush Justice Department, you appeared to play a significant role 

in developing and promoting the arguments in Hamdan v. Rumsfeld, including the argument that the President himself had the 

power to set up military tribunals to try Guantanamo detainees 

without key human rights and other protections in the Geneva 

Convention and the Uniform Code of Military Justice. 

Judge Derrick Watson, a Hawaii Federal District Court Judge, 

recently issued a stay of significant portions of President Trump’s 

second Executive order banning nationals from six predominantly 

Muslim countries. And without commenting on the current case, do 

you believe that there are Executive orders that are outside the 

scope of appropriate judicial review to determine if a President has 

overstepped his constitutional authority? 

Judge GORSUCH. Senator, to me, one of the beautiful things 

about our system of justice is that any person can file a lawsuit 

about anything against anyone at any time. Any person has access 

to our courts of justice on any subject, and a judge, a neutral and 

fair judge will hear it. 

I think that is a remarkable thing. It does not happen everywhere in the world. 

Senator HIRONO. Is your answer that there is no Executive order 

that would not be judicially reviewable? 

Judge GORSUCH. Well, Senator, a lawsuit can be filed on it. What 

a court will do with it is a matter of judicial process, and we would 

have to go through assessing what the claim is, what the defenses 

are, take evidence, hear the arguments, make a decision. 

Senator HIRONO. I understand. The court could say it is a political issue and not take it. 
227 

Senior White House adviser Stephen Miller, who has been described as the architect of the Muslim ban, recently criticized the 

actions of Federal courts in staying the initial travel ban on national TV. Mr. Miller said that Donald Trump’s national security 

decisions, ‘‘will not be questioned.’’ 

I take it that you do not agree with Mr. Miller that there are 

areas like national security where the President’s decisions ‘‘will 

not be questioned’’ even by a court, even by the Supreme Court. I 

take it you do not agree with that? 

Judge GORSUCH. Senator, I give you the same answer that the 

beauty of our system, and I do not want to eat up your time, but 

the beauty of our system is that anybody can bring a complaint to 

court and have an opportunity to be heard under the laws of our 

land. That is a remarkable thing when you think about it. 

Senator HIRONO. The person who nominated you, Judge Gorsuch, 

does not have much respect for judges or courts. As a candidate for 

President and now, even as President, he has belittled and berated 

judges who do not rubberstamp his views. 

He attacked Judge Curiel, his family’s heritage and his fairness, 

while he was presiding over the Trump University fraud case. He 

sought to bully Judge Robart, who decided the first case challenging the constitutionality of his anti-Muslim travel ban. He 

sought to intimidate the Ninth Circuit and, more recently, has belittled Judge Watson in Hawaii for ruling in the second round of 

travel ban cases. 

These attacks are unfair because the judges cannot respond. 

Moreover, they provoke Donald Trump’s supporters. Some reacted 

by declaring a boycott of Hawaii. All this because the distinguished 

Federal judge in Hawaii gave weight to Donald Trump’s own words 

about what he intended his travel ban to do. 

So I would like to give you a chance to comment and either defend President Trump’s statements on judges or condemn them. 

And there was a moment early in your nomination when you were 

reported to comment to Senators that the President’s anti-judicial 

comments were ‘‘demoralizing and disheartening.’’ But then you 

went silent, even as President Trump escalated his attacks. 

I would like to give you an opportunity to set the record straight. 

What is your view of President Trump’s comments on judges? 

Judge GORSUCH. Senator, I just discussed this with Senator 

Blumenthal a moment ago, and I am happy to repeat myself. 

Senator HIRONO. Please. 

Judge GORSUCH. I cannot talk about specific cases. That would 

be improper. And I cannot get involved in politics. That would be 

another violation of my judicial obligations. So I have to be careful. 

I have to speak in general terms. I am not talking about any case 

or controversy. 

And I am talking about the independence of our judiciary. Judges 

have to be tough. We take slings and arrows under bright lights. 

It is part of the job. And we take them from all sides, all day long, 

every day. 

Our job is to make decisions, hard decisions sometimes. Sometimes that people do not like. In fact, our job usually makes—I am 

sorry, Senator. I do not mean—it looks like you wanted to say 

something? 
228 

Senator HIRONO. Yes. So Donald Trump’s comments about the 

judiciary, while he may have focused on specific judges, indicate 

basically that he does not seem to respect the three branches of 

government as you do. So taken as a general proposition, if a President were to basically not give much credence or respect for the 

three branches of government, would you object to that President’s 

comments? 

Judge GORSUCH. Senator, I can talk about my record as a judge. 

I have tried to uphold the dignity of the judicial office in the cases 

and controversies brought before me. When people—when judges 

have acted in ways that do not bring repute on the judicial office 

for making comments that are arguably improper, I have been on 

panels where we have replaced a judge who has done that. 

When lawyers fail to fulfill their obligations, I have commented, 

when appropriate, in cases and controversies properly before me. I 

have, in fact, even sent a lawyer to referral to the bar. 

Senator, I have worked to try and provide representation to individuals when I have seen pro se handwritten complaints that seem 

to me to have merit. I have appointed lawyers in those cases. That 

is my record as a judge, and I can assure you I am nobody’s 

rubberstamp. 

Senator HIRONO. So when you were speaking about certain comments being disheartening and demoralizing, you were merely 

speaking broadly? 

Judge GORSUCH. I do not think I was merely speaking broadly, 

Senator, with all due respect. 

Senator HIRONO. You were speaking broadly. 

Judge GORSUCH. Senator, I am speaking about anyone. 

Senator HIRONO. You were speaking broadly. 

Judge GORSUCH. Okay. 

Senator HIRONO. So Sean Spicer just tweeted regarding your 

comments on Trump’s attacks on judges, which you said were disheartening and demoralizing, and Sean Spicer just said you were 

speaking broadly. 

Let us move on. In your 2006 book on the future of assisted suicide, you argued that Casey should be read more as a decision 

based merely on respect for precedent rather than based on the recognition of constitutional protections for ‘‘personal autonomy’’—and 

that is in quotes, ‘‘personal autonomy’’—or for ‘‘intimate or personal’’—again in quotes—decisions. 

So you wrote that in your book, but since that time, well, in fact, 

before that time, in Casey, the Court relied on the protection for 

intimate and personal choices to decide many non-abortion cases, 

such as the—I always have a hard time pronouncing this, the 

Obergefell—— 

Judge GORSUCH. Obergefell. 

Senator HIRONO. You know which case I am talking about. 

Judge GORSUCH. I do, Senator. Yes, of course. 

Senator HIRONO. Thank you. Which recognized the right to marriage equality. 

Has the Court’s continued application of this right for personal 

and intimate choices changed your view that the Constitution does 

provide protections for intimate and personal decisions? 
229 

Judge GORSUCH. Senator, I have never expressed personal views 

as a judge on this subject, and that is because my personal views 

do not matter. Obergefell is a precedent of the U.S. Supreme Court. 

It entitles persons to engage in single-sex marriage. That is a right 

that the Supreme Court has recognized. It is a precedent of the 

U.S. Supreme Court, entitled all the deference due a precedent of 

the U.S. Supreme Court, and that is quite a lot. 

Senator HIRONO. So in your view, the Constitution does provide 

protections for intimate and personal decisions, and we shall see 

how far that constitutional protected right goes in other decisions. 

So, basically, what you wrote in your book is your personal opinion, and we can pretty much forget about it. Not to be rude to you. 

Judge GORSUCH. Senator, no, no. Not at all. I am not sure I 

tracked the question, though. I think it is me, not you. 

Senator HIRONO. Well, okay. Let us move on. 

During the presidential campaign, Donald Trump laid out his litmus test—and I only have 43, 42 seconds—for nominating a Justice. And he did say that he would want someone who is going to 

overturn Roe v. Wade and that gun rights would be protected, making it pretty tough for Congress to pass what I would call sensible 

gun legislation, and that, basically, the religious rights of entities 

such as Hobby Lobby would be protected. 

So I said in my opening that it is—you know, I would assume 

that you comported with the President’s litmus test. Otherwise, 

you would not be here. And do you think that you have provided 

us with any particular information that would cause us to believe, 

aside from your statement that you will be fair, that you do not 

meet these litmus tests? 

Judge GORSUCH. Senator—— 

Senator HIRONO. And because I have run out of time, you can 

provide that information to our Committee. 

Judge GORSUCH. May I respond, Mr. Chairman? 

Senator TILLIS. Yes. 

Judge GORSUCH. Senator, I have been here for 2 days. I will be 

here for a third. I hope I have given you some picture of my credentials, my experience, my track record as a judge. I hope I have 

given you some sense, too, that I have rejected litmus tests since 

the day I was a lawyer in print for judges. 

I hope I have given you some view into the way I think about 

the independent judiciary, about the sort of judges I admire, about 

the things that I think are important in our separation of powers. 

I hope I have given you some sense of my track record. Ninetyseven percent of the time, unanimous decisions. Ninety-nine percent of the time in the majority. Been reversed maybe once by the 

U.S. Supreme Court, that is arguable, in 10 years. 

I hope I have given you some picture of who I am and my record. 

No one else speaks for me, and I do not speak for anyone else, Senator. I really appreciate the chance to have this conversation with 

you. 

Senator HIRONO. Thank you. We will see you tomorrow also. 

Judge GORSUCH. Thank you. 

Senator HIRONO. Thank you, Mr. Chairman. 

Senator TILLIS. Judge, we are going to give you the option of a 

10-minute break. But instead of saying time certain of, well, it 
230 

would be 7:57 p.m., as soon as you get back, we will get started. 

And we will go to rodeo rules. So we will make sure that we do 

not go over 8 seconds. In the West, you would at least understand 

that. 

So we will adjourn. We will start no later than 7:57 p.m. 

Judge GORSUCH. Thank you, Senator. I appreciate it. 

Senator TILLIS. Or not adjourn. Recess. 

[Recess.] 

Senator TILLIS. I call the Committee back to order. 

Judge GORSUCH. No, I am fine, thank you. 

Senator TILLIS. Judge, my first very important question, please 

pronounce your last name. 

[Laughter.] 

Judge GORSUCH. I have answered to a lot of things, Senator. 

‘‘Gorsuch’’ is how I say it, but—— 

Senator TILLIS. The reason I ask that question is we had probably four or five cheat sheets up here with different phonetics. So, 

that is ‘‘Gor-such, right?’’ 

Judge GORSUCH. That is how I would say it, but—— 

Senator TILLIS. For the press, it is ‘‘Gor-such.’’ For everybody in 

the audience, it is ‘‘Gor-such.’’ And I give my staff credit for actually getting it right, but I had a crisis of confidence when I saw the 

other cheat sheets. 

[Laughter.] 

Senator TILLIS. I want to thank you for being here. And, Judge, 

I want to tell you, I grew up in the Southeast and I love skiing. 

It just never occurred to me to do it when the water was frozen. 

[Laughter.] 

Judge GORSUCH. Well, we will forgive you that. 

Senator TILLIS. But I love the fact that you are an outdoorsman 

because it means you love our environment, you love being outdoors, and you want to leave a good healthy environment for your 

children and everybody’s children. 

Senator Franken said that he had a career in identifying absurdity. I felt like I joined one when I joined the U.S. Senate. 

[Laughter.] 

Senator TILLIS. And I am going to talk a little bit about that 

today. 

Yesterday I was saying I wanted to have you talk more and me 

less. I am not sure if I can live up to that promise because I want 

to go through a number of things. I am a numbers guy. I like the 

fact that you have repeated the numbers in your track record on 

the bench. Best I can tell, if I double the number of cases that people have made an issue with you. That is .003 of your cases, threetenths of, what is that, one-thousandth of your cases are in question here. 

And I am going to go back to those because they are fairly limited, but before I do let me talk about another piece of absurdity. 

The absurdity would be talking about how President Trump set 

some sort of a litmus test and not recognizing that candidate Clinton told a town hall audience, ‘‘I have a bunch of litmus tests. We 

have to preserve marriage equality, and we have to make sure Roe 

v. Wade stays in place.’’ That sounds like a litmus test. I would not 

have used that comment by a candidate if we were going with a 
231 

President Clinton nomination. I do not understand why it is relevant here. It is not you. We are here to talk about you and your 

qualifications. 

Another absurdity that I think we will see over the next couple 

of days is the absurdity of people saying that you are sidestepping 

the questions about cases that may come before you. I actually 

think you are following a code of conduct. You are following the 

Code of Conduct for United States Judges. You are following the 

American Bar Association Model Code of Judicial Conduct, Rule 

2.10(a) and (b). I appreciate you respecting and living what you 

say, and that is the rule of law and code of conduct of judges. 

Now, I want to get into some specific cases, and I guess I will 

start with freedom of speech. 

Judge Gorsuch, I am going to read some of my notes because I 

want to make sure I get my points right. I want to also apologize 

again because I may do a little bit of talking, but I do believe the 

First Amendment states, ‘‘Congress shall make no law respecting 

an establishment of religion or prohibiting the free exercise thereof, 

or abridging the freedom of speech, or of the press, or the right of 

the people peaceably to assemble, and to petition the Government 

for a redress of grievances.’’ I think the first few words mean something very significant, and I think that you do, too. 

Now, clearly this amendment is not meant to limit the ability of 

the Federal Government to curtail free speech. Do you agree that 

the Founders intended this amendment to be a check on the Federal Government? 

Judge GORSUCH. Senator, that is what it is. 

Senator TILLIS. Is it fair to say the Framers, when they were 

crafting this First Amendment, were concerned especially about political speech as opposed to, say, activity like exotic dancing or 

other speeches or activities that people argue are covered by the 

First Amendment? 

Judge GORSUCH. The Supreme Court has held that political 

speech is the core of the First Amendment. 

Senator TILLIS. So, it is fair to say the Supreme Court has routinely held that political speech, especially during a campaign for 

public office, is at the core of the First Amendment. 

Judge GORSUCH. It has. 

Senator TILLIS. A lot has been said today about money in politics 

and a landmark case called Citizens United. Citizens United is a 

very popular punching bag for some of my colleagues across the 

aisle. You spent a lot of time talking about this with Senator 

Whitehouse earlier today. 

If you listen to them on the subject, you would think this decision resulted in the ability for a corporation to pump hundreds of 

millions of dollars directly to political candidates. The facts of the 

case get wrapped around buzz words like ‘‘dark money.’’ However, 

I want to use some time today to walk through the facts of this 

case. 

First, at its very baseline, this case was a challenge brought to 

a Federal statute. The Federal Government through Congress 

passed a statute aimed at limiting certain speech, and it was Congress’ activities in regards to speech that the Framers were concerned about. In fact, the statute prohibited entities, such as cor-
232 

porations, including non-profits and labor unions, from using their 

general treasury to fund any advertisement that used the candidate’s name within 30 days of a primary or 60 days of a general 

election, including to promote a movie, as well as many express advocacy communications. 

This case had nothing to do with direct contributions and spending coordinated with specific campaigns and candidates. In other 

words, this case is not about corporations making direct campaign 

contributions at all. Citizens United was about an entity’s ability 

to speak independently of any candidate or campaign. 

Judge Gorsuch, do you remember what behavior was in question 

or, in other words, what the Citizens United wanted to advertise? 

Judge GORSUCH. Well, as you say, Senator, there was a movie involved. 

Senator TILLIS. The organization wanted to broadcast the film or 

to advertise the film before a 2008 Democratic primary. The Federal Government went into court and said a nonprofit could not 

produce or advertise a movie highly critical of a candidate. Judge 

Gorsuch, are you familiar with the oral arguments of the case? 

Judge GORSUCH. I remember listening to them on tape at one 

point, but it has been a while, Senator. 

Senator TILLIS. Well, during the initial oral argument for the 

case, the Government was asked whether or not the same law 

could prevent a company from publishing a book that was the functional equivalent of expressed advocacy. Specifically, Chief Justice 

Roberts asked, ‘‘If it is a 500-page book, and at the end it says so 

vote for X, the Government could ban that?’’ The response from the 

Deputy Solicitor General who was defending the statute, stated, 

‘‘We could prohibit the publication of the book.’’ 

In the oral arguments, Justice Souter stated, ‘‘To point out how 

far your argument would go, what if a labor union paid an author 

to write a book advocating for the election of A and defeat B, and 

after the manuscript was prepared, they went to a commercial publisher, and they go to Random House, and Random House says, 

yes, we will publish that. We are talking about how far the constitutional ban would go, and we are talking about books.’’ The 

Deputy Solicitor General said, ‘‘The labor unions’ conduct would be 

prohibited.’’ He goes on to say, ‘‘I think it would be constitutional 

to forbid the labor union to do that.’’ 

I want everybody here to know and everybody who is listening 

to realize the consequences of this position. The Government at one 

point defended the statute by saying it could prevent the publication of a book by a corporation like Random House if the book advocated for or against a candidate. 

That is not the end of the story. The Supreme Court ordered reargument. Then the Solicitor General, Kagan, slightly retreated 

from the Government’s position. Then Solicitor General Kagan said 

that while the law could apply to a book, the Government had not 

applied it in the past. But when asked again by Chief Justice Roberts about a pamphlet, she responded, ‘‘I think a pamphlet would 

be different. A pamphlet is classic electioneering.’’ 

Again, I want everybody listening to realize what we are talking 

about here when we talk about Citizens United. They argue that 

there was constitutional authority to actually prevent the pub-
233 

lishing of a pamphlet opposing a candidate if produced by a nonprofit organization. We as a country have a long history of people 

being able to criticize the Government, which includes specific offices in Government. Sometimes this was done anonymously because disclosing the speakers’ identity had serious implications, 

whether it was the American Revolution, the Jim Crow South, or 

today. Therefore, we must be cautious in giving the Federal Government, including the executive branch, power to limit or penalize 

for political speech. 

Judge Gorsuch, you may not be able to see that. Do you recognize this book? 

Judge GORSUCH. I cannot see it. I am sorry. 

Senator TILLIS. We got this from the Library of Congress. It is 

a collection of some of Thomas Paine’s writings, including, ‘‘Common Sense,’’ and political writings. In this pamphlet, he urged the 

American colonies to declare independence and sever ties with the 

British monarchy. What some of my colleagues from the other side 

have attempted to do is tie you to a court case which you had nothing to do with. They painted a picture of this case as support for 

big money in politics where big corporations win and the voter 

loses. 

In reality, the facts of this case were much different. The Federal 

Government argued it could stop a movie because it contained political speech. Then it argued it could ban a book because it contained such speech. Then it argued it could ban a pamphlet because it contained such speech. That is the Citizens United case. 

I find it curious my friends are so concerned about Executive power 

and not concerned about the Federal Government arguing its authority to prevent production of movies, books, and pamphlets. It 

is foundational to our democracy. 

So, as I stated previously, they are attempting to link you to Citizens United, and continue a narrative that I think is absurd, that 

as a judge you will support big money and corporations and never 

side with the little guy. The facts dispute that. The number of 

cases you have heard dispute that. 

Now, I want to close out here with a little bit of discussion about 

your political positions or your past being instructive to the decision by some as to whether or not they should support your confirmation. Let us talk a little bit about now Justice Kagan on Citizens United as the Solicitor General. 

The reason that this came to my attention today was earlier 

when people were asking about the role that you played when you 

were working as an attorney on behalf of the Government. So, who 

was your client? 

Judge GORSUCH. The United States. 

Senator TILLIS. So, let me go back to when Justice Kagan was 

Solicitor General. When she was nominated, she was a lawyer at 

the Department of Justice. In fact, she was the Solicitor General. 

As we have talked about, she argued with Citizens United. Now, 

she pressed the argument that the Government had the authority 

to prevent the publication not only of movies, but other forms of political speech, like a pamphelt. 

She accounted for her arguments as Solicitor General this way, 

her quote, ‘‘I have tried very hard to take the cases and to make 
234 

the decisions that are in the interest of my client, which is the U.S. 

Government.’’ My guess is, that is what you were doing when you 

were in a different role representing the U.S. Government. I think 

that what she did was advocate for her client. You would do the 

same. Whether or not I would have voted for her, we will never 

know because I was not here. 

But I also want to bring up one thing. Another Member brought 

up an email sent to you in 2004 where you noted that you had volunteered on a political campaign. Well, once again you may recall 

that Justice Kagan also had quite a political career before she became judge. After she was nominated to the Supreme Court, after 

reviewing her emails from the Clinton White House, the AP published a report saying that as a White House aide, she had a flair 

of political tactics and often had to place political considerations before political views. And the LA Times reported, ‘‘She worked in the 

research department defending [Democratic candidates] from political attacks and conducting research on the opposition.’’ 

I do not think there is much more to say about it either except 

to say this. In spite of her position to argue that things like pamphlets and movies could actually be, well, banned, in spite of her 

political activities that seem to have reached to a far greater level 

than your own, when she came before this Senate, Republicans 

joined with Democrats, and through unanimous consent did not 

force cloture. They moved on to the vote. And quite honestly, Republicans were in a position to delay confirmation. 

On Kagan and on Sotomayor, Republicans respected the President’s authority to appoint a Supreme Court Justice, and Republicans did the right thing by moving forward and allowing the confirmation. So, I think that we have a moral high ground here that 

my colleagues on the other side of the aisle should take note of. 

Now, I want to get to other stuff. 

Judge Gorsuch, I want you to go back briefly. I have 15 minutes, 

and I am going to go really quickly. This will be a lightning round. 

The ethics class. I am going to go back to absurdity. I appreciate 

that Senator Franken mentioned what he did because it is a perfect theme for my line of questions. There is going to be a lot of 

it spun in the press, and I want to see if maybe a few people will 

actually listen to the answers to these questions. 

It had to do with the letters that came from the class that you 

teach on ethics. Can you tell me again briefly about the course curriculum? 

Judge GORSUCH. I can try, Senator. I am very heartened by the 

fact that scores and scores of my former students have written this 

Committee on my behalf. 

Senator TILLIS. And I am going to seek unanimous consent to put 

some letters of support into the record. 

[The information appears as submissions for the record.] 

Judge GORSUCH. And over the last 7 or 8 years, I have used the 

same textbook. You can take a look at the teaching manual and 

you will see exactly what we discussed. 

Senator TILLIS. So, it was not an arbitrary comment. It was not 

something that was done in this one segment. It was something 

that was a part of a well-thought-out curriculum, and it started a 

discussion that I have letters that without objection I would like 
235 

to submit to the record, that suggest the same. But it was not 

something—it was not arbitrary. It was not off the cuff. It was 

something that was a part of a curriculum that had existed for how 

long? 

Judge GORSUCH. Seven or 8 years, Senator. 

Senator TILLIS. Okay. I would like to seek unanimous consent 

that I can put forth a series of documents from former students 

speaking specifically to the letter that you were informed of the day 

before yesterday, and other students that were in your class that 

saw the facts differently, and some other documents that I think 

will be good reference for the other Members to review. Without objection. 

[The information appears as submissions for the record.] 

Senator TILLIS. Okay. Now, I want to move into a couple of 

things that I really want to get to in the TransAm Trucking case. 

First off, you have given me hope that I could actually understand 

legal opinions. Yours are well-written. One of them was your dissent on TransAm Trucking. 

You are not here to have a heart. You are here to interpret and 

apply the law, and I appreciate that about you because I suspect 

you have a really big heart. But I thought it interesting. 

I highlighted several parts in your dissent. One was when they 

suggested that he should drag the trailor instead of keeping it 

there or leaving it there. Your parenthetical comment, ‘‘That was 

an illegal and maybe sarcastically offered option.’’ So, you did not 

consider that a viable option. There are going to be people here 

that say that you were okay with that. That is wrong. It is absurd. 

And then the other one was, he could sit and wait for the truck 

to arrive, and you parenthetically said, ‘‘A legal, if unpleasant, option.’’ 

You went on to say in your dissent, ‘‘It might be fair to ask 

whether the TransAm decision was a wise or kind one, but it is not 

our job to answer questions like that. Our only task is to decide 

whether the decision was an illegal one.’’ And then you go on to say 

that, ‘‘There is simply no law anyone has pointed giving employees 

the right to operate vehicles in a way the employers forbid.’’ 

I think that if you go back and people read these dissents, it is 

hard for me to imagine that you arrived at this through any other 

conclusion but for the fact that Congress had not explicitly provided you the authority that you thought you needed or the reference point that you thought you needed to judge otherwise. And 

my guess is when you rode home that night, you wished that they 

probably had., 

Now, I also thought what was interesting in your dissent was 

you kind of gave some suggestions to maybe how things should 

have been done differently or how we should have done our job better, so that maybe you would have been in a position to come up 

with a different judgment. But that is our job. You told Senator 

Whitehouse, ‘‘It is not my job to do your job.’’ That was one of your 

best quotes of the hearing today. 

And you are absolutely right. It is our job is to make value judgments. It is our jobs to get votes, and our jobs to answer to the 

American people every time we get elected or go to a campaign 
236 

every 2 years or 6 years. So, I, for one, think that you came up 

with a well-reasoned dissent in TransAm Trucking. 

Now, I want to move to one that I just want to make sure I have 

time to get to because it is one where, you know, quite honestly, 

I would have completely loved for you to go the other way, but you 

did the right thing. And it is purely by coincidence, and it really 

is, I am wearing an autism pin today because I am a big advocate 

for autism research and Autism Speaks. I do not have any personal 

family experience with it, but it is something to me that is very important. 

In Thompson R2–J School District v. Luke P., you all came up 

with a decision that was contrary to what I would like to do for 

parents and families who have children with autism, who are in 

the public school system and not getting the results that they 

would hope to get. And in this case, again, I think you have the 

IDEA absolutely right. 

There is no way that you could have reached that far to support 

what clearly had to be—in this case it was an appeal—that would 

have been sympathetic to Luke P. and his parents. You made the 

right decision. 

You know what I did in North Carolina? I changed the law. I did 

my job. You made it very clear that the IDEA did not do it, so as 

Speaker of the House, we went in there and we said that if a parent, after spending a year in public school, did not think that their 

child was getting what they needed, then we would actually allow 

them to go to a private school and have money follow them so they 

can do it. So, by doing my job, we have a few hundred kids now 

who are getting the education that they need in a private school 

setting. 

Thank you for forcing me to do my job. It preceeded my time as 

Speaker of the House, but we knew we had run into problems 

there, and we solved the problem. Thank you for making us do our 

jobs. 

And then finally, the case—I want to go back to quickly to make 

sure I have my notes right. One thing I like about you is sometimes your decisions seem to make everybody mad, which probably 

means it is a pretty good decision. So, I think sometimes maybe 

you even exceed the 50 percent rule. 

[Laughter.] 

Senator TILLIS. Like the case—— 

Judge GORSUCH. My daughters would agree with you. 

Senator TILLIS. Like the case in Riddle v. Hickenlooper. You recognized that a minority political party was being treated unfairly 

as a result of actions that were taken—I do not know if there were 

Democrats or Republicans in control when they passed that. But 

that was a classic example where you obeyed the law. 

The other thing that was interesting about that case is you actually provided some food for thought on how maybe they could solve 

that problem that would be constitutionally sound, and I have 

found that in other examples. I love the fact that you do not believe 

that judges, after they have heard the argument, should go back 

and create new arguments to arrive at a decision. 
237 

In your dissents and in your opinions, you basically say you all 

should have done that, not a bunch of judges in a room when they 

are deliberating. So, I think you were giving them food for thought. 

That is extraordinary that you would do that kind of work. That 

is why you are going to make a great Justice on the Supreme 

Court, and that is why I fully support you. And I will call out absurdity every time I hear it this week and next week. 

I will ask my colleagues to do what Republicans did before I have 

here: respect the President’s right to seat somebody on the Supreme Court. They do not have to vote, for you, but you deserve 

an up or down vote. I have voted for cloture on a nominee, an Attorney General that I did not vote for. But I respect this institution 

and this process enough to let it go forward. 

So, I am going to work very hard to support you. I am not an 

attorney, but I did stay at a Holiday Inn Express a few weeks ago. 

Outside of watching ‘‘Law and Order’’ every once in a while when 

I get home late and unwind, I do not practice law. But I can tell 

based on what I have heard today you are a man of extraordinary 

patience. 

Yesterday, I mentioned that I thought your at-rest heart rate 

was about four. I saw it spike up 50 percent maybe to five or six 

today. 

[Laughter.] 

Senator TILLIS. I will leave you with this. Peyton Manning, who 

I love, he went to University of Tennessee, and then he tarnished 

his career by going on to the Broncos and beating the Panthers in 

the Super Bowl. 

Judge GORSUCH. Oh. 

[Laughter.] 

Judge GORSUCH. Oh. 

Senator TILLIS. But let me tell you something—I love Peyton 

Manning. In fact, I have a quote on the walls in my office that I 

make my staff look at every day, and it says, ‘‘Pressure is just 

something you feel when you don’t know what you’re doing.’’ You 

clearly know what you are doing. You have not exhibited one iota 

of pressure. That is what is going to make you a great Justice. 

The respect that you have shown when disrespectful questions 

were lobbed your way was remarkable, and I appreciate you being 

here. I appreciate your patience, and I am going to yield back the 

rest of my time. 

But I will say that the break after 7 tonight also does not replace 

date night, so you owe your patient wife a good dinner after all this 

is done. But thank you, and I yield back the rest of my time. 

The Senator from Louisiana. 

Judge GORSUCH. Senator, thank you. 

Senator TILLIS. Yes, and by the way, you did not get to talk 

much, but I promise tomorrow you will get to talk a lot. 

[Laughter.] 

Judge GORSUCH. I have heard myself speak more today than I 

am accustomed to. 

Senator TILLIS. The Senator from Louisiana. 

Senator KENNEDY. How you doing, Judge? 

Judge GORSUCH. I am great. How about yourself? 

Senator KENNEDY. You are that close to being done. That close. 
238 

I think you have done pretty well today, and I just want to go 

on record as saying this is—this is an important nomination, and 

I appreciate all the questions asked today, even the ones I disagree 

with. I did not know what to expect. I mean, this thing could have 

turned into ‘‘The Gong Show’’ real easily. It did not, and I appreciate that. 

I want to ask you a couple of questions, some things that maybe 

we did not get to talk about much. First, why have you recused 

yourself in almost a thousand cases? 

Judge GORSUCH. Well, Senator, in the Tenth Circuit, we have 

procedures, and one of the procedures is we make a list of all potential recusal possibilities. And for me it was significant because 

I had been in the Government in a position where we oversaw a 

number of different litigating units. That causes a fair amount of 

recusal right there. 

And, Senator, I was blessed with an active and robust practice, 

and partners who went on to do much better without me than they 

did with me, and they had a lot of clients. And it was my view as 

a Circuit Judge that I did not want to cause an unnecessary 

recusal problem later. Sometimes after a court decides a case, a 

recusal issue pops up. Judges miss things. We are human. It happens. 

The problem when that happens, of course, is then you have to 

get a new judge in and start everything all over again. That is a 

cost to the system that is not insignificant to your colleagues and 

taxing on them. And it also raises questions, of course, to the parties who have to start all that over, and it cost them money and 

time. And I did not want to create that kind of problem for the litigants and for my colleagues. 

And so, I set up a process consistent with the practice of my colleagues. I talked to my colleagues about how they do it, and tried 

to conform with the practices of the Tenth Circuit as best I could. 

And as you know, most of the recusals were not really—I mean, 

‘‘recusal’’ is not even the right word. They are screened out—— 

Senator KENNEDY. Right. 

Judge GORSUCH. By the clerk’s office before they ever get to me. 

We are on a wheel. 

Senator KENNEDY. Right. 

Judge GORSUCH. And so, I just get the next one on the wheel. 

Everybody gets the same workload. 

Senator KENNEDY. Right. 

Judge GORSUCH. It does not affect our workload, but it does affect confidence in the judiciary and—— 

Senator KENNEDY. The recusal rules are different for the U.S. 

Supreme Court as I appreciate it. 

Judge GORSUCH. Yes, Senator. 

Senator KENNEDY. Okay. I want to ask you about the relationship between the United States Constitution and a State constitution and the interaction. And let me get specific so you will know 

what I am talking about. 

I think this is well-settled law. A DWI, we call DWI in Louisiana. 

Some States call it DUI, but a DWI roadblock. I think it is wellsettled in a number of cases in the U.S. Supreme Court that says 

a DWI roadblock, so long as you use neutral criteria, is perfectly 
239 

permissible under the Fourth Amendment. If I say anything wrong, 

stop me. It is clearly a seizure, but as long as you have neutral criteria. 

Do you remember why the Supreme Court made that decision? 

Judge GORSUCH. I am sure you are going to tell me, Senator. 

Senator KENNEDY. Well, if you—if you do not know, I will—my 

understanding is that the Constitution only protects against unreasonable searches and seizures. 

Judge GORSUCH. Right. 

Senator KENNEDY. And the Court balanced the public interest 

versus the extent of the privacy violation. But let us suppose—so 

that is well-settled law. You can—under the Federal Constitution, 

you can have a DWI roadblock. 

Let us suppose the Supreme Court of Massachusetts—I wish— 

I wish Attorney Franken was here, said, you know, we appreciate 

that, and we appreciate that is a Federal law, but we have a 

Fourth Amendment in the Massachusetts Constitution, and we 

want to go further, and we want to outlaw roadblocks. We want to 

give more protection. We do not want to take away protection that 

our citizens have under the United States Constitution, protection 

from Government. We want to give them more protection from Government, and no roadblocks period. 

Do you think that is permissible? 

Judge GORSUCH. Senator, generally speaking, decisions based on 

independent and adequate State grounds are permissible. The primary precedent in this area is Michigan v. Long, a decision by Justice O’Connor. The State has to make clear that it is deciding on 

independent and adequate State grounds and not resting on the 

U.S. Constitution. If there is some ambiguity, we may as Federal 

judges consider it to be a decision based on Federal law. But a 

State is free to add to the liberties of the people, generally speaking. 

Senator KENNEDY. Yes. Well, what if the adequate and independent State grounds are not clear? What do you do? 

Judge GORSUCH. Well, that is Michigan v. Long, and there is a 

precedent, and there is a test for it. And, again, if it looks like it 

could have been on the—on Federal—the decision could have been 

made on Federal grounds, then the Federal court will examine it 

on that basis. If the State court makes clear that it is independent 

and adequate State grounds, why then State law controls. 

Senator KENNEDY. Do you think it makes sense—I mean, is not 

the law complicated enough? Do we really need 50 rules for DWI 

roadblocks? 

Judge GORSUCH. Well, Senator, we have this thing called federalism. 

Senator KENNEDY. I have heard of it. 

Judge GORSUCH. Yes, I figured you might. And it is part of our 

separation of powers, and it is part of how we preserve liberty, 

right? We diffuse power to protect liberty, and Federalism is a key 

part of it. 

Senator KENNEDY. Okay. I have not read all your cases, but I 

have not seen many where you dealt with substantive due process 

or equal protection, so I want to talk about that for a few minutes. 
240 

If you have a case where you do not have a fundamental right 

or a fundamental liberty, and you do not have a suspect classification, so you are not going to use strict scrutiny. You are going to 

be—you are going to use the rational basis test, which means you 

are going to uphold the statute if the legislature has a rational reason that is connected to a legitimate goal. 

How far do you go? How closely do you think Federal judges 

should examine what the legislature does? Is it a rational reason? 

Is it any reason? Is it—do you make up the reason for them? Have 

you ever heard of rational basis with bite? 

Judge GORSUCH. I have, Senator. And before we get to that, I 

think it is important to acknowledge there is also intermediate 

scrutiny. 

Senator KENNEDY. That is true. 

Judge GORSUCH. And, for example, many gender cases. 

Senator KENNEDY. For gender, but I am talking about just plain 

old variety, no gender, no race, no kind of special heightened scrutiny, just rational basis. 

Judge GORSUCH. The Supreme Court has indicated what you are 

describing as rational basis with bite. But sometimes if there is a 

discriminatory animus present, even though there might be a legitimate rational basis one could conjure for the rule, that might 

fail strict scrutiny, Senator. 

Senator KENNEDY. Yes. What does the rational basis test mean 

to you? 

Judge GORSUCH. Well, generally speaking, usually speaking, it 

means that if there is any rational reason that one can conjure for 

the rule, it stands out of deference to the legislative process. 

Senator KENNEDY. Does it have to be a good reason? 

Judge GORSUCH. It has to be a rational reason, not one that I 

find personally persuasive, but one that someone could find persuasive. 

Senator KENNEDY. Okay. 

Judge GORSUCH. That is out of deference to the lawmaking process of this body, Senator. 

Senator KENNEDY. Understand. I want to ask you about the 

TransAm case. It has been talked about a lot. You dissented. Pretty 

tough facts. Your dissent probably, I guess, made you about as popular as cholera. 

Judge GORSUCH. It seems so. 

Senator KENNEDY. But as I understand it, you just looked at the 

statute, and what—tell me what you, what the statute said again? 

Judge GORSUCH. It said that an employee who refuses to operate 

a motor vehicle has certain legal protections from firing. 

Senator KENNEDY. But he did not refuse. He operated. 

Judge GORSUCH. That is what I thought the facts suggested, Senator. 

Senator KENNEDY. Yes. Well, I thought about that case when I 

was reading a case of yours that I commented on yesterday, A.M. 

v. Holmes, another case. Pretty recent, last year. And as I—as I appreciate it, the majority opinion was kind of tough to get through. 

It was, like, 95 or a hundred pages. But 13-year-old kid, seventh 

grader, he is fake burping in class. 

Judge GORSUCH. He is. 
241 

Senator KENNEDY. And he is pretty good at it. 

Judge GORSUCH. He is very good at it apparently. 

Senator KENNEDY. He disrupts the whole class. 

Judge GORSUCH. He does. 

Senator KENNEDY. So, the teacher takes him out, sits him down 

in the hall, calls the assistant principal. She calls the police officer, 

I guess, assigned to the school. They take him to the principal’s office, and the police officer arrests him, and the kid’s mom sues. I 

think it was a 1983 action if I recall. 

Judge GORSUCH. That is right. 

Senator KENNEDY. His mom sues, and the majority held qualified 

immunity. 

And so, this is the way you described the case. ‘‘If a seventh 

grader starts trading fake burps for laughs in gym class, what is 

a teacher to do, order extra laps, detention, a trip to the principal’s 

office? Maybe. But then again, maybe that is too old school. Maybe 

today you call a police officer. And maybe today the officer decides 

that instead of just escorting the now compliant 13-year-old to the 

principal’s office, an arrest would be a better idea. So, out come the 

handcuffs and off goes the child to juvenile detention. My colleagues,’’ the majority, ‘‘suggest the law permits exactly this option, 

and they offer 94 pages explaining why they think that is so. Respectfully, I remain unpersuaded.’’ 

But it is your last paragraph in that opinion that made me think 

of TransAm. You went on to explain why you interpreted the statute to be contrary to the majority opinion. But this is how you 

wrapped it up: ‘‘Often enough the law can be a ass—a idiot,’’ 

quoting Dickens in Oliver Twist,—‘‘and there is little we judges can 

do about it, for it is, or should be, emphatically our job to apply, 

not rewrite, the law enacted acted by the people’s representatives. 

Indeed, a judge who likes every result he reaches is very likely a 

bad judge, reaching for results he prefers rather than those the law 

compels. So, it is I admire my colleagues today, for no doubt they 

reach a result they dislike, but believe the law demands. And in 

that, I see the best of our profession and much do admire. It is only 

that in this particular case, I do not believe the law happens to be 

quite as much of a ass as they do, and I respectfully dissent.’’ 

Is that what happened in TransAm? 

Judge GORSUCH. That is who I am, Senator. 

Senator KENNEDY. Can you tell me something that you think is 

a good idea, but you think is unconstitutional? 

Judge GORSUCH. Oh, Senator—— 

[Laughter.] 

Judge GORSUCH. It has been a long day. 

Senator KENNEDY. I know. 

[Laughter.] 

Senator KENNEDY. And you are this close to ‘‘CSI Miami,’’ okay? 

Judge GORSUCH. No. No, no, no. 

[Laughter.] 

Judge GORSUCH. Senator, I have loved every minute I have spent 

with you and with all of your colleagues. I am sure I could conjure 

something. 

Senator KENNEDY. Well, think about it tonight. 
242 

Judge GORSUCH. But, Senator, I would not opine on it if I could. 

It is just not my job. It is just not—my job—as you just read it, 

that is how I see my job. And I respect my colleagues who see it 

differently because they did. They wrote a 94-page opinion in that 

case, a thoughtful one. 

Senator KENNEDY. Yes, I read it. 

Judge GORSUCH. And I respect them deeply, and the same thing 

in TransAm. Sometimes the law is what it is. They see it—I am 

sorry, Senator. 

Senator KENNEDY. No, you go ahead. 

Judge GORSUCH. No. We just do the best we can, day in and day 

out, in cases like these, and nobody hears about it. And it is the 

quiet, quiet work of judges trying to get it right. 

Senator KENNEDY. And that is why I enjoy your opinions, aside 

from the fact they are well-written. You kind of play outside the 

pocket. I mean, you adhere to the written word, which is what I 

want to ask you about next. 

It is clear you do not like labels, okay? You would not call yourself an originalist. 

Judge GORSUCH. Senator, I am happy to embrace that. I do not 

reject it. I just am concerned about the level of our discourse in this 

society today when we are often quick to dismiss one another—Republican, Democrat, whatever. 

Senator KENNEDY. That is fair enough. 

Judge GORSUCH. Whatever. 

Senator KENNEDY. That is fair enough. 

Judge GORSUCH. That is not the world I care to inhabit. I care 

to inhabit the respectful engagement of ideas with every person 

who comes before me. I do believe the original understanding of a 

text is very important to a judge, and I do believe any good judge 

wants to know that information, and I do. 

Senator KENNEDY. Yes, and I believe the phrase you use is ‘‘the 

original public understanding of the Constitution.’’ 

Judge GORSUCH. Yes, Senator. 

Senator KENNEDY. What does that mean? 

Judge GORSUCH. It means I am not looking for hidden intentions, 

trying to get inside, respectfully, your head. I am looking for the 

words you use. I am trying to understand what they mean, what 

a reasonable person at that time would have understood they 

mean, because that is the fixed meaning I can latch onto and say 

I am enforcing that, not my will. 

Senator KENNEDY. Is it the meaning of the—of the Drafters in 

17, what, 87—— 

Judge GORSUCH. No. 

Senator KENNEDY [continuing]. Or is it the meaning of the legislators who approved the Constitution, or is it the meaning of—the 

general meaning of the people? What if they did not contemplate 

it? 

Judge GORSUCH. Senator, they do not contemplate a lot of things 

that arise. Equal protection of the law, unreasonable search and 

seizure, these are broad terms, but we can give them content by 

looking to what the original understanding at the time was, all 

right? What a reasonable person would have understood them to 

mean, the fish case in the statutory construction scenario. 
243 

What would a reasonable reader understand that to mean? And 

it serves a couple of important functions. First, it does not necessarily decide cases. It does not determine outcomes, and no one 

is looking to go back to horses and buggies. 

Senator KENNEDY. I know that. 

Judge GORSUCH. Right. What it does do is give us a way to communicate with one another that is neutral, that we are aiming at 

something outside ourselves as a basis for decision. That is part of 

the separation of powers. Not legislating, judging. 

Senator KENNEDY. I get that. 

Judge GORSUCH. Second, it is a due process concern. 

Senator KENNEDY. I get it. 

Judge GORSUCH. It is a fair notice concern. I can charge—I am 

putting people in prison for long periods of time as a judge. I am 

complicit in that. And I want to do it on the basis that I know that 

person had fair notice of the laws that are applicable to him or her. 

That is important to me, and with all judges. 

Senator KENNEDY. I do not mean to cut you off. 

Judge GORSUCH. Oh, I am sorry. 

Senator KENNEDY. I just have to be mindful of the clock. 

Judge GORSUCH. I am sorry. 

Senator KENNEDY. What is a penumbra? 

Judge GORSUCH. It means not just the thing itself, but what surrounds it. 

Senator KENNEDY. What is a legal penumbra? 

Judge GORSUCH. Senator, that is a phrase that has been used in 

opinions by the Court. 

Senator KENNEDY. Do you believe there are unenumerated rights 

in our Constitution? 

Judge GORSUCH. Senator, the Supreme Court interprets the Constitution, and that is a legitimate function of the U.S. Supreme 

Court. And in interpreting the Constitution, it necessarily declares 

in this case or that case. It sets a precedent as it interprets. 

I come back to the GPS case because I think it is a wonderful 

example, or Heller. That is another example. You can pick all sorts 

of examples where the Court is interpreting a textual right in the 

Constitution or a statute. 

Senator KENNEDY. Let me ask you about euthanasia. I did not 

read your whole book. 

Judge GORSUCH. I do not think many people have, Senator. 

Senator KENNEDY. But I read enough about it, and I read a little 

bit of it. I believe you are an Episcopalian? 

Judge GORSUCH. I attend an Episcopal church in Boulder with 

my family, Senator. 

Senator KENNEDY. I am a Methodist. I was a Presbyterian. When 

Becky and I got married, she was Methodist, and I was Presbyterian. We compromised, and I became a Methodist. 

[Laughter.] 

Judge GORSUCH. That is the way it works. 

Senator KENNEDY. But as I understand your thesis about euthanasia, which you oppose, it is not really based on religious teachings. It is based on secular, moral thinking. Tell me about that. Euthanasia, I mean, from one perspective, you know, if we have the 

right to control our bodies, if we have autonomy privacy and disclo-
244 

sure privacy and all that, you know, this idea of self-determination. 

But you believe it can lead to something worse. Is that your thesis? 

Judge GORSUCH. Well, Senator, this was in my capacity as a 

commentator before I became a judge. 

Senator KENNEDY. Sure. 

Judge GORSUCH. And as a student. 

Senator KENNEDY. Right. 

Judge GORSUCH. And when I was fortunate enough to get a 

scholarship to study law and a doctorate, and I know you have 

spent some time thinking about similar things in a similar place, 

it struck me as an important and unresolved legal issue that deserved some thinking and a contribution, where I could study and 

maybe add something to the discussion. Not that I have any great 

insights or perfect answers in this area. It is hard. 

Senator KENNEDY. I do not think anybody does. 

Judge GORSUCH. It is hard. I agree. I agree with that, Senator. 

And there I expressed the belief that—a conclusion as a commentator that the right to refuse treatment recognized in Cruzan by 

the U.S. Supreme Court was appropriate. People should be allowed 

to refuse treatment, go home, die in the arms of their family rather 

than being poked and prodded. 

At the same time, I agree with the Supreme Court as well that 

the right of—question of assisted suicide is primarily a State responsibility. And that is where in Glucksberg and Quill the Supreme Court has left the issue. Then the question becomes, what 

do you do? It is a question we all have to face. Do you legalize it 

or do you not? It is a hard question. 

Senator KENNEDY. If you legalize it, it cheapens life, doesn’t it? 

Judge GORSUCH. Senator, what I worry about is the least 

amongst us in those circumstances. 

Senator KENNEDY. The unprotected. 

Judge GORSUCH. My concern is that when you have a cheap option and an expensive option, people who cannot afford the expensive option, they are the ones who tend to get hurt—the disabled, 

the elderly, the weak, minorities. 

Senator KENNEDY. Yes. 

Judge GORSUCH. So, those are my concerts. I might be right, and 

I might be wrong. History will tell. And if I am right, great, and 

if I am wrong, yelling and screaming about it will not make many 

better at it. It will not make right. It was a contribution, part of 

a debate, part of a discussion. And I hope it was a respectful and 

useful contribution that at least one Senator has read, and otherwise, and up until about a month ago, I think primarily occupied 

a very dusty bookshelf somewhere in a law library. 

Senator KENNEDY. Do you prefer wet flies or dry? 

Judge GORSUCH. Dry. 

Senator KENNEDY. Dry. I do, too. 

[Laughter.] 

Judge GORSUCH. Happy to express my view on that. 

Senator KENNEDY. Do you use—do you use a floating line or a 

sinking line? 

Judge GORSUCH. Well, with a dry fly, a floating line. 

Senator KENNEDY. You have to use the dry, but you do not use 

wet flies with a sinking line to go after those trout? 
245 

Judge GORSUCH. Well, I have been known to cheat once in a 

while, and a bead head might go on as a drop or underneath my 

dry. 

Senator KENNEDY. Did you know President Obama at Harvard? 

Judge GORSUCH. Senator, I knew him, but not well. It is a big 

school. 

Senator KENNEDY. Yes. Was he one of those, like, front row guys 

that was always raising his hand, or did he kind of stay in the back 

row like I did and avoid eye contact with the professor so you 

would not get called on? You do not have to answer that. 

[Laughter.] 

Judge GORSUCH. We were in different sections, Senator. 

Senator KENNEDY. Okay. All right. I just want to ask you one 

last one. It is about legislative intent. You have—I have read where 

you have said that trying to discern legislative intent is a ‘‘notoriously doubtful business,’’ and I agree with that. I mean, legislators 

and Congress people have a multitude of reasons for voting as they 

do. But that does not make it—the search for legislative intent and 

looking at the legislative history, it may not be dispositive, but that 

does not make it useless. 

I mean, would you not love to have a verbatim transcript of everything that was said at the, what was, 1787 Convention, 1789? 

Judge GORSUCH. Senator, I respect very much what this body 

does. I hope my career, my body of work reflects my respect for this 

institution. As a judge, I have to look at what is presented to me, 

and I look at everything that is presented to me. Everything that 

is presented to me. I read everything that is presented to me. And 

I have used legislative history from time to time, as you have seen, 

and I know you have read a whole lot of my stuff. 

I do worry when I am putting someone in prison, for example, 

or taking—involved in a ruling involving their liberty in particular, 

about charging them with knowledge of what happens in a Committee room, or a statement that might be presented only on the 

floor by one individual rather than by the law, that has suffered 

through the process of compromise, bicameralism in both houses, 

and presentment and signature by the President, and it goes in the 

law books. 

Hidden law can be a problem. I worry a little bit about that, particularly in the criminal context, Senator. It is a matter, again, of 

due process and fair notice. So, those are the considerations that 

a judge, I think, always considers: what is fair in terms of due 

process and fair notice, at the same time being respectful of this 

institution and the hard work you do for the American people. 

Senator KENNEDY. I do not know if you are a drinking man, but 

you may want to have a cocktail tonight and just kind of relax. I 

am done. Just do not drink vodka. Stay away from vodka for a 

while. 

[Laughter.] 

Judge GORSUCH. Senator, I am going to hit the hay. 

[Laughter.] 

Judge GORSUCH. Thank you very much. 

Senator KENNEDY. You have never been to Russia, have you? I 

meant to ask that—— 

[Laughter.] 
246 

Senator KENNEDY. Strike that. Strike that question. 

Judge GORSUCH. I have never been to Russia. 

[Laughter.] 

Senator KENNEDY. Thank you, Judge. Thank you, Mr. Chairman. 

Judge GORSUCH. Thank you, Senator. Thank you. 

Senator KENNEDY. Let us go home. 

Senator TILLIS. Thank you, Senator Kennedy. Judge, you are 

done for the day. We want to extend thanks to you and to the fellow Members who played it out. 

We will start a series of 20-minute rounds tomorrow, and I for 

one will be here for every bit of it because you have taught us a 

lot today, and I think the American people should be very proud 

that we have somebody like you that is coming before this body 

and headed for the Supreme Court. 

We are going to recess tonight and convene again at 9:30 a.m. 

tomorrow morning. Until such time, we stand in recess. 

[Whereupon, at 8:54 p.m., the Committee was recessed.] 

[Additional material submitted for the record for Day 2 follows 

Day 4 of the hearing.] 
(247) 

CONTINUATION OF THE 

CONFIRMATION HEARING ON THE 

NOMINATION OF HON. NEIL M. GORSUCH 

TO BE AN ASSOCIATE JUSTICE OF THE 

SUPREME COURT OF THE UNITED STATES 

WEDNESDAY, MARCH 22, 2017 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 9:37 a.m., in Room 

SH–216, Hart Senate Office Building, Hon. Charles E. Grassley, 

Chairman of the Committee, presiding. 

Present: Senators Grassley, Hatch, Graham, Cornyn, Lee, Cruz, 

Sasse, Flake, Crapo, Tillis, Kennedy, Feinstein, Leahy, Durbin, 

Whitehouse, Klobuchar, Franken, Coons, Blumenthal, and Hirono. 

OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Chairman GRASSLEY. Good morning, Judge, and I know you slept 

well. 

[Laughter.] 

Senator FEINSTEIN. He did not answer that. 

Judge GORSUCH. Is that a question? 

Chairman GRASSLEY. Welcome back. And of course, we have, as 

a Committee, I do not know that we have recognized your wife, 

Louise. But she is back and very patient, sitting there. 

You mentioned yesterday that the confirmation hearing of your 

mentor, Justice Byron White, lasted all of 90 minutes. Yesterday’s 

hearing was a bit longer, and I am sure that you needed your rest, 

and I am glad you had it. 

I was impressed yesterday both with your poise and your 

thoughtfulness throughout the long day. I came away with, I think, 

a greater admiration for you and particularly how seriously you 

take your duty to give each litigant who enters your courtroom a 

fair shake, as well as for your commitment of judicial independence. And I have had an opportunity to comment to various journalists or TV people or radio people, and I have stressed your 

statements about independence. 

Before I start my question, I want Committee Members, those of 

us up here and the ones that are not here, to understand that I 

am prepared to stay as long as we need to so that everyone ask 

all their questions of the nominee today so that we can move on 

to other people that want to testify in regard to this nominee. So 
248 

I hope that we can move things along, and we will not have to stay 

a long time, but I am willing to do that. And then tomorrow, we 

will have that schedule. 

I want also the Committee Members as well as the nominee to 

know that when we finish the questions, we will move to the regular Committee room of the Judiciary Committee. That is just 

down the hall, Dirksen 226, for a closed session, as we have done 

with every Supreme Court nominee I think since Senator Biden 

was Chairman of the Committee, as I recall. 

Now I would like to go to my questions, and as I said yesterday, 

they will be 20 minutes long. Let us visit about judicial independence. Yesterday, I predicted that you would get asked a lot of questions that it would not be right for you to answer. And unfortunately, I was right, and you got those questions from many people, 

maybe even people on both sides of the aisle. 

A lot of these questions concerned issues that might one day 

come before you as a Justice. And as you very clearly explained, 

it would compromise your independence if you pre-committed to 

how you would rule on future cases. It would also be unfair to the 

future litigants, and you made that very clear. 

And of course, there is nothing new about all this because we 

have quoted the Ginsburg standard, after Judge—Justice Ginsburg 

said during her confirmation hearing, and it has probably been repeated several times, but I do not know that we can repeat it too 

many times. 

‘‘A judge sworn to decide impartially can offer no forecasts, no 

hints, for what—for that would show not only disregard for the specifics of a particular case, it would display a disdain for the entire 

judicial process.’’ 

Senators know a nominee cannot answer questions, but of 

course, those questions get answered anyway. And I would probably want to confess the 13 before you, I probably have asked some 

of those inappropriate questions. 

You were also asked many questions about how you would decide 

past Supreme Court cases, but you cannot answer those either. As 

Justice Kagan told us, ‘‘I have pretty consistently said that I do not 

want to grade or give a thumbs up or a thumbs down on particular 

Supreme Court cases.’’ 

At the time, the former Chairman said, ‘‘I certainly do not want 

you to have to lay out a test here in the abstract, which might determine what your vote or your test would be in a case you have 

yet to see.’’ So you, the present nominee, deserve no less, and that 

applies to easy cases just as well as it might apply to hard cases. 

In any event, we do not need to dwell on hypotheticals. You have 

a 10-year record on the Tenth Circuit. You have written over 770 

opinions, or at least been involved with that many, and heard probably a little less than 3,000, but getting close to that number. So 

without talking about hypotheticals, there is plenty that we can 

talk about. 

So I am going to start by Thompson School District v. Luke P. 

Luke P. was an autistic student. His parents sued their local Colorado school district so that it would pay Luke’s tuition at a private 

residential school. The statute at issue dealt with the Individuals 

with Disabilities Education Act. We call that IDEA for short. 
249 

You held that the district did not have to pay under this statute 

because all the experts who examined Luke found that he was progressing in his public school. 

Judge, where did you get that standard? 

Judge GORSUCH. Mr. Chairman, the standard under IDEA, or, as 

you said, the Individuals with Disabilities Education Act, the 

standard that you have articulated is the standard set by the Supreme Court in a case called Rowley, and there are additional 

precedents in the Tenth Circuit interpreting and developing that 

standard. And so in that case, Mr. Chairman, the panel was applying settled Circuit law and Supreme Court law. 

The statute, as you know, balances two very important interests. 

The interests of children and their families with disability to ensure the child receives appropriate education. On the other hand, 

it also balances the interests of school districts, for whom these 

cases can be very expensive and challenging. 

And that balance is a policy judgment as to how that is made. 

That is made by this body, and then as interpreted by the Supreme 

Court in Rowley. Those are the standards we apply, the policy 

choices of this Congress as interpreted by the U.S. Supreme Court. 

Chairman GRASSLEY. And you did not have any discretion to disregard that precedent of either the Supreme Court or the Tenth 

Circuit? 

Judge GORSUCH. No, Mr. Chairman. 

Chairman GRASSLEY. And I think you had a Judge Briscoe, a 

Clinton appointee, was on the panel. And it is my understanding 

she joined your opinion in full, and so the Luke P. opinion was 

unanimous? 

Judge GORSUCH. It was, Mr. Chairman. 

Chairman GRASSLEY. Congress could, of course, as you said, 

amend IDEA, and States could create standards of their own, as 

Senator Tillis worked to do when he was in the North Carolina legislature. He is not here, but I think he would—that is my understanding of what he worked on. 

Judge GORSUCH. That is my understanding, too, Mr. Chairman. 

And of course, I have had other cases involving IDEA where the 

parents and the child prevailed based on the existing law—The 

School of the Deaf and Blind case, the Jefferson County case. So 

it just depends upon the facts and the law in each particular case. 

Chairman GRASSLEY. Yes. Well, I think you just pointed out my 

last point that there is plenty of evidence that you rule as you see 

the law requires you to rule. Sometimes it comes out against the 

little guy and sometimes very much in favor of the little guy. 

Judge GORSUCH. That is right, Mr. Chairman. 

Chairman GRASSLEY. Okay. Because you take an oath to administer justice without respect to person and do equal right to both 

the poor and the rich. Your tenure on the Tenth Circuit I think is 

a proud testament to the seriousness with which you understand 

the role of a judge, and you have ruled in favor of students bringing IDEA claims in other cases as well. 

I want to go on to something that Senator Klobuchar brought up, 

but probably something I was working on maybe before she even 

got to the United States Senate, and this is cameras in the courtroom. And I made a point when I appeared before the Judicial 
250 

Council last week and Justice Thomas introduced me, I said, ‘‘Remember, today I did not bring up about cameras in the courtroom.’’ 

He says, ‘‘We are getting off to a good start.’’ 

[Laughter.] 

Chairman GRASSLEY. Because obviously he does not agree with 

me on this point. 

She asked for your opinion on having cameras in the Supreme 

Court, Senator Klobuchar did, and you said that you had not given 

the subject a great deal of thought. I want you to know that I believe that public access to our court system is an important issue, 

and having cameras in the courtroom is one way to improve public 

access. 

Now I know this is not a very popular subject with some of the 

Justices on the Supreme Court, as I just hinted. And in fact, as 

Senator Klobuchar mentioned yesterday, Justice Souter once famously quipped that the television cameras would have to ‘‘come 

roll over my dead body for that to happen.’’ And he is not on the 

Court now. So that is one less person in opposition. 

[Laughter.] 

Chairman GRASSLEY. I can respect that opinion, but quite frankly, it just happens to be wrong from my point of view. When Mr. 

Katyal introduced you on Monday, I was glad to hear him say that 

he wished the Court would televise its proceedings so that all 

Americans could see what goes on there. 

That is a view shared by a number of my colleagues on this Committee. We believe that allowing cameras in the Federal courthouse 

would open the courts to the public and bring about better understanding of the Court and its important work. You may be aware 

that for a number of years, I have sponsored bills called Sunshine 

in the courtroom Act, which give judges the discretion to allow 

media coverage of Federal court proceedings. 

Given your discussion with Senator Klobuchar yesterday on the 

issues, I am not going to ask for your opinion to have cameras in 

the courtroom, but I would very much appreciate this. If you would 

think about the issue, I would appreciate it if you keep an open 

mind as you move forward in this process. 

And I guess if I could ask you to have that open mind, that is 

all I would ask you to do at this point. 

Judge GORSUCH. You have it. I am sure—I have gotten to know 

some of these guys pretty well over the last few weeks. Some nice 

folks. 

Chairman GRASSLEY. I want to bring up the part that legislative 

history will bring up, and I think I am going to refer to some cases. 

I do not know whether they are the same cases I have read, but 

I know you have a different, maybe a little different point of view 

on legislative history, and I would like to know what that is. 

But I also remember my first discussions with Justice Scalia, like 

when he came around to my office, as you came around to my office, I asked him about it, and he said it should not play any role 

whatsoever. And I think I have seen him totally committed to that 

point of view. During the 29 years that he was on the Supreme 

Court, he did not lead me astray in my office, and he kept a pretty 

consistent point of view. 
251 

So it deals with the weight that judges should give when interpreting statute. You have been a judge for over 10 years so you 

have had time to think about the role of legislative history in cases 

that have come before you. In fact, there is one in particular that 

I would like to discuss, one that Senator Feinstein talked about a 

little bit in her opening statements, U.S. v. Games-Perez, I believe 

it is pronounced. 

The defendant in that case was appealing his conviction under 

a Federal felony in possession statute, which provided that defendants must knowingly violate the law against felons possessing 

guns. 

The legal question before your court was whether the defendant 

must know both that he was a felon and that he was in possession 

of a firearm or whether the Government had to prove only that the 

defendant knew that he was in possession of a firearm. 

Now at the defendant’s original plea hearing, the trial judge told 

him, ‘‘You will leave this courtroom not convicted of a felony and 

instead granted the privilege of a deferred judgment.’’ So there was 

a real question about whether the defendant actually knew that he 

was a felon. 

You upheld his conviction because the Tenth Circuit precedent 

required you to do so. Tenth Circuit precedent said that the word 

‘‘knowingly’’ applied only to possessing a firearm, but not being a 

felon. Although you were required to follow precedent and you did, 

you wrote a separate concurrence to highlight that the precedent 

should be revisited. 

You wrote, ‘‘Our duty to follow precedent sometimes requires us 

to make mistakes. Unfortunately, this is that sort of case.’’ You 

went on to write, ‘‘It makes no sense to read the word ‘knowingly’ 

as so modest that it might blush in the face of the very first element only to regain its composure and reappear at a second,’’ end 

of your quote. 

So you were somewhat critical of the Tenth Circuit precedent because of its reliance on legislative history. You wrote that legislative history can be misleading because it is ‘‘stocked with ample artillery for everyone. The fight is hard fought. Each inch of the historical terrain is heavily contested, but in the end, almost no 

ground is taken by either side.’’ 

You touched on this a little bit yesterday, but I would like to ask 

you when it is appropriate to look to legislative history to interpret 

statutes? Are there some circumstances when it is more appropriate than others, and what are the dangers? 

And I guess 30 years ago, I told Scalia that history was very important. I am not sure I agree with that today, knowing the importance of us writing clear statutes. But I thought we did not always 

write very clear statutes, and I thought you ought to go back in 

and look at what we think about it. 

But what are the circumstances when it is more important than 

others, and what are the dangers? 

Judge GORSUCH. There is a lot to unpack there, Mr. Chairman. 

Let me begin by saying I respect all the work that this body does, 

and a good judge takes seriously everything you do and reads everything put before him or her. You do not close your mind to any 

argument. You put on the robe, you open your mind. 
252 

But I think that case illustrates some issues along the lines of 

what you would asked me to discuss. So the statute there says, and 

simplifying, that it is a crime to knowingly be a felon in possession 

of a gun. 

And our precedent, on the basis of an interpretation about legislative history, and the legislative history was very long in that 

case, extremely long. The statute goes back, I think, to the 1940s 

and has been revised many, many times. So one can read a lot of 

history in that statute, and it can be argued both ways. There is 

good history both sides cited us. 

On the basis of its reading of that history, our court took the 

view that the Government need only prove that the defendant is 

a felon who is knowingly in possession of a gun, and that was the 

jury instruction given in that case. 

The defendant said, well, hold on a second. The word ‘‘knowingly’’ is here. ‘‘Knowingly a felon in possession.’’ How does the 

word ‘‘knowingly’’ leap over the word ‘‘felon’’ and only touch down 

at the word ‘‘in possession’’? It defied a bit of grammatical gravity, 

the defendant argued. 

And as a matter of plain meaning, I had to agree with him. I did 

not understand how just reading the words, the plain words on the 

statutory page, a reasonable person could understand that mens 

rea element, the ‘‘knowingly,’’ the mental element, to only apply to 

the second act in the statute, to the possession of the gun, as opposed to the knowing felon status. 

And the defendant had at least a colorable argument that he did 

not know he was a felon in that case because the sentencing judge 

told him he was not a felon, as you pointed out, Mr. Chairman. The 

sentencing judge I think several times, as I recall the record, and 

it has been a while since I have looked at it, said more than once 

to him, if you complete your deferred sentence, you’ll have no felony conviction on your record. 

So I thought this was a case where the Government had to 

square its corners. And before you could put a man in prison—I 

think for 5 years in that case. It may have been longer. Felony possession statutes have rather long sentences attached to them. But 

the Government should be forced to prove each and every element 

that the plain language of the statute imposed upon it. 

And that resort to legislative history to put a man in prison on 

the basis of legislative history rather than the plain language 

struck me as a due process, a fair notice problem to that individual. 

So that was why I wrote the concurrence. I followed our precedent. It was a precedent of the court. I have an obligation to do it, 

but I also felt I had an obligation to point out the mistake. 

Chairman GRASSLEY. You may have just said this, but I want to 

emphasize. So I would like to know what intersection you understand there is between notice of the law, legislative history, and 

original meaning of the legal text? 

Judge GORSUCH. Yes. And I did touch on it, and I think notice 

is the key to the rule of law, that the people can understand what 

is expected of them. That the law is sufficiently clear that before 

they are put in prison for 5 or 10 or 20 years, and that is what 

Federal sentencing statutes require of judges in many, many cases, 

that were not putting them in prison on the basis of some secret 
253 

law, some hidden, unexpressed intentions or intentions that are 

very hard to find in the fine print of some book that is not available widely, but on the basis of what is in the statutory books that 

we are all charged with knowing. 

Chairman GRASSLEY. Can I sum up what you just said? If I am 

wrong, tell me. But you are basically saying the law means what 

it says it means. Is that right? 

Judge GORSUCH. That is a good starting point, right? That the 

plain text of the statute is usually a pretty good starting point, and 

reading it as you would expect a reasonable citizen to do so, you 

know, not a—not a—not a pointy-headed judge. 

Chairman GRASSLEY. I have only got 35 seconds left. So for the 

benefit of my Members, I am starting out on something before my 

time is up. So I do not know whether this is something I want you 

to comment on, but I want you to be very clear that sometimes 

cases dealing with the False Claims Act and qui tam come before 

the Supreme Court, and sometimes the Supreme Court gets it 

wrong, from my point of view. 

There is lots of times, and Senator Leahy has been very good in 

helping me do this, we have had to rewrite the statute to get back 

to what I thought we made very clear in 1986, but according to the 

courts, we did not make very clear. I co-authored this amendment 

to going way back to an 1860 law that the Congress obliterated because of World War II because they did not think defense contractors should be sued in those instances under qui tam. 

So we brought it back and even went beyond what it was in the 

1860s to empower qui tam relators or whistleblowers to help the 

Government identify and prosecute fraud on the taxpayers. The 

False Claims Act is the most effective antitrust tool that we have. 

And since the 1986 amendments that Congressman Berman, then 

a Member of the House, and I was a Member of the Senate, got 

passed, the taxpayers have recovered more than $53 billion in public funds lost to fraud. 

And we had people in the Justice Department when we first 

passed this did not like it because if a relator came to them or a 

whistleblower came to them, and they said like that was like saying they were not doing their job. We had a District Judge in the 

late 1980s, I think, told some prosecutor for the Justice Department that was trying to argue that a relator should not have a certain amount of money. He said, ‘‘Do you realize you would not even 

have a case if this whistleblower had not brought it to your attention?’’ 

And I think we are over that now, but you know, the Defense Department and the pharmaceuticals over the last 30 years have tried 

to gut this legislation. Even 4 years ago, the Chamber of Commerce 

wanted to do something to it that would have really done injustice 

to the good that it has done. So that is something, you know, that 

I think that is working. We ought to keep it there. 

As you know, in most cases, a plaintiff must have suffered an injury to have Article III standing to come before the court. There is, 

however, an important Supreme Court case called Vermont Agency 

of Natural Resources, which established that qui tam relators have 

a constitutional standing under the False Claims Act to pursue 

claims for fraud against the United States. 
254 

I do not know whether you are familiar with it. If you are, I 

guess I am calling it to your attention so you can understand that 

is pretty important from my point of view. You are familiar with 

it? 

Judge GORSUCH. I am, Senator. 

Chairman GRASSLEY. You nodded your head. 

Judge GORSUCH. Mr. Chairman, I am well familiar with your 

views on qui tam cases. I have had a couple in my Circuit, and I 

know they have served—— 

Chairman GRASSLEY. Well, did you rule in my favor? 

[Laughter.] 

Chairman GRASSLEY. No, no. You ruled in favor of somebody that 

was before you. 

Judge GORSUCH. That one—that one—the one I have in mind, 

the little guy won that one. Yes, Mr. Chairman. 

Chairman GRASSLEY. Okay. So I hope you know how important 

this rule has been for the protection of the Treasury against fraud, 

and I am certainly very passionate about this issue. So I think if 

the False Claims comes up, I hope sometime you will remember, 

whether I am alive or dead, that Senator Grassley is interested in 

this. 

[Laughter.] 

Chairman GRASSLEY. Senator Feinstein. 

Senator FEINSTEIN. Thank you. Thanks very much. 

Mr. Chairman, I would like to put three letters of opposition in 

the record, if I may, with your concurrence? 

Chairman GRASSLEY. Yes. 

Senator FEINSTEIN. Thank you very much. 

Chairman GRASSLEY. Sure. And is that all of them, or you got 

a couple others? 

Senator FEINSTEIN. Yes, they are all here. 

Chairman GRASSLEY. Okay. Without objection, whatever Senator 

Feinstein has that she wants in the record, without objection, it 

will be done. 

[The information appears as a submission for the record.] 

Senator FEINSTEIN. Thanks very much. 

I am not a lawyer, but as I read the case, this man was a felon 

in possession of a gun with the serial number struck off, in concert 

with another man who had a weapon that I believe was used in 

the situation. So he was a felon with a gun, and his probation instructed him that he was not to carry that weapon. So I have very 

strong feelings about that, and I just wanted to say that. 

I do not think you have to respond, but what I would really like 

to talk to you about—— 

Judge GORSUCH. Senator, may I? 

Senator FEINSTEIN. Sure. Absolutely. 

Judge GORSUCH. I do not mean to eat up your time or anything, 

but this is exactly the sort of thing I think I have been trying to 

convey to Members of the Committee, which is it is my job to decide these cases without respect to persons. 

There is the little guy, right there. He is a criminal defendant. 

He is unsympathetic. I completely understand everything you are 

saying about him. That was all true. 
255 

The question still, does the Government have to prove what the 

law requires of the Government or anybody, the big guy? There is 

no bigger guy than the Federal Government. 

Senator FEINSTEIN. I understand. 

Judge GORSUCH. And so I am just trying to follow the plain 

words of the law, ‘‘knowingly be a felon in possession,’’ and the convicting judge told him that he was not a felon. And I follow precedent in that case, Senator. The man is in prison because of—because of precedent. But I do wonder—— 

Senator FEINSTEIN. I do accept that is your view. 

Judge GORSUCH. Okay. 

Senator FEINSTEIN. And I would like to move on. 

Judge GORSUCH. Of course. 

Senator FEINSTEIN. It is not my view. 

Judge GORSUCH. I understand. 

Senator FEINSTEIN. He was a felon. 

Judge GORSUCH. Yes, he was. 

Senator FEINSTEIN. So let me go on. I sent some documents 

down—not down to you, but over to you yesterday. 

Judge GORSUCH. Yes, yes. 

Senator FEINSTEIN. And I would like to ask you about one of 

them, and this is the one that has to do about torture. It is labeled 

at the bottom ‘‘DOJ NMG0143890.’’ And I can send it down to you 

again if you want? I do have notes in this—— 

Judge GORSUCH. No, I have got it right here. I have got it right 

here. Yes. 

Senator FEINSTEIN. Okay. There is no date on the document, but 

the document talks about the McCain and Graham amendments to 

the Detainee Treatment Act, which was before Congress in November and December of 1905, and it asked specific questions about 

the indictment of Jose Padilla, who was indicted on November 22, 

2005. So the notes must have been on or after November 22, 2005. 

Take a look at your handwritten notes on page 2. The document 

says, ‘‘Has the aggressive interrogation techniques employed by the 

administration yielded any valuable intelligence? Have they ever 

stopped a terrorist incident? Examples?’’ Your handwritten note 

says ‘‘yes.’’ 

My question is what information did you have that the Bush administration’s aggressive interrogation techniques were effective? 

Judge GORSUCH. And Senator, I am working on 12 years of passage of time here. So my memory is what it is, and it is not great 

on this. But my recollection—— 

Senator FEINSTEIN. But you are very young. 

Judge GORSUCH. Well—— 

[Laughter.] 

Senator LEAHY. Accept it. 

Judge GORSUCH. I will take it. Thank you. I am not sure my wife 

entirely agrees with you anymore, Senator. But thank you, that is 

kind. 

My recollection of 12 years ago is that was the position that the 

clients were telling us. I was a lawyer. My job was as an advocate, 

and we were dealing with the detainee litigation. That was my involvement. 

Senator FEINSTEIN. You actually answered the question. 
256 

Judge GORSUCH. Yes, and I think—— 

Senator FEINSTEIN. So you had no personal information? 

Judge GORSUCH. Oh, no. 

Senator FEINSTEIN. That you took the position of your client? 

Judge GORSUCH. Yes. 

Senator FEINSTEIN. And that, because I know a lot about what 

happened—— 

Judge GORSUCH. I know you do. 

Senator FEINSTEIN [continuing]. That circles around in my brain 

a little bit because it seems to me that people who advise have an 

obligation to find the truth in these situations. 

And when we learned about what happened on the Intelligence 

Committee, the Gang of 8 learned earlier. We learned much later. 

I think it was 2006. We saw—and when we looked into it, we really 

saw the horrendous nature of what went on—the absence of supervision, the absence of direction, the contracting out to people who, 

in my view, we are not qualified to do what they did. And I think 

terrible things happened. 

It is a closed chapter, but it should never again happen. This is 

America, and it is not what we stand for. 

So let me move on to something that does trouble me about 

originalism, if I may? And let me read something. I have a constituent who happens to be the dean of a law school, who sent me 

a question. 

Judge GORSUCH. Uh-oh. 

Senator FEINSTEIN. And I want to present it to you, and here it 

is. You are a self-professed originalist in your approach to constitutional interpretation. For example, you wrote——‘‘Judges should 

instead strive, if humanly and so imperfectly, to apply the law as 

it is, focusing backward, not forward, and looking to text, structure, 

and history to decide what a reasonable reader at the time of the 

events in question would have understood the law to be.’’ 

Now do you agree with Justice Scalia’s statements that 

originalism means there is no protection for women or gays and 

lesbians under the equal protection law because this was not the 

intent or understanding of those who drafted the Fourteenth 

Amendment in 1868? 

Judge GORSUCH. Senator, first of all, a good judge starts with 

precedent and does not reinvent the wheel. So to the extent there 

are decisions on those topics, and there are, a good judge respects 

precedent. That is the first point. 

Second point I would make is it would be a mistake to suggest 

that originalism turns on the secret intentions of the drafters of the 

language of the law. The point of originalism, textualism, whatever 

label you want to put on it, what a good judge always strives to 

do, and I think we all do, is try to understand what the words on 

the page mean. Not import words that come from us, but apply 

what you, the people’s representatives, the lawmakers have done. 

And so when it comes to equal protection of the laws, for example, it matters not a whit that some of the drafters of the Fourteenth Amendment were racists, because they were, or sexist, because they were. The law they drafted promises equal protection of 

the laws to all persons. That is what they wrote. 
257 

And those—the original meaning of those words, John Marshall 

Harlan captured them in his dissent in Plessy. An equal protection 

of laws does not mean separate in advancing one particular race 

or gender. It means equal. 

And as I said yesterday, I think that guarantee, equal protection 

of the laws guarantee, the Fourteenth Amendment, that it took a 

Civil War for this country to win is maybe the most radical guarantee in all of the Constitution and it may be in all of human history. It is a fantastic thing, and that is why it is chiseled in 

Vermont marble above the entrance to the Supreme Court of the 

United States. 

Senator FEINSTEIN. I understand that, but here is what is hard, 

and let me be very personal about it because this is important. I 

have sentenced women to State prison for committing abortion. I 

was a Member when California had an indeterminate sentence law, 

actually the youngest in the country, and I know what life was like. 

You have two daughters. 

Judge GORSUCH. I do. 

Senator FEINSTEIN. I am one of three daughters, and I know 

what life was like. I have heard of young women killing themselves. I have heard of passing the plate in colleges so that a young 

woman could go to Tijuana to have an abortion. I read a letter from 

a woman who is going to be in the audience tomorrow of how trying to get pregnant, finding that the fetus was catastrophic, and 

having just a terrible time. 

So the law has finally progressed that we now have the right to 

vote. That took a long time. We are still fighting for equal pay for 

equal work, and it goes on and on. And as women take their place 

in the workplace, in society—we could have had a woman as President perhaps—life changes. And the originalism that the days 

when the Constitution was written project to me do not bring 

somebody forward, they bring them backward in terms of rights 

that women did not have. They were not looked at as equal. 

As a matter of fact, we could not even get ratified a constitutional amendment. Very simple, equality under the law should not 

be abridged on account of sex. That was the Equal Rights Amendment. And the time was extended from 3 years to give it more 

time, and they could not get the number of States to approve it. 

So if one looks at originalism in my context, which is real life, 

I want your two daughters to have every opportunity they possibly 

could have, be treated equal, be able to control their own bodies in 

concert with their religion, their doctor, whatever it may be, and 

not be conscribed to a lesser fate because the law is interpreted in 

a backward sense. Does that make sense to you? 

Judge GORSUCH. Senator, I understand your concern, and I share 

it. I come from a family of strong women. My two teenage daughters, you are right. I want every opportunity for them that a young 

man has. 

I have a strong wife. Anyone who knows her knows that. My 

mother—— 

Senator FEINSTEIN. But you are pivotal in this. 

Judge GORSUCH. And Senator, I am daunted sitting here under 

the lights at the prospect of what is to come, if I am so fortunate 

to be confirmed, and I am daunted by the job I currently hold. And 
258 

I take that trust very seriously, and no one is looking to return us 

to horse and buggy days. 

We are trying to interpret the law faithfully, taking principles 

that are enduring and a Constitution that was meant to last ages 

and apply it and interpret it to the today’s problems, to today’s 

problems. 

And I think if you look at a number of cases where the Court 

has applied what might be labeled by some as originalism, you will 

see, for example, in Kyllo, the search of a home with a heat-seeking 

device. The Court looked back to find out would that be considered 

an unreasonable search? The technology did not exist, of course. 

But would something like that have been considered an unreasonable search at the time of the Fourth Amendment’s adoption? 

And found it is essentially equivalent to a Peeping Tom, and of 

course, that would have been considered an unreasonable search by 

the Government. And so a heat-seeking device, thermal imaging, is 

also a search of a home. That is how we use neutral principles, the 

law, to apply it to current realities, not to drag us back to a past, 

but to move forward together as judges applying the law neutrally. 

Senator FEINSTEIN. Here is the problem. I have been through 

this before. This is my—well, I have been through six hearings. I 

listened to Senator Specter, when he was Chairman of this Committee, tell the Chief Justice, ‘‘Well, you have described super 

precedent.’’ 

We talked about precedent, and what has happened is every Republican-appointed judge has gone back and is a ‘‘no’’ vote. So how 

does—how does one look at you, and we have talked about precedent, for the life of me, I really do not know when you are there 

what you are going to do with it. 

And it is so—and as you say, this is not text. This is real life. 

And young women take everything from granted today, and all of 

that could be struck out with one decision. 

Judge GORSUCH. Senator, all I can do is I cannot promise you 

how I would rule in a particular case. That would be deeply wrong 

to sit here at a confirmation table, and I think we agree on that, 

that it would be a violation of the independent judiciary for a nominee to a court to make a promise on any case in order to win confirmation. 

Senator FEINSTEIN. No, I do not expect you to. 

Judge GORSUCH. I know you do not, and I am really grateful for 

that. I know you appreciate my position. 

All I can promise you is that I will exercise the care and consideration due precedent that a good judge is supposed to, and I have 

written a book on it. This is not something that is just words in 

a room. This is years of toil in putting together a mainstream consensus view on what precedent is and the law of it with 12 other— 

12 judges appointed by Presidents from both sides, with a foreword 

by Justice Breyer. 

And I did not expect anyone to ever read it. I think a few people 

have read it now, probably not—still not that many. But that is my 

life’s work that sort of thing. I care about the law. I care deeply 

about the law and an independent judiciary and following the rules 

of the law. 
259 

And that is the commitment I can make to you. I cannot promise 

you more, and I cannot guarantee you any less. 

Senator FEINSTEIN. Well, what worries me is you have been very 

much able to avoid any specificity like no one I have ever seen before. And maybe that is a virtue. I do not know. But for us on this 

side, knowing where you stand on major questions of the day is 

really important to a vote ‘‘aye.’’ And so that is why we press and 

press and press. 

It is very hard because you mention that you—the number of 

cases you sat on, and the percent that was unanimous I think was 

97 percent, you said. And so we realize that these are few cases 

on which the distinction is made, and it is hard to make that distinction. 

So, you know, when one sees a lot in this country—and I just 

want to say this. For me, I sat on 5,000 cases. These were women 

convicted of felonies in the State of California. I did it for 6 years. 

And so I saw the inside of this whole issue, and that is one of the 

reasons why I feel so strongly. 

Particularly, let me ask you another area. Assisted suicide. 

Judge GORSUCH. Sure. 

Senator FEINSTEIN. You make the statement that there is no justification for having anything to do with the end of someone’s life, 

encouraging the end of life. Well, California just passed an End of 

Life Options Act that takes a number—I think three doctors. I, in 

my life, have seen people die horrible deaths, family, of cancer, 

when there was no hope. And my father begging me, ‘‘Stop this, 

Dianne. I am dying.’’ 

You know, my father was a professor of surgery, now trying to 

save him. So there are times you cannot, and the suffering becomes 

so pronounced—I just went through this with a close friend—that 

this is real, and it is very hard. 

So tell us what your position is in the situation with California’s 

End of Life Option Act as well as what you have said on assisted 

suicide. 

Judge GORSUCH. And Senator, this is something I can speak 

about because I have written about it, and I am delighted to talk 

about my record. I wrote a book in my capacity as a commentator. 

It was my doctoral dissertation, essentially, before I became a 

judge. 

I would have to tell you, as a judge, put that aside, and we 

talked about that. But I will talk to you about what I wrote in the 

book because I think it is fair. 

What I wrote in the book was I agree with the Supreme Court 

in the Cruzan decision that refusing treatment—your father, we 

have all been through it with family. My heart goes out to you. It 

does. And I have been there with my dad and others. And at some 

point, you want to be left alone. Enough with the poking and the 

prodding. I want to go home and die in my own bed in the arms 

of my family. 

And the Supreme Court recognized in Cruzan that is a right in 

common law to be free from assault and battery, effectively, and 

assumed that there was a constitutional dimension to that. I agree. 

Senator FEINSTEIN. Supposing you cannot handle the pain, and 

you know that it is irreconcilable? 
260 

Judge GORSUCH. And Senator, the position I took in the book on 

that was anything necessary to alleviate pain would be appropriate 

and acceptable even if it caused death. Not intentionally, but knowingly. Okay? I drew a line between intent and knowingly. 

And I have been there. I have been there. 

Senator FEINSTEIN. Thank you. Thank you, Mr. Chairman. Sorry. 

Chairman GRASSLEY. Senator—no, no apology. 

Senator FEINSTEIN. Thank you. 

Chairman GRASSLEY. Senator Hatch, because Senator Graham 

has to go to a hearing or a Committee meeting, has accommodated 

Senator Hatch—or Senator Graham. So go ahead, Senator Graham. 

Senator GRAHAM. Thank you, Mr. Chairman. 

Let us see if I can sort of get my head around where we are at 

here because I am not so sure I have been playing the same game 

as everybody else. I might have to reevaluate what game I need to 

be playing in the future. 

It is important to know where you stand before I can vote yes. 

I think that is true for a Republican nominee, but not so much for 

a Democrat. 

Let me tell you what Senator Leahy said. I certainly do not want 

you to have to lay out a test here in the abstract, which might determine what your vote—or your test would be in a case you have 

yet to see that may well come before the Supreme Court. 

Now that is the standard when there is a Democratic nominee. 

Now when there is a Republican nominee, you have got to tell 

these Senators that you will not get in the way of their agenda. I 

am not asking you to tell me whether or not you agree with my 

agenda. I am asking you whether or not you will fairly hear the 

cases before you because to do anything else would be unfair to 

you. 

The life issue is very real. There are a lot of Americans who believe that life begins at conception. There are a lot of Americans 

who believe that Roe v. Wade was a grab of power from legislative 

people, but it is the law of the land. It will be given due weight 

if somebody challenges it. 

Do you agree with me it is the law of the land that in late-term 

abortions, they have been limited through congressional action and 

approved by the Supreme Court? 

Judge GORSUCH. In certain circumstances, yes. 

Senator GRAHAM. In certain circumstances, the Congress overwhelmingly voted to limit abortions in the last trimester, and the 

Supreme Court said in those circumstances you have the authority 

to do that. Is that the state of the law? 

Judge GORSUCH. That is part of the state of the law, Senator. 

Senator GRAHAM. And I would imagine this issue will be revisited as long as people have differences. There will be a lot of issues 

coming before the Court because Americans do not agree on some 

of the more emotional topics like when life begins, and what is the 

role of the legislative body? What is the role of the Court? When 

do you have a soul, if you have one? And what is the right to be 

conferred by unelected judges versus people who have to answer to 

the public? 

So all I am saying, if we are going to vote against a nominee because they will not tell us things that we want to hear about issues 
261 

important to us, then the whole nominating process has become a 

joke. And what has happened over time is that somehow, some 

way, we have gone from Scalia, the originalist, getting 98 votes; 

Ginsburg, the bastion of liberalism on the Court, well qualified, 

getting 96 votes. 

What has happened? Did the Constitution change? I do not think 

so. I think politics has changed. I think it has changed in a fashion 

that we should all be ashamed of as Senators, and I think we are 

doing great damage to the judiciary by politicizing every judicial 

nomination. ‘‘If you do not agree with my basis view of the world, 

I cannot vote for you.’’ 

This is what Greg Craig, the former White House counsel in the 

Obama administration, said about Elena Kagan. ‘‘She is a progressive in the mold of Obama himself.’’ So Reince Priebus said that 

Trump picked a good guy. Well, Greg Craig, the former White 

House counsel, said that Obama picked in Elena Kagan ‘‘a progressive in the mold of Obama himself.’’ 

I did not vote for President Obama, but he won in spite of my 

opposition. I do believe, as President of the United States, he had 

a right to pick somebody from the progressive wing of the law. I 

expected him to do so, and he did. Twice. I knew full well what I 

was getting, and I hope you understand that you are getting one 

of the most qualified conservative judges in the country. 

Senator Feinstein said her goal was to find out if you are a reasonable, mainstream conservative. I would tell you, Senator Feinstein, without any hesitation, this man is as mainstream as you 

will get. If you do not believe me, listen to the people who know 

him the best, 2,700 cases and being reversed once. 

The bottom line here is we are taking the nomination process to 

a place it was never intended to go by the Framers of the Constitution, and Alexander Hamilton would be rolling over in his grave to 

believe that the United States Senate has now gotten to the level 

of where ‘‘I cannot vote for you if you will not tell me about cases 

important to me and you do not share my philosophy.’’ 

That means advise and consent is not really advise and consent. 

It means that we are the President and we are the judge, and if 

you would not rule like us, you cannot be on the Court. And if you 

come from a philosophy that we reject as a party, then you cannot 

be a judge. That will be bad for the country. 

Now let us talk a little bit about Griswold. You said that Griswold was a case decided by the Supreme Court that does what? 

Judge GORSUCH. Senator, it guarantees married couples the privacy in their own home to use contraceptives. 

Senator GRAHAM. Is it a longstanding precedent of the Supreme 

Court? 

Judge GORSUCH. It is, Senator. 

Senator GRAHAM. What weight would you give that? 

Judge GORSUCH. Well, Senator, under the law of precedent, you 

look at the age. This one’s over 50 years. You look at the reliance 

interests, which are obvious and substantial. You look at whether 

it has been reaffirmed, which it has many times. And Senator, as 

I said yesterday, I just cannot imagine a State attempting to pass 

a law like that. 

Senator GRAHAM. Well, let us say they did. 
262 

Judge GORSUCH. And I cannot imagine the Supreme Court of the 

United States taking that claim seriously. 

Senator GRAHAM. Let us say they did, and I am with you on 

both. Would you listen to the people who made the argument to 

make the argument? 

Judge GORSUCH. Senator, you listen to every person who comes 

to court. 

Senator GRAHAM. So to overturn Griswold, you have got to get 

a case in controversy, right? 

Judge GORSUCH. Right. 

Senator GRAHAM. That means somebody somewhere has got to 

convince, I do not know, some State or some body somewhere to 

outlaw contraception in the marital relationship. That would be a 

case in controversy. 

Judge GORSUCH. Well, you would have to have to have a State 

that would pass a law like that. 

Senator GRAHAM. Or what about a city council? 

Judge GORSUCH. Or whatever. And then you would have to have 

somebody try and enforce it. 

Senator GRAHAM. Right. Then it would maybe get to you. And if 

that day ever comes, you would listen to what the other side had 

to say, then you would decide. Is that fair enough? 

Judge GORSUCH. You would apply the precedent of the U.S. Supreme Court, and if they were trying to overturn the precedent, 

you go through the factors and you consider them. 

Senator GRAHAM. So you are not here to tell us what you like or 

do not like in the law. You tell us about the process of how the law 

works? 

Judge GORSUCH. That is right, Senator. 

Senator GRAHAM. And you are here as a human being, cannot 

imagine some legislative body, particularly at the State level, outlawing contraception. You just do not see that as a real threat right 

now? 

Judge GORSUCH. I do not see it as a real threat today, Senator. 

Senator GRAHAM. Originalism. Are you an originalist? 

Judge GORSUCH. Senator, as we spoke of yesterday, I am happy 

to be called that. I do worry about the use of labels in our civic discussion to sometimes ignore the underlying ideas. As if originalism 

belonged to a party, it does not. As if it belonged to an ideological 

wing, it does not. 

Senator GRAHAM. Well, here is what I would say about 

originalism. Whether you like it or not, is it bound by the law? 

Judge GORSUCH. Of course it is. It is the whole point of how you 

interpret the law. 

Senator GRAHAM. Now to those who believe that the Constitution 

is a living, breathing document that can speak to you and nobody 

else, that bothers me. But there are people on the Supreme Court 

who have the view that the Constitution is a living, breathing document related to the times in which we live in. That seems to open 

the door that I can get the outcomes I want, not so much bound 

by the words or the history. 

The bottom line is there are different ways of looking at the role 

of being a judge. Do you—do you believe that your way of looking 

at being a judge has stood the test of time? 
263 

Judge GORSUCH. I do. 

Senator GRAHAM. Do you believe over the last 10 years your way 

of looking at being a judge has received respect from people who 

disagree with you? 

Judge GORSUCH. I think you are going to hear from some of them 

tomorrow. 

Senator GRAHAM. Do you believe that the American Bar Association has looked at your way of being a judge and found you well 

qualified? 

Judge GORSUCH. I am very honored by their assessment. 

Senator GRAHAM. You have decided over 2,700 cases. Is that 

right? 

Judge GORSUCH. That is right. 

Senator GRAHAM. Been overturned once maybe? 

Judge GORSUCH. Maybe. 

[Laughter.] 

Senator GRAHAM. Okay. I am going to say once. 

Judge GORSUCH. Well—— 

Senator GRAHAM. And you are just going to have to live with it. 

Judge GORSUCH. Well—— 

[Laughter.] 

Senator GRAHAM. And accept it. The bottom line is—— 

Judge GORSUCH. Maybe. 

Senator GRAHAM. Let us say it is once. I would say that the way 

you judge has been viewed by people above you as being acceptable 

almost all the time but once. 

Now to my friends on the other side, what more can you ask for? 

What are you looking for? Are you looking for somebody that will 

make your political life easy? Well, he is not the guy. 

Because he is not going to make your political life easy because 

he was appointed by the guy that you were all against and I did 

not vote for. I have not voted for a President who won in 12 years. 

[Laughter.] 

Senator GRAHAM. So I am probably not the one to give you legal 

advice—I mean political advice. But I have voted for nominees of 

those who did win in the time that I have been here. 

I intend to vote for you for the same reasons that I articulated 

for Sotomayor and Kagan in terms of your qualifications. I intend 

to vote for you because I think you represent a conservative’s view 

of how to be a judge. I am excited about that. 

I think President Trump, with all of his problems and all of his 

mistakes, chose wisely when it came to this man. And I want to 

congratulate the President, and I want to say this. That when you 

rejected some of the statements that President Trump made toward 

judges as being, what were your words—— 

Judge GORSUCH. Senator, I spoke of when anyone. 

Senator GRAHAM. Anyone. Which would include President 

Trump. 

Judge GORSUCH. Anyone. 

Senator GRAHAM. Okay. 

Judge GORSUCH. Criticizes the honesty, the integrity, the decency 

of Federal judges and what they do or attacks their motives in how 

they come about arriving at their decisions, I know those people. 
264 

I know how hard they work and how decent they are. I find that 

disheartening and demoralizing. That is what I have said. 

I am not saying we are immune from attack from decisions. I am 

not saying that we shouldn’t have thick skin. My hide is pretty 

thick, and I know that the hides of Federal judges have to be. 

Senator GRAHAM. Well, I just want to associate myself with what 

you said about what President Trump said. That I thought it was 

really out of bounds. You are the most powerful man in the world, 

and judges work in quiet dark corners. They have no political machine. They have no PAC. They cannot go out and do news conferences. 

Of the three branches of the Government, they are the most vulnerable. So I stand firmly with you and firmly with anybody. My 

friends on the other side say that President Trump was really out 

of bounds. But here is what I wish some of you all would do. 

Here is what Nancy Pelosi said. ‘‘If you breathe air, drink water, 

eat food, take medicine, or in any other way interact with the 

courts, this is a very bad decision.’’ That means picking you. I have 

not heard one person on that side say that is out of bounds. That 

is political garbage. 

To my good friend Ron Wyden, ‘‘No Senator who believes that individual rights are reserved to the people and not to Government 

can support this nomination.’’ Elizabeth Warren, ‘‘Let us not mince 

words. The nomination of Judge Gorsuch is a huge gift to the giant 

corporations and wealthy individuals who have stolen a Supreme 

Court seat in order to make sure that the justice system works for 

them.’’ 

It is okay to criticize Trump, but apparently it is okay for you 

to slander this man, and none of you say a damned thing about it. 

I do not think it is okay. I do not like what is going on here, and 

I do not like where the Senate is heading. But there is nothing I 

can do about it other than be myself. 

So, Judge, I just want to say I think you are qualified. I think 

the answers that you cannot give us come from the fact that you 

understand that if you gave those answers, you would compromise 

your ability to fairly decide cases that may come before you in the 

future. And that when a Democrat says that, they are just being 

a good judge. When you say that, ‘‘Oh, I cannot vote for you.’’ What 

a double standard. 

Thank you. 

Chairman GRASSLEY. Senator Leahy. 

Senator LEAHY. Mr. Chairman, while the Senator from South 

Carolina is still in the room, he began his statement quoting me 

and saying, of course, and went on to say that a President should 

be able to show his own philosophy in his nominations. And he 

pointed out the President Obama, as he said, nominated two Supreme Court Justices. 

I think the record should show President Obama nominated 

three Supreme Court Justices, one of whom was Merrick Garland, 

a person whose philosophy has been praised by both Republicans 

and Democrats. And it was the Republican Party that ignored the 

Constitution, did not allow him to have a vote, did not allow him 

to come before this body, did not uphold their advise and consent 

oath—their advise and consent. 
265 

So, I just—I just wanted the record corrected. It was not two 

nominees. It was three. The third one was not heard because for 

the first time in the history of the United States, the Senate refused to hold a hearing, refused to have a vote. 

Now, Senator Feinstein talked about the dark days before Roe v. 

Wade. I have some experience with that. We had two cases in 

Vermont, Leahy v. Beecham and Leahy v. Bartlett. I will tell you 

very briefly about it. 

Leahy v. Beecham was a case that, in effect, I brought a declaratory judgment before Roe v. Wade before the Vermont Supreme 

Court. I organized that case so that the Vermont Supreme Court, 

a very conservative court, could rule on the constitutionality of our 

anti-abortion statute in Vermont. They came out with a decision, 

basically what Roe v. Wade did, this conservative five-Member 

Vermont Supreme Court in Leahy v. Beecham. Leahy v. Bartlett was a case where I prosecuted somebody procuring abortions, and these are the doctors that I want to go back 

to. I have a call from the police at 3 in the morning. I was the 

State’s attorney at the time. I went to the emergency room at our 

local hospital. A young co-ed nearly died from bleeding from a 

botched abortion. At that time it was illegal. 

We found out that the person who had procured it, he had done 

this with a number of people. He would then—he would then blackmail them for either sex or money. And when I brought it to trial, 

we found the person doing the abortion was from Montreal. They 

said they would go to trial figuring she would never appear to— 

for the case. She was there. Two Royal Canadian Mounties escorted 

her. 

And I pointed out to the defense attorney the evidence would 

show she was trained to do these abortions working for the SS in 

Auschwitz so she could abort the women prisoners that they had 

impregnated so that they could keep on using those women that 

way before they put them in the gas chambers. He looked at the 

names of the people who would be the potential jurors. They sought 

a plea. Now, on another—that is why I applaud the senior Senator 

from California for raising the issue she did. 

Yesterday I asked about your connections to billionaire super 

donor Philip Anschutz. His role is a very extensive role in lobbying 

the White House to get you on the Tenth Circuit. And once on the 

court, you said you recused yourself from cases involving him, and 

I commend you for that. You did the right thing. 

But you wrote in your Senate questionnaire that you currently 

follow a recusal standard broader than what is required by the Supreme Court, and if you—if confirmed, you would follow the weaker 

Supreme Court standard. Does that mean if confirmed you would 

no longer recuse yourself from cases involving Mr. Anschutz? 

Judge GORSUCH. Senator, what it means is I will, if I am fortunate enough to be confirmed, go through the same process I did 

when I became a judge on the Tenth Circuit, and which I committed to do at that time, which was look at the applicable law, 

look at the facts. I had a law clerk—I do not know if he is somewhere around here. 

Senator LEAHY. Well, no, but let me—let me get back to this. You 

found—you found the facts were such that you recused yourself—— 
266 

Judge GORSUCH. Yes. 

Senator LEAHY [continuing]. With Mr. Anschutz when you were 

on the—— 

Judge GORSUCH. Yes. 

Senator LEAHY [continuing]. Court of Appeals. 

Judge GORSUCH. Yes. 

Senator LEAHY. If he had a case before the U.S. Supreme Court, 

would not the facts be the same? 

Judge GORSUCH. He is a former client, and I treated him as I 

treated my former clients, large and small. And, Senator, I would 

have to look at the recusal standards that are applicable to Supreme Court Justices. 

Senator LEAHY. Well, the Federal recusal standards apply to 

both Supreme Court Justices and other judges. 

Judge GORSUCH. Yes. 

Senator LEAHY. But the only difference is, of course, the Supreme 

Court, whether they recuse themselves or not, that is not reviewable. 

But would you—again, you found enough reason to recuse yourself on the Circuit, and I applaud you for that. Would not those 

same reasons apply to the Supreme Court? 

Judge GORSUCH. And, Senator, I would just have to study the 

law and the practice of the Court just as I did when I came on the 

Tenth Circuit, and I commit to you the same process and the same 

integrity of the process. You look at the law, you look at the practice of your colleagues, you consult with your colleagues. That is 

what I did. I had a law clerk prepare an extensive memorandum 

for me in which he analyzed all of the relevant precedents, the 

practices of my colleagues, and the facts. 

Senator LEAHY. Well, I would note the—okay. The Federal standard, as far as studying the law, it is the same law for the Court 

of Appeals and the Supreme Court, with one exception. The Supreme Court is not reviewable. 

Now, I asked you yesterday whether there was any circumstance 

in which the President has the power to authorize torture or surveillance in violation of laws passed by Congress. You answered, 

and I thought correctly, no man is above the law. Now, I am sure 

President Bush and his lawyers believed he was operating within 

the law when he authorized torture and warrantless surveillance, 

but they still thought they could violate a statute if they were exercising their Article II power. 

Is there any circumstance where a President could ignore a statute passed by Congress, signed into law, and still authorize torture 

or warrantless surveillance? If you had a statute against torture 

and warrantless surveillance, is there any circumstance in which 

a President could ignore that statute? 

Judge GORSUCH. Well, Senator, I do not want to deal with a case 

that might come before me, and those are the sorts of things that 

come before me. But I can speak generally, and I am happy to. 

Senator LEAHY. Go ahead. 

Judge GORSUCH. Presidents make all sorts of arguments about 

inherent authority. They do, and that is why we have courts to decide. Presidents of both parties have made arguments, for instance, 

about the War Powers Act, both parties. And the Congress has 
267 

taken a different position on that matter, for example, with both 

parties. 

And the fact is we have courts to decide these cases for a reason, 

to resolve these disputes. And I would approach it as a judge 

through the lens of the Youngstown analysis—— 

Senator LEAHY. Okay. Have you thought of a case where a court 

has said a President could ignore a law that was on the books? 

Judge GORSUCH. Senator, sitting here—— 

Senator LEAHY. Just think of one offhand. 

Judge GORSUCH. I cannot think of one off hand, Senator. 

Senator LEAHY. Thank you. Neither can I. 

Judge GORSUCH. Yes. 

Senator LEAHY. Now, the architect of President Trump’s Muslim 

ban has declared that there is no such thing as judicial supremacy, 

and the powers of the President to protect our country ‘‘are very 

substantial and will not be questioned.’’ It was felt that he was signaling that the President could ignore judicial orders. 

Any President, do they have to comply with a court order, assuming—I mean obviously they could appeal one. But assuming it has 

been upheld, do they have to—do they have to comply with it? 

Judge GORSUCH. That is the rule of law in this country, Senator 

Leahy. And Presidents for a long time have said all sorts of things 

like that. President Jefferson said things like that. 

Senator LEAHY. Well, we are not—he was—— 

Judge GORSUCH. President Jackson—— 

Senator LEAHY. He was slightly before my time. 

[Laughter.] 

Voice. Just slightly. 

Judge GORSUCH. But Presidents say these things, right, Congress 

says things, and then judges decide. And that is the way our system works. And, Senator, all I can commit to you, again, is I am 

a judge now. I take that seriously, and you had better believe I expect judicial decrees to be obeyed. 

As I said yesterday, a wise old judge, who you are going to hear 

from tomorrow, one of my heroes says that ‘‘The real test of the 

rule of law is where a government’’—government—‘‘can lose in its 

own courts and accept those judgments.’’ 

Senator LEAHY. Well, I believe in the rule of law, too. That is 

why I have stayed on this Committee for decades. When I took my 

oath before the Vermont Supreme Court when I was sworn into the 

Bar, I took it very seriously. I did with our Second Circuit Court 

of Appeals and our Federal courts. And when I was sworn into the 

U.S. Supreme Court Bar, I took that very seriously. I believe that 

ultimately we are a country of laws, and we should follow them. 

Now, speaking of which, yesterday we discussed the relevance of 

what our Framers meant in the Constitution, and many feel they 

wanted to prevent a President from being corrupted by foreign governments. Obviously, I am referring to the emoluments cause. 

What is the purpose of the emoluments clause? 

Judge GORSUCH. The emoluments clause, Senator, is not a clause 

that had attracted a lot of attention until recently, but—— 

Senator LEAHY. Well, but Governor Randolph in the 1787 Constitutional Convention pointed it out. 

[Laughter.] 
268 

Senator LEAHY. I mean, if you want to go back to Jefferson, I will 

go back to Randolph. 

Judge GORSUCH. I am with you. And among other things, it prohibits Members of the Government of this country from taking 

emoluments, gifts from foreign agents. And the question is, what 

exactly does that mean, and that is a subject on which there is ongoing litigation right now, Senator, I believe, certainly threatened 

litigation, impending litigation. And I have to be very careful about 

expressing any views. 

Senator LEAHY. Well, what Randolph said, it was done in order 

to exclude corruption and foreign influence, to prohibit anyone in 

office from receiving or holding any emoluments in foreign states. 

Now, you are hesitant to discuss it. You would not be hesitant to 

discuss the Fourth Amendment or the Fifth Amendment, would 

you? 

Judge GORSUCH. Well, I am hesitant to discuss any part of the 

Constitution to the extent we are talking about a case that is likely 

to come before a court, pending or impending. And I do think that 

the emoluments clause has sat in a rather dusty corner for a long 

time until recent headlines, and I know that there are cases that 

are at least impending in that area. 

I would be happy to try and talk about things that are not likely 

to come before me, but I cannot—— 

Senator LEAHY. Well, let me ask you this. Then what does the 

Constitution say a President must do if he or she receives a foreign 

emolument? 

Judge GORSUCH. Well, Senator, that is a—that is a good question. I do not believe it has been fully resolved. 

Senator LEAHY. Well, I think it is kind of easy. The clause prohibits receipt of any emolument without the consent of the Congress. 

Judge GORSUCH. Right. 

Senator LEAHY. Now, you are a judge. As I said yesterday, I am 

a lawyer from a small town in Vermont. But if it says they cannot 

receive any emolument without the consent of the Congress, is the 

answer not pretty simple what a President must do if he or she receives a foreign emolument? They have to get the consent of the 

Congress. 

Judge GORSUCH. Sure. I thought you were asking what would be 

the remedy if they violated it. 

Senator LEAHY. Oh no, I am asking what they have to do. 

Judge GORSUCH. You are absolutely correct. Of course, Senator. 

Senator LEAHY. I appreciate that. 

Judge GORSUCH. Well, no, you have read the—— 

[Laughter.] 

Senator LEAHY. I understand your concern, and I appreciate it as 

a judge—— 

Judge GORSUCH. I know you do. 

Senator LEAHY [continuing]. Answering questions about any 

pending litigation. But you have been very hesitant to even talk 

about various Supreme Court precedents. I know that Chief Justice 

Roberts, when he was before us, he said he agreed with Griswold 

and Brown. Justice Alito said he agreed with Hamdan and 

Eisenstadt. So, we have had Justices nominated by Republican 
269 

Presidents who have been willing to discuss past precedent. I was 

just kind of hoping you would be as transparent as these prior 

nominees were. 

During the campaign, President Trump promised to appoint 

judges very much in the mode of Justice Scalia. Now, he had every 

right to say what he wanted. He could have picked anybody. The 

Vice President said you two are cut from the same cloth. But Justice Scalia was a friend of mine. He was an intelligent, influential 

jurist. I voted for him, in case people wonder, and not just because 

we both have Italian ancestry. 

But his interpretation of the protections afforded by the Constitution left our most vulnerable communities out. Do you agree 

with Justice Scalia’s characterization of the Voting Rights Act as 

a perpetuation of racial entitlement? 

Judge GORSUCH. Senator, the Voting Rights Act was passed by 

this body during the civil rights era in order to protect civil rights. 

Senator LEAHY. Well, it was also updated just a few years ago 

during President George W. Bush’s tenure. 

Judge GORSUCH. In 2006 it was reauthorized with the support of 

the President, that is right. And that is true, and it is designed to 

protect the civil rights of Americans. 

Senator LEAHY. But do you agree with Justice Scalia’s characterization of it as a perpetuation of racial entitlement? 

Judge GORSUCH. Senator, I do not speak for Justice Scalia. I 

speak for myself. 

Senator LEAHY. Okay. So, with that, others who—you know, 

there was a lot of people who—in the Administration described who 

have described you are. One of the reasons we have these hearings 

is so the American people and this Committee can determine better 

who you are. And that is why I have not—I made it very clear I 

will be here at the hearing and make that determination, because 

I was concerned—— 

I know that Steve Bannon was a strong advocate for your selection. And with all due regard to Mr. Bannon, he is well known for 

giving a platform to extremists, and misogynists, and racists. At 

the CPAC conference a few weeks ago, both Mr. Bannon and 

Reince Priebus praised your nomination. And I would ask consent 

that a report of that be included in the record. 

Chairman GRASSLEY. Without objection, your article will be entered. 

[The information appears in the appears as a submission for the 

record.] 

Senator LEAHY. And Mr. Priebus said you have the vision of Donald Trump, and by nominating you, Donald Trump was talking 

about a change in potentially 40 years of law, suggesting you are 

coming in here as a Trojan horse. What vision do you share with 

President Trump? 

Judge GORSUCH. Senator, I mean no disrespect to any other person in saying they do not speak for me, and I do not speak for 

them, you know. I have great admiration for Justice Scalia, as we 

have talked about. I have admiration for every Member of this 

Committee, and for the President of the United States, and for the 

Vice President of the United States. But, respectfully, none of you 

speaks for me. I speak for me. 
270 

I am a judge. I am independent. I make up my own mind. 

Senator LEAHY. Well, the reason I asked, Mr. Bannon, Mr. 

Priebus, and the President had closed-door interviews with you, 

and in these things, including this material I just put in the record, 

they promised their donors a nominee that would bring a pro-corporate, socially conservative agenda to the Court. Are you saying 

they are speaking for themselves, not for you? 

Judge GORSUCH. I am. 

Senator LEAHY. Thank you. In your view, in the Constitution it 

speaks about high crimes and misdemeanors. What kind of conduct 

does that include? 

Judge GORSUCH. Well, Senator—— 

Senator LEAHY. We have talked about the Founders. They put 

that in, so—— 

Judge GORSUCH. I think, you know, classically we have talked 

about felonies that have been typically what this body has impeached individuals for. There have been a variety of cases involving sadly Federal judges, as well as Presidents, as well as a Justice 

attempt. And usually it has been more along the high crimes rather than the misdemeanors. 

Senator LEAHY. We would—I would assume that you would not 

think of a misdemeanor in the sense that we have like traffic violations, going through a stop sign or something like that. That is a 

misdemeanor. But would you accept that is probably not what is 

meant in the high crimes and misdemeanors? 

Judge GORSUCH. I would not want to issue an opinion on that 

without the full judicial process, Senator. 

Senator LEAHY. All righty. 

Judge GORSUCH. I do not know. I know misdemeanors in 1789 

looked a lot different than misdemeanors today. We have a lot 

more criminal law today and a lot more misdemeanors today than 

we did back then. I can say that. 

Senator LEAHY. I am going to start—I am going to start driving 

more carefully. Thank you, Mr. Chairman. 

[Laughter.] 

Chairman GRASSLEY. Senator Hatch. 

Senator HATCH. Judge, I have only been around here 40 years, 

and I have seen an awful lot of great people in the law come before 

this Committee. And I have not seen anybody any better than you. 

I am very—I am very proud of—go ahead. 

Chairman GRASSLEY. Can you talk louder? 

Senator FEINSTEIN. You have to—the mic is not carrying you. 

Senator HATCH. I am very proud of you and the service that you 

are giving to our country. There is no question that any fair observer would say how lucky we are to have you nominated by 

whomever to be a Justice on the Supreme Court of the United 

States of America. 

I held the highest rating an attorney could have when I was a 

partner in a Pittsburgh law firm. In Utah, I held the MartindaleHubbell AB rating. These are ratings, as you know, given by your 

peers without your knowledge. And I have to say that I have been 

around here 40 years, and I have seen all kinds of judges come before this Committee, and there have been a number of great ones. 

And you, sir, are one of the great ones, and I am proud of you. 
271 

But I knew that before you came here to testify, but now that 

you are testifying, it even reinforces that opinion in my mind. And 

why anybody in this body would vote against you, I will never understand. Admittedly, you are of a different political persuasion 

perhaps than some of my friends on the other side, but I have supported people who are totally different from my political beliefs. 

And all I can say is that, you know—and I have refused to support 

some people, too. 

But, my gosh, you know, let me just go into this. I am troubled 

by the suggestion that skepticism of Chevron, the Chevron case 

somehow means that one is somehow reflexively opposed to regulation. In my mind, such a charge is completely unfounded. After all 

it is important to remember that the Chevron deference first flourished as a reaction against liberal judges overturning the articles 

of the—or the actions of the Reagan Administration. 

And many of my colleagues on the other side of the aisle have 

now suddenly rediscovered the importance of the Constitution’s 

limits on Executive power, something they were conspicuously silent about when President Obama was in office, but are now quite 

enthusiastic about that now that a Republican is in the White 

House. And I find it surprising that they do not appreciate how 

Chevron impedes an independent judiciary’s ability to hold the executive branch accountable to the law. 

Now, Judge Gorsuch, do you think your writings reflect a 

kneejerk attitude against common sense regulations? 

Judge GORSUCH. No, Senator. 

Senator HATCH. I do not either, even if you did not like those 

regulations. Is that fair? 

Judge GORSUCH. Senator, I have enforced all manner of regulation that is lawful without respect to my personal point of view. 

Senator HATCH. And sometimes you do not like some of them. 

Judge GORSUCH. Senator, whether I did or did not is not material. 

Senator HATCH. Well, I kind of would like to hear, though, even 

so. That is okay. 

In addressing the Chevron issue, many are invoking the importance of relying on scientific expertise. But despite how some are 

mischaracterizing the issue, Chevron deference is not the same 

thing as respecting the judgments of experts on technical matters, 

but rather about how to handle questions of law, questions on 

which judges themselves are experts. Nor does the issue of judicial 

deference call into question how much authority Congress can or 

should give agencies and their experts to write regulations. 

Now, Judge Gorsuch, would you mind explaining the difference 

between all of these issues for those who may not be experts in administrative law? 

Judge GORSUCH. I would be happy to, Senator. 

Senator HATCH. Okay. 

Judge GORSUCH. Section 706 of the Administrative Procedures 

Act says basically two things, and I am paraphrasing. It says the 

courts are supposed to defer to the factual findings of agencies. So, 

to the extent you are talking about expert biologists, chemists, 

whatever manner of regulatory expertise we are talking about 

there, the courts are to defer to that and to take that seriously. 
272 

And we do, just as we would, say, the factual finding of a jury or 

a District Court Judge that comes to us with a presumption of correctness. Clear error standard of review, very hard to meet. 

Section 706, however, also goes on to say that when it comes to 

questions of the law, the courts are to interpret the law. Despite 

that command from this body, the courts have created a doctrine 

that says that if there is any ambiguity in the law, the agency gets 

to make the decision about what the law means. 

And I have questions about that doctrine. I have raised questions 

about whether that is compatible with the plain language of Section 706 and the instruction of this body. And I have raised some 

questions that arise in a case that I actually had to deal with and 

how it would impact people, real people, if agencies can change the 

meaning of the law back and forth every 4 years, depending upon 

the outcome of an election. 

For example, what happens when some individual—I am not 

worried about large corporations here honestly, Senator Hatch. 

They have got armies of lawyers, lobbyists. They can predict which 

way the wind is drifting in the agency. Sometimes they can capture 

the agency. I am worried about the ordinary American, and sometimes even the non-American. 

The case happened to involve an undocumented immigrant. That 

is the case I actually dealt with, and there he faced two competing 

statutes. One said he could rely on and seek permission to remain 

in the country from the Attorney General and get immediate discretionary relief. The other statute said he had to wait out of the 

country 10 years. 

Our court interpreted the law as Section 706 says we are supposed to, and said the first statute controls because there was an 

apparent conflict between the two, and said he could rely on the 

opportunity to seek immediate discretionary relief. He did in reliance on that judicial precedent. 

Then the agency comes in years later and says we are wrong. 

Chevron. Sprinkle Chevron on it. We have to overturn our decision, 

and he has to leave the country, and wait not just 10 years now, 

but 13 or 14, or whatever it was. And to me, that raises questions 

not only about the consistency with Section 706 and the instructions that Congress has given us, but due process and fair notice. 

If the law can change so easily, not through bicameralism and 

presentment to the President—bicameralism in this body, passage 

of both houses, presentment to the President—the order specified 

for law making in the Constitution. If the law can change so easily 

as that, where is the due process to the individual, the person who 

does not have an army of lawyers? How is he supposed to figure 

that out? 

What about the equal protection problems when you allow an 

agency to pick and choose unfavored targets for changes in law? 

They do not have to go through bicameralism and presentment. 

They can pick their targets with more or less impunity, the least 

amongst us, the most vulnerable, the little guy, if you will, the person without the lobbyists. 

And then, what about the separation of powers? I thought that 

judges were supposed to say what the law is. I thought that is 

what Justice Marshall said. And I thought the point of having 
273 

judges decide the law is because you want someone who is neutral 

and independent to say what the law means, someone who does not 

have a dog in the hunt. 

So, those were the questions I raised in that case. I did it as a 

Circuit Judge because part of my job as a Circuit Judge is to identify problems that I see for my bosses. 

So, Senator Hatch, that is a long-winded answer, and I am sorry 

for it, but I hope it is helpful. 

Senator HATCH. I liked it. I liked it. I think, again, perfect illustration of why you should be on the U.S. Supreme Court. And 

while they may sound like legal technicalities, I think it is incredibly important that we distinguish questions of law, questions of 

fact, and questions of the wisdom and constitutionality of agency 

authority, which I think are being confused and conflated to suggest that reining in Chevron somehow represents an attack on the 

role of experts in developing sensible safeguards that keep us 

healthy and safe. So, I appreciate purchase your comments. 

In previous exchanges, a number of my colleagues have brought 

up your work on some of the very difficult issues that you have 

dealt with while you were a lawyer in the Justice Department. And 

while I appreciated your answer, I wondered if I could describe the 

responsibilities—if you could describe the responsibilities of a government lawyer just a bit more. 

In particular, I would like to hear you briefly spell out your understanding of the difference between policymaker and advocate as 

well as a distinction between how a lawyer might be called upon 

to give a different type of evaluation of the law as an executive 

branch lawyer and as a judge or Justice. I just do not want you 

to get unfairly tagged with the legal and policy views of an Administration that you personally might not share. So, I would like you 

to take some time and explain that. 

Judge GORSUCH. Senator, as lawyers we play different roles in 

different places in our lives, and depending upon who our client is 

at the time. As a private lawyer, I represented plaintiffs and I represented defendants. I represented large corporations. I represented individuals in class actions and pension funds—public employee pension funds, CalPERS, for example. I represented hospitals, doctors, victims, defendants. 

So, where you stand as a lawyer changes. You are someone’s 

voice. You are your client’s voice. So, that is in private practice 

what a lawyer does consistent with the rules of ethics and the law 

of the land as best they can. And often those are hard things because your client’s interests always butt up against another person’s. 

And sometimes I ask whether our rules of ethics are all that 

great. One of our rules of ethics, when talking about the zeal a lawyer should exhibit, says that a lawyer does not have to engage in 

offensive tactics. Well, how is that for a professional promise? We 

do not have to engage in offensive tactics. I do not know. Only a 

lawyer could love that. 

At any rate, moving to government practice, there are policymakers who are the clients. The President of the United States, the 

Attorney General, the Cabinet officials, they are the policymakers. 

The role I served in was in a litigation capacity supervising cases 
274 

and controversies, civil lawsuits involving the United States as my 

client. I was in the role of an advocate in those cases. 

As a judge, you put that aside. You put aside all the stuff you 

did as plaintiff or defendant in private practice, all the stuff you 

did as a government lawyer, and you only have one client now, the 

law. You wake up every day, and you just try and get it right as 

best you can. 

And Justice Jackson is who comes to mind here to me. He was— 

he was one of the finest and fiercest advocates of his day, and one 

of the fiercest advocates of Executive power when he was Attorney 

General of the United States during the New Deal for Franklin 

Delano Roosevelt. When he became a judge, he also became one of 

the fiercest critics of Executive power as a judge, because he knew 

the difference in the roles that we serve. And he said, ‘‘A robe 

changes a man or should.’’ 

And I believe that, and I have seen it. I have seen so many fine 

lawyers go on to be very fine judges and put aside their personal 

points of view, or their clients’ perspectives, or which side of the 

V they served on, or what sort of client they served, and become 

neutral, fair judges. At least that is what I have aspired to be for 

the last 10 years. 

Senator HATCH. Well, and I think you have accomplished that, 

too. Judge, yesterday, Senator Sasse spoke to you about the need 

to teach civics to our fellow citizens, and especially to the younger 

generation. And I hope that this hearing is contributing to that because perhaps the most prominent theme this week has been the 

separation of powers. Now, you said yesterday, and I agree, that 

the separation of powers is critically important, but seems to have 

gotten lost today. 

Now, Judge, judges do not exist and work in a vacuum doing 

whatever they want to do. They exist and work as part of a system 

of government, and, therefore, must do what they are supposed to 

do. The role of judges in that system is by design, and that design 

has a purpose described in the Constitution’s preamble as including 

securing the blessings of liberty. Our liberty requires that each separated branch of government stick to—stick to its job. 

That is why I think one of the most important things you said 

yesterday was this: ‘‘It is not my job to do your job.’’ I thought that 

was pretty neat for you to say that. So, let me ask you to expand 

on that simple statement, if you would. 

Judge GORSUCH. Senator, we all have roles to play. When we 

choose to take up a role in our Government, we all have a particular place in it, and we have to respect the boundaries of it. And 

it is my job to respect in part the boundaries of this branch, and 

not engage in the temptation to legislate through the cloak of a judicial robe. Judges would make very poor legislators. 

Senator HATCH. Well, sometimes legislators make very poor legislators, too. 

[Laughter.] 

Senator HATCH. I have seen a few. 

Judge GORSUCH. I respectfully disagree, Senator. 

[Laughter.] 

Judge GORSUCH. I have great, great respect for this body, and I 

know—— 
275 

Senator HATCH. I did not say all. 

[Laughter.] 

Judge GORSUCH. I know in our civic culture today there is a 

great pessimism about our Government. I do not share that. I 

think this body still works, and I think it is important and vital 

that it work, because it is the people’s voice. It is people’s representatives. It is where lawmaking is supposed to occur. And for 

you to do your job, it is important that I do not do your job. It is 

important that I do my job and let you do yours. 

If judges became legislators, we would be bad at it, and we would 

absolve you from your responsibilities. You could wash your hands 

of it. It sounds like some might want to do that. I do not know. 

You are smiling. But, respectfully, I am poorly equipped. I am 

not—I am not a representative of the people. I am not answerable 

to the people, and I do not have the expertise of your wonderful 

staffs are sitting behind you. 

My job is to decide cases, and I really—I am okay at that on a 

good day, right? I am never going to be good at your job, and I need 

to respect that. And I need—it is also very important for legislators 

to respect that we do what we do, and that we do not run campaigns, and we do not make promises about how we rule in cases 

and controversies that come before us. That is part of the mutual 

respect for the separation of powers. 

Senator HATCH. Well, you have cited Justice Robert Jackson several times. In fact, he once occupied the seat to which you have 

been nominated. In 1953, he lamented what he considered a widely 

held belief that the supreme—that the Supreme Court, ‘‘no longer 

respects impersonal rules of law, but is guided by personal impressions which from time to time may be shared by a majority of Justices.’’ 

One recent poll showed that three-quarters of Americans believe 

that Supreme Court decisions are influenced by the Justices’ personal political views. Is this not what we are really talking about, 

and what the approach called originalism is really all about? 

Should judges not base their decisions on impersonal rules of law 

rather than their own personal impressions? 

Judge GORSUCH. Senator, I am here to testify to you that is not 

how I see our judicial system operate. 

Senator HATCH. Yes. 

Judge GORSUCH. We resolve hundreds of thousands of cases 

every year in the Federal system, almost all of them, as I say in 

the Tenth Circuit, for example, unanimously. It is a remarkable 

thing that even when we get to the Court of Appeals, only 5 percent of all cases get so far as my court, and even then, of those over 

the last 10 years, we have been unanimous 97 percent of the time 

in the cases I have participated in. 

That is a wonder. That is an amazing accomplishment. That is 

the rule of law in this country. And too few people know how it actually works, and if they did, they would be heartened. 

Senator HATCH. Thank you Judge. I appreciate your comments. 

Chairman GRASSLEY. Just as soon as I make four announcements, we are going to take a 5-minute break. 

First of all, I want to enter into the record a Washington Post 

op-ed by two former Chief Judges of the Tenth Circuit, Judges 
276 

Tacha and Henry, entitled ‘‘Gorsuch is the Kind of Judge Our 

Framers Envisioned.’’ 

Without objection, that will be entered in the record. 

[The information appears as a submission for the record.] 

Chairman GRASSLEY. Second, my plan is to, in consultation with 

Senator Feinstein, to take a break around 12:30, whoever is just 

ready to start about that time or just finishes around 12:30, and 

it will be a half hour. And then, I would like to have any Member 

who wants a third round to let us know ahead of time so we can 

kind of plan what we are doing after we get done with this second 

round we have. I hope there is not too many that want to do that, 

but if they do we want to be respectful of everybody to ask all the 

questions that they can before we finish tonight. 

And then now, Judge, we are going to take a five-minute break, 

but because I was late in announcing this, Senator Durbin has 

come back from another Committee meeting, and he is the next one 

up. So, I want to have it just be 4 minutes and 59 seconds. 

Judge GORSUCH. Yes, sir. 

Chairman GRASSLEY. Recess. 

[Recess.] 

Chairman GRASSLEY. Senator Durbin, it is your turn now. 

Senator DURBIN. Mr. Chairman, I ask consent to enter into the 

record seven articles relative to this hearing. 

Chairman GRASSLEY. Without objection, your articles will be entered in the record. 

[The information appears as a submission for the record.] 

Senator DURBIN. Thank you. 

Judge Gorsuch, I sat here yesterday for hours, not nearly as 

many hours as you sat here, until I reached the point where I could 

finish your sentences and complete your answers before you. 

My Republican colleagues assumed the well-known courtroom 

strategy of never asking a question that could hurt their witness, 

and made every effort to humanize you so that we know your love 

of fly fishing and rodeos and family. I know that Senatorial assignment. I have been there myself. 

So the Democrats on the Committee pressed you for answers to 

harder questions and tried to peel back your professional and carefully guarded persona so that we might understand whether there 

is any chance there is a beating heart and an independent streak 

in Donald Trump’s most important decision of his nascent presidency. 

We were given this public hearing to develop an insight into 

what it was that made your record so attractive to the Federalist 

Society, to the Heritage Foundation, and to President Trump. 

You fended off most questions of substance, so we turned to your 

written opinions. I am sure the press and public are puzzled out 

there why we spent so much time talking about a truck driver 

named Alphonse Maddin, who was fired and blackballed from ever 

driving again because he was faced with what Senator Franken 

correctly called an absurd choice of freezing to death or endangering the lives of innocent motorists by driving a disabled truck 

on the interstate. 

Many of us still cannot understand how seven judges could look 

at those facts and the law in the case and only one, Judge Neil 
277 

Gorsuch, come down on the side of the trucking company that fired 

him. 

Now we have another question that has been raised, and it relates to the Individuals with Disabilities Education Act. It is a 

landmark law. It mandates access to public education for students 

with disabilities. 

The National Education Association took a close look at your 

record in these IDEA cases. They found that in eight of the 10 

cases to come before you, you ruled against students with disabilities. 

Furthermore, in one of the two cases in which you sided with the 

student plaintiff, you wrote a concurring opinion ‘‘expressing your 

personal belief that IDEA provides only limited rights to students 

with disabilities.’’ 

That pattern is troubling. Your opinion in Thompson R2–J 

School District v. Luke P., in this case, a school district appealed 

the District Court’s ruling that the district failed to provide a severely autistic child with the educational services guaranteed to 

him under IDEA. 

The court ordered the school district to reimburse the cost of a 

private residential school placement for the child. The District 

Court relied on the expert testimony of autism specialists, psychologists, and occupational therapists to reach that conclusion. 

They reached the conclusion: ‘‘The nature of Luke’s problems required a residential placement,’’ and ‘‘that the reinforcement and 

consistency Luke needed to make educational progress could not be 

achieved in a regular school setting at that time.’’ 

You reversed this District Court ruling, and in doing so, you rejected not only the judgment of the Federal District Court but also 

the judgment of a hearing officer and the Colorado State administrative law judge. You asserted that, ‘‘The assistance that IDEA 

mandates is limited in scope’’ and that it only requires ‘‘the creation of an individualized program reasonably calculated to enable 

the student to make some progress toward the goals within that 

program.’’ 

You also said, directly from your opinion, ‘‘From this direction, 

we have concluded that the educational benefit mandated by IDEA 

must merely be ’more than de minimis.’ ’’ 

This morning, the Supreme Court ruled on that standard that 

you established in the case. Here is what they said in the case of 

Endrew F. v. Douglas County School District, a unanimous decision 

by the Supreme Court written by the Chief Justice, ‘‘When all is 

said and done, a student offered an educational program providing 

‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all. For children 

with disabilities, receiving instruction that aims so low would be 

tantamount to sitting idly . . . awaiting the time when they were old 

enough to drop out.’’ 

The court went on to say, ‘‘The IDEA demands more. It requires 

an educational program reasonably calculated to enable a child to 

make progress appropriate in light of the child’s circumstances.’’ 

It is a powerful decision. It is a unanimous decision. It was written by the Chief Justice of the Court. It is an issue which we need 
278 

to face in America with the incidence of autism and children with 

severe disabilities. 

Why, why in your early decision, did you want to lower the bar 

so low to ‘‘merely more than de minimis’’ as a standard for public 

education to meet this Federal requirement under the law? 

Judge GORSUCH. Senator, I really appreciate the opportunity to 

respond to that, because I just saw the opinion. It was handed to 

me as I was headed to the bathroom a moment ago. I guess it was 

just handed down. 

Let us start with the Luke P. case and work forward from there. 

Luke P. was a unanimous decision by my court. It included on 

the panel of three judges an appointee who happened to be appointed by a Democrat President. There was no dispute in my court 

about the applicable law, and there was not because we were 

bound by Circuit precedent, a case called Urban v. Jefferson County, 1996, that said that the appropriate standard was de minimis. 

The educational standard had to be more than de minimis. 

That is the law of my Circuit, Senator. And I have been asked 

an awful lot about whether I abide precedent and whether I always 

like the results that I reach. Here is a case for you. 

Senator DURBIN. But I might—— 

Judge GORSUCH. Senator, if I might finish—— 

Senator DURBIN. Sure. Of course. 

Judge GORSUCH. I would appreciate the opportunity to finish 

this. 

If anyone is suggesting that I like a result where an autistic 

child happens to lose, it is a heartbreaking accusation to me, heartbreaking. 

But the fact of the matter is, I was bound by Circuit precedent 

and so was the panel of my court and had been bound for about 

20—well, 10 years by the standard in Urban v. Jefferson County. Now, Senator, there are other cases where, again, unanimously, 

my court had ruled for children with disabilities under this law. 

The School of Deaf and Blind, another Jefferson County case, are 

examples where I joined, participated, or wrote in IDEA cases for 

the family under our binding standard. 

I understand today that the Supreme Court has indicated that 

the Urban standard is incorrect. That is fine. I will follow the law. 

Now, sometimes—I think it was Justice Jackson who said just 

because I made a mistake unknowingly yesterday does not mean 

I should make a mistake knowingly today. I would invoke him 

here. 

I was wrong, Senator. I was wrong because I was bound by Circuit precedent, and I am sorry. 

Senator DURBIN. I want—— 

Judge GORSUCH. I am going to try to apply the law, and I can 

tell you that we were doing it unanimously in all of those cases. 

And the Supreme Court is our boss, and we respect their last 

word. They are final. 

Senator DURBIN. Judge, in 8 out of 10 cases that came before 

you, you ruled against the students with disabilities. And the difference—— 

Judge GORSUCH. I am sure they were unanimous panels, Senator, if you look. 
279 

Senator DURBIN. And the difference in this case—the difference 

in this case is about a word. We know that words are important, 

and they can make a critical difference in a person’s life. You can 

ask Alphonse Maddin that question. 

The word that you inserted into the Circuit standard when it 

came to these cases was ‘‘merely’’—‘‘merely.’’ I would say most people reading that would say you have pushed the de minimis statute 

even further down the standard pole. And it was that word, ‘‘merely more than de minimis,’’ that was specifically overruled by the 

Supreme Court. 

So my question to you is, if you wanted to just stick with Tenth 

Circuit precedent, you felt your hands were tied, why would you 

add the word ‘‘merely’’ to modify that? 

Judge GORSUCH. Senator, all I can say is what I have said to you 

before, which is a unanimous panel of the Tenth Circuit following 

10-year-old Circuit precedent, including a Democrat colleague—I do 

not view my colleagues as Democrats or Republicans—followed our 

Circuit precedent. 

And these cases have been decided unanimously, I think all of 

them, if I had to guess, that you are pointing at. 

And to suggest that I have some animus against children, Senator, would be mistaken. 

Senator DURBIN. Judge, please. I am not suggesting that. You 

were—— 

Judge GORSUCH. I am glad to hear it. 

Senator DURBIN. What I am basically saying to you is I can only 

look at your court opinions, the words you write, because, like 

many nominees, you are careful in your testimony before us, and 

we have to look at your words and try to look into your heart with 

these words. 

And when I look at that word ‘‘merely,’’ it troubles me. Do I believe you love your family and love children? Of course you do. 

But when it comes to applying the law to a truck driver blackballed for life from driving a truck, when it comes to applying the 

law when it comes to a family—I cannot imagine the pain they are 

going through with an autistic child—I want to try to understand 

what Neil Gorsuch’s heart is leading him to. 

You told us time and again: No place for my heart here. This is 

all about the facts. This is all about the law. 

I do not buy that. I do not think that the decisions of courts are 

so robotic, so programmatic, that all you need to do is look at the 

facts and look at the law and there is an obvious conclusion. If that 

were the case, there would never be a dissent. 

Judge GORSUCH. Senator, there was no dissent in that case. 

Senator DURBIN. Well, in other cases, there have been dissents, 

and you have written them. And the point I am making to you, like 

the case with TransAm, is were looking for an insight into your 

values and your judgment, and it is hard in this kind of hearing 

to get close to it. 

Let me take you to an issue I raised yesterday about your mentor 

and supervisor at Oxford, Professor Finnis, who, as I understand 

it, helped you write your doctoral—or at least moderated the—I 

have never gone through this experience—the writing of your doctoral thesis, which led to the publication of a book on euthanasia. 
280 

Is that correct? 

Judge GORSUCH. Senator, he was my dissertation supervisor. He 

wrote none of my book. And I have written none of his work. 

Senator DURBIN. Would you say he gave you kind support 

through draft after draft? 

Judge GORSUCH. Absolutely. 

Senator DURBIN. That is exactly what you said. 

Judge GORSUCH. As every good dissertation supervisor would do. 

Senator DURBIN. So I guess what I am driving at is this. There 

is a statement which you made in that book, which has been often 

quoted, and I want to make sure that I quote it accurately here 

today. 

Give me just a moment to make sure I find it. It relates to the 

taking of life. I am sorry, I am having difficulty finding it on this 

page. 

And I quote, ‘‘The intentional taking of human life by private 

persons is always wrong.’’ 

That was a statement that you included in your book, correct? 

Judge GORSUCH. I believe so. 

Senator DURBIN. I believe so, too. 

How could you square that statement with legal abortion? 

Judge GORSUCH. Senator, as the book explains, the Supreme 

Court of the United States has held in Roe v. Wade that a fetus 

is not a person for purposes of the Fourteenth Amendment, and the 

book explains that. 

Senator DURBIN. Do you accept that? 

Judge GORSUCH. That is the law of the land. I accept the law of 

the land, Senator, yes. 

Senator DURBIN. I think that is an important element to bring 

in this, because when you were questioned by Senator Coons about 

this whole area and asked why you would express an opinion, you 

said: I was not a judge at the time. I was a commentator. 

So that is another brief opening of a narrow door here to an insight into what you are thinking, and I wanted to have some clarity on the record when it came to that. 

Judge GORSUCH. Sure. 

Senator DURBIN. Thank you for that clarification. 

Let me ask you about the Sixth Amendment. In 1961, Clarence 

Earl Gideon, accused of stealing money from a poolroom cash register in Panama City Florida, asked for a lawyer. His request was 

denied. He represented himself and was sentenced to 5 years in 

prison for petty larceny. 

He took his case to the Supreme Court, which held unanimously 

that the Sixth Amendment entitled Clarence Gideon to a lawyer. 

In 1963, the retrial took place, and then, represented by counsel, 

Mr. Gideon was found not guilty. 

Judge Gorsuch, do you agree that the Sixth Amendment right to 

counsel is fundamental? 

Judge GORSUCH. As recognized by the U.S. Supreme Court in 

Gideon v. Wainwright, Senator, yes. 

Senator DURBIN. Have you ever written an opinion finding that 

a defendant’s Sixth Amendment right to effective assistance of 

counsel was violated? 

Judge GORSUCH. Oh, I am sure I have, Senator. 
281 

Senator DURBIN. You have authored 52 opinions that discuss the 

Sixth Amendment generally, according to the Stanford Law Review. In none of these did you find that an attorney provided ineffective assistance of counsel in violation of the Sixth Amendment. 

Further, according to the Stanford Law Review article, you have 

dissented four times in a Sixth Amendment context, each time with 

reasoning that favored the Government. 

I am concerned whether you appreciate the importance of this 

fundamental right. Let us take the 2009 case, Williams v. Jones. 

Mr. Williams was offered a plea agreement of 10 years. His lawyer threatened to quit if he accepted the agreement. He advised 

Mr. Williams, if you took a deal and pled guilty, that would be perjury. 

That was clearly a false statement by his lawyer. Mr. Williams 

relied on that misinformation from his lawyer. He lost at trial and 

was sentenced to life in prison without possibility of parole. 

When Mr. Williams’ case came to the Tenth Circuit, you were the 

lone dissent. Your colleagues, Judges Kelly and McConnell, both 

Republican appointees, disagreed with you. And then, in 2012, the 

Supreme Court disagreed with you too. 

In Lafler v. Cooper, Justice Kennedy wrote the opinion holding 

that, prejudice can exist, ‘‘if loss of the plea opportunity led to a 

trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.’’ 

The Supreme Court noted that 97 percent of Federal convictions, 

94 percent of State convictions, end in guilty pleas. So the accused, 

even before a trial, must have the competent guidance of an attorney in deciding whether to take a plea deal. 

In light of Lafler v. Cooper, please tell me what you feel about 

your lone dissent in Williams v. Jones. 

Judge GORSUCH. I would be happy to. 

So, Senator, under the Sixth Amendment Strickland test, before 

you reverse a conviction or a plea deal, you have to find two things. 

First, you find whether there is ineffective assistance. But that is 

only part of the equation because the Supreme Court, Justice 

O’Connor, said we do not reverse where there is no prejudice. So 

you have to show prejudice as well, ineffective assistance plus prejudice, before reversal occurs. 

So oftentimes, you will have cases where there was ineffective assistance. But at the end of the day, you cannot say there was a 

harm or a foul. 

Now, that is a counterfactual hypothetical that you have to ask 

yourself, and it is a hard question. 

Senator DURBIN. Did you feel there was ineffective assistance in 

the Williams v. Jones case? 

Judge GORSUCH. In Williams v. Jones, the question was one of 

prejudice, in my mind, as I recall. 

Senator DURBIN. You said there were two tests. I asked you 

about the first one. Did you feel that this defendant had ineffective 

legal assistance? 

Judge GORSUCH. I do not recall what I said on that subject. What 

I do recall saying is, whether there was or was not ineffective assistance with respect to providing the plea deal, communicating it 
282 

to the client, the gentleman had a fair trial, and he had what everybody admitted was a full and fair trial. And—— 

Senator DURBIN. But that was not the point of the case, not in 

that case or in Lafler. And the facts on ineffective assistance are 

clear. 

His lawyer threatened to quit if the defendant accepted the plea 

agreement and advised his client that, if he took a deal and pled 

guilty, that would be perjury. That was false. 

That is, in my mind, prima facie ineffective assistance. 

Was there a prejudice? Oh, I think there was. A choice between 

a plea deal of 10 years or life in prison? 

Judge GORSUCH. And, Senator, the question was whether there 

is prejudice in light of a fair trial that took place, and that was the 

question that the court had to consider. 

I accepted—I think I accepted that there was deficient performance or ineffective assistance. And the question was one of prejudice. 

And the Sixth Amendment is about a fair and free trial for all 

individuals. And this gentleman, by everyone’s admission, had one. 

He admitted he had a fair trial. 

Senator DURBIN. But that is not the point. 

Judge GORSUCH. And so—— 

Senator DURBIN. The point is—— 

Judge GORSUCH. Well, that was question. 

Senator DURBIN [continuing]. That he was misled by the incompetence of his counsel to turn down a 10-year plea deal, misled, led 

to trial, which might have been fair on its face, and a life sentence 

at the end of the day. 

And the Supreme Court clearly—you were the lone dissenter in 

that case at the Circuit level. 

Judge GORSUCH. Yes. 

Senator DURBIN. The Supreme Court clearly decided that you 

were wrong, with Justice Kennedy’s opinion that I read. 

Judge GORSUCH. It was a 5–to–4 decision by the U.S. Supreme 

Court—— 

Senator DURBIN. And the point—— 

Judge GORSUCH. A closely divided decision. And you are absolutely correct that Justice Kennedy wrote for the majority and said 

that, in the context of a plea deal, even if there is a fair trial, prejudice will be presumed on the basis of a plea that might have been 

accepted, could have been accepted, that could have averted a fair 

trial. 

And that is the standard, Senator. And since the Supreme Court 

has announced it, I have faithfully applied it. 

Senator DURBIN. Thank you. 

Thank you, Mr. Chairman. 

Chairman GRASSLEY. Now Senator Cornyn. 

Senator CORNYN. How are you doing, Judge? 

Judge GORSUCH. I am doing fine. Thank you. Great. 

Senator CORNYN. I think you are. I think you are. It has been 

an endurance test, I know. But I think you are doing fine. 

Let me just join the Chairman, Senator Grassley, in saying that 

I hope you really will take a look at cameras in the courtroom. 
283 

You know, a camera like this one, hidden behind a facade with 

just a lens protruding that does not move around the room and just 

reflects what is happening before the court, I think would serve a 

similar educational role, would be enlightening to a lot of 

schoolkids and adults and others as to how our judiciary actually 

functions. And I think they may find out how boring some of the 

cases are, if you are interpreting the Internal Revenue Code or 

something like that. But I think just as I hope people have been 

enlightened and educated by this hearing, at least some of it, I 

think there is a lot that people would learn and benefit from in 

terms of the role that the judiciary plays in our Government. 

And so I would just ask you to—and you have already committed 

to doing this—keep an open mind and take a look at that. I think 

there are plenty of examples of State Supreme Courts, for example—I can think of one, in particular, that has a fixed camera there 

that people do not play to, people just do not even know is there, 

that would be very helpful to our general awareness of, again, the 

role that the Supreme Court plays. 

So, enough about that. 

So you participated in 2,700 or so decisions? 

Judge GORSUCH. Yes, Senator. More than that. 

Senator CORNYN. And how many cases have you been asked 

about here? 

Judge GORSUCH. A few. 

Senator CORNYN. That is my impression as well. I can think of 

maybe less than five. Of the decisions that you have rendered as 

a Federal judge over the last 10 years, we are talking about less 

than five cases. 

And that strikes me—I am not criticizing, necessarily, but it 

strikes me as a little bit of cherry-picking when it comes to your 

overall record. 

And I think you had a discussion with Senator Graham about 

what the appellate courts have said—or, excuse me, the Supreme 

Court said about your work, and it is pretty darn good. I think you 

all were quibbling about whether there was one reversal or none, 

but I will leave that alone. 

Let me ask about the case that Senator Durbin was inquiring 

about, just handed down from the U.S. Supreme Court, apparently 

this morning. 

You have not had a chance to read that yet, have you? 

Judge GORSUCH. It was handed to me on the way to the bathroom. 

Senator CORNYN. You have not had a chance to read it. So, neither have we. Neither have we. And so I look forward to reading 

that. I am sure you do as well. 

But in the case that Senator Durbin asked you about that you 

actually did render a judgment and write an opinion on involving 

a student with disabilities, that was appealed to the Supreme 

Court of the United States, was it not? 

Judge GORSUCH. I do not recall. You—— 

Senator CORNYN. Well, we checked it out. It was, and they denied certiorari. And it takes four judges, does it not, on the Supreme Court to grant a writ of certiorari? 

Judge GORSUCH. That is right. 
284 

Senator CORNYN. And so, apparently, there were not four judges 

that thought that case merited review by the Supreme Court of the 

United States. 

My point is, if people are going to cherry-pick, and I is speaking 

generally now, not necessarily just this hearing, if people are going 

to try to cherry-pick a judge’s decisions, and to characterize them 

as caring or not caring about children with autism or whatever the 

sympathetic plaintiff would be—and, of course, they deserve our 

care and sympathy, as a general matter. 

But if somebody is going to try to characterize your entire judicial career based on the decisions in these handful of cases when 

the Supreme Court of the United States has found no fault with 

them and has basically deferred to the judgment of the Tenth Circuit and your decision, it strikes me that this is kind of an indictment of the whole Federal judicial system. If you can go in and 

cherry-pick individual cases and talk about how sympathetic the 

plaintiff is, you are basically saying: Well, I do not believe that the 

trial was fair. I do not believe the appellate review by the Circuit 

Court was fair. And I do not believe that the review by the U.S. 

Supreme Court is fair. 

And that strikes me as a radical, radical view. And I am not asking you a question. I am making a statement. 

Well, the other thing is, it completely ignores Congress’ role. I 

bet you can answer this question. If Congress had decided to 

change the standard in the case that Senator Durbin talked about 

in the intervening time period, would you have followed that new 

congressionally declared standard? 

Judge GORSUCH. Of course, Senator. Absolutely. That is my job, 

to follow the law that you pass as best we can, to the best of our 

abilities, consistent with our own Circuit precedent interpreting 

law. 

Senator CORNYN. This is what makes my head explode, that, 

somehow, we want to blame judges for our failures as Members of 

the legislature. If we see something we think is an injustice or is 

wrong, it is within our authority to change it as elected representatives of the American people. Assuming we can get it passed both 

Houses and signed by a President, we can change it. 

So to me, it seems entirely unfair to suggest it is your fault because we did not act in a way that one or more of my colleagues 

might feel would be more just and more fair and more appropriate. 

Let me ask you a little bit—well, first, let me clear up one thing, 

if I can. Hopefully, I will clear it up, not make it more confused. 

Senator Feinstein—who I admire and respect, and she knows 

that is true—made, I think, a suggestion that, somehow, based on 

an originalist orientation, that you would say that the Fourteenth 

Amendment to the United States Constitution somehow applied to 

men but not to women. 

Do you remember that question? Maybe I butchered that a little 

bit. 

Judge GORSUCH. I am not sure that was quite her question, in 

fairness, and I do not she think she implied that, and I certainly 

would not. 

Senator CORNYN. Well, let me just ask you. You do believe the 

Fourteenth Amendment applies to all persons, right? 
285 

Judge GORSUCH. Of course, by its very terms, its express terms. 

Senator CORNYN. So any suggestion that it applied to some but 

not all persons, you would disagree or reject that? 

Judge GORSUCH. The Supreme Court of the United States has 

made that very clear. 

Senator CORNYN. Let me ask you about another topic that was 

a favorite of Justice Scalia, one that I came to respect, personally. 

Now, when you are a practicing lawyer, or even when you are a 

judge, people talk about legislative history as if it is somehow a 

mystical and magical thing that will provide the answers to all 

questions. But Justice Scalia was pretty much critical of the use of 

legislative history, or I should say the misuse of legislative history, 

where statutes were ambiguous. 

As a matter of fact, my able staff has pointed out one story that 

he apparently invoked in a 1993 case. You may be familiar with 

this. He said the use of legislative history is the equivalent of entering a crowded cocktail party and looking over the heads of your 

guests for your friends. 

So when judges use legislative history basically to find a way to 

confirm maybe even their own bias, or to confirm their outcome in 

a case, I think Justice Scalia was telling us that is dangerous territory and you ought to enter it with caution. So I would like to have 

you comment on it. 

But also, there was a dissent he wrote in another famous case, 

Hamdan v. Rumsfeld, where he said about the use of legislative 

history to justify the Court’s opinion, he said, ‘‘The question,’’ talking about the question in the case, ‘‘was divisive, and floor statements made on both sides were undoubtedly opportunistic and 

crafted solely for use in the briefs in this very litigation.’’ 

He went on to say, ‘‘The handful of floor statements that the 

Court treats as authoritative do not ‘reflec[t] any general agreement.’ They reflect the now-common tactic—which the Court once 

again rewards—of pursuing through floor-speech ipse dixit what 

could not be achieved through the constitutionally prescribed method of putting language into a bill that a majority of both Houses 

vote for and the President signs.’’ 

Before you respond, Judge, I just want to mention one other 

anecdote. Since I have been here in the Senate, I have actually 

been on the floor of the United States Senate where we vote to pass 

legislation, and then a Senator comes out and says: And now, for 

some legislative history. 

I was shocked. But with the loose way that courts sometime treat 

legislative history, that, as Justice Scalia said, can reward bad behavior on the part of the legislature. 

So would you now offer us your views on the appropriate use of 

legislative history and how judges should review legislation passed 

by Congress where there is some perceived ambiguity? 

Judge GORSUCH. I would be very happy to, Senator. 

Excuse me. 

I would start by saying that a good judge entertains all arguments from all comers. So you read the briefs as presented to you. 

You do not tell people what they can and cannot argue, generally 

speaking. There are more and less persuasive arguments to be 

made, but people get to make their arguments. 
286 

I believe in trial lawyers, for example, getting to try their cases, 

and appellate lawyers getting to argue their arguments and leaving 

them space and the courtesy and room to do that. 

So I do not believe it is my job to tell people how to argue their 

own cases. It is presumptuous of a judge. 

I would say that it is well-known, and I think appropriately so, 

that the law that governs is what this body passes, in connection 

with the House of Representatives and signed by the President. 

That is the law. That is all that is the law, nothing more and 

nothing less. And everything else stitched around it is not law. And 

it may or may not have persuasive value in interpreting and understanding the law, but it is not law. 

The Founders in the Constitution prescribed a process for making law, and they made it hard. They made it really hard. That 

was the part of separation of powers they really believed in. They 

did not want lawmaking to be easy because they wanted to preserve the liberty of the people. So they divided the lawmaking authority between two bodies, and they required the signature of the 

President or a legislative override. Tough process. Not the case in 

every country in the world or even in every State. 

So that is what law is. And there are some due process considerations in this area, fair notice considerations in this area, that I 

take seriously. That we charge people with notice of the law—generally speaking, ignorance of the law is no excuse. 

We assume that it is reasonable for the people to be on notice 

of all 5,000 Federal criminal laws that this body has passed. Is it 

also reasonable to expect them to know all the floor statements 

that have been issued about the law, everything that might have 

been entered into the record but not discussed by unanimous consent? 

Is that reasonable? Is that fair notice? Is that due process? 

And these are not idle considerations, because, more often than 

not, we are talking about a criminal statute, and we are talking 

about whether someone goes to prison, Federal prison, for a long 

time. 

And I have concerns about relying on things that are not law and 

charging people with notice of things that are not law as a basis 

for putting them in Federal prison. That is the concern. 

So I hope I have addressed your question, Senator. 

Senator CORNYN. Well, you have. And Senators and Members of 

the House of Representatives do not vote on documents. For example, the documents that have been admitted here by unanimous 

consent that nobody has talked about or perhaps even read, or the 

floor statements, those are not things that have achieved the consensus, the hard-fought consensus that you talked about legislation 

having to achieve, and a presidential signature. 

So I appreciate your speaking to that. 

Just a few other cats and dogs here that I want to go over with 

you. 

The day you were nominated, you spoke about judges looking 

backward, not forward, in interpreting the law. Now, I think some 

people have taken that in a negative sense. They view the word 

‘‘backward’’ as somehow pejorative. 
287 

Those who view history as an inevitable path forward of social 

progress may incorrectly hear that to mean your approach will not 

support their goals. 

Can you explain what you mean by looking backward and not 

forward? Can you explain why your approach to the law is not hostile to social progress? 

Judge GORSUCH. ‘‘Backward’’ does not mean backward, Senator. 

The role of the judge is to say what the law is, the great Chief Justice Marshall declared in Marbury v. Madison. Our job is to say 

what the law is. 

So, for example, in a criminal case, when we are interpreting a 

statute and whether it permits a man or woman to be sent to prison, we are charging with knowledge of the law as it was at the 

time he or she committed his alleged crime. We are saying this is 

what the law is. This is what it means. This is what it meant at 

the time you committed a crime. 

That is backward-looking. That is what I mean by backwardlooking. 

We resolve cases and controversies over things that happened in 

the past, disputes from the past, a crime committed, a breach of 

contract, a business dispute, a landlord-tenant problem, whatever 

it may be, it is a case or controversy that, by the time it gets to 

the Court, is in the past. We are asking what the law was at the 

time that the events in question took place. 

That is our job, and we are saying what the law was, what it is. 

Senator CORNYN. Is that another distinction between the role of 

a judge and a legislator? 

Judge GORSUCH. Yes. We look backward, in the sense, in the 

sense of looking to historic facts in the cases and controversies between the people that have arisen, and saying what the law at that 

time was, and what they can reasonably be charged with notice of. 

Your job as legislators, eh, you are not concerned with history. 

You are concerned with the future. You are concerned with writing 

new laws of general applicability that govern our society and our 

social coordination problems going forward. 

Senator CORNYN. Thank you. 

Judge, there are some Members of this body who have suggested 

that you are hiding your judicial philosophy. That was a claim we 

heard repeated by at least one Member of this Committee yesterday. 

But to me, I do not know what they have been listening to and 

what they have been paying attention to. If that is their conclusion, 

I do not think they have been paying attention to the proceedings 

here over the last day and a half or your testimony. 

Over the last 3 days, we have heard a description of your legal 

philosophy and the reasoning behind it time and time again. You 

discussed, for example, precedents with Senator Feinstein. We 

heard you discuss the history and legal test of the Religious Freedom Restoration Act with Senator Coons. You and I discussed the 

importance of faithful adherence to the Constitution and statutes 

passed by Congress, and you talked about this with Senator 

Klobuchar as well. 

Yesterday, we heard 12 hours of discussion of your decade of 

judging, your judicial philosophy, which you described in almost, 
288 

roughly, well, 2,700 cases, hundreds of which were in published 

opinions, some not. 

So if somebody has arrived at the conclusion that you have been 

hiding your legal philosophy during your time before this Committee, do you think that is an accurate assessment? 

Judge GORSUCH. I would hope no one would reach that conclusion, Senator. 

Senator CORNYN. I think no reasonable person would reach that 

conclusion, based upon what we have all had an opportunity to see 

and hear this last day and a half. 

Thank you. 

Judge GORSUCH. Thank you. 

Chairman GRASSLEY. I think it has worked out just right for Senator Whitehouse to go ahead, and then we will adjourn for recess 

for one half hour. 

Senator FEINSTEIN. Mr. Chairman. 

Chairman GRASSLEY. Yes. 

Senator FEINSTEIN. May I ask unanimous consent to make part 

of the record an interview with Justice Scalia entitled, ‘‘The 

Originalist,’’ in January 2011? 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator FEINSTEIN. Thank you. 

Chairman GRASSLEY. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you very much, Chairman. 

Judge Gorsuch, the state of play after our conversation yesterday, as I recall it, is that you would not say that anonymous billionaire dark money is a bad thing in our democracy, and you 

would not call on the dark money behind the $10 million political 

campaign for your nomination to reveal itself. 

Now, if I am wrong in that recollection, I just wanted to give you 

a moment to either amend or correct my recollection of those two 

points yesterday. 

Judge GORSUCH. Thank you, Senator. 

I believe what I said yesterday is that Congress is the primary 

organ for lawmaking in our legal order, and that Congress has 

ample authority and opportunity to pass campaign-finance regulation, including disclosure laws, that Buckley v. Valeo expressly recognizes the power of Congress, especially in the area of disclosure—— 

Senator WHITEHOUSE. And what I was asking you, just to be 

clear and to the point, is whether you saw disclosure as an affirmative value in the same way, for instance, that you see reliance interests for corporations on the law as an affirmative value. 

Judge GORSUCH. And, Senator, you are mistaken. I never said reliance interests for corporations. 

Senator WHITEHOUSE. Reliance interests for parties. 

Judge GORSUCH. That is what I said, Senator, and that is because that is the law. In the law of precedent, we look to reliance 

interests. 

And when it comes to the First Amendment—— 

Senator WHITEHOUSE. There is no statute that says reliance interests. That is judge-made law. That is law precedent. 

Judge GORSUCH. That is the law precedent, yes. 
289 

Senator WHITEHOUSE. Because judges follow important principles. 

Judge GORSUCH. Precedents, Senator. We follow precedent. 

Senator WHITEHOUSE. Which are grounded often in principles. 

There is more to the law than just what Congress declares, is there 

not? There is the entire devolution of the Constitution into all of 

the doctrines that the Supreme Court has parsed it into over the 

years. That is done without Congress, is it not? 

Judge GORSUCH. And one of the precedents of the U.S. Supreme 

Court—if you want to call it a principle, I am not going to argue 

with you—in Buckley v. Valeo had to do with disclosure. 

And the Supreme Court expressly recognized that, under the 

First Amendment, Congress and the States, who have actually 

been busy in this area, as you know, legislating, have the power 

to pass laws requiring disclosure, up to a point. There comes a 

point—there is a point that the Supreme Court has also recognized 

in NAACP where disclosure can be used as a club. 

Senator WHITEHOUSE. So let us talk about NAACP for a minute, 

because twice you reverted to that yesterday. 

NAACP v. Alabama is the case you have in mind when you say 

that, I believe, correct? 

Judge GORSUCH. Yes. 

Senator WHITEHOUSE. And it suggests, when you raise that in 

the context of a conversation about dark money, that you find an 

equivalence between billionaires meddling secretly in our democracy behind a screen of front groups that they have thrown up to 

obscure their hands and families in the Jim Crow South whose 

homes and churches were being bombed, whose sons were being 

lynched by White mobs in, essentially, mass racist murders across 

the South but particularly in Alabama, in that State, and where 

the disclosure of their Membership in the NAACP would have put 

them immediately into harm’s way. 

Now, presumably, that is not what you meant. 

Judge GORSUCH. Senator—— 

Senator WHITEHOUSE. Let me give you a chance to clarify that 

you do not see those two things as equivalent. 

Judge GORSUCH. Senator, I never said any such thing, and I 

would not, and I have not. 

Senator WHITEHOUSE. Well, when you cite the NAACP case, it is 

hard not to revert to its facts, which were—— 

Judge GORSUCH. Yes, exactly. 

Senator WHITEHOUSE [continuing]. Which were those. 

Judge GORSUCH. Very important facts. 

Senator WHITEHOUSE. Yes. 

Judge GORSUCH. Every case, every precedent, is built around its 

facts. That is absolutely right. 

Senator WHITEHOUSE. So that may not have much application to 

the case of billionaires secretly meddling in American democracy 

behind front groups, correct? 

Judge GORSUCH. Senator, if I might? 

Senator WHITEHOUSE. Please. 

Judge GORSUCH. We were talking about disclosure requirements, 

as I recall. 
290 

Senator WHITEHOUSE. And that is where secretly meddling 

comes in. That is why I used that phrase. 

Judge GORSUCH. I believe we were talking about disclosure requirements and First Amendment doctrine, and I indicated that 

Buckley v. Valeo has given this Congress, if it chooses, the opportunity to pass laws in this area expressly. And all I acknowledged 

is that there does come a point at which one has to worry at the 

other end of the spectrum under existing Supreme Court precedent, 

and that is the NAACP principle. 

And, Senator, that is it. That is all I have said. 

Senator WHITEHOUSE. Great. 

Judge GORSUCH. I have not—I have not—— 

Senator WHITEHOUSE. I wanted to make that—— 

Judge GORSUCH. And to read anything else into that—— 

Senator WHITEHOUSE. I wanted to make that clear. 

Judge GORSUCH. Would be a mistake. 

Senator WHITEHOUSE. I think there is a very significant difference in the facts. 

Judge GORSUCH. Of course there is. 

Senator WHITEHOUSE. Very good. 

So let me go back into our history a little bit. 

In 1816, Thomas Jefferson expressed concern about, and I will 

quote him here, ‘‘monied corporations which dare already to challenge our Government to a trial of strength.’’ And a little bit more 

than around a century later, Teddy Roosevelt warned, and I will 

quote Teddy Roosevelt, ‘‘that unless the great corporations are controlled by the Government, they will themselves completely control 

the Government.’’ 

Should the Supreme Court in its decisions keep in mind Thomas 

Jefferson’s and Teddy Roosevelt’s warnings about what can happen 

when massive economic powers jump the fence to become massive 

political powers? 

Judge GORSUCH. Well, Senator, as you know, corporate speech, 

when it comes to the First Amendment, does not receive the same 

protections as individual speech. There is a difference in the doctrine there. So that is an example, perhaps, of an instantiation in 

law of some of the concerns you are expressing. 

Another instantiation example to me is antitrust law, the Sherman Act passed by this body and interpreted by the Supreme Court 

over many years now, trust-busting-era stuff. And it does try to 

keep competition as an important value in our legal system. 

Senator WHITEHOUSE. So let me elaborate a little bit on that 

point, because you have said that before in your decisions in the 

antitrust realm, that competition is an important value that judges 

should bear in mind as they are interpreting antitrust law and 

antitrust precedent. 

And I agree with you. I think it absolutely is. I think you also 

said that innovation is another such value, and I agree with you 

on that, too. 

My concern is that this Supreme Court right now, at least the 

Republican-appointed majority recently, particularly the Citizens 

United group, seems to not admit the possibility that the similar 

kinds of concentration of power that destroy competition and innovation in the economic market can also take place in the political 
291 

marketplace and can destroy competition and innovation in the political marketplace. 

Do you see that principle, that there could be a point where political power is so concentrated that it, in effect, is crushing the opposition rather than allowing free competition as a potentiality that 

the Court should bear in mind as it makes its decisions? 

Judge GORSUCH. Senator, here I think of Buckley again and its 

recognition that corruption and the appearance of corruption are legitimate interests that Congress can pursue in legislation. And that 

is an example of, I think, the principle you are talking about, which 

Citizens United also speaks of. 

It says there the record before it did not satisfy the Court that 

Congress’ legislation in that particular case had established a case 

of corruption. I understand you disagree with that, but it did recognize that corruption and its appearance remains an area where 

Congress may legislate in the future. 

Senator WHITEHOUSE. So let us go to that point, because they did 

say that no amount of corporate spending—none, there is no limit 

on the amount of corporate spending in politics that could lead to 

either corruption or the appearance of corruption. To me, that is 

fanciful in the extreme. 

And they got to that point with three—well, I would say they did 

fact-finding, which they are not supposed to do, but I do not want 

to quarrel over that point with you here, because that is not the 

point of my question. So let us say what they did was they made 

some presumptions. 

One presumption that they made was that all this corporate political spending they unleashed was going to be independent of candidates. That was presumption one. 

Presumption two was that it was all going to be transparent. 

ExxonMobil was going to put up the ad saying, ‘‘We hate 

Whitehouse because he is fighting us on climate change, and you 

should be with us,’’ and everybody would know who the players 

were. 

The third is that the back-and-forth that this would produce 

would not affect confidence in government. 

Now, I think that the facts, reality as it has developed since the 

Citizens United decision, completely bely all three of those points. 

All of the major candidates for—at least most of the major candidates in the last presidential election had what they called affiliated super-PACs. 

I mean, what does ‘‘affiliated’’ mean? It does not mean independent. So clearly, I mean, just on that alone, it does not even 

pass the dictionary test. Clearly, there is no independence. 

As to transparency, this whole dark money problem belies their 

assumption of transparency. 

And public confidence has crashed in government since that decision, for, among other reasons, I think, when you are sitting there 

looking at the TV and an ad comes on that says vote for Senator 

Snooks or vote against Senator Snooks, and this ad is brought to 

you by Americans for Puppies and Prosperity, and everybody looks 

around and they know perfectly damn well there is no such real 

thing as Americans for Puppies and Prosperity. There is no real 
292 

corporation running that. There is no real person running that. It 

is a screen. It is a front. It is a shell for the real actors behind it. 

I think that is very damaging to Americans’ confidence in their 

government on both sides of the aisle, which I think is one of the 

reasons why all three of the major commentators on the Supreme 

Court have basically described them in the modern age now as instruments of the Republican Party. 

And I think it also is why the majority of Americans looking at 

the Supreme Court think they will not get a fair shake there 

against a corporation. In fact, 36 percent, more than a third, think 

that the Court will be much more favorable to a corporation than 

to a person. 

So the question here for you is, would you be willing, if you came 

to the conclusion that the independence presumption or the transparency presumption or the confidence presumption of Citizens 

United were, in fact, wrong, to reconsider that case? 

Judge GORSUCH. Senator, what I—I have a couple reactions to 

that, if I might. 

Senator WHITEHOUSE. But do not lose the answer to my question 

in your—— 

Judge GORSUCH. No, I am going to start—I am going to start 

with that, but there is one other observation I want to make—— 

Senator WHITEHOUSE. Sure. Help yourself. 

Judge GORSUCH. Beyond it, if I might. 

Okay. Thank you. 

I want to promise you what I promise every litigant, and I hear 

a litigant before me, asking for an overturning of a precedent. That 

is what I hear. And I hear arguments for that. And arguments for 

overturning precedent include changed circumstances, and that is 

what I am hearing. That is the kind of nature of argument that 

I am hearing. 

That is something a judge takes seriously, of course, always. And 

any litigant can come to court and argue anything. That is the 

beauty of our system. I will follow the law of judicial precedent in 

this area and every other area put to me. 

I will make no promise for the result in any case. That is not 

what judges do. We listen to the cases put to us. 

Senator WHITEHOUSE. And for the record, it is not what I want 

you to do. 

Judge GORSUCH. I understand. 

Senator WHITEHOUSE. What I want you to do—— 

Judge GORSUCH. And I am telling—— 

Senator WHITEHOUSE [continuing]. Is tell me that if the proper 

decision is that this was so wrongly decided it should be reversed, 

you would be willing to go there on proper judicial decisionmaking. 

Judge GORSUCH. I will follow the law of judicial precedent in this 

and every other area, Senator, is my promise to you. 

The other thing I would say that I would like to say is—two 

other things. 

One is, there is room for—for not just further litigation, Senator, 

but for legislation in all of these areas. If there are changed circumstances that Congress observes, it is free not just to bring a 

lawsuit but pass a bill—— 

Senator WHITEHOUSE. Here is the problem—— 
293 

Judge GORSUCH. In any of these areas. And finally, Senator—— 

Senator WHITEHOUSE. Here—— 

Judge GORSUCH. May I just finish? 

Senator WHITEHOUSE. You finish, but then let me come back to 

that. 

Judge GORSUCH. Of course. Of course. 

The last thing I want to say is I am distressed to hear you think 

that judges or the Supreme Court is an organ of a party. That, to 

me, is just—I know you feel that way, and that distresses me. 

Senator WHITEHOUSE. It distresses me too. 

Judge GORSUCH. And I just do not—— 

Senator WHITEHOUSE. Quite a lot. 

Judge GORSUCH. And I just do not see judging that way, and I 

do not see our rule of law that way. I do not see Republican judges, 

and I do not see Democrat judges. I see judges. 

Senator WHITEHOUSE. Well—— 

Judge GORSUCH. And, Senator, I think the rule of law in this 

country works, and it works so well that to speak like that diminishes what we have. 

And it is, for me, a failure to appreciate the beauty of our system, that we resolve hundreds of thousands of cases a year almost 

always unanimously as judges; that the disputes are limited to a 

fraction of a fraction of a fraction of a percent; and that once we 

resolve them, through the dispute process of litigation where we 

have precedent, that settles that problem and we can move on to 

the next one. 

Senator WHITEHOUSE. Well—— 

Judge GORSUCH. It is a miraculous system, really. 

Senator WHITEHOUSE. In my time that remains, which is getting 

briefer and briefer, let me make two points. 

One, on the Tenth Circuit, I do not believe you hardly ever have 

party-line decisions made by your court. We looked. I count only 

two in the entire time you have been on the court. 

Judge GORSUCH. I really appreciate you pointing that out. 

Senator WHITEHOUSE. So it is a very different—— 

Judge GORSUCH. Thank you. 

Senator WHITEHOUSE. It is a very different world where you are. 

When you get to the Supreme Court, now we have these 5–to–4 decisions that I pointed out, and it is 6–to–0 one party over the other 

party’s interests at the polls. It is 16–to–0 corporate interests 

versus human interests in litigation. 

There is a point where it becomes reasonable to discern a pattern, and I see a pattern, and it distresses me. 

Now the point that I wanted to get back to—I have 2 minutes 

left—was your question about Congress can do this. Congress can 

rewrite these laws. Congress can demand disclosure. 

Here is the problem. In the same way that a small competitor 

can be crushed by a dominant business in the economic market, 

once you let certain political interests achieve the kind of dominance that Citizens United has let them get, they can start to exert 

disproportionate control over Congress, and now Congress cannot 

do that any longer because there is no longer a fair playing field. 

If the Court can rebuild a fair and competitive playing field, then 

maybe we can do something about it. 
294 

But to say to Congress that you should solve this while at the 

same time the Court has put Congress in a position where it cannot solve it because the unlimited power and the secret money of 

these interests is such a powerful and pernicious effect, is something that I would like you to at least be thinking about as a point, 

if you get to that Court. 

I hope you will take that sincerely. You are quite expert at antitrust law. You understand that principle in the economics sphere. 

I urge you to consider that Citizens United has caused that to happen in the political sphere. 

And with that, my time has expired. 

Chairman GRASSLEY. Do you have anything you want to say? 

Judge GORSUCH. I would like to, if I might, just briefly, Senator. 

Chairman GRASSLEY. You can proceed. 

Judge GORSUCH. Just to cheer you up a bit, I hope, about the judicial process, I think that you are right, that there are some 5– 

4 decisions. There are. But what that overlooks, I think, Senator, 

are some facts that I shared, I hope, with the American people yesterday, that even at the Supreme Court, where they take the 70 

or 80 hardest cases every year, where Circuit Judges disagreed— 

and even then, only about 5 percent of cases get to me; that is what 

we are talking about, a fraction of a fraction of 1 percent of the 

cases—that they are unanimous with nine Justices appointed by 

five different Presidents 40 percent of the time. It is a remarkable 

thing. 

Senator WHITEHOUSE. Look, I understand—— 

Judge GORSUCH. We should be proud of it. We should be proud 

of it. 

Senator WHITEHOUSE [continuing]. And I get it. But what we 

have as a right is to have the Supreme Court make a fair decision 

in every case—— 

Judge GORSUCH. I agree. 

Senator WHITEHOUSE. Not just 99 percent of them but all of 

them. And I think these 5–to–4 decisions are a problem. 

You said earlier that sometimes—I think I am quoting you correctly—sometimes big corporations can capture an agency. That is 

a well-known principle of administrative law and of economics. 

Just let us be sure that our Supreme Court does not get to be one 

of those agencies that is captured on any subject. 

Judge GORSUCH. Nobody will capture me. 

Senator WHITEHOUSE. I hope not. 

Chairman GRASSLEY. We will recess now until—— 

Senator FEINSTEIN. That is a good line to recess on. 

Chairman GRASSLEY [continuing]. Until 1 minute after 1. 

[Recess.] 

Chairman GRASSLEY. Thank you. Senator Lee. 

Senator LEE. Thank you, Mr. Chairman. Thank you, Judge. 

I want to begin by making a broad point, a point that relates to 

some of the discussions we have had so far in this hearing. A number of my colleagues in recent weeks have expressed concern, understandably, with maintaining the reputation of the Federal judiciary. There is a good reason that we do this. We, in fact, are the 

Judiciary Committee. It is our job, among other things, to exercise 

a degree of oversight over the Federal judiciary, make sure it is 
295 

working well, to make sure that the laws and the personnel that 

we have in place are up to the task of deciding cases and controversies in the Federal court system. 

I will be the first to acknowledge I do not love every outcome in 

every case that comes before the Federal judiciary. In some cases, 

decisions made in Federal courts are frustrating to me. In some 

cases, I disagree with them, sometimes strongly. And yet as a lawyer, as a citizen, as one who is interested in these sorts of things, 

I can say with confidence that I would stack the Federal judiciary 

up against any system of its kind anywhere in the world. And I can 

say with absolute confidence this is the best there is. It is imperfect 

because human beings by their nature are imperfect. But it is really, really good. It is one of the reasons why it is important for us 

to defend the integrity of the Federal judiciary, even while sometimes disagreeing with the outcome of a particular case. 

It is one of the reasons why many of my colleagues, along with 

many Americans, expressed concern when the President of the 

United States referred to a judge who issued a ruling he did not 

like as a ‘‘so-called judge.’’ It was understandable why some people 

were concerned about that. It is not a statement I would make, in 

part because I think it is important to uphold the Federal judiciary 

as a system that is good, notwithstanding its imperfections. 

And yet I find it interesting, ironic, and quite troubling that 

many of the same people who were the first and the loudest to complain about what the President of the United States said in referring to a ‘‘so-called judge’’ have been some of the first to denigrate 

the Federal judiciary. I do not just mean criticizing a particular decision or a particular judicial philosophy. I mean referring to the 

Supreme Court of the United States as an ‘‘organ of the Republican 

Party.’’ This is wrong. This is not the kind of statement that should 

ever flow from the mouth of a United States Senator, from a Member of the Judiciary Committee, from a citizen who loves this country and wants to make sure that our Federal judiciary remains an 

institution that is revered and respected, although its decisions 

might from time to time be less than perfect. There is no good reason to make a comment like this. 

Now, I also find it interesting that in the first 2 days of this 

hearing alone, we have seen the independence of Judge Gorsuch attacked no fewer than 27 times. We have seen the independence of 

the Supreme Court of the United States and of the Federal judiciary called into question no fewer than 17 times. Those are stats 

from the first 2 days alone. Those statistics do not reflect statements made today. One could argue that those statistics may well 

have doubled by today. They have certainly increased substantially, 

and I find that troubling. I certainly find that is something that we 

ought not be aspiring to. What we ought to be aspiring to is talking 

about how we can improve the Federal judiciary, talking about the 

highest ideals of our system. 

That does not mean we all have to express agreement with this 

nominee or any opinions that this nominee may have written or 

even this nominee’s judicial philosophy. But it does, I think, mean 

that we ought to identify disagreement as disagreement, genuine 

disagreement when we see it, rather than impugning the character 
296 

of individual jurists or the credibility of the Federal judiciary as a 

whole. 

I think the American people have been asked time and time 

again to settle for this, and I do not think it is time for them to 

settle. I think it is time for them to expect more. I think it is time 

for the American people and for the United States Senate to expect 

more of us, of this Committee, of this body when we speak of the 

Federal judiciary. And that means not referring to it as an organ 

of the Republican Party, the Democratic Party, or any other political enterprise, or anything else, for that matter. We have an independent Federal judiciary, and it needs to be respected as such. 

A lot of this conversation is somewhat ironic in the sense that 

a lot of the criticism against the Federal judiciary is perhaps, I 

wonder, a bit misguided. It is true that we should all be concerned 

about the excessive accumulation of power in the hands of the few. 

There was no concern that weighed more heavily upon the founding generation, upon the Founding Fathers as they convened in 

Philadelphia in that hot, fateful summer of 1787. They were concerned about what would happen if too much power were accumulated in the hands of the few, and so they put together a system 

that was designed to diffuse that power, to spread it out, to make 

sure that no one person and no one group of people could accumulate too much power. 

What we have seen over recent decades is power reaccumulating. 

One way of putting it is that power has been taken away from the 

American people in two steps: first, as it has been moved from the 

American people at the State and local level to Washington; within 

Washington as it has been handed over, in many instances voluntarily relinquished, by the people’s elected lawmakers to unelected, 

unaccountable bureaucrats. 

In some instances, it is effectively handed over to the judiciary, 

although this is a little bit less common, but we have seen that in 

some instances as in some of the statutory frameworks that we 

have discussed today, where Congress will come up with an impossibly broad, non-judicially manageable statutory standard, and 

then we just expect the courts to figure it out, complaining about 

it when we do not like the results. 

In any event, this power has been taken away from the people 

in these two steps, from the people to Washington, from the people’s elected representatives in Washington whose job it is to make 

law, whose only job it is to make law, over to those who are 

unelected and unaccountable. 

It is, I believe, no coincidence that during exactly that same time 

period, the last 70 or 80 years, I would say—and, by the way, I 

would add to that this has been done under the leadership of both 

political parties. It has been done under Congresses, Senates, and 

White Houses of every conceivable partisan combination. During 

that same time period, you have seen not only the accumulation of 

power, but also the accumulation of wealth. 

It is, I believe, no coincidence that currently, as we sit here 

today, six of our Nation’s ten wealthiest counties are now suburbs 

of Washington, DC. This is notwithstanding the fact that it is not 

a banking hub. It is not an area that manufactures anything. It is 

not a technological innovation hub. It is not the home of any vast 
297 

store of natural resources. No. The money is here because the 

power is here, concentrated in the hands of just a few elites. 

So in that respect, this should come as no surprise that there are 

people who spend an extraordinary amount of money trying to 

make sure that they can get access to that power—that power that 

controls as much of the economy as it does and as much of the lives 

and livelihoods as it does; that there are people willing, whether 

they are rich or poor or somewhere in between, to invest a whole 

lot of money in trying to influence Government. So I wonder. Why 

is it that we are so slow to ask the question? Why do we allow this 

much power to be accumulated in Government? Why do we allow 

this much of our Government to be based in Washington rather 

than with the people? And why within Washington do we allow so 

much of that power to be accumulated in the hands of the few 

within the administrative, regulatory state? 

This has a whole lot to do with why we have seen the rise of 

super PACs, with why we have seen the rise of billionaires, millionaires, poor people, rich people, getting behind political causes of 

one sort or another, this, of course, giving disproportionate advantage to those who have a lot of money to influence Government. 

There are people on the left and on the right devoting a whole lot 

of time and a whole lot of resources, a whole lot of influential capital to doing just that. That should be concerning. That is, I believe, 

a symptom of the true underlying malady, which is that we have 

allowed too much power to accumulate right here. 

So as long as we are asking the question of are not these super 

PACs dangerous—which I think few Americans would quibble with 

that. I think few Americans would say, ‘‘Yes, I love super PACs. 

I think they are the best thing ever.’’ I do not think many Americans would say, ‘‘Yes, we ought to have that much power that can 

be wielded by the rich and powerful or by political interests.’’ I do 

not think many Americans would disagree with that. But we ought 

to ask ourselves why is it that they have such an incentive to do 

this. Why do they want to spend so much of their money doing 

this? What is it they have to gain? And have we made it too easy 

for too many of them to gain too much simply by trying to influence 

Government? 

But in that discussion, I hope we will never lose sight of the fact 

that we do have a treasure in the Federal judiciary, a treasure that 

should never be diminished as an organ of any political party or 

any interest. The rule of law is a cultural norm that is not easy 

to establish and, once established, needs to be maintained. I hope 

we can do that. 

Judge Gorsuch, I would like to talk to you about some of the 

issues that have been raised with you. You have had some Members of this Committee asking you to opine on specific legal issues, 

on specific cases or types of cases, and some have even expressed 

frustration about the fact that you have not said more in response 

to their questions. 

I would like to ask you a few questions about that and about the 

issues that could come along with that, and I find it significant and 

worth mentioning here that in a recent op-ed published in the 

Washington Post, two of your former colleagues, Judge Tacha and 

Judge Henry, both of whom I believe are here—I think I saw them 
298 

earlier today. As a lawyer who has argued before each of them 

many times, sometimes winning, sometimes losing, I was glad to 

see them here. 

Judge GORSUCH. Yes. 

Senator LEE. But they issued this opinion—this op-ed about the 

issue of judicial independence. I assume you saw the op-ed, or 

maybe you were aware of it. 

Judge GORSUCH. I am aware of it. 

Senator LEE. But they wrote, among other things, as follows, and 

I want to quote this. They said: ‘‘Detailed discussions during the 

confirmation process on issues that might come before a judge are 

not proper; in fact, they would in all likelihood require recusals 

from the cases discussed. Litmus tests are not acceptable.’’ 

So Judges Tacha and Henry, both of whom have served as Chief 

Judges on the Tenth Circuit, make an important point. If you were 

to rule—if you were to make a commitment today as to how you 

might rule on a certain issue, on a particular type of case, and if 

that issue were subsequently to come before the Supreme Court of 

the United States, and if by then you have been confirmed as an 

Associate Justice of the Supreme Court of the United States, isn’t 

it possible, in fact, isn’t it likely that a litigant could file a motion 

for your recusal in that case? 

Judge GORSUCH. Yes, Senator, and I really want to thank Judge 

Tacha and Judge Henry, both of whom are retired from the bench, 

for having gone out of their way to write that article together and 

to come to Washington. And I think you are going to hear from 

them tomorrow. One happens to be a Republican-appointed judge; 

the other happens to be a Democrat-appointed judge. And, again, 

I do not buy into those labels. They are judges. And they both led 

the Tenth Circuit, and they are people I admire greatly and esteem 

personally. 

And so you are absolutely right. I would face the possibility of 

a recusal motion, and I would have to face the litigant in front of 

me, who would say, quite reasonably, look me in the eyes and say, 

‘‘How can you be fair in my case when you have already opined on 

its contents in front of the United States Senate?’’ And to be honest 

with you, Senator, I do not know how I would look them in the eye. 

And whether that means I am on the Supreme Court of the United 

States, if fortunate enough to be confirmed, or I go home to Colorado and those cases come before me, I am still faced with the 

same predicament, yes. 

Senator LEE. And if such a motion were to come forward, it is 

not exactly the kind of circumstance in which you would say, well, 

that would be frivolous. It is not necessarily an act of paranoid fantasy to say such a motion for recusal could be filed. 

Judge GORSUCH. No, Senator, which is why we have a judicial 

canon that prohibits me from opining on cases that might be pending or impending. And, Senator, there is a second reason that I 

think is vitally important, too, and it goes beyond the parties. It 

goes to the integrity of the judiciary itself. If persons coming to this 

table, this rather lonely table in this rather big room, have to make 

promises or hints or previews or nudges and gestures about how 

they are going to rule in cases, then I do not know where we are 

as an independent judiciary. 
299 

It is like a campaign promise for office, it seems to me. And you 

know what? It has not happened so far. The precedent in this area 

is strong, and I admire it. I have looked back. I am no expert. I 

have not read every jot and note. But Justice Ginsburg, Justice 

O’Connor, Justice Souter, Justice Scalia, all of them declined to 

offer hints and previews. And, Senator, I am not going to be the 

first judge to come to this table and break that tradition and compromise the integrity of the independent judiciary. 

Senator LEE. So that tradition, while strong, like any chain could 

be damaged, could be undone by its weakest link. 

Judge GORSUCH. That is right. 

Senator LEE. And you do not want to be that link. 

Judge GORSUCH. I am not going to be that link, whatever happens to me. 

Senator LEE. And if, in fact, answering questions that you should 

not answer could trigger a motion for your recusal, and if a motion 

for recusal that might be filed as a result of your answering such 

a question, would not necessarily be frivolous, might end up having 

to be granted, that could create additional opportunities for mischief in that people could deliberately plant questions, directly position questions, demanding that you answer them as a condition of 

your moving forward in this Committee, questions themselves that 

could result in your non-participation in a particular case, thus 

opening this process up for manipulating that process and undermining the integrity of them both. Would that be an accurate characterization, or would I be crazy to suggest that? 

Judge GORSUCH. Senator, I should hope that is never any person’s motive. 

Senator LEE. And I am not suggesting that it is any person’s motive in this case. What I am saying is that if we weaken that link, 

that could easily become the motive given what we know would 

likely be the outcomes. 

Judge GORSUCH. That would be, I think, a poor day for the 

United States courts. 

Senator LEE. One of my colleagues criticized your opinion in 

Longhorn Service Company v. Perez, so I went back and looked at 

that case. Here is what happened, in essence. Longhorn, the company involved in the case, prepares wells for fracking by lowering 

a metal platform over the well, inserting piping through the platform, and pumping contaminants into the well. 

OSHA came to inspect the well and cited the company for a couple of reasons. The company ended up challenging OSHA, and the 

company prevailed on one of its claims and it lost on one of the 

other claims. 

I think it is significant that when the accusation is being made 

that this somehow reflects a determination on your part or a bias 

on your part to favor the big guy and rule against the little guy, 

that is misguided. It is wrong in this case for two independent reasons. 

First and foremost, there is no bigger big guy than the Federal 

Government. There is no stronger Goliath than this Government. 

That is not to suggest that its intentions are malicious. It is only 

to suggest that this is a formidable foe. I do not think it would ever 

be fair to say that someone litigating against the Federal Govern-
300 

ment is anything other than the little guy, especially whereas here 

it is not as if the business were a giant corporation known by all 

people. 

Second, there were two claims at issue in this case. Only one of 

them was one upon which the business entity prevailed. 

I see my time has expired, and as I would always do before your 

court, I will stop talking once my time has expired. Thank you, 

Judge. 

Judge GORSUCH. Thank you, Senator. 

Chairman GRASSLEY. Thank you, Senator Lee. 

Now, Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. Good 

day again, Judge. I really had promised I was going to start with 

antitrust, but the real world has intervened again, as it does very 

often. And so I am going to lead off asking about the case that was 

decided today by the Supreme Court. 

Let me start by saying I care a lot about this issue of kids with 

disabilities. When my daughter was born, she could not swallow, 

and for a year and a half she was fed by a tube. She ended up not 

having a long-term disability, but it made me really understand, 

because I have to know a lot of these parents through this time, 

what they go through every single day. And while I can wear my 

politics on my sleeve about where I am on this issue, I know that 

you are a judge and must make decisions. And our job here—and 

I have tried to stay away from making these political statements. 

I have tried to stay away from asking how you are going to decide 

a certain case in my questions yesterday. But we have to figure out 

what your philosophy is, and so that is why we keep going into 

such excruciating detail, as you know, about these decisions that 

you have made in the past. 

So what happened this morning was that the Supreme Court 

unanimously rejected, in an opinion by Justice Roberts, the standard that you used to evaluate how much help kids with disabilities 

get in school. It was not your case, but it was a standard that was 

like the standard that you used. And nine Justices disagreed with 

you. Justice Roberts’ opinion says, ‘‘When all is said and done, a 

student offered an educational program providing merely providing 

‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.’’ 

Now, ironically, he actually called out the language that you used 

in that Tenth Circuit case, and he said, ‘‘Whatever else can be said 

about it, this standard is markedly more demanding than the 

‘merely more than de minimis’ test applied by the Tenth Circuit.’’ 

So I want to start where Senator Durbin left off in his initial 

question, and you said that you decided Thompson R2–J School 

District v. Luke P. the way you did because you were affirming 

precedent in Urban County v. Jefferson County School District, 

which is, of course, a case in your Circuit, and you said so you were 

bound by it. 

So over our brief lunch break, I looked at it, and I am just not 

sure that is true, and maybe we just have a different interpretation. I know this is going to sound nerdy to people that are not lawyers, but this is our job today, and a holding of courts is precedent. 

It is part of a court’s opinion that is later binding on courts. But 
301 

a holding is different than dicta, and when I look at this case that 

you—and you wrote the decision yourself and, yes, some other 

judges joined you, but you wrote it. And I looked back at the case 

you relied on, and it actually mentions this de minimis standard. 

But it is just in a paragraph along with some other standards. It 

is a Third Circuit case that uses this de minimis standard, and the 

actual Tenth Circuit case uses a broader standard. And so in the 

end, even this section of the case is not used—that case is not used 

to decide it. It says we do not reach the issue. 

So for me, this case that you said was binding on you, it is just 

dicta in the case. It is not a holding. And so to me, you actually 

were the first in this case that you wrote to come up with this 

standard, and then you actually made it—which I will get to in a 

second. You added the word ‘‘merely.’’ But why do not we just start 

with do not you see this as more dicta than as a holding? 

Judge GORSUCH. Senator, I would have to go back and look at 

it carefully, but, no, I would not agree with that. My recollection 

is that the Tenth Circuit precedent was very clear, that ‘‘some’’ 

meant more than ‘‘de minimis.’’ ‘‘Some meaningful educational benefit’’ in Rowley was a Supreme Court precedent and that our court 

had interpreted that to mean more than de minimis, and that a 

number of Circuits had come to the same conclusion. 

The Supreme Court did not take this case just for fun. It took 

it because there was a Circuit split on this issue. And the Tenth 

Circuit was with the Third Circuit, and I believe there are probably 

some others. I would have to go back and look at it. You have it 

before you. 

Senator KLOBUCHAR. There were some other Circuits. 

Judge GORSUCH. Yes, so that is what happened. That is what the 

Supreme Court does, is when Circuit Judges disagree in the rare 

cases, and this is—— 

Senator KLOBUCHAR. Yes, and I do understand that. But what I 

am saying is through—— 

Judge GORSUCH. And to suggest that we were in any way out of 

the mainstream or that I was doing anything unusual there would 

be mistaken because it is the standard used by many Circuits up 

until, I guess, today. 

Senator KLOBUCHAR. Okay, but it was a 9–0 decision against the 

standard. 

Judge GORSUCH. Of course, which—— 

Senator KLOBUCHAR. So to me, that does seem out of the mainstream, and also—— 

Judge GORSUCH. It is just wonderfully reaffirming to me, Senator, that, again, even in cases where Circuit Judges disagree—and 

here is one where there was a Circuit split. And as you point out, 

it sounds like a lot of Circuits on both sides of the issue, and a 

technical issue and maybe a little nerdy, as you say. But that is 

what we judges do. We are trying to follow the precedent as best 

we can. Sometimes we get disagreements. And then the Supreme 

Court, exercising collegiality, comes together and resolves it. 

Senator KLOBUCHAR. Okay. 

Judge GORSUCH. That is how our system is exactly supposed to 

work. 
302 

Senator KLOBUCHAR. I understand. But let us go back to this 

again. So my position is that this was not necessarily binding, this 

case that you cited. But then beyond that, the Third Circuit case 

that was not binding, that you cited, that says it must be more 

than de minimis, you went a step forward, and this is what Senator Durbin was getting at. You added the word ‘‘merely.’’ 

So you said it is ‘‘merely more than de minimis.’’ So I was trying 

to figure this out at lunch, and I figured out that if you had a gas 

tank and it said it has to be on more than empty, that could mean 

it could be any way up to full. It is a broad range of the kind of 

how full your gas tank would have to be. 

But you added this word ‘‘merely,’’ so you said the standard is 

that it has to be merely more than de minimis or, in a gas tank, 

merely more than empty. That implies something entirely different. 

That creates a ceiling to me more than a floor in its language. It 

is a ceiling because it says, well, the standard is it has to be merely 

more than de minimis as opposed to more than de minimis. And 

so that is something else where I think you actually took something that was not necessarily a precedent, you added the word 

‘‘merely’’ to make it even more narrow, and so it is not a surprise 

to me then that the Supreme Court 9–0 rejected that language. 

Any response on that? 

Judge GORSUCH. I disagree. 

Senator KLOBUCHAR. Okay. And then the next question I have is 

that in some of these other cases we talked about yesterday, you 

did a separate concurrence. So even if you are right and I am 

wrong, and you were somehow bound by a Third Circuit case when 

you wrote that opinion, maybe you could have written a concurring 

opinion like you did in Chevron, you wrote in the Gutierrez case, 

you wrote a concurring opinion to your own opinion expressing a 

view that was different than the one that was binding on you. So 

you could do it in this case as well. So why pick the Gutierrez case 

or Riddle v. Hickenlooper to do a concurring opinion and not a case 

like this one that is really about the kind of services that a child 

with autism is going to get? 

Judge GORSUCH. Senator, I have written cases for families in 

IDEA cases, Individuals with Disabilities Education Act. I have 

written decisions against the families in these cases. And in each 

case, Senator, it has been based on my assessment of the facts and 

the law. And the opinions I have issued or not issued have been 

based on my assessment of the facts and the law, not any personal 

animus, not any wrong motive, Senator. I can assure you of that. 

And any suggestion otherwise would be mistaken. 

And, Senator, all of these opinions in the Tenth Circuit that we 

are talking about have been unanimous, every one of them, including this one. And, Senator, to suggest that it is somehow out of the 

mainstream, I would respectfully ask you to look at who joined the 

opinion, and you will find one of my colleagues who happened to 

be appointed by a Democrat joined that opinion. And you will see 

other opinions where I have joined Republicans and Democrat-appointed judges ruling for the family. 

And so, Senator, all I can say is I was trying faithfully, to the 

best of my ability, to follow Supreme Court precedent in Rowley, 

the Tenth Circuit opinion, as I understood it in Urban, and a num-
303 

ber of other Circuits had interpreted Rowley in the same way. And 

my colleagues, subsequently after me, interpreted it in the same 

way. This decision that was under review was by another separate 

panel of the court, the one that just went to the Supreme Court. 

My colleagues in a separate panel, made up, I believe, again, of Republican and Democrat-appointed—— 

Senator KLOBUCHAR. Okay, but the difference for me and all of 

us up here today is they are not up for the job of the highest court 

of the land, and in this case you wrote the opinion, and you told 

us that earlier opinion was binding precedent. And I am not certain 

that it was because the words were from a different Circuit. And 

so, you know, I guess we will disagree on this, but I am—— 

Judge GORSUCH. Well, I am happy to explain that—— 

Senator KLOBUCHAR [continuing]. Not questioning—I am—this is 

something where I am actually trying to get at your judicial philosophy. I have no other way to do it except to look at these opinions. 

And I want to move on here because I brought up the Chevron 

case before, and then I also found out that in 2015 you sought to 

revive the non-delegation doctrine, which restricts the amount of 

discretion Congress may choose to delegate to Federal agencies. 

You did this in a dissent, but it was something that has not been 

used since the 1930s. It was used twice in the 1930s. And, again, 

it seems to me like in certain things—and what it does, basically, 

is says that Congress cannot delegate its legislative powers to 

agencies, and I think there is a reason other courts have not used 

it. 

But it feels to me like you pick certain types of cases where you 

are kind of reaching really broad and going back to doctrines from 

the 1930s, and then you do not do that for other kinds of cases that 

certain people in America would care about. So I am trying to figure out why you pick certain cases to write concurring opinions on 

and to be more broad, and then other cases where you really stick 

to the text. And that is what I would like you to answer. 

Judge GORSUCH. I always try to stick to the text, Senator, with 

respect. And in this case, again, I was following a Tenth Circuit 

precedent that was 10 years old at the time, and sometimes the 

Tenth Circuit will often adopt standards from other Circuits that 

it finds persuasive. And it may have in that case, you say, adopted 

it from the Third Circuit. I do not have it in front of me, but I believe you. And often my colleagues will adopt—and I will, too— 

standards by other Circuits. Rather than reinvent the wheel, we 

will say we agree with another Circuit. 

And that is how law is decided in cases. It is part of precedent. 

It is the respect due a persuasive opinion by a colleague, a thoughtful colleague. And every one of these judges in every one of these 

cases does their level best, and Circuit splits arrive only because 

judges are doing their level best to interpret the law. And in this 

case, there were, as you point out, several Circuits, it sounds like, 

on both sides of this question, an honest interpretation effort of the 

statute before us in light of Supreme Court precedent. 

Senator KLOBUCHAR. And so do you want to comment at all on 

the non-delegation doctrine? 

Judge GORSUCH. I would be happy to. The case that you are referring to involved the Sex Offender Registry and Notification Act, 
304 

and, Senator, why I chose to write there was the same reason Justice Ginsburg and Justice Scalia wrote in the area, because in that 

case the law as enacted sent to the Attorney General essentially 

the discretion to write a law. And the legislative power is invested 

in this body, not in the Attorney General, a particularly odd place 

to delegate legislative authority, not just to some agency with expertise like with biologists or chemists, but to the chief law enforcement officer, and to send to the chief law enforcement officer the 

opportunity to write a criminal law. Justice Ginsburg and Justice 

Scalia, again, people think they do not agree. Well, they often do, 

and here is an example. 

Senator KLOBUCHAR. But is there a way to get there without 

pulling out this doctrine that has not been used since the 1930s? 

Judge GORSUCH. Well, Senator, it is a point they made in an 

opinion, and I had a subsequent case raising that question, and I 

thought it was important to address. 

Senator KLOBUCHAR. Okay. I wanted to just go back on one 

point. We had a long discussion yesterday about originalism, and 

I think you and I agreed that ‘‘he’’ can mean ‘‘she’’ in the text of 

Article II of our Constitution, meaning we can have a woman President. I was just using that as an example that not everything in 

the text is exactly as it should be or will be construed. We agreed 

that Congress’ authorization of the Navy and Army also provided 

for the authorization of the Air Force. 

But then we got to that United States v. Virginia, and you say 

you can also get to the outcome of Justice Ginsburg’s majority opinion in that case, where the Virginia Military Institute’s male-only 

admission policy was found to violate the Equal Protection Clause 

of the Fourteenth Amendment, and so you get there through radical original meaning. 

And what I thought was interesting there compared to the other 

two examples was that Justice Ginsburg’s majority opinion had 

nothing to do with original public meaning, and the cases she relied on to get to that also had nothing to do with original public 

meaning. 

And so when you have to decide cases that deal with social 

changes that the general public could never have anticipated back 

when the Constitution was written, are not you just relying on the 

intervening decisions of non-originalist judges to get there? So 

when you said, well, yes, that is fine, it is precedent, it is Justice 

Ginsburg’s opinion, that is because Justice Ginsburg was a nonoriginalist in how she interpreted; and then you in turn rely on her 

opinion to get to the point that it is okay and a normal outcome. 

So I am trying to get at, because—— 

Judge GORSUCH. I am not sure I track the question. 

Senator KLOBUCHAR. Sure. The question is that it is selective 

originalism. Sometimes you use originalism at its core, and then 

sometimes to get to an outcome that is more normal, you do not 

use originalism. You could not in that case of Virginia Military Institute, but you rely on non-originalist judges to get to the outcome. 

Judge GORSUCH. I think I understand the question. I think the 

answer is precedent. A judge always starts where he or she finds 

themselves. We do not live in a vacuum. I am not writing on a 

blank slate as a judge. I am not, you know, a philosopher king. I 
305 

am a judge of cases. That is my job. And so you take the precedent 

at hand. And, Senator, that is a very important thing to me. 

Senator KLOBUCHAR. Isn’t another way to look at it—I went to 

the University of Chicago Law School, and Judge Posner taught 

there for years, and I know you disagree with his account. He is 

a Republican-appointed judge. And he said that it was naive to 

think that judges believe only in the legal technicalities of their argument, especially when you get—he did not say this, I am adding 

this part, especially when you get to the highest court of the land. 

The truth is, he says, that they consult their own moral convictions 

to produce the best results for society. And you do not agree with 

that, but I am just trying to get at when you get to this highest 

court of the land where—by the way, I said it was a 9–0 decision. 

It was an 8–0 decision because there are only eight Justices there, 

in my earlier question of you. When you get to that highest court 

of the land, it seems to me that Posner is being honest, that people 

do consult. They try to apply the law, but when you are at that last 

court in the land deciding things, oftentimes they are grounding 

their decisions in where they are morally about what these outcomes are going to be. Is there any merit to that at all? 

Judge GORSUCH. Senator, I can just say that has not been my experience. I have been doing this a long time, and I respect Judge 

Posner greatly, as I know you do. And I respect you greatly, and 

your view. I can just speak to my view. Maybe I am just more optimistic. You can call me naive if you want. But my experience 

watching Justice White, Justice Kennedy, all of the Justices of the 

Supreme Court who have been mentioned here today, every one of 

them I believe is doing his or her level best to apply the law based 

on the facts and circumstances. 

There is realm for some disagreement. There is not a single right 

answer to every case. I will concede you that. But that does not 

mean just because there is not a single foreordained answer from 

God in every legal dispute that judges are not trying to look at the 

legal materials and only the legal materials and trying to make 

sense of the legal materials, and that alone, and leaving the rest 

of the stuff aside. 

That has been my experience of good judges. They leave their 

moral convictions, their views about social utility, whatever it is, 

whatever they ate for breakfast, over there. They take the briefs, 

they take the law, they take the facts, they take the Constitution, 

they take the precedents, they take the original understanding, and 

they try to make sense of it as a judge does. And that is just not 

how a politician thinks, respectfully. It is not how a citizen thinks 

about ordering my daily affairs. 

Senator KLOBUCHAR. Okay. So you—— 

Judge GORSUCH. But a judge—I am sorry. 

Senator KLOBUCHAR. Yes, and you and I actually share that 

view. It is just that is not—these decisions that Senator 

Whitehouse has outlined, other things that have been happening, 

it does not feel that way. And I have respected Republican-appointed judges and Democrat-appointed judges. We have had 

judges that actually will not make decisions, in my county days, on 

the Mondays after a Viking game because they thought it would affect them too much with the outcome. 
306 

Judge GORSUCH. Exactly. 

Senator KLOBUCHAR. All right. But—— 

Judge GORSUCH. That is what I am talking. 

Senator KLOBUCHAR. But, but, but the point is—that is why I 

brought it up. But the point is that this just does not seem to be 

happening lately with these decisions, like Citizens United and the 

Court that you want to serve on. And so I am a fixer. I like to fix 

things, and one of the ways I can fix that is by making sure that 

we put judges on there that are going to view themselves as true, 

fair jurists and not legislators making change. 

And the second thing is about some of these things I brought up 

earlier, and I will just end with that. Cameras in the courtroom, 

thank you, Senator Grassley, for your leadership. But the second 

is the ethics rules, and I just wanted to take 30 seconds here. 

Yesterday, when you and I talked about it, you said you did not 

know how different they are between the regular Federal judiciary 

and the Supreme Court. Actually, the Code of Conduct for United 

States judges adopted in 1973 applies to every Federal judge other 

than the Justices of the Supreme Court, and that includes reporting, of course, trips and gifts and things of value. And so I do ask 

you, as you look at ways, if you are confirmed, if you look at ways 

to bring back, I think, some trust. We are struggling with that, obviously, right now in the Congress. But one of these ways is to be 

as transparent as possible, and that means to me cameras in the 

courtroom, and it also means having the ethics rule apply to the 

Supreme Court. And I have a lot of respect for and enjoy the Justices there now, but I think that would be a very positive move. 

Thank you. 

Chairman GRASSLEY. Senator Cruz. 

Senator CRUZ. Thank you, Mr. Chairman. And congratulations, 

Judge Gorsuch, on making it through Day 2 of the gauntlet and 

continuing to do so with flying colors. 

I want to go back to a topic that Senator Lee addressed a few 

minutes ago, which is we have heard over the past several days a 

number of my Democratic colleagues in Congress bemoan and condemn ‘‘vicious and reckless and personal attacks against judges,’’ 

what they have called a ‘‘unprecedented attack against the credibility and independence of the judiciary.’’ And so if I understand 

their argument correctly, it is completely inappropriate, it is an absolute abuse of power to criticize, to malign, to attack judges. 

Now, if that is their argument, Mr. Gorsuch, I have got a question for you. What position do you currently hold? 

Judge GORSUCH. I am a judge on the Tenth Circuit Court of Appeals. 

Senator CRUZ. And if the Senate were not to confirm you to the 

Supreme Court, what position would you continue to hold then? 

Judge GORSUCH. The one I happily enjoy now. 

Senator CRUZ. So if you are and will continue to be a Federal 

Judge on the Court of Appeals, it is interesting to assess how my 

Democratic colleagues have fared under their own test that it is inappropriate, that it is offensive to somehow malign a Federal judge. 

Former Speaker Nancy Pelosi said on national television, Judge 

Gorsuch is ‘‘hostile to women’s rights and holds radical views far 

outside the mainstream of American legal thought.’’ She continued, 
307 

‘‘What saddens me the most as a mom and a grandmother is his 

hostility toward children in school, children with autism.’’ She additionally went on to say, ‘‘If you breathe air, drink water, eat food, 

take medicine, or in any other way interact with the courts, if you 

care about that for your children, he is not your guy.’’ 

It is interesting given the Democrats are complaining about people criticizing Federal judges. 

Senator Whitehouse on Monday said, ‘‘Tellingly, big special interests and their front groups are spending millions of dollars in a 

dark money campaign to push your confirmation. They obviously 

think you will be worth their money.’’ 

That also somehow falls short of the Democrats’ complaints 

about criticism directed at the judiciary. 

Indeed, Senator Hirono on Monday said, ‘‘You consistently choose 

corporations and powerful interests over people, ideology over common sense, and, indeed, the purpose of the law.’’ 

Senator DURBIN: ‘‘In case after case, you either dismissed or rejected efforts by workers and families to recognize their rights and 

defend their freedoms.’’ 

Senator FRANKEN: ‘‘But if the past is prologue, then I fear that 

confirming you would guarantee more of the same from the Roberts’ Court, decisions that continue to favor powerful corporate interests over the rights of average Americans.’’ 

Tom Perez, the DNC Chairman: ‘‘Gorsuch on the Supreme Court 

is intolerable. Judge Gorsuch would discriminate against a majority of Americans from the Bench.’’ The Chairman of the Democratic 

Party charging that a judge would discriminate. 

These are serious attacks. Many of them impugn your integrity 

directly. And yet this is a confirmation hearing. The Founders understood a confirmation hearing would be in the political arena. My 

colleagues, the Democrats, have a right to engage in whatever attacks they choose. But it is a little rich for them to be maligning 

a sitting Federal judge and at the same time giving speeches about 

how unacceptable it is for anyone to criticize a Federal judge. You 

cannot have both at the same time. 

Now, I am not going to ask you to respond to any of these attacks. I actually think these attacks speak for themselves. But I 

will ask you this: As a judge today, and as, I believe, a Justice in 

short order, will you pledge to be faithful to the law and the Constitution and neither favor nor disfavor any litigant based on who 

they are? 

Judge GORSUCH. I guarantee you no more, and I promise you no 

less. 

Senator CRUZ. That is precisely what we should expect of judges. 

Let us turn to a different topic. The last couple of days we have 

heard a lot of discussion about originalism, textualism, and the 

Constitution. And some of my colleagues have suggested that understanding the Constitution as having a fixed and original meaning somehow prevents the Constitution from changing to meet 

changed circumstances. 

Judge Gorsuch, did the Founding Fathers, in all of their wisdom 

and foresight, did they anticipate that the Constitution might need 

updating? And did they provide any mechanism to update the Constitution should new challenges arrive? 
308 

Judge GORSUCH. Yes, Senator Cruz, they did. 

Senator CRUZ. And what was the mechanism that the Founding 

Fathers created? 

Judge GORSUCH. There is a process for amending the Constitution. 

Senator CRUZ. And has that process been employed? 

Judge GORSUCH. It has, Senator, from time to time. 

Senator CRUZ. And it has worked quite well, I would note. 

Now, I understand that there has been some discussion today 

about the Supreme Court’s decision in Endrew F. v. Douglas County School District. This morning, the Supreme Court issued the 

opinion that abrogates Judge Gorsuch’s opinion in the Luke P. 

case. Endrew F. originated in the Tenth Circuit, but you did not 

sit on the original panel. 

Judge GORSUCH. No, Senator, I did not. 

Senator CRUZ. And as I understand it, Tenth Circuit precedent 

from 1996 and drawn from the Supreme Court’s own opinion in 

Board of Education v. Rowley in 1982 held that a school district is 

compliant with IDEA so long as the student is ‘‘making more than 

de minimis’’ progress in school. 

My Democratic colleagues have repeatedly demanded over the 

last 3 days that Judge Gorsuch follow precedent, and indeed, I will 

commend them for highlighting this case as yet another example 

of Judge Gorsuch doing exactly that: following precedent—following 

precedent in the Tenth Circuit that itself was following precedent 

from the U.S. Supreme Court. 

Judge Gorsuch, as a Judge of the Tenth Circuit, were you bound 

to follow Tenth Circuit precedent? 

Judge GORSUCH. Yes, Senator. 

Senator CRUZ. And if the Supreme Court changes the precedent, 

are you then bound to follow the new precedent? 

Judge GORSUCH. Yes, Senator. That is how it works. 

Senator CRUZ. That is precisely how it works. And in this instance, the fact that you followed precedent faithfully should give 

comfort to Senators on both sides of the aisle that you will continue 

to do so as a Supreme Court Justice. 

I would now like to introduce several items into the record. I 

want to start with a letter from Supreme Court practitioners. I 

would like to enter into the record a letter from a group of attorneys who, combined, have argued over 500 cases before the U.S. 

Supreme Court. They include lawyers who clerked for Ruth Bader 

Ginsburg and Stephen Breyer, and the signatories unanimously 

support Judge Gorsuch’s nomination. These accomplished attorneys 

called Judge Gorsuch fair-minded, dedicated, smart, and 

unfailingly polite. And they tell us that they would be pleased to 

appear before him. 

They conclude by saying he has ‘‘an unusual combination of character, dedication, and intellect that would make him an asset to 

our Nation’s highest court.’’ 

I would like to enter this letter into the record. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator CRUZ. I would like to also enter into the record an article 

from Evan Young, a former law clerk to Justice Scalia. Mr. Young 
309 

writes that Justice Scalia ‘‘did not want to rule the American people by imposing even his most cherished personal beliefs on us.’’ He 

wanted the American people to rule themselves, something that he 

could facilitate by being a relentlessly principled judge, telling us 

what the law required, and then letting the country make its own 

choices. 

Based on his record, Judge Gorsuch exhibits that same judicial 

humility. He understands that he should never confuse the law’s 

commands for his own ideas of what the law should command. 

I would like to enter this article into the record as well. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator CRUZ. I would also like to enter into the record an essay 

from Michael McConnell, a former colleague of Judge Gorsuch on 

the Tenth Circuit and a very well respected legal thinker across 

the country and, indeed, across the globe, who writes that ‘‘the 

President could not have made a finer appointment to fill Justice 

Scalia’s seat.’’ What I found especially enlightening was the way 

Michael McConnell not only addresses the intellectual seriousness 

of Judge Gorsuch’s jurisprudence, but also testifies personally to 

the strength of his character. 

Judge McConnell writes that Judge Gorsuch was ‘‘a man defined 

by his gracious personality, someone who always treats everyone 

with respect. He actively engages with lawyers, listens carefully to 

their position, and reflects fair-mindedly on what was said.’’ Judge 

McConnell concludes by nothing that, ultimately, Judge Gorsuch is 

‘‘the kind of Justice Americans of all political stripes should hope 

for.’’ 

I would like to enter this essay into the record as well. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator CRUZ. In addition, I would like to enter into the record 

an article from the Wall Street Journal that describes Judge 

Gorsuch’s strong defense of religious freedom for everyone. The article quotes Judge Gorsuch’s legal reasoning in a Religious Freedom Restoration Act case where he explained that, ‘‘The act does 

not just apply to protect popular religious beliefs. It does perhaps 

its more important work in protecting unpopular religious beliefs, 

vindicating this Nation’s long-held aspiration to serve as a refuge 

of religious tolerance.’’ 

I would like to enter this article into the record as well. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator CRUZ. And one final entry. I would like to enter into the 

record a letter from Scott Barker, a long-time Colorado Democrat 

and a practicing attorney in Denver. He urges the confirmation of 

Judge Gorsuch, saying that he has ‘‘performed admirably as a 

Tenth Circuit appellate judge,’’ and that ‘‘you would have to look 

long and hard for someone in the Colorado Bar who would say a 

disparaging word about Judge Gorsuch.’’ 

I would like to enter this letter into the record as well. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator CRUZ. And with that, Mr. Chairman, I yield my time. 
310 

Chairman GRASSLEY. Senator Franken. 

Senator FRANKEN. Thank you. I will take the 7 extra minutes of 

Senator Cruz’s time. 

[Laughter.] 

Senator FRANKEN. Judge, hi. During our courtesy visit, I asked 

you if you had read the New York Times investigative series on the 

pervasive use of forced arbitration. You had not but you said you 

would. Were you able to do so? 

Judge GORSUCH. I was. I managed to fit it in, Senator. 

Senator FRANKEN. Thank you. Thank you so much. 

Judge GORSUCH. No, it was—— 

Senator FRANKEN. I said you do not have to read this, and you 

said, no, I will, I promise. And you did, so thank you. 

I do not think that most Americans realize that when they sign 

up for a credit card or cable service or sign an employment agreement or fill out their parent’s nursing home resident agreement 

that they are also signing away their constitutional right to go to 

court. 

The New York Times series, while shocking, illustrated something that I have been saying for quite a long time. Forced arbitration clauses, which are buried in the fine print of contracts that we 

sign every day, restrict Americans’ access to justice by stripping 

consumers and workers of their legal rights and insulating corporations from accountability. 

Businesses across the Nation use these clauses to force individuals into a privatized justice system where the corporation can 

write the rules. Everything can be done in secret without public 

rulings. Discovery can be limited, making it hard for consumers to 

get the evidence they need to prove their case, and there is no 

meaningful judicial review, so there is not much a consumer or employee can do if the arbitrator gets it wrong. It is simply unfair. 

Now, there seems to be no question about how arbitration 

clauses came to permeate nearly every aspect of our lives. In a series of decisions, including Rent-A-Center, Concepcion, and Italian 

Colors, the Roberts Court effectively reshaped the Federal Arbitration Act into a permission slip for corporations to opt out of the 

civil justice system. 

And in the years since, we have seen business after business use 

arbitration clauses to avoid accountability for their wrongdoing 

even under the most egregious of circumstances. A few years ago, 

my staff heard the story of a 71-year-old man at a nursing home 

who died from, quote, ‘‘profound dehydration,’’ and whose family 

was forced into arbitration to resolve their wrongful-death claim. 

Last year, we learned that Wells Fargo customers who had had 

fraudulent accounts opened in their name and without their consent were forced into arbitration because the bank successfully argued that the clause in their real accounts also applied to their 

fake accounts. 

Very recently, Fox News tried to force its former anchor Gretchen Carlson into arbitration when she sued her boss Roger Ailes for 

sexual harassment. Fox News also tried to use the arbitration 

clause in her employment contract to prevent her and other victims 

of his abuse from speaking to anyone about what had happened to 

them. 
311 

Companies have also learned to pair forced arbitration agreements with class-action bans to shutter the courtroom doors to 

groups of individuals with small claims. And once blocked from 

going to court as a class, most people drop their claims because it 

does not make financial sense to go it alone. 

Now, this way of doing business is profoundly unfair and unjust. 

It is anathema to our system of civil justice and does not even 

scratch the surface of the many stories that the New York Times 

series revealed. 

Judge Gorsuch, what was your reaction to the series? Were you 

shocked? Because I have worked on this issue for 8 years now and 

even I was shocked. 

Judge GORSUCH. Senator, it made me think about a little bit of 

history. It used to be back at common law that arbitration was 

disfavored because it was thought that everyone should go to trial. 

Trials were the norm, Seventh Amendment and all that. And then 

in about I think in 1925 Congress passed a law—— 

Senator FRANKEN. Twenty-four. 

Judge GORSUCH. Called the Federal Arbitration Act. 

Senator FRANKEN. Twenty-four. 

Judge GORSUCH. Twenty-four, okay. All right. 

Senator FRANKEN. Very, very close. 

Judge GORSUCH. All right. 

Senator FRANKEN. It is as close as you can get without being 

right. 

[Laughter.] 

Judge GORSUCH. I try. 

Senator FRANKEN. Very good. Very good. 

Judge GORSUCH. And it made me think of that. It made me 

think, well, gosh, it does not have to be this way. The Federal Arbitration Act, what it did was to favor arbitration. Congress expressed a preference that people should arbitrate their disputes. 

They made a judgment, policy judgment in favor of arbitration because it is quicker, cheaper, easier for people. 

Senator FRANKEN. But that was really conceived in 1924 as two 

equal parties, business to business. 

Judge GORSUCH. Yes. 

Senator FRANKEN. And what I am going to—and I am going to 

continue on here because, I mean—unless you want to—— 

Judge GORSUCH. Well, I was not quite finished, but if you—it 

is—— 

Senator FRANKEN. Well, no, no—— 

Judge GORSUCH. Your time. I do not—— 

Senator FRANKEN [continuing]. Finish. It is my time, but if you 

can do it short, why do you not finish your thoughts? 

Judge GORSUCH. I will do the best I can. 

Senator FRANKEN. Okay. Thanks. 

Judge GORSUCH. If Congress thinks that the courts are not applying the Federal Arbitration Act as it wishes or if it wishes to 

revise or eliminate the Federal Arbitration Act, I mean, 1924 is a 

long time ago and—— 

Senator FRANKEN. Well, my feeling is is that the Court, through 

these 5–4 decisions, the Roberts Court has changed what the intention of the law was back in 1924. But I am going to continue. 
312 

In our courtesy visit you emphasized the threshold question that 

you say the Federal Arbitration Act requires in the opinion you authored in Howard v. Ferrellgas. You discuss how, when dealing 

with arbitration clauses, courts must first determine whether an 

agreement to arbitrate between two parties actually exist. And you 

go on to detail the analysis of the contract formation principles that 

must happen in order to make that determination. I think I understand what is required in that threshold question, but in order to 

fully grasp how you approach the issue of forced arbitration going 

forward, I want to move on to the next step in the analysis. 

So assuming the parties did in fact form a contract, I want to 

know whether there are any circumstances under which you believe that the mandatory arbitration clause should not be enforced. 

In other words, let us talk about the practical outcomes that arise 

when courts enforce these clauses and whether in your view any 

of them make clauses so unfair that you would deem then unenforceable. 

I will give you an example of how forced arbitration affected a 

Minnesota soldier who was deployed at Camp Anaconda in Iraq. 

Now, I know Camp Anaconda. I visited it four times on USO tours. 

I would go there, I would tell a few jokes, and then leave very 

quickly. See, Camp Anaconda has a nickname. The soldiers there 

called it Mortaritaville because it had been hit—it was hit so often 

by enemy fire. And in fact, the first soldier I ever met in Walter 

Reed had both legs—lost both of his legs to a mortar at Camp Anaconda. 

Well, one soldier who was deployed in Anaconda, Minnesota soldier, learned while he was there that his house had been foreclosed 

upon and sold in clear violation of a law we wrote, that Congress 

wrote, the ServiceMember’s Civil Relief Act, which protects 

serviceMembers from civil actions while on active duty. The mortgage lender had falsified paperwork stating under oath that the 

soldier was not in military service. So the house went into foreclosure and was sold at an auction for a third of its assessed value. 

Can you guess who bought it? You can, right. 

Judge GORSUCH. I can. You have shared this with me before, so 

I actually know who bought it. 

Senator FRANKEN. Oh, okay. Well, then—— 

Judge GORSUCH. That is okay. 

Senator FRANKEN [continuing]. It is not fair. The bank. 

Judge GORSUCH. The bank, right. Yes. 

Senator FRANKEN. The Bank. 

Judge GORSUCH. Right. 

Senator FRANKEN. It turns out there were over 80 other foreclosures taking place against servicemembers by the same lender. 

So the soldier tried to file a class-action suit on behalf of his fellow 

servicemembers. Unfortunately, a mandatory arbitration clause, 

which the soldier did not even realize was buried in his mortgage 

documents, also included a ban on class-action suits. So his case 

was not only forced out of court and into arbitration, but he had 

to go it alone. 

Now, fortunately, the Minnesota soldier had a lawyer willing to 

take on his individual claim even though it is—often that is not 

cost-effective for the lawyer. They eventually settled on terms that 
313 

are confidential. As a result, we have no real way of knowing how 

many other servicemembers’ rights were violated or whether this 

particular serviceMember was ultimately made whole. And of 

course he was prevented from even telling the other 80 

serviceMembers who had been harmed how it all went down. 

Judge Gorsuch, this is a case where we know the law was violated. We know that a bank unlawfully took this soldier’s home 

while he was away serving our country. And to add insult to injury, 

the man also lost his constitutional right to have his claim heard 

in a public court of law. 

So tell me, was it fair to limit this soldier’s claim to secret arbitration and to prevent all the soldiers who had also lost their 

homes from being included in this case? 

Judge GORSUCH. Senator, I am a big believer in jury trials and 

in the Seventh Amendment. And in the Rules Committee over the 

last 6 years I have worked with my colleagues to try and make litigation cheaper, faster, and more accessible so that people can vindicate their jury trial rights. 

I have a proposal with a wonderful judge from the Ninth Circuit 

currently pending before the Rules Committee asking if we can actually reverse the presumption, because right now, when you file 

a complaint in Federal court, if you do not specify that you want 

your jury trial right, it goes away and you are presumed to want 

a bench trial. I do not understand that presumption. I think it 

should be—— 

Senator FRANKEN. I am talking about—— 

Judge GORSUCH. The other way around. 

Senator FRANKEN [continuing]. In this agreements, on this particular agreement, this—— 

Judge GORSUCH. Well—— 

Senator FRANKEN. This is—this case is settled. It is not a live 

controversy. The thrust of my question is when do the principles 

of equity and fairness apply? So once there is a determination that 

there is indeed a contract, what does it take for the courts to decide 

that the outcome is so unjust that it cannot be enforced? 

Judge GORSUCH. Well, under the Federal Arbitration Act, which 

is an act of this Congress, an act of lawmaking by this Congress, 

the first step and the key step is did the parties agree to arbitrate? 

And normal state contract formation principles apply there. 

Senator FRANKEN. I know. We have—— 

Judge GORSUCH. And so—— 

Senator FRANKEN [continuing]. Talked about that. That is the 

initial test. We have talked about it. 

Judge GORSUCH. I think it is very important, though, Senator, if 

you are asking me the question, I have to give you the answer. And 

the answer is under normal state contract formation principles, 

there are a number of defenses that can be raised. 

Unconscionability might be an argument if I were a lawyer in this 

case that I would want to raise in the case you are presenting. 

That would be an argument I would raise. 

Senator FRANKEN. Do you not think this was unconscionable? 

Judge GORSUCH. That would be an argument if I were a lawyer 

I would want to raise. I do not know how it would come out. I 

would have to—you know, I would have to have the full judicial 
314 

process in order to adjudicate it, but that would be an argument. 

If I were the lawyer, that is one I would make. Right. 

I would also, if I were a lawyer and worried about these things, 

come to this body and ask you to revisit a nearly 100-year-old law 

and perhaps rethink the balance between arbitration and jury 

trials. 

Senator FRANKEN. Well, I have done that with my Fairness in 

Arbitration Act, which I keep introducing. 

Let us turn to the secretive nature of forced arbitration. Last 

year, the public was shocked to learn that over the course of 5 

years Wells Fargo employees have been incentivized to open millions of sham accounts in the names of Wells Fargo customers and 

then charge the customers for those accounts, of course without 

their permission. Many of them lost—their credit rating just plummeted. This was a bad outcome for these people. 

One reason this fraudulent practice was allowed to continue for 

so long was because Wells Fargo’s customer account agreement included and continues to include a forced arbitration clause. When 

customers discovered and attempted to sue Wells Fargo for the 

sham accounts, the company argued successfully that any dispute 

arising from the sham account was covered by the arbitration 

clause in the real account. So those customers were forced into secret arbitration. 

One such complaint was filed in September 2013. If that suit had 

been able to proceed in court, other Wells Fargo customers could 

have been alerted to the wrongdoing and may have been able to 

save themselves from being charged for the sham accounts and the 

life-changing damage it did to their credit scores, to their bank accounts, to the ability to buy a house. 

Judge Gorsuch, would you agree that one benefit of our civil justice system is ensuring that other victims are made aware of widespread wrongdoing and that such awareness allows them to mitigate the harm for themselves? 

Judge GORSUCH. I have spoken about that very issue, Senator. 

Senator FRANKEN. Good. Now, it just—it does not just hurt customers. This—it hurts employees. Two weeks ago, I, along with a 

few of my colleagues here, introduced a number of bills aimed at 

combatting unfair forced arbitration clauses. In advocating for our 

legislation, we were joined by former Fox News anchor Gretchen 

Carlson. Last summer, Ms. Carlson took on one of the most powerful men in media, Roger Ailes, suing him for sexual harassment. 

Mr. Ailes’ lawyers tried to force her case into private arbitration 

because of an arbitration clause in her employment contract. 

Even worse, the arbitration clause also prohibited her from 

speaking out about the claims, as is the case in most employment 

arbitration agreements. Had Ms. Carlson chosen to sue Fox instead 

of directly suing Mr. Ailes, her colleagues at Fox News, many of 

whom were also victims of sexual harassment, would have been left 

in the dark about her case and may never have come forward with 

their own claims. And Roger Ailes’ now well-documented abuse of 

women might well have continued. 

In an op-ed published shortly after she joined us on Capitol Hill 

to talk about her legislation—our legislation, our legislation, the 

group of Senators who met—Ms. Carlson wrote, quote, ‘‘So many 
315 

women are being silenced by employers who force them into a secret star chamber proceeding called arbitration. By coercing women 

to remain silent about illegal behavior, the employer is able to 

shield abusers from true accountability and leave them in place to 

harass again,’’ end quote. 

Judge Gorsuch, the Seventh Amendment gives us the right to a 

trial by jury in civil lawsuits. Would you agree that a critical aspect 

of a jury trial is the fact that it is usually open to the public? 

Judge GORSUCH. Absolutely. The Seventh Amendment—I am a 

big believer in the Seventh Amendment—all the amendments. And 

that amendment, civil jury trial, I have spoken about this a lot over 

the last couple days. I believe in it. I believe in juries. I believe in 

the civil involvement of the people in their government. I believe 

in the openness and transparency of a courtroom, the ability of 

every person to come into it, poor or rich, mighty or meek and have 

their cause heard. There are so many virtues to it. Transparency 

is one of them, absolutely. 

Senator FRANKEN. I am so glad to hear you say that because 

these decisions, one 5–4 decision after another by the Roberts 

Court has closed the jury to employers—I mean, to employees and 

to customers, one after another. And that is why, frankly, there is 

so much at stake here. As Senator Whitehouse has demonstrated, 

what we are worried about is another 5–4 Roberts Court making 

one decision after another that hurts workers, employees, that 

hurts consumers. 

And, you know, you said earlier there is no Democratic judges, 

there are no Republican judges. If that is the case, what was 

Merrick Garland about? That is what it was about. It was about 

let us leave this up to the election even though there was almost 

a year left. That is what this is about. And what this Court has 

done—and, listen, I am sure there are a lot of cases decided where 

judges go back and forth, but there is a sort of core group of cases 

in which the Roberts Court continually has ruled in favor of corporations and against workers and consumers. That is what this is 

about, and that is why—this is not—I know I am over my time, 

Mr. Chairman, and I will just try to finish out with a thought. 

Chairman GRASSLEY. Okay. Go ahead. 

Senator FRANKEN. I think I have a thought. 

Senator FEINSTEIN. Maybe. 

Senator FRANKEN. Maybe. Thank you, Ranking Member. 

This is really about something. And my colleagues on the other 

side say, you know, that we are making something up over here. 

We are trying to really figure out whether we are going to see a 

continuation of this pro-corporate bias and of this bias toward big 

money and a perversion of our political system like through Citizens United and where the weight shifts against the little guy and 

for the big guy, and if that—if—this election was supposed to be 

about the little guy but that is my thought. 

Senator SASSE. Could I—does Al—Senator Franken, if you want 

another minute, you can have a minute of mine. 

Chairman GRASSLEY. I want to move on. 

Senator SASSE. Okay. 

Senator FRANKEN. Wait a minute. He gave me a minute. 

[Laughter.] 
316 

Senator FRANKEN. Ah, gee. 

Chairman GRASSLEY. I want to—when he gets done, we are going 

to take a 10-minute break—— 

Judge GORSUCH. Thank you. 

Chairman GRASSLEY [continuing]. For the benefit of the nominee. 

Judge GORSUCH. Thank you. 

Senator SASSE. I know this is probably imprudent, but, Senator 

Franken, I think you had two different thoughts. And one of them 

I completely agree with to the degree that I understand the facts 

and the other one I think is a non sequitur for what we are talking 

about. So I found a lot of what you just said now compelling. I do 

not know all the facts of the particular fraud case you are talking 

about, but I do not see exactly how that applies to what the judge 

who is sitting in front of us being considered for today. 

But to the degree that—if you are right on a lot of the facts you 

stipulate, it sounds to me like we ought to legislate about it and 

we ought to talk together about what we should do to fix this problem. I do not know what it has to do with the confirmation of a 

Supreme Court nominee because I think we are talking with him 

about what the law is. I think a lot of your commentary was on 

what you think the law should be, and if your fact pattern is right, 

I think there is a problem there we should also fix. 

But I do not think it is right that when you conclude to say the 

Republicans are indifferent to this problem, I am interested here 

not in the Republican-Democratic distinction but in the legislative 

judging distinction. So we can follow-up. 

Chairman GRASSLEY. The problem is lawyers get paid a lot more 

in court than they do doing arbitration. 

Senator SASSE. Thank you, sir. 

[Laughter.] 

Senator SASSE. I would like to enter into the record—— 

[Laughter.] 

Senator SASSE. I think what just happened was one of the only 

nonlawyers on the Judiciary Committee just got slapped by the 

senior nonlawyer on the Judiciary Committee. 

[Laughter.] 

Senator SASSE. Nebraska is going to beat Iowa in football this 

year, sir. 

[Laughter.] 

Chairman GRASSLEY. That is what you think. 

[Laughter.] 

Senator SASSE. I thought you were a Cyclone. 

Anyway, I would like to enter into the record a letter written by 

some of Judge Gorsuch’s law students at the University of Colorado 

law school. These students hold very political views, but they all 

support the judge’s nomination. They call him, quote, ‘‘a kind and 

brilliant person dedicated to the rule of law and to the Constitution,’’ close quote. They write that he was even able to make a, 

quote, ‘‘mandatory ethics class memorable.’’ So well done. 

I would like to note one story from the letter from a law student 

who served as an extern, quote, ‘‘While serving as an extern, I 

helped him in drafting an opinion rejecting a prisoner’s appeal. The 

prisoner had no lawyer and very weak arguments, so I turned in 

a draft that explained very briskly why the prisoner’s claim lacked 
317 

merit. The judge then asked me, ’Where are the responses to the 

prisoner’s arguments?’ ’’—close quote. ‘‘I told him that I did not see 

the need to address those because they were so weak. Well, that 

did not go over well with the judge. Judge Gorsuch responded, ‘‘We 

owe this man the kindness of stating his arguments as fairly as we 

can and then responding with clear answers in plain English. We 

owe him the kindness of explaining to him in a way that he can 

understand why he lost the case. Ruling against this man does not 

relieve us of our obligation to show him that kindness’ ’’—close 

quote. 

I would like to ask that we enter that letter into the record. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator SASSE. I would also like to enter into the record a letter 

from dozens of Judge Gorsuch’s Columbia University classmates in 

support of his nomination. Again, this is a diverse group praising 

the judge’s character and, quote, ‘‘unflagging commitment to respectful and open dialogue on campus,’’ close quote. The alumni are 

united in their belief that the judge would, quote, ‘‘serve our country with honor and distinction on the Supreme Court.’’ I ask that 

this letter be entered into the record. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator SASSE. Finally, I would like to enter into the record a 

letter from the past president of the Colorado Trial Lawyers Association, Gordon Netzorg, in support of the judge’s nomination. He 

has observed that the judge is, quote, ‘‘completely honest and 

above-board, a man of integrity,’’ close quote. He also points out 

that the judge enjoys strong bipartisan support from the Colorado 

Bar. I ask that this letter be entered into the record. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator SASSE. Judge, you said yesterday that there is a lot 

about this process that you do not like and that makes you uncomfortable. I would love to hear more about it, but I recognize that 

you probably would not answer that question, that you cannot and 

therefore will not answer. I think as a newbie here—I think I am 

one of five people on the U.S. Senate that has never run for anything before in my life before getting here—I think that this Congress does not function as it should on a broad range of issues. You 

said yesterday that this is still the greatest deliberative body in the 

world. I hope that can be true again, but humbly, there are a whole 

bunch of not-for-profit boards in my little town of Fremont, Nebraska, that function a lot better at deliberation than the U.S. Senate does right now. 

Speaker Pelosi or Leader Pelosi is not a Member of the Senate 

but the U.S. Congress is a place that the American people look at, 

and when they see us, they do not primarily see public servants. 

They do not primarily see a distinction between the Article I 

branch in which we serve as the Legislature versus an Article II 

and III branch that are supposed to check and balance one another. 

They do not primarily see a distinction between the House and the 

Senate. They primarily see political parties. And our Founders did 
318 

not intend that. George Washington’s farewell address spoke directly to the danger of faction. 

We live in an era where there is going to be even more 

disintermediation of public discourse through media channels as 

the barriers to entry get smaller and the digitization of journalism 

creates a world where there are going to be much more fragmented 

conversations. It is possible for us to just silo ourselves in a way 

where we create an echo chamber around ourselves so we only 

have to talk to and listen to people who already agree with us. The 

domain of shared facts is declining, and it is a really dangerous 

thing. 

And I worry about what comes next for the country. I worry 

about what comes next for public discourse broadly. I worry about 

what comes next in this institution. And I do not want to put too 

fine a point on it, but I think that people who have watched these 

hearings over the course of the last 3 days know that you should 

be confirmed, know that you will be confirmed, and know that comments like Leader Pelosi’s that if you are an American who drinks 

water or breathes air, they should be scared of you, that is absurd. 

And my colleagues know that it is absurd. And there is a real danger in not condemning that kind of reckless speech. 

As is kind of well known, I think I am the third or fourth most 

conservative guy in the U.S. Senate by voting record but I am not 

particularly partisan and I have not been bashful about speaking 

out against my party when my party has been reckless about facts. 

And I hope that some of the folks on the other side of the aisle, 

as we head toward a vote in this Committee and then we head toward a vote on the Floor in 2 weeks, will also speak out against 

the kind of reckless nonsense of telling the American people, who 

have day jobs, by the way—there are some folks who are watching 

on C–SPAN and that is wonderful. There are parents and teachers 

in Nebraska who are—and across the country who are using the 

C–SPAN hearings here as an occasion to teach their kids civics, 

and that is great. We need more—we need a more engaged public. 

But most people are not watching these hearings, and most people are going to see some headline summary of what happened 2 

weeks from now after there is a vote. And when the vote for you 

should be 95–to–0 or 95–to–5 or 100–to–0—math was not my 

strong suit so Franken will fill me in on the difference between 

1924 and 1925—when they see a final vote, if it is not something 

overwhelming, if they see something that looks like Republicans 

voted one way and Democrats voted another way and they have 

echoing in their ears the sounds of people saying that you are some 

sort of a shill for big business and that the American people should 

be scared of you, we will have in this body done something to further erode the public trust. 

And so I sincerely hope that my colleagues on the other side of 

the aisle, as they approach voting, will recognize that the audience 

after they vote is not just people in their next primary who want 

to see a greater politicization of every question in American life. 

But the audience for their vote is also going to be people who 10 

and 15 and 20 years from now are going to look back on this body 

at this time and next year and two and 3 years from now and say 
319 

did we work to create a bigger and broader domain of shared facts 

and of shared public trust? 

I know you will not comment on this confirmation process directly because it is fundamentally a political question, but I wonder 

if you might comment a little bit on how you see the interplay between Article I and Article II coming together to create a new 

member of the court, the highest court, of Article III. 

Obviously, the President nominates someone to serve on the Supreme Court, and we have the constitutional duty in the Article I 

branch of providing advice and consent. Some of us have done that 

both with the last President and with this President, have given 

advice on the kinds of people that we think should be on the Court, 

and we ultimately have a duty to consent or not to consent. 

It could be done in this Committee or it could be done exclusively 

on the Floor in the full body. It could be done—as you mentioned 

with Justice White, it could be done in 90 minutes or it can be done 

over the course of 2 weeks. There are lots of ways that the Senate 

could organize itself. But could you help the American people understand what do you think are the hardest questions that should 

right be being put to you and to future nominees for the Court? 

When we are doing our duty to having—after provided often private advice to the President but also in public about the future and 

when we are deliberating about consenting or not consenting, what 

are the hardest questions that you think it is appropriate that this 

body would ask of nominees? 

Judge GORSUCH. Senator, I am grateful for the question, but that 

is one I am going to have to respectfully decline to answer out of 

respect for the separation of powers. I just do not think it is appropriate for an Article III judge to be trying to tell this body how to 

do its business. I just do not. Of course, I have my personal 

thoughts. I put them over there. I am a judge. And respectfully, I 

have more optimism for this country. I do. And I have more optimism for this body and for the Congress as a whole. I have seen 

it work. And maybe I will just leave it there. 

Senator SASSE. I hope you are proved right. 

I would like to pursue something that Senator Cruz asked about 

a few minutes ago. There has been presupposition behind some 

questions earlier today that if you believe in textualism, if you believe in originalism, if you believe that one of the core jobs of someone who sits on the Bench is to understand the original public 

meaning, that somehow that means you are locked in time in history in 1788. Our Constitution has this glorious amendment process. Can you explain the relationship between the amendment 

process and originalism? Since the document does evolve in a formal, explicit, amended way, how does that relate to original public 

understanding? 

Judge GORSUCH. The Constitution is a law. Like any other law, 

it is our foundational law, and it was drafted to last maybe unlike 

certain other pieces of legislation that this body might think outdated and wish to update. That is its prerogative. The Constitution 

was designed to last and it was a brilliant, brilliant document. And 

the Founders really were amazing. If you ever go to Philadelphia, 

you have got to go to Independence Hall and the Constitutional 

Center there and see how it happened. And it is inspiring. 
320 

And part of the wisdom of the document is the recognition, the 

humility that even the Founders, brilliant as they were, could not 

anticipate what might happen 100 years, 200 years—we might 

hope a lot longer than that—down the line. And so they recognized 

that, ultimately, it is about we the people. The people are sovereign 

to this country, not a king, not a class. And if the people wish to 

change their Constitution, there is a provision. There is a way to 

do that. It is a government by the people and for the people. And 

that is the amendment process in a nutshell, Senator. 

Senator SASSE. As a sitting Supreme Court Justice tasked with 

upholding the U.S. Constitution, is it ever appropriate to cite international law? And if so, why? 

Judge GORSUCH. I am not going to—it is not categorically improper. There are some circumstances when it is not just proper 

but necessary. You are interpreting a contract with the choice-oflaw provision that may adopt a foreign law. That is an appropriate 

time to look at any choice-of-law provision by any party in any contract. Treaties sometimes require you to look at international law 

by their terms. 

But if we are talking about interpreting the Constitution of the 

United States, we have our own tradition and our own history, and 

I do not know why we would look to the experience of other countries rather than to our own when everybody else looks to us. For 

all the imperfections of our rule of law, it is still the shining example in the world. 

That is not to say we should sweep our problems under the rug 

or pretend that we have solved all of the problems in our culture, 

in our society, in our civic discourse, but it is to say that we have 

our history and our Constitution, and it is by we the people. 

And so, as a general matter, Senator, I would say it is improper 

to look abroad when interpreting the Constitution as a general 

matter. 

Senator SASSE. How do independent agencies fit in a constitutional system of three branches? 

Judge GORSUCH. Senator, independent agencies are in the executive branch, and there is a case called Humphrey’s Executor that 

was decided in the 1930s that permits independent agencies to be 

created. By an independent agency we mean that it is headed by 

usually a group of individuals who are removable only for cause as 

opposed to at will. 

Senator SASSE. How do you understand the term American 

exceptionalism? 

Judge GORSUCH. I think that term means many things to many 

people, Senator, and I do not wish to get involved in politics. I have 

spoken as to how I see our Constitution and the brilliance of it and 

the reverence I hold for it. And I think I will just leave it there, 

with your permission. 

Senator SASSE. What role does the Declaration of Independence 

play in interpreting the Constitution? 

Judge GORSUCH. The Declaration of Independence is an amazing 

document, right? These are men who—as Benjamin Franklin said, 

we either hang together or we hang separately. When they put 

their name to that document, it was a death warrant if they failed. 

And that is why John Hancock is now synonymous with a signa-
321 

ture. No one remembers who John Hancock was, but they know 

that is a signature because he wrote his name so bigly—big and 

boldly. 

Senator SASSE. You just said bigly. 

Judge GORSUCH. Bigly. 

[Laughter.] 

Senator SASSE. And I just won five bucks. 

[Laughter.] 

Judge GORSUCH. You embarrassed me in front of my nephew and 

he loves it. 

[Laughter.] 

Senator SASSE. He is the one paying me the five bucks. 

[Laughter.] 

Senator SASSE. The Declaration of Independence I think? 

[Laughter.] 

Senator SASSE. Is that where we were? I think my work here is 

done, but I do want to hear your answer. 

Judge GORSUCH. John Hancock, right, the signature, that was 

his death warrant, but he did not want the king to have any ambiguity about who it was that was signing that document. And it was 

his death warrant. That is remarkable, a remarkable thing that 

the men and the women who fought for our freedom, with all apologies to my British wife. 

It is, however, not the law. The Declaration is not the law. It is 

a Declaration of Independence. The Constitution is the 

foundational document and the foundational law of the country, to 

answer your question. The Declaration I think certainly informs 

every American and should inform a judge in understanding the 

background of the Constitution and our laws. It is not a document 

that should be lightly discarded. 

Senator SASSE. Thank you. I do still want to ask you some questions about the Ninth and Tenth Amendment, but I will save that 

for future rounds, as I am at time. Thank you, Chairman. 

Chairman GRASSLEY. Before you take your break and on the 

issue of America being an exceptional nation, I would hope that 

you could consider what de Tocqueville said about America being 

an exceptional nation and say that without being political. 

Thank you very much. We will take a 10-minute break. 

[Recess.] 

Chairman GRASSLEY. I am going to wait a couple of minutes. 

Judge GORSUCH. Oh, you are. 

Chairman GRASSLEY. No, no, you stay there, please. What we are 

trying to do is figure out how we end up tonight and get everything 

done we have got to get done. I think we have got something, we 

have got a plan here. 

[Pause.] 

Chairman GRASSLEY. We are going to give 30 seconds to Senator 

Franken, but not right now—— 

[Laughter.] 

Chairman GRASSLEY [continuing]. And then go to Coons. After 

we finish a second round, we will do what has been done for the 

last 30 or 40 years with a nominee. We are going to have a closed 

session, and then we will reconvene after we have the closed session, and then we will start our third round. In other words, at the 
322 

end of the second round I should make clear we are going to have 

this closed session, and by doing that, then when people are done 

with their third round, if they want to leave and not come back, 

they will not have to. And then for the third round, I think I have 

consulted with a leader here that we would allow 15 minutes but 

we would hope that you could do it in less than 15 minutes so that 

we can get done sooner than we got done last night. 

So that is the way we will handle it, and I hope not everybody 

wants a third round, but I can understand if everybody does want 

a third round. This is a very important part of our function as Senators, so we will do whatever it takes to satisfy everybody so the 

questions get asked that you want to ask. 

Senator Franken, for 31 minutes—— 

Senator FRANKEN. Seconds. 

Chairman GRASSLEY [continuing]. Thirty-one seconds. 

Senator FRANKEN. Thank you. Thank you, Mr. Chairman. 

Judge Gorsuch, you were right. The Federal Arbitration Act was 

passed in 1925, as you said, not in 1924, as I said. I was wrong, 

and especially so because I chose to correct you when I was the one 

who was wrong, and I humbly apologize. 

Judge GORSUCH. Not at all, not at all. 

Chairman GRASSLEY. That does not happen very often around 

the Senate. 

[Laughter.] 

Chairman GRASSLEY. Senator Coons. 

Senator COONS. Thank you, Mr. Chairman. 

Thank you, Senator Franken. 

Thank you, Judge. 

I will submit for the record, as many of my colleagues have, two 

more documents, an editorial from the Washington Post from Matt 

Whit, who experienced the hardship of depriving individuals of the 

ability to make their own end-of-life choices when his mother endured a painful death by refusing nutrition; and a letter from 21 

national LGBT groups expressing concerns about Judge Gorsuch’s 

opinions and whether they do indeed respect fundamental rights 

that would enable them to be protected from discrimination. 

Chairman GRASSLEY. Without objection, those are entered. 

[The information appears as a submission for the record.] 

Senator COONS. Thank you, Mr. Chairman. 

Judge, I enjoyed our conversation yesterday about Hobby Lobby 

and your writings on assisted suicide, and I want to return to a discussion of privacy and the autonomy of adults to make their own 

decisions even when it might conflict with settled law or with the 

majority’s view of morality. 

Yesterday, when I asked you whether the Constitution contains 

a right to privacy, you agreed that it does, and I was glad to hear 

that. But you went on to describe this right and its origins, and you 

cited I think the Third and Fourth Amendments and two cases 

from the 1920s that have to do with parenting, I think Pierce and 

Meyer. 

But you did not mention more recent cases where the right to 

privacy has been central: Griswold, protecting access to contraception; Roe and Casey, protecting the right to choose an abortion; 

Lawrence and Obergefell, protecting a same-sex couple’s right to in-
323 

timacy or to marry. And I think it is important to establish that 

when you agreed there is a right to privacy in our Constitution, 

that we were talking about the same thing. 

In general, this area of substantive due process and right to privacy is one about which there has been vigorous debate, so I 

thought it was constructive for us to have a broader conversation 

about it. 

First, do you agree those cases that I just cited all relied on the 

right to privacy as an essential part of their holding? 

Judge GORSUCH. Senator, you and I were discussing, I believe, 

some of those more recent cases in the line of the Fourteenth 

Amendment, substantive due process case law, and all I was pointing out, or trying to at any rate, was that they have a prominence 

that goes back quite a ways. 

Senator COONS. That is right. So would you agree that these are 

cases, the ones I just referenced, where the right to privacy really 

is an essential part of their holdings? 

Judge GORSUCH. I agree they all grow out of the Fourteenth 

Amendment due process liberty component, which has been interpreted by the Supreme Court to include privacy in a lot of different 

areas. 

Senator COONS. So would you agree, just to make sure I have understood you right, that the right to privacy today extends to protecting women’s right to have autonomy over their reproductive 

choices and protecting the privacy of intimate relationships between consenting adults, whether same-sex or opposite sex? 

Judge GORSUCH. You have Casey, you had Lawrence, you have 

Obergefell. All of those are, I think, in the line of cases you are 

talking about, Senator. Yes. 

Senator COONS. So let us take a minute and look at Casey and 

how it explores and identifies this right to privacy. It is now, I 

think, 25 years old. It is a ’92 case. It reaffirmed the constitutional 

right to choose an abortion. And the opinion of the Court notes— 

and I am going to quote here at some length—that these protections extend to matters involving, quote, ‘‘the most intimate and 

personal choices someone may make in a lifetime, choices central 

to dignity and autonomy, central to the liberty protected by the 

Fourteenth Amendment, and at the heart of liberty is the right to 

define one’s own concept of existence, of meaning, of the universe, 

of the mystery of human life. Beliefs about these matters could not 

define the attributes of personhood were they formed under compulsion of the state.’’ I think that is a well-known piece of the 

Casey opinion. Is that familiar to you? 

Judge GORSUCH. Generally, yes. 

Senator COONS. And in your book on assisted suicide you say, 

‘‘that it remains unclear whether Casey’s mystery-of-life passage is 

properly understood as a persuasive but non-binding dictum.’’ By 

calling this central section of the Casey opinion dicta, are you saying that future courts do no need to pay attention to it? 

Judge GORSUCH. No, Senator, and I was not even—I do not recall 

being that emphatic about it. 

Senator COONS. Okay. 

Judge GORSUCH. What I said was that obviously Casey reaffirmed the right to abortion generally in Roe, and then the ques-
324 

tion is what additional work does that language do, and that remains an open question in a lot of ways, what additional work that 

language does. 

Senator COONS. Well, then, let us explore that, if we could. 

Should this Casey language be relied upon in other cases? 

Judge GORSUCH. I think that is going to be an argument that 

counsel will make to a court and the court will have to consider 

through the proper judicial process—briefing, argument, decision. 

Senator COONS. Well, let me just argue that it has been relied 

upon, that it was essential to the holdings in Lawrence and 

Obergefell. If that is correct and it has been relied upon in subsequent key Supreme Court cases, is Casey and this particular piece 

of the Casey holding indisputably settled law? 

Judge GORSUCH. Senator, Casey is settled law in the sense that 

it is a decision of the U.S. Supreme Court. And you also have 

Obergefell and Lawrence. Those are all precedents of the U.S. Supreme Court, entitled to the weight of precedent, which is quite 

considerable, as we have discussed. 

Senator COONS. Well, we have talked about precedent. You 

talked at some length about what are the tests of precedent. One 

of my concerns here is that the language in your book, I would 

argue, lays out a roadmap for ignoring this section of this holding, 

or minimizing or marginalizing it. Do I misread your writings here? 

Judge GORSUCH. I do not know what you are referring to exactly, 

Senator. 

Senator COONS. The section in your book on assisted suicide 

where you say Casey’s mystery-of-life passage is persuasive but 

non-binding. 

Judge GORSUCH. Again, Senator, I am not sure that is an accurate portrayal of the book in the first instance. I think I said that 

an argument could be made to that effect, at most, because you had 

two holdings in Casey. You had one, a stare decisis or a precedentbased holding. Roe is upheld because it is precedent. 

Senator COONS. Right. 

Judge GORSUCH. And second, there was a second argument for 

upholding Roe, and this is part of it, this language. So both are sufficient to the day, and sometimes as a court you ask which is binding holding. Sometimes there is not just the law of judicial precedent but a law of interpreting when we have multiple holdings. 

Senator COONS. That is right. 

Judge GORSUCH. The Marks opinion, for example, which talks 

about how you pick which holding is binding in the future. So, Senator, we have a whole law which applies here. 

Senator COONS. I understand that. 

Judge GORSUCH. A whole body of case law—— 

Senator COONS. It is exactly because of that and what I think are 

concerns that you raise about whether this is precedent that should 

be relied on, or a section of the Casey opinion that should be relied 

on, that I just wanted to emphasize that I view it as an important 

foundation of this mystery-of-life passage and the subsequent due 

process views it expresses, really central to Lawrence and 

Obergefell. They are rooted in Casey’s interpretation of liberty 

under the Fourteenth Amendment. 
325 

So would you disagree with me that Lawrence and Obergefell 

squarely rely upon Casey’s view of liberty under the Fourteenth 

Amendment? 

Judge GORSUCH. Senator, I think it would be an injustice to Lawrence or Obergefell for me to sit here and try to characterize them 

in miniature. They are thoughtful, lengthy opinions that have a 

considerable amount of analysis unto themselves. I would just say 

they are what they are. They are precedents of the U.S. Supreme 

Court, and they—— 

Senator COONS. So they are precedents, and you would view 

them as binding and as settled law. 

Judge GORSUCH. Senator, they are precedents of the U.S. Supreme Court, due all the weight of a precedent of the U.S. Supreme 

Court. I have written a book about how much weight that is, with 

12 judges from around the country, appointed by Presidents of both 

parties. Justice Breyer was kind enough to write a forward. And 

it presents the mainstream view, the consensus view. Think about 

it, 12 Circuit Judges agreeing on 800 pages. 

Senator COONS. If you could get 50 Senators to agree on something, you would truly be worthy of—— 

Judge GORSUCH. I would be happy if I could get 20 of you to 

agree. 

[Laughter.] 

Senator COONS. So let me continue with that exploration, if I 

could. So if these cases, Lawrence and Obergefell, are settled law, 

and they are relying critically on this understanding of substantive 

due process that is rooted in Casey and its analysis, under what 

basis or circumstances would they be subject to reconsideration? 

When might they be open to being reexamined if they are currently 

indisputably settled law? 

Judge GORSUCH. Senator, every precedent is subject to a presumption that it stays, right? Francis Bacon called precedent the 

anchor of the law. Alexander Hamilton said that judges, because 

we are life tenured, need to be bound down by strict rules and 

precedents. 

Senator COONS. Right, and I think in your opening exchange 

with Senator Grassley you identified just a few factors, a reliance 

interest, whether it has been reaffirmed repeatedly, whether the 

legal construct it was on has been upheld or whether it is an island 

unto itself. Am I roughly remembering your—— 

Judge GORSUCH. There are a number of factors, and you have 

named a few of them, and they are all outlined in the book, among 

other places, and the Supreme Court precedents. 

Senator COONS. Well, let us move to a key moment in this line 

of cases where settled precedent was overturned. You testified yesterday that Justice White was your judicial hero, a Justice for 

whom you clerked. And with all due respect, I think Justice White, 

who was an exceptional football player and jurist and Coloradoan, 

in this particular line of cases I think he was on the wrong side, 

in Casey and in Bowers. So let us discuss Bowers v. Hartwick, which was a case that 

upheld a Texas statute criminalizing sexual intimacy between 

same-sex couples. In his 1986 decision in Bowers, Justice White declined to extend due process protections and recognize any funda-
326 

mental right of intimacy. And in 2003, the Supreme Court overturned, directly overturned Bowers and Lawrence. Justice Kennedy 

wrote the Lawrence decision in reliance upon this Casey language, 

and he did not mince words. Justice Kennedy said, ‘‘Bowers was 

not correct when it was decided, as it is not correct today. It ought 

not remain binding precedent. Bowers should be and now is overruled.’’ 

You clerked for both Justices White and Kennedy. Was Justice 

Kennedy correct in stating that Bowers was wrong when it was decided? 

Judge GORSUCH. Senator, that is the law of the Supreme Court. 

And you are right, I clerked for both men. I admire both men 

greatly. Both taught me an awful lot, and I a not here and I will 

not say a bad word about either one of those gentlemen. 

Senator COONS. I wrestle with your admiration for Justice White 

when his jurisprudence fails to recognize what I and the current 

Supreme Court and many Americans view as a core liberty interest 

inherent in each one of us. Obviously, Justices can be revered for 

their writing and their decisions even when developments in the 

law and history have long passed them by. 

You have also expressed admiration for Justice Scalia, and he 

dissented sharply, memorably in both of these same-sex decisions. 

He actually said in one of those dissents memorably that the majority’s holding would mean, ‘‘that state laws against bigamy, samesex marriage, adult incest, prostitution, adultery, fornication, bestiality, and obscenity would be called into question.’’ As a legal matter, do you agree with Justice Scalia’s statement in that dissent? 

Judge GORSUCH. Senator, that is a dissent. It is not the controlling law—— 

Senator COONS. That is right. 

Judge GORSUCH. Of the Supreme Court. 

Senator COONS. And sometimes dissents are meant to signal a 

direction a certain Justice would like the law to go. 

Judge GORSUCH. I am sure it does, but it is a dissent. And, Senator, with respect to Justice White, I am not here to spend an 

undue amount of time defending him. But we all, everyone—I 

know you indicated that you disagree with him; that is fine. Every 

one of us makes mistakes at some point in time. I do not think—— 

Senator COONS. Did he make a mistake in Bowers? 

Judge GORSUCH. Senator, the Supreme Court has held that. Justice Kennedy held that. As you pointed out, you read the language, 

that is the binding law of the Supreme Court of the United States. 

And, Senator, I revere both men, both men greatly. 

Senator COONS. But if you would, Judge, what I am looking for 

is some sense of your understanding of the scope of the substantive 

due process analysis in Casey. Because you took the initiative to 

write that it should be understood very narrowly, that it might not 

be something that would stand the test of time, because a Justice 

you identified as your judicial hero did not agree with it, and a Justice you did not describe as your judicial hero overturned it, so I 

am just expressing concern. 

Judge GORSUCH. Senator, I am sorry to interrupt you, but that 

is not correct. 

Senator COONS. Okay. 
327 

Judge GORSUCH. If you took away from my discussion that I do 

not consider Justice Kennedy a judicial hero, then I am sorry because I thought I made that very clear in my opening remarks before this body. And if I did not, I want to make it real clear right 

now, all right? 

Senator COONS. Duly noted. 

Judge GORSUCH. That I am immensely grateful—Senator, I cannot let that pass. I am sorry. 

Senator COONS. You did note in your opening that you learned 

from him respect for litigants and that you admired your time with 

him, and I remember you saying very positive things about your 

clerkship with Justice—— 

Judge GORSUCH. I am glad, I am glad. I do not want the record 

of this Committee to go down in history as anything less than holding him in great admiration. That is very important to me, Senator. 

Senator COONS. Thank you. 

Judge GORSUCH. Very important to me. 

Senator COONS. Justice Scalia, for whom you have also expressed 

a great deal of admiration, expressed in his other dissent, a key 

one in this case, that Obergefell literally was undermining American democracy, that it was a threat to American democracy. Presumably he was referring to the fact that the Court’s decision 

struck down State laws adopted by referenda. 

What did you understand him to mean? Do you view Obergefell 

as a threat to democracy somehow? 

Judge GORSUCH. Senator, Justice Scalia had his views, and he 

expressed them in his dissent. They are his views. The law of the 

land is the holding of the Supreme Court in Obergefell. Senator COONS. That is right. Your views you expressed in 2005 

in an article in National Review called ‘‘Liberals and Lawsuits.’’And in that article you said marriage equality and death 

with dignity cases were examples of what liberals relied on, an 

over-weaning addiction to the courtroom to advance. What did you 

mean by that? 

Judge GORSUCH. Senator, we discussed that article yesterday. I 

am happy to do it again. I was pointing out there, I think, two 

things, and a third. The first I was pointing out was that there are 

important civil rights issues that courts have to be available for, 

and that the courts are open to all persons. One of the beauties of 

our courts is that they can vindicate civil rights for minorities. 

Senator COONS. That is right. 

Judge GORSUCH. It is a non-majoritarian institution. 

Senator COONS. And the line of cases I have been working 

through with you are two that are landmark cases but that also 

have memorable dissents where significant advances in civil rights 

were made, and that is exactly what I was trying to explore, why 

you sort of picked out those two areas to, I will say, denigrate in 

this National Review article. Maybe I misread it. 

Judge GORSUCH. I do not mean to denigrate anyone’s views, Senator. This was before I was a judge. And the second point I made 

was that there are some comparative disadvantages to resolving 

policy matters for courts. One of the disadvantages comparatively 

is that judges are not well-equipped to decide policy matters. We 
328 

have four evanescent law clerks that come to us for a year out of 

law school. Great policymakers they are not, with all respect to my 

law clerks, all right? They are wonderful legal researchers, but 

they are not great policymakers. 

Senator COONS. Speaking as a former clerk, I appreciate the recognition that some are great legal researchers. I am not sure I was 

either a good policy advisor or researcher for my judge. 

Let me, if I can, move to asking you about the basis on which 

you might ever be open to reconsidering, as Kennedy did, White’s 

decision in Bowers with Lawrence, the decision in Obergefell. 

Obergefell, which recognized a constitutional right to marriage 

equality for same-sex couples, rooted in the substantive due process, is something that is now settled law and on which I would say 

there is now a great deal of reliance, one of your core factors, one 

of the core factors in deciding whether or not a precedential decision should be reviewed. 

Do you think there is significant reliance interests on Obergefell? 

Judge GORSUCH. I am sure there are, Senator, yes. 

Senator COONS. And would you include in that the thousands, 

probably tens of thousands of couples that have now married and 

purchased property and signed contracts and changes in State law 

and municipal law such that you would agree there is really a significant reliance interest on this decision? 

Judge GORSUCH. Reliance interests are, as you point out, Senator, an important factor in any consideration of precedent, absolutely. 

Senator COONS. And so overturning this key piece of precedent 

would not just disrespect the now 25-year-long settled mystery-oflife analysis of Casey and the settled Lawrence decision, but also 

the reliance interests of many couples in this Obergefell decision? 

Judge GORSUCH. Senator, I have declined to make any promises, 

hints, or previews in how I would resolve any case. 

Senator COONS. That is right. 

Judge GORSUCH. And I am going to continue that here. 

Senator COONS. But I am simply asking if you think there is a 

significant reliance interest, and I think you have agreed. 

Judge GORSUCH. And I have already said yes. 

Senator COONS. Let me just turn, if I might, in the little time 

I have got left, and we might pick this up in my last round, to an 

important decision on this same question, the Fourteenth Amendment substantive due process right. In Browder v. City of Albuquerque, we talked yesterday about you being a Westerner, and 

this is a particularly Western case in which a police officer going 

off shift decided to just roar through the middle of town at 66 miles 

an hour, speeding through 11 different intersections and, tragically, 

one red light, killing a person and severely injuring another. 

Access to the Federal courts in this case rests on 42 Section 

1983, and your own decision, the unanimous decision of the Tenth 

Circuit that you wrote, describes substantive due process, which is 

the foundation of all these privacy cases we were just talking 

about, as very much uncharted, more than a little open-ended, a 

murky area with a paradoxical name. 

What did you mean by all that in this case? 
329 

Judge GORSUCH. Senator, a lot of that was quotes from other 

cases, as I recall. 

Senator COONS. Two out of the four, yes. 

Judge GORSUCH. All right. 

Senator COONS. I was a law clerk. 

Judge GORSUCH. And just so we are dead accurate here, I think 

those are quotes from the U.S. Supreme Court. 

Senator COONS. Yes, they are. 

Judge GORSUCH. All right. I think that is not an insignificant 

fact to note, Senator. 

Senator COONS. It is not insignificant. 

Judge GORSUCH. All right. In that case, the question was whether there is a substantive due process right to pursue not a privacy 

interest but a lawsuit, a tort-type lawsuit against a police officer 

for his conduct. We have precedent in the Tenth Circuit saying indeed there is. And in that case, the majority opinion that I wrote 

for the court, I upheld the right of the family to pursue the police 

officer for damages under the United States Constitution. 

Senator COONS. That is right. 

And if I might, Mr. Chairman, I have a follow-on question which 

we will get to in the third round. 

Chairman GRASSLEY. Okay. 

Senator COONS. Thank you. 

Chairman GRASSLEY. Senator Flake. 

Senator FLAKE. Thank you, Mr. Chairman. 

And thank you, Judge, for your endurance through this process. 

Yesterday you mentioned that, quote, ‘‘All precedents of the Supreme Court deserve the respect of precedent.’’ I will ask a couple 

of questions about Supreme Court precedent. One recent precedent 

was the Hosanna-Tabor case. This unanimous opinion affirmed the 

ministerial exemption to the First Amendment. In other words, the 

Government does not get to tell churches or other religious groups 

how it selects its ministers. Does Hosanna-Tabor deserve the respect of precedent? 

Judge GORSUCH. Yes, Senator. 

Senator FLAKE. Thank you. Another recent opinion was U.S. v. 

Lopez. The opinion involved a gun-free school zone act. Importantly, the act was passed pursuant to our commerce power. The 

Supreme Court struck down the bill saying, ‘‘To uphold the Government’s contentions here, we have to pile inference upon inference 

in a manner that would convert congressional authority under the 

Commerce Clause to a general police power of the sort retained by 

the states.’’ Does U.S. v. Lopez deserve the respect of precedent? 

Judge GORSUCH. It is a precedent of the U.S. Supreme Court. 

That is a weighty thing, Senator. 

Senator FLAKE. Thank you. Still one more, a recent opinion in 

Glossip v. Gross. It was actually handed down in your Circuit, I believe. It involved the constitutionality of the death penalty under 

prohibition of cruel and unusual punishment. The Court said, 

quote, ‘‘It is settled that capital punishment is constitutional.’’ Does 

that one deserve the respect of precedent as well? 

Judge GORSUCH. It does, Senator. 

Senator FLAKE. Is foreign law ever valid precedent in an American court? 
330 

Judge GORSUCH. Senator, we have just discussed this with Senator Sasse. There are instances when foreign law may be appropriately cited. For example, in contract disputes between private 

parties, sometimes they will have a choice of law provision where 

they have contracted for the application of a particular state’s law, 

or maybe even a particular nation’s law. In interpreting the United 

States Constitution, it is generally not useful for courts to be looking at foreign law. We have our own traditions that are, frankly, 

the envy of the world, if we want to talk about American 

exceptionalism. It does not require us to look very far to find our 

own precedents and our own history that are more germane usually, Senator. 

Senator FLAKE. Thank you. We talked yesterday a bit about 

being from the West. In the Tenth Circuit, you deal with a lot of 

issues that are not brought up as much elsewhere, public lands 

issues, disputes, and also Tribal issues. Can you tell me how dealing with Tribal issues has affected your view on religious liberty, 

or has affected your jurisprudence? There was a case, Yellow Bear, 

a sweat lodge issue. 

Judge GORSUCH. Sure. The Yellow Bear case involved a Native 

American who had murdered his daughter, 3 years old, and was in 

Federal prison, and was denied access to an existing sweat lodge 

in the prison. The prison had various reasons why it said it was 

unable to provide access to the sweat lodge for Mr. Yellow Bear. 

We applied the Religious Freedom Restoration Act, which was a 

claim brought. There was no question about the sincerity of the 

man’s religious beliefs, no question that he found solace in his faith 

after he had done what he had done. 

And then the question becomes, if it was a sincerely held religious belief, was it a substantial burden. And that box we checked 

too, because the prison denied him any access to the sweat lodge. 

So once you do those two things, the case then shifts to the Government, as it does in any RFRA case, any Religious Freedom Restoration case, regardless of who is bringing it, no matter how unpopular, the least amongst us. The government has to have a compelling interest, and it has to show that its compelling interest was 

executed in the most narrowly tailored way possible. 

And here, the Government just could not come up with a good 

reason why it could not provide Mr. Yellow Bear with any access 

to the sweat lodge. It talked about the difficulty of moving him because he was an unpopular prisoner and potentially subject to violence by other prisoners. But the evidence showed they were able 

to move him for medical reasons, and able to move him to the cafeteria, for example, and back and forth. It could not show that it 

was much more, if any, of a burden financially or otherwise on the 

personnel of the prison to also make the sweat lodge available at 

least sometimes. 

And so our court held that there was a violation of the Religious 

Freedom Restoration Act in that case, just as we would in any 

other. 

Senator FLAKE. Thank you. Let me shift gears quite a bit here 

and talk about technology. You mentioned in the Jones opinion on 

GPS tracking and the heat lamp case, Kyllo, in the context of 

originalism, that technology cases provide thorny issues for the 
331 

Court, obviously. You have dealt with some of your own, including 

the review of Colorado’s retail tattle-tale law, DMA v. Brohl. How 

should judges approach issues of new technology as it applies to 

litigation? 

Judge GORSUCH. Senator, in the first two cases you are dealing 

with the question of an unreasonable search and seizure and what 

is a search. In the Jones case, is it a search to attach a GPS tracking device onto a car? If it is a search, perhaps the Government 

will need a warrant to do that. If it is not a search, it can just do 

it willy nilly. 

So you have to ask yourself, well, what is a search? Is that a 

search? And to do that, the Court went back and looked at the law 

of trespass as it was at the time of the founding and concluded that 

would be what is called a trespass to chattels, a trespass on your 

private property, not on physical property but personal property; 

and that would qualify as a search or a trespass or a property right 

violation at the time of the founding and concluded that when we 

are interpreting the term an unreasonable search, what is a search 

for the Fourth Amendment, that the Constitution of the United 

States today cannot be less protective now of the people’s liberties 

than the common law understanding was at the time of the founding. That is the way the Court reasoned in that case, using existing 

legal principles to address a new technology, and that is the sort 

of thing judges do. 

Senator FLAKE. How should judges familiarize themselves with 

new technology? Do we get to leave that to law clerks, like we often 

leave it to staffers to understand new technologies? How important 

is it? 

Judge GORSUCH. These are areas where Congress has a role too, 

respectfully, Senator. New technologies challenge us, all of us. And 

what is a reasonable search? Guidance from Congress is helpful in 

that regard. In fact, I think Justice Alito wrote a separate opinion 

in the Jones case inviting Congress’ action in this area when we 

are dealing with new technologies, precisely because of the challenge of trying to address vastly new circumstances, new technologies that we have not seen before. 

Senator FLAKE. You are right. I mean, we deal with that issue 

here all the time, trying to balance security versus privacy issues. 

We think that we have it done or balanced, and then new technology comes and upsets it. I am sure it is the same for the Court. 

Let me continue on this vein talking about Congress’ role as opposed to the Judiciary. Mr. Chairman, I would like to introduce 

into the record a piece published in Tech Policy Daily called 

‘‘Gorsuch and Tech Policy.’’ And in it, the author, a professor at 

Boston College Law School, concludes: ‘‘Our Justices should be willing to work hard and understand new technologies and think critically about how traditional legal concepts map into cyberspace.’’ He 

concludes, ‘‘Judge Gorsuch’s record suggests no reason to doubt he 

is up to the task.’’ So, that makes us all feel better, I am sure. 

[The information appears as a submission for the record.] 

Senator FLAKE. But let me talk about this in the context of an 

issue that we talked about yesterday and has been brought up a 

number of times, Chevron deference, as it relates to innovation 

here. I do not want to go back to your views on this. There is a 
332 

great deal, as I said, of exchanges on this subject. But let me talk 

about the relation to technology here. 

If judges defer to policy decisions of Executive agencies, as Chevron calls for, those decisions depend largely on the public or the 

policy preferences of the agencies. Is that not right? 

Judge GORSUCH. Senator, I am sorry. I am not sure I entirely 

tracked the question. 

Senator FLAKE. Well, if agencies—if Congress sets a broad policy 

and the agencies interpret that and write regulations based on 

that, and the courts defer to the agency interpretation, then policy 

depends on the policy preferences of the agencies more than it does 

Congress in that view, right? 

Judge GORSUCH. That sounds like a reasonable conclusion. 

Senator FLAKE. Well, just as an example, if the Bush Administration had a policy on a certain technology, and then the Obama 

Administration came in and changed that policy, whether it is the 

FCC or the FTC, and then it was changed back when the Trump 

Administration came in, the technology community out there is getting whipsawed back and forth. They cannot rely on policy. I think 

that is why Congress and the courts need to take a hard look at 

agency deference and why I think we need to return here in Congress—and this has been discussed in the past couple of days—to 

legislating on different questions and doing more than we have 

over the past couple of decades and giving more instruction to 

agencies on how to interpret, or giving them less to interpret; I will 

put it that way. But I do think that we will have more consistent 

policy and policy that the private sector can rely on if Congress has 

to go through this exercise more than the agencies, because the 

agencies, it can go back and forth depending on who is in power 

there. 

So that is just a long way of saying I agree with what seems to 

be, and I hope I read it correctly, your skepticism of Chevron deference, and that we ought to maybe tip the balance back toward 

relying on Congress, or the intent of Congress at least. 

Mr. Chairman, I would like to introduce into the record a letter 

of support from the Hispanic Leadership Fund, which notes: ‘‘Judge 

Gorsuch has an exceptional record in defending the Constitution 

and our fundamental rights such as the Second Amendment and 

the right to religious liberty.’’ 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator FLAKE. In the time I have remaining, a short time, let 

me just talk a little—you have mentioned in passing about another 

technology issue, cameras in the courtroom. It has been presented 

as educational, and maybe people, after viewing this, may have a 

different view of it. Obviously, we are the legislative branch. Everything we do here should be and always will be in the open and on 

television. I am glad C–PAN is here and in every hearing, just 

about, that we have, with the exception of the intelligence agencies. 

But when you apply it sometimes to the third branch—take 

TransAm Trucking that has been discussed here at length—it is a 

pretty boring case when it was a camera-less courtroom that heard 

it. It was about standards of administrative review, statutory interpretation. But now, in this hearing room, it all of a sudden becomes 
333 

a battle between the big guy and the little guy, and I think that 

there is a legitimate concern about opening up our courtrooms to 

cameras and what that will incentivize. 

So I hope you have said that is something that you will look at, 

as will everyone on the Court, but I hope that we pause as we do 

so, and watching these hearings over the past couple of days I hope 

will give us more pause about cases that do not lend themselves 

well when you consider what Edmund Burke said about the cold 

neutrality of an impartial judge being the standard. That sometimes to me seems inconsistent with cameras in the courtroom and 

what that incentivizes. 

So with that, Mr. Chairman, and with the thanks of a lot of endurance, like I said, over the past couple of days, and you still have 

more to come, I yield back. 

Chairman GRASSLEY. I am surprised you are such a reasonable 

Senator you would be against cameras in the courtroom. 

[Laughter.] 

Chairman GRASSLEY. Senator Blumenthal. 

Senator BLUMENTHAL. Thanks, Mr. Chairman. I want to take 

issue with my good friend from Arizona and state, as I have before, 

how strongly I feel that cameras in the courtroom, including in the 

U.S. Supreme Court, would be a very good thing. I know the Chairman agrees with me, as do other Members of the Committee, and 

I believe that the American public would be better informed about 

the work of the Court and about their rights if more of the proceedings in our Federal courts were better known to them. I think 

that the image and the performance of our attorneys, of juries, of 

judges would not only attract interest but also elevate the performance there. So I hope you will take that under advisement. 

Judge GORSUCH. Senator, one thing I have really gotten out of 

this process that I did not really appreciate, I knew the advice and 

consent function worked between Article 1 and Article 2, and I 

have been asked to comment on that, and I will not, but I have 

learned a lot, and I appreciate the advice I have gotten, thoughtful 

advice on a number of issues from Senators across the spectrum. 

You are thoughtful people who care deeply about this country, and 

you care deeply about the judiciary, and I appreciate that and the 

input that I have received from all of you. Thank you. 

Senator BLUMENTHAL. Well, I very much appreciate that statement, and it leads to my next observation, which is about this process. As much as there has been some handwringing and some 

doubt expressed, I happen to think this kind of process is a lot 

healthier for our democracy than the 90 minutes that our common 

mentor, Justice White, spent in your place. I think, actually, although I did not know him as well as you, but I did see him on 

occasion on a basketball court in the highest court in the land, and 

had occasion to observe his elbows—— 

Judge GORSUCH. Did you get one? Did you get one in the side? 

Senator BLUMENTHAL. I know that I have a right to remain silent. 

[Laughter.] 

Senator BLUMENTHAL. But I think he would have enjoyed the 

give and take. 
334 

Judge GORSUCH. He enjoyed physical contact in any sport activity. You may be right. You may be right about that. 

Senator BLUMENTHAL. And I appreciate your being here to answer all our questions and, as I said yesterday, your patience and 

perseverance. I also—— 

Judge GORSUCH. Senator, I consider it a privilege to be here with 

you. 

Senator BLUMENTHAL. Thank you. I also want to raise a question, talking about court procedure, relating to conflicts of interest 

and ethics. I think you were asked yesterday about the proposed 

ethics rules that have been applied to your court—— 

Judge GORSUCH. Yes. 

Senator BLUMENTHAL [continuing]. To the appellate court, to the 

District Court, but not to the Supreme Court. Would you view such 

legislation as a violation of the separation of powers? 

Judge GORSUCH. Senator, I am afraid I just have to respectfully 

decline to comment on that because I am afraid that could be a 

case or controversy, and you can see how it might be. I can understand Congress’ concern and interest in this area. I understand 

that. But I think the proper way to test that question is the prescribed process of legislation and litigation. 

Senator BLUMENTHAL. I assume that you have observed all those 

rules as a member of the Tenth Circuit Court of Appeals. 

Judge GORSUCH. I have done my best, Senator. 

Senator BLUMENTHAL. Have they been unduly burdensome? 

Judge GORSUCH. No, Senator, no. 

Senator BLUMENTHAL. Have you found that they interfered at all 

with your discharge of duties as a judge? 

Judge GORSUCH. No, Senator. 

Senator BLUMENTHAL. Would you object personally to following 

those rules as a member of the U.S. Supreme Court? 

Judge GORSUCH. My personal views, Senator, have nothing to do 

with my job as a judge. 

Senator BLUMENTHAL. Will you commit to following those rules 

personally on your own without any legal requirement? 

Judge GORSUCH. Senator, what I have committed to do is to take 

a look at the law, talk to my colleagues collegially, and then make 

up my own mind, and I am taking into account all the advice I 

have gotten in this process carefully. I will carefully consider that. 

But, Senator, I am not going to make any promises in this process 

to anyone about anything other than to be the best possible judge 

I can be. 

Senator BLUMENTHAL. Well, I hope that you will be as persuasive 

as possible after you make up your own mind and hope that you 

will decide that these rules make sense because, again, in terms of 

the appearance and the credibility of the Court, I think that they 

are important. 

I want to go back to some questions I asked you yesterday which 

perhaps you did not get a chance to clarify, and I want to give you 

that opportunity. If you recall, we were talking about Brown v. 

Board of Education, and you said, I believe, that you agree with 

that decision. Do I have it correctly? 
335 

Judge GORSUCH. Senator, it is a seminal decision of the U.S. Supreme Court interpreting the Fourteenth Amendment, maybe one 

of the great moments in Supreme Court history. 

Senator BLUMENTHAL. You said, that it ‘‘corrected an erroneous 

decision, a badly erroneous decision,’’ and you called it ‘‘a correct 

application of the law of precedent.’’ And you said also that it vindicated a dissent ‘‘that got the original meaning of the Equal Protection Clause right.’’ That sounds to me like you agree with the result in Brown v. Board of Education. Judge GORSUCH. Sir, you can characterize it however you want. 

I said what I said, and I stick by what I said. 

Senator BLUMENTHAL. So unlike Justice Kennedy and Justice 

Roberts, Chief Justice Roberts, in their confirmation hearings, you 

will not say that you agree that it was the right result. 

Judge GORSUCH. Senator, I have said it was a seminal decision 

of the U.S. Supreme Court that corrected a badly erroneous decision that vindicated the original understanding and the correct 

original meaning, rather, of the Fourteenth Amendment, and is one 

of the shining moments of constitutional history of the U.S. Supreme Court. That is what I have said. 

Senator BLUMENTHAL. So why will you not say that you agree 

with the result? 

Judge GORSUCH. Senator, I do not know what it means—I am 

not sure what we are arguing about here. 

Senator BLUMENTHAL. We are not arguing. I am just asking why 

you are so averse to saying, yes, it was the right result. 

Judge GORSUCH. I am saying as a judge, it was a seminal decision that got the original understanding of the Fourteenth Amendment right and corrected one of the most deeply erroneous interpretations of law in Supreme Court history, Plessy v. Ferguson, which is a dark, dark stain on our Court’s history, and it took way 

too long for the U.S. Supreme Court to get the Fourteenth Amendment right. It is an embarrassment in our history. That is what I 

have said, Senator. 

Senator BLUMENTHAL. And Chief Justice Roberts, in response to 

Senator Kennedy’s question, ‘‘Do you agree with the Court’s conclusion that the segregation of children in public schools solely on the 

basis of race is unconstitutional?’’ Then Judge Roberts, ‘‘I do.’’ 

You said yesterday—and I am quoting you now—that there is no 

daylight between you and—— 

Judge GORSUCH. Respectfully, I do not see any daylight between 

what I have just said and what you just quoted from the Chief. 

Senator BLUMENTHAL. Okay. 

Judge GORSUCH. I just do not, Senator. 

Senator BLUMENTHAL. I am not going to dwell on this. 

Judge GORSUCH. We are all on the same page on Brown v. Board 

of Education, Senator. 

Senator BLUMENTHAL. Okay. 

Judge GORSUCH. It is a great and important decision. 

Senator BLUMENTHAL. Would you say the same about Griswold 

v. Connecticut? 

Judge GORSUCH. What I have said about Griswold v. Connecticut, Senator, is that it is a decision by the U.S. Supreme Court recognizing the right of married couples, in the privacy of their own 
336 

home, to use contraceptive devices. It was decided, I believe, in 

1965, though Senator Franken may wish to correct me. 

Senator BLUMENTHAL. No, you are right about 1965. 

Judge GORSUCH. Good. All right, 1965. 

Senator BLUMENTHAL. And if I am wrong, I am not going to tell 

you I am wrong. 

[Laughter.] 

Senator BLUMENTHAL. It was decided in 1965, and that was its 

holding, and I am asking you do you believe it was the right result? 

Judge GORSUCH. And what I have said is, Senator, it is 50 years 

old, more than 50 years old, right? The reliance interests surrounding it are obvious and strong. It has been repeatedly reaffirmed. Those are powerful things in the law of precedent. I have 

also said I cannot imagine a State trying to pass a law in this area, 

and I have said I cannot imagine the U.S. Supreme Court taking 

such a law seriously. I do not know how clear I could be to you, 

Senator. 

Senator BLUMENTHAL. You could be much more clear about your 

personal beliefs. 

Judge GORSUCH. Right. 

Senator BLUMENTHAL. Do you believe—— 

Judge GORSUCH. And my personal views have nothing to do with 

my job as a judge. 

Senator BLUMENTHAL. Well, let me invoke your beliefs as a commentator. Do you believe it was the right result based on your understanding of the law, not your personal beliefs about whether 

contraceptives are a good thing or a bad thing, but your beliefs 

about the constitutional underpinning the right to privacy, the 

Fourth Amendment, substantive due process underpinning of Griswold v. Connecticut? Was it the right result? 

Judge GORSUCH. Senator, I have consistently, not picking out 

Griswold or any other particular case, I have drawn a line that I 

think is required of a good judge to be fair and to respect the separation of powers, without respect to precedent. A precedent of the 

U.S. Supreme Court, as we were talking with Senator Flake, they 

are all precedents. They all deserve respect of a judge. 

Senator BLUMENTHAL. But some more than others. 

Judge GORSUCH. Senator, it depends upon the factors under the 

law of precedent, what weight you give a precedent. 

Senator BLUMENTHAL. Why is your—I am sorry. 

Judge GORSUCH. Including the age of the precedent, how often it 

has been reaffirmed, the reliance interests surrounding it, whether 

it was correctly decided, whether it is constitutional versus statutory, and a number of other things that we have discussed repeatedly. 

Senator BLUMENTHAL. And you are saying that there is no threat 

of it coming before the Court because a State legislature is unlikely 

to pass the kind of criminal ban on contraceptive use that existed 

then? 

Judge GORSUCH. I have said, Senator, with this particular precedent we are talking about, it is over 50 years old, a weighty factor; 

that the reliance interests surrounding it are obvious and many 

and great. I have said that it has been repeatedly reaffirmed by the 

U.S. Supreme Court. I have said that I cannot imagine a State ac-
337 

tually legislating in this area. And I have said that I cannot imagine the Supreme Court taking a challenge, someone wishing to 

challenge that precedent, seriously. I do not know how much more 

clear I could be to you, Senator, as a judge. 

Senator BLUMENTHAL. Would you say the same about Eisenstadt 

v. Baird? 

Judge GORSUCH. I have already, Senator, several times in the 

course of this hearing. 

Senator BLUMENTHAL. And you are unwilling to do, as Justice 

Alito did, and he was a judge, and I think you would probably say 

he was a good judge, correct? 

Judge GORSUCH. I think every member of the U.S. Supreme 

Court sitting is a very fine judge, yes. 

Senator BLUMENTHAL. And he said about Eisenstadt v. Baird, ‘‘I 

do agree with the result.’’ You are unwilling to say that, and you 

are unwilling to say, as Chief Justice Roberts did about Griswold, 

‘‘I agree with the Griswold court’s conclusion that marital privacy 

extends to contraception and availability of that.’’ 

Judge GORSUCH. Respectfully, Senator, I think we are splitting 

hairs, I really do, because I have told you quite clearly that both 

of those precedents are in the realm of 50 years old, that they have 

serious reliance interests around them, that they have been repeatedly reaffirmed. And, Senator, what I have tried to do with respect 

to all precedents is treat them equally in my presentation before 

you, because as a judge I come at them equally. In my line of work, 

a precedent is a heavy, weighty thing, and it deserves respect as 

precedent, as part of our history. 

Senator BLUMENTHAL. Well, we are doing more than, with all 

due respect, Your Honor, we are doing more than splitting hairs 

here, because words matter. And the words of Chief Justice Roberts 

and Justice Alito’s were different than yours. Asking you to agree 

that these results were correct I think is a relevant and important 

question, and your declining to do so—I respect your reasons, but 

I think that it speaks volumes, with all due respect. 

Judge GORSUCH. Well, let me try it this way for you, Senator. 

Maybe this will help. The way I look at it is I do not come at these 

issues fresh. It is not whether I agree or disagree with any particular precedent. That would be an act of hubris, because a precedent, once it is decided, it carries far more weight than what I personally think. 

Senator BLUMENTHAL. Well, let me ask you—— 

Judge GORSUCH. The point of a precedent—I am trying to be as 

helpful to you here as I can be, Senator—is that it represents collective wisdom. And to say I agree or I disagree with a precedent 

of the U.S. Supreme Court as a judge, it is an act of hubris that 

to me just does not feel like a judicial function. For a judge, precedent is more important than what I think, and my agreement or 

my disagreement with it does not add weight to it. It is what it is. 

Senator BLUMENTHAL. Let me ask you about Loving v. Virginia. As you know, it invalidated bans on interracial marriage under 

both the Equal Protection and Due Process Clauses. Do you agree 

with the result there? 

Judge GORSUCH. Seminal, important application of the principles 

recognized in Brown v. Board of Education, and a vindication again 
338 

for the original meaning of the Equal Protection Clause, that all of 

us, every single person, is equal, and that we can all choose with 

whom we wish to live our lives without respect to race. It is one 

of the great moments. We visited some dark moments in Supreme 

Court history, and we visited some bright moments, Senator. 

Senator BLUMENTHAL. And Lawrence v. Texas, which held that 

the Government cannot criminalize gay and lesbian relationships? 

Judge GORSUCH. That is a holding of the U.S. Supreme Court 

due all the way to precedent, Senator, as well. 

Senator BLUMENTHAL. And would you agree that it overturned 

an incorrect decision? 

Judge GORSUCH. That is what it declared, Senator. That is the 

precedent of the U.S. Supreme Court. 

Senator BLUMENTHAL. Do you agree? 

Judge GORSUCH. Senator, it is a precedent of the U.S. Supreme 

Court. I am going to give you the same answer every time. 

Senator BLUMENTHAL. Well, I suspect you will. But let me just 

say that the answer that you have given leaves doubt in a lot of 

minds. To quote from a concurrence by Justice Kennedy, as well as 

Justice Souter and Justice O’Connor, and I am quoting, ‘‘Liberty 

finds no refuge in a jurisprudence of doubt.’’ Your declining to be 

more direct and give the same answer about these cases that you 

did about Brown leaves doubt in the minds of millions of Americans who rely on privacy rights. They are relying right now. And 

I think that doubt is regrettable. 

I want to ask you—I think I know the answer. Do you agree with 

the result in Roe v. Wade and Planned Parenthood v. Casey? 

Judge GORSUCH. Senator, I am drawing the same line that Justice Ginsburg drew, Justice O’Connor drew, Justice Souter, Justice 

Scalia. Many, many, many people who have sat at this confirmation table have declined to offer their personal views to this or that 

precedent, whether it is one side’s favorite or another side’s favorite, one side’s least favorite, the other side’s least favorite. We have 

gone back and forth today on precedents, which ones people like 

and do not like. And I understand that every citizen and every 

Member of the Senate have their precedents that they prefer personally and not. I understand that. I respect that. That is part of 

the process and our First Amendment liberties. 

But as a judge, as a judge, my job is to decide cases as they come 

to me. And if I start suggesting that I prefer or not, dislike this 

or that precedent, I am sending a signal, a hint, a promise, a preview, as Justice Ginsburg called it, about how I would rule in future cases where those principles from that case are going to be at 

issue, and all of these cases that we just discussed that are very 

alive with controversy, as you know, Senator, which is why you are 

asking about them. And for a judge to start tipping his or her hand 

about whether they like or dislike this or that precedent would 

send the wrong signal. It would send the signal to the American 

people that the judge’s personal views have something to do with 

the judge’s job. 

And the one thing I have tried to convey over the last 3 days is 

that I do not believe that is part of the judicial function, and I do 

not believe that is what good judges do. And I have also said, Senator, and I believe this firmly, that once a judge starts committing, 
339 

promising, hinting, previewing, forecasting, agreeing or disagreeing 

with precedent at this confirmation table, we are in the process 

then of campaign promises, and we are in that process, Senator, I 

fear, of judges having to make commitments, tacit promises, hints, 

previews, as Justice Ginsburg called it, in order to become confirmed. And once we do that, I am fearful for the independence of 

our judiciary. 

Senator BLUMENTHAL. Well, just for the record, because I am out 

of time, I am not asking you to look forward to cases and controversies that may come before you. I am simply asking you whether 

you accept the basic core principles of the right to privacy that are 

articulated in those decisions. 

I apologize, Mr. Chairman, that I have gone over by a couple of 

seconds. 

Chairman GRASSLEY. No, that is fine. 

Before Senator Crapo, we have a vote sometime between 4:45 

and 5:15. The exact time we do not know. But that would be a good 

time for us to have the break for to move to our closed session and 

then come back here, and whoever has not had their second round 

yet will get their second round. And then we will immediately go 

to the third round. 

Senator CRAPO. Senator CRAPO. Thank you very much, Mr. Chairman. 

And Judge Gorsuch, I want to go back to the issue you have just 

been discussing. First of all, to say that I respect your absolute resistance to being invited to put your personal opinions onto the 

issues that you will need to face as a Supreme Court Justice if you 

are confirmed. I appreciate it, and I respect it. 

The fact is that as now Justice Ginsburg said, if you can be 

pushed into giving hints about what your feelings are about the 

precedent of the U.S. Supreme Court decisions or other cases, then 

you will have violated what I think is an appropriate approach that 

a judge should bring to jurisprudence. And so I just wanted to tell 

you I appreciate. 

I know you are getting questions again and again and again. And 

you consistently make it very clear that you are leaving your personal opinions out of it, as a judge should do. So I, for one, want 

to tell you that I appreciate that and recognize it. 

That leads, though, to one of the issues that I wanted to return 

to with you. You and I talked about it yesterday, and in fact, you 

have talked to a number of Senators about it, and it is back again 

to the question of originalism and textualism. And I realize that it 

is hard to put labels on this issue because they do not really necessarily portray what it is we are trying to talk about. 

But the aspect of this that I would simply like you to discuss a 

little more in detail is the one really that Senator Feinstein started 

out with today. If it is—and I do not want to put words in your 

mouth. But if it is the approach that a judge or a Justice should 

take, that they look at the Constitution or a statute as it was written and try to determine what reasonable people would understand 

it, the words in the statute to mean, does that mean that somehow 

for all time in the future as society evolves and as science evolves 

and as circumstances develop that were not contemplated perhaps 

at the time the Constitution or the statutes were written, does it 
340 

mean that we do not have a way to deal with applying those laws 

or the Constitution to new circumstances? 

And does that—if the answer to that is, no, there is a way to 

apply these laws and to interpret the Constitution, does that mean 

that we are somehow changing the Constitution, or what are the 

parameters of that entire concept? Could you discuss that a little 

more completely? 

Judge GORSUCH. Well, Senator, I—we have discussed this quite 

a lot. I am happy to try to do it again. But the job of a judge is 

not to make law, but to interpret the law and to apply the law as 

best as humanly possible. And one way to do that, we start with 

precedent. That is where we start. We do not reinvent the wheel. 

And we apply the precedent we like and the precedent we do not 

like because our personal views have nothing to do with our job. 

We apply all the precedent. And if you cannot do that, well, then 

you are in the wrong line of work. A judge’s job is to apply precedent without respect to persons and without respect to their personal views. 

Then when we look at, say, an unanswered question where there 

is not precedent, for example, one thing a good judge will want to 

know is what the original understanding of that law was at the 

time. In the statutory context, I have talked about the fish case. 

Senator CRAPO. Yes. 

Judge GORSUCH. In the Constitutional context, I have used a couple of cases that I think are good examples. One is the thermal imaging case, and the other is the GPS tracking device case. Those 

are some of my favorite teaching cases when I go talk to young people about these issues. 

And the point of them all is to demonstrate two things. That 

when we speak about the original understanding of the law, we are 

protecting due process interests. We are applying the law as we 

could expect a reasonable citizen, person in this country to have 

understood it. 

So that when I am putting a person in prison, for example, which 

we do as judges. We are complicit in that process. That I know I 

am putting that person in prison for something that they could reasonably be charged with knowing to be improper. Not something 

that comes from my heart, that I made up. Not my personal views, 

not what I like or dislike or agree with or disagree with. But what 

I can say that person should have known. That is the due process/ 

fair notice value. 

And the other aspect of it is the separation of powers value that 

is behind this, which is, again, I can make a reasonable claim that 

I am declaring that the law is. A reasonable claim that I am not 

just doing politics. A reasonable claim that I am trying to interpret 

and apply rather than alter and amend the work of the people’s 

representatives. 

For after all, this is a democracy at the end of the day. It is not 

an oligarchy of judges. 

Senator CRAPO. I think that is an important distinction that you 

just made. You are trying to interpret and apply rather than to 

alter or amend the meaning of the Constitution or the words of the 

Constitution or the words and meaning of a statute. And to me, 

that is really the core issue here. 
341 

That what I hear you saying is that your objective, whether it 

is called originalism or textualism or what have you, is to identify 

what a reasonable person would interpret the words in the Constitution to mean and not to say or to try to interpret it to mean 

what you think they should have said or written at the time. 

Which does not mean that you cannot apply those principles to 

new developments in society or in science. It simply means that 

you must interpret the words as they were intended and as reasonably understood. And if we are to change it, then there is a process 

for that to take place. 

Judge GORSUCH. That is right, Senator. And that process lies 

with the people’s representatives for the amendment process, as we 

have discussed. Exactly. 

Senator CRAPO. Thank you. 

One other question that I have in this round, and I do not intend 

to mean by that I will call for another round. But I would like to 

talk with you for a minute about the concept of independent agencies that you briefly discussed with Senator Sasse. 

As I understand independent agencies, they are basically agencies of the U.S. Government. They are in the executive branch, as 

you indicated, but they are independent. And there was—perhaps 

you could go through—you are aware, I am pretty sure, of the 

Myers case and then the Humphrey’s Executor case? 

Judge GORSUCH. I am. 

Senator CRAPO. I think you referenced the Humphrey’s Executor 

case earlier. Could you just explain what those two cases tell us? 

Judge GORSUCH. Well, Myers initially suggested that—I think it 

is a fair reading to say that it cast doubt on the proposition whether there could be an agency whose head would—would not be subject to removal by the President at will. And Humphrey’s Executor 

overturned Myers and held that was, indeed, proper. 

Of course, the Court has more recently also reentered this area 

in the Peekaboo case and indicated that while one layer of for cause 

removal protection is appropriate, two layers crosses a line. 

Senator CRAPO. Explain to me a little. I am not as familiar with 

the Peekaboo case. 

Judge GORSUCH. Sure. 

Senator CRAPO. Exactly—— 

Judge GORSUCH. So Humphrey’s Executor says that you may 

have an agency, a multi-member agency where the head of it is removable only for cause. These are gross generalizations. 

Senator CRAPO. I understand, and I ask you only to be general 

in your description. 

Judge GORSUCH. Right. And I am not signaling my agreement or 

disagreement with anything. I am trying to faithfully report to you 

the precedent of the U.S. Supreme Court. 

Senator CRAPO. Understood. And that is the question I asked. 

Judge GORSUCH. And the Peekaboo case is a more recent case in 

which there were two layers of for cause removal. And the question 

was whether that was constitutionally permissible consistent with 

Article II and the statutory structure, and the Supreme Court said 

two layers is one too many. 

Senator CRAPO. And what was the second layer? Was that congressional oversight? 
342 

Judge GORSUCH. Two layers—no, two layers of for cause removal. 

Senator CRAPO. Oh, I see. 

Judge GORSUCH. Yes, yes. 

Senator CRAPO. So the notion is that even after the Humphrey’s 

Executor and Peekaboo, there still are limits to the amount of independence that Congress can give to an agency? 

Judge GORSUCH. That is what the Peekaboo case basically says, 

yes. 

Senator CRAPO. Well, I think I am going to leave it at that. There 

are a lot more aspects of that I would love to discuss with you, but 

obviously, the notion of understanding the importance of the three 

separate parts of Government that our Constitution created and 

the potential that this line of cases has of allowing Congress to create a fourth branch that is not responsible to either or maybe any 

of the other three branches is troubling to many of us. 

And so it is just an important area that I wanted to get your general understanding of. I will not ask you to opine on it or to give 

your personal opinions. 

Judge GORSUCH. I am grateful for that, Senator. It is—Humphrey’s Executor is a precedent of the U.S. Supreme Court, and you 

know, I understand that some people like it and some people do 

not. 

Senator CRAPO. Understood. Like I said, I have a lot more questions, but I am not going to use up any more of your time or mine 

in this round. 

Senator FEINSTEIN [presiding]. Thank you, Senator. 

Senator Hirono. 

Senator HIRONO. Thank you, Madam Chair. 

Judge Gorsuch, it is good to see you again. 

Judge GORSUCH. Likewise, Senator. 

Senator HIRONO. Despite the many hours that you have been before us, I still feel like there is much more we need to know about 

you and what kind of Justice you would be, and I still need reassurances that you will be the kind of Justice who is open to applying the law and the Constitution to protect the rights of the working poor, who are just one paycheck away from being homeless. 

Who understands the importance of ensuring that victims of discrimination cannot only ask for, but can also receive protections 

from our courts. And who demonstrates a commitment to the constitutional principles that protect the right of women to make the 

intimate and personal choice of what to do with our own bodies. 

So I would like to try again with you today. You painted a picture for us yesterday of the Court that is straight out of a Norman 

Rockwell painting. You said, ‘‘One of the beautiful things about our 

system of justice is that any person can file a lawsuit about anything against anyone at any time. And a judge, a neutral and fair 

judge will hear it.’’ 

This is a wonderful idea that anybody can file a claim to protect 

their rights or interests and that those claims will be heard and 

ruled upon by neutral judges, apparently uninfluenced by their 

own strongly held and frequently expressed personal views and judicial philosophy. 

But of course, you and I both know politics and the courts are 

intertwined. In fact, you told us so in your 2005 National Review 
343 

Online article, which was entitled ‘‘Liberals’N’Lawsuits.’’ In that 

article, you wrote that as a result of Republican wins in the presidential and Senate elections, Republicans were in charge of the judicial appointment process. As a result, you wrote, ‘‘The level of 

sympathy liberals pushing constitutional litigation can expect in 

the courts may wither over time, leaving the left truly out in the 

cold.’’ 

This shows you understand or at least recognize that judges appointed and confirmed by Republicans will have less sympathy for 

liberals pushing constitutional litigation, as you put it. I am profoundly troubled by this because I thought judges, as you described, 

make decisions divorced from their personal and philosophical 

leanings. 

So should justice depend on who won the last election or who is 

in charge of nominating and confirming judges? 

Judge GORSUCH. Senator, I appreciate the opportunity to answer 

that question because I have tried to make clear as I can over the 

last few days that I do not view my colleagues as Republican 

judges or Democrat judges. I view them as judges, and I believe 

that the courts are open to all persons. 

And I believe if you look at my record as a judge, as opposed to 

anything else, you are going to see that I have decided over 2,700 

cases, that 97 percent of the time they have been unanimous, that 

99 percent of the time I have been in the majority, that according 

to the Congressional Research Service at least, my opinions have 

attracted the fewest dissents of any Tenth Circuit Judge they studied. 

Senator HIRONO. Judge Gorsuch, if I may? 

Judge GORSUCH. Those are—of course. 

Senator HIRONO. And I am listening to your answer, and I am 

not getting a response to the question I asked, which was—I will 

ask it again. Should justice depend on who won the last election 

or who is in charge of nominating and confirming judges? And I 

think that requires a yes or no answer from you. 

Judge GORSUCH. And I do not think it does, Senator, as I have 

tried to express. I do not think—when you come to the Tenth Circuit, come to my court, I think it would be deeply wrong to suggest 

that it depends on who won the last election what kind of justice 

you are going to get in my court. It is not the way it happens. 

And I know the men and women of the Federal judiciary, and I 

know how hard they work, how lonely the job is often, how much 

criticism they attract from all sectors, and I know that when they 

wake up in the morning, they do so with one thing in mind, to be 

a fair and independent judge for each case that comes to him or 

her. That is what I know. That is what I have seen. That is what 

I have witnessed. 

I know the men and women of the Federal judiciary. I know a 

lot of them, and I admire them. 

Senator HIRONO. So—— 

Judge GORSUCH. And I do not think it matters whether they are 

Republican-or Democratic-appointed judges, no. 

Senator HIRONO. That does not square with the view that is expressed in the article wherein you acknowledged that the people in 
344 

charge of the judicial nomination and confirmation process will— 

or may result in, if it is the Republicans, less open to liberal views. 

So how do—how do your views in that article square with what 

you are telling me right now? 

Judge GORSUCH. Senator, I appreciate the chance to talk about 

that article again. We have chatted about it a few times the last 

couple of days. And as I have tried to explain, I made a couple of 

points there. 

First was that the courts have to be open to civil rights claims. 

They are very important for vindicating the rights of unpopular 

voices, minority voices, the least amongst us. That is what courts 

are for. 

But I also made the point that sometimes social issues, problems 

today are not best resolved in the courts because the courts have 

certain limitations. One, we are just not very good at making social 

policy. I have got four law clerks straight out of law school. With 

all respect to them, I love them, but they do not know a lot, all 

right? 

You have staffs for making social policy. This is the place of the 

people’s representatives. We are not a democratic institution. We 

are life-tenured judges. I would not hire a bunch of life-tenured 

judges to run a country, with all respect, and call it good. There 

is a separation of powers. 

And so the point was—the other point I was trying to make there 

was, judges, somebody has to win and somebody has to lose. There 

is no room for compromise. Now one of the things this body is really good at, at its best, is compromise, right? That is what you do 

in legislation. 

Senator HIRONO. Well, yes. 

Judge GORSUCH. Some, there is a give and a take, a pull and a 

tug, right? And—— 

Senator HIRONO. Judge Gorsuch? 

Judge GORSUCH. That is not present in litigation. So those are 

some of the points I was trying to make in that article. 

Senator HIRONO. I believe I am trying to have more of a conversation with you, and in fact, I am glad that you acknowledge 

that judges are really bad at the compromises that result in legislation. So I actually have a question about that later. 

But you know, you drew a conclusion in your article about the 

impact of Republican wins in the elections, and I think that is— 

that was a really astute observation. It was a real world conclusion. And as we exercise our advise and consent role, the judicial 

philosophy of the judges who are nominated matters a great deal 

in determining what rights and whose rights are protected in the 

courts. As you say, there are winners and losers. 

So, Judge Gorsuch, you clearly understand that our political system has a tremendous impact on the courts. If not, we would have 

Chief Judge Merrick Garland before us, not you. 

You also understand the impact of politics on protection of our 

rights or, rather, again, as I said, on what rights and whose rights 

are protected. And again, in your 2005 National Review article, you 

admonish liberals for seeking to protect their rights in court rather 

than through the political process. 
345 

And you wrote, in part, ‘‘It would be a very good thing for all involved, the country and independent judiciary and the left itself, if 

liberals take a page from their own judges of the New Deal era, 

kick their addiction to constitutional litigation, and return to their 

New Deal roots of trying to win elections rather than lawsuits.’’ 

And of course, since you wrote your article, the Democratic nominee for President did win the popular vote in all three presidential 

elections, including the last one. So you describe the left as being 

addicted to constitutional litigation. But we all know, of course, on 

the right, we have seen well-funded groups looking for plaintiffs to 

bring lawsuits to advocate a corporate agenda, and there is little 

doubt—— 

Let me just go over one example of the right looking for plaintiffs. In Friedrichs, conservative lawyers sought to challenge the 

40-year-old rule established unanimously by the Supreme Court in 

Abood that all employers represented by a union, including those 

choosing not to join the union, must pay for their representation. 

Overturning Abood would unquestionably hurt unions. 

And the challenge to this 40-year-old precedent did not appear 

from nowhere. It was, in fact, invited by Justice Alito in his opinion 

on another case ruling against unions. And while the attempt in 

Friedrichs failed when the 4–4 Supreme Court left in place the 

Ninth Circuit decision, I am sure we will soon see another wellfunded attempt. 

And in fact, there is little doubt that Justice Scalia or someone 

like Justice Scalia would have ruled against the teachers’ union in 

that case, and it would have been a 5–4 decision. 

In your article, why did you aim your criticism at the left and 

not to constitutional litigation from the right? What does that focus 

tell us about how you would assess such lawsuits if you are confirmed to the Supreme Court? 

Judge GORSUCH. Senator, I thank you for the opportunity to address that. As I have indicated I think probably five or six times 

in the course of these hearings, the last couple of days, I was agreeing with a self-described liberal commentator on his own assessment, a Washington Post columnist. I was agreeing with his assessment. 

And I also have explained that, and I explained 10 years ago 

when I was before this body last time, that I have seen plenty of 

examples on both sides and really across the ideological spectrum 

of lawsuits that maybe perhaps better belonged in front of legislators. 

Senator HIRONO. Well, as I mentioned, I thought that was a very 

astute observation and agreement on your part that politics do 

enter into who becomes judges and who becomes appointed and 

confirmed. 

In fact, the Roberts court has issued numerous 5–4 decisions in 

cases like Lilly Ledbetter, Citizens United, Hobby Lobby, in which 

corporate interests win out over individual rights, and clearly, the 

composition of the Court and identity of the fifth Justice, a Justice 

Garland versus a Judge Gorsuch, does matter a great deal in the 

real world. 

Your article reflects also a suggestion that the courtroom be used 

only for extraordinary cases. Now this does not square with what 
346 

you told me yesterday that the beauty of our system is that anybody can file a claim and be heard. Who decides whether a claim 

is extraordinary enough to be—to seek justice in the courts? 

Judge GORSUCH. Senator, with respect, I do not recall ever using 

the words that the courtroom is only for extraordinary cases. That 

does not sound like me. 

Senator HIRONO. It is in the article that I am talking about 

where you suggest—— 

Judge GORSUCH. I would be surprised to hear that I said that 

courtrooms are only for extraordinary cases. I represent a lot of 

people in a lot of pretty ordinary cases as a lawyer. As a judge, I 

resolve a lot of pretty ordinary cases in the sense that they do not 

make a lot of precedent or do not get a lot of attention but matter 

deeply to the individuals involved. 

Senator HIRONO. Judge Gorsuch. 

Judge GORSUCH. That is part of what a good judge does, part of 

what a lawyer does. 

Senator HIRONO. I just read the article that I am quoting, and 

frankly, what you set forth in that article, ‘‘Liberals’N’Lawsuits,’’ I 

think has definitely endeared you to the Heritage Foundation and 

the billionaires who recommended you for this position. 

Frankly, courts should not depend, of course, on who won or lost 

the election. It should depend on judges who understand that the 

law is there for all of us. And I do remain concerned about that 

is really how you view the law. 

When we look at the relationship between politics and the courts, 

I am deeply concerned about the decision the Court itself, the Supreme Court itself, has made which has tilted the political field so 

significantly. And this impacts both the laws we are able to pass 

and the composition of the Court that, in turn, is supposed to interpret and apply those laws in the cases that come before the Court. 

I am sure you are as familiar as I am with Justice Felix Frankfurter’s famous admonition that ‘‘courts ought to—ought not to 

enter this political thicket.’’ But of course, there are times when the 

Court must do so, for example, to ensure one person, one vote. 

But courts also must be careful in doing so, getting into the political thicket. The Court’s legitimacy itself is at risk when it strays 

too far into the political thicket, such as by deciding an election 

such as it did in Bush v. Gore. 

In the last few years, with the Citizens United and Shelby County decisions, we have seen the tremendous, in my view, damage the 

Court can do to our political process when it tilts the electoral process so heavily against ordinary Americans. 

And as we discussed yesterday in the 2010 Citizens United decision, the Court struck down bipartisan laws limiting campaign contributions that went back more than a century and opened a flow 

of money and potential corruption that has dominated our politics 

and drowned out the voices of ordinary Americans ever since. And 

in 2013, the Roberts court, in another narrow 5–4 decision in Shelby County, substituted its conclusions for that of Congress and gutted core protections of the Voting Rights Act, which were essential 

for the right to vote for millions of Americans. 

So taken together, these two decisions, Citizens United and Shelby County, have made it harder for millions of Americans to have 
347 

their voices heard in our elections process and their votes counted 

at the ballot box. Since Citizens United, the floodgates have opened 

to unfettered corporate money in our elections. Since Shelby County, 13 States have enacted laws placing limitations on voting. 

And many of these are in the States that would have been prevented from passing such laws in the first place before the Court 

gutted the Voting Rights Act. And after Shelby County, they could 

pass such laws, and pass them they did. 

So given your clear understanding of the relationship between 

the political process and the courts, would you acknowledge that 

these decisions, Shelby County and Citizens United, have had an 

impact on our elections? 

Judge GORSUCH. Senator, they are precedents of the U.S. Supreme Court, and obviously, they have impacts. 

Senator HIRONO. Would you acknowledge that elections have an 

impact on the composition of the Court? 

Judge GORSUCH. Senator, again, I would say that there are not 

Republican judges or Democrat judges. There are judges. In my experience, there are fair judges appointed by Republican Presidents 

and Democratic-appointed judges. And people surprise you from 

time to time, Senator. 

Senator HIRONO. Well, clearly, elections have an impact on the 

composition of the Court because we have you. We do not have 

Judge Merrick Garland. So would you acknowledge that the composition of the Court influences the decisions that it makes? 

Judge GORSUCH. What do you mean by that, the ‘‘political composition’’ of the Court, Senator? I am sorry. 

Senator HIRONO. No, the composition. I did not say political composition. Would you acknowledge that the composition of the Court 

influences the decisions that it makes? 

Judge GORSUCH. Well, I do think each individual Member of a 

court impacts a court in the sense that when I get a new colleague 

and an old colleague retires, there is a new dynamic with that new 

person. They bring with them fresh eyes from practice and maybe 

some new ideas, and maybe they also need some time to come up 

to speed in other things. Every person is different. I will acknowledge that, of course. 

Senator HIRONO. So yesterday in response to my concerns about 

the impact of Citizens United, your narrow reading of OSHA, and 

your expansive view of the Religious Freedom Restoration Act, your 

answer was that Congress has latitude to act and legislate. But by 

tilting the political playing field so heavily to toward corporations 

and against individuals, has the Court not impacted the composition of who is in Congress and made it, therefore, even harder for 

Congress to take meaningful action to, say, pass laws to protect 

worker safety or the access of students with special needs to an 

education? 

Judge GORSUCH. Senator, the Supreme Court of the United 

States, I was not involved in these decisions that we are discussing. 

I was not there. 

Senator HIRONO. However, they are precedent. They are being 

cited. 

Judge GORSUCH. They are precedent, and I have to follow them, 

and I respect them as precedent. 
348 

Senator HIRONO. Yes. 

Judge GORSUCH. Precedent of all kinds has impacts, of course, 

and it is obviously for this body, as the lawmaking body, to assess 

what it thinks of the impacts of any judicial decision and to legislate appropriately. And we do our job, and respectfully, Senator, 

the Congress does its job. 

Senator HIRONO. Well, Judge Gorsuch, the Court is not an innocent bystander here. You have set forth a magical notion of what 

Congress can do and legislate. I wish you were right. I would love 

for all of us to be able to work together in a way that moves us 

forward for our entire country. 

And you did acknowledge yesterday that passing legislation is 

not easy. In fact, you acknowledged that today. For example, Congress, in passing the Voting Rights Act Reauthorization in 2006, 

held 20 hearings and gathered over 40,000 pages of evidence. And 

yet the Supreme Court substituted its own judgment to sweep all 

that away, eliminating a core part of the Voting Rights Act, which 

Congress had concluded and experience in the last election has now 

proven was still needed. 

In doing so, this decision has had a real world impact, changing 

who gets to participate in the political process and, therefore, who 

gets elected and who has input in the kinds of laws that are passed 

and, indeed, who gets nominated to the Supreme Court. 

I yield 15 seconds, Mr. Chairman. 

Chairman GRASSLEY. Thank you very much. 

What we would like to do, we have two people left. According to 

the message we got from the Senate, we will have a vote at 4:50 

p.m. So I am hoping you two folks will get done, and if you ask 

questions that have never been asked before, we will get done really on time. 

[Laughter.] 

Senator TILLIS. With you pointing that gavel at me, I am pretty 

sure I will. 

Chairman GRASSLEY. And—— 

Senator LEAHY. That was a subtle hint from the Chairman. 

Chairman GRASSLEY. So I would ask you two to finish, and then 

we will go vote at 4:50 p.m. or whenever you two are done. 

Senator TILLIS. Yes. 

Chairman GRASSLEY. And then we will reconvene, hopefully, by 

5:20 p.m. in 226 for our closed session. 

Senator TILLIS. Well, Mr. Chair, I hope to keep my streak alive 

by yielding back about 5 minutes in each of the prior two rounds. 

Chairman GRASSLEY. Praise the Lord. 

[Laughter.] 

Senator TILLIS. You know, we have heard a lot of discussions 

about precedent and past decisions, and there are clearly ones that 

some of the Members want to pick and choose that they like and 

ones that they want to pick and choose that they do not like. Do 

you have that option as a judge? 

Judge GORSUCH. I understand the impulse, Senator. 

Senator TILLIS. Yes. 

Judge GORSUCH. It is a human impulse. 

Senator TILLIS. Sure. 

Judge GORSUCH. And as the people’s representatives—— 
349 

Senator TILLIS. Yes, but do you have that option? 

Judge GORSUCH. I do not have that option, Senator. 

Senator TILLIS. That is what I thought. 

Judge GORSUCH. I am a judge. 

Senator TILLIS. That is what I thought. I mean, the law is the 

law. 

Judge GORSUCH. That is right. 

Senator TILLIS. And you have got to follow it, and it has got to 

be instructive. 

Judge GORSUCH. That is right. 

Senator TILLIS. Would you consider it an inappropriate question 

for me to get you to answer a question that would be in violation 

of the Code of Conduct for United States Judges? Would you consider that an inappropriate question? 

Judge GORSUCH. Senator, questions are not inappropriate. Answers would be inappropriate. I am the one who is bound by my 

Code of Conduct. 

Senator TILLIS. You are a kind man. That is why I will never be 

nominated for the Supreme—well, there are a lot of reasons, but 

that is one of them. 

[Laughter.] 

Senator TILLIS. You know, I—overnight I decided to go—I do not 

know why I do because reading press reports is a lot like roadkill. 

You try to avert your eyes, but then you go back and look at it. 

And so I looked at the roadkill of the overnight press, and of 

course, there were people saying you sidestep issues. 

These folks do not get it. You were following a Code of Conduct 

and you answered the questions to the best of your ability within 

the guidelines that you, as a judge, have. You are a Judge on the 

Tenth Circuit. And I think you did it well. 

So I think any reporter out there like the Lazy Blogger from 

McClatchy, who reported you sidestepping questions. You have not 

sidestepped a single one. You have answered every one to the best 

of your ability within the guidelines that you have as a sitting 

judge, and I appreciate you doing that. 

And I appreciate your consistency. There was never an instance 

over the course of these last 3 days where you wavered, and I, for 

one, am glad that you did that. 

You ever see the movie ‘‘Jeremiah Johnson?’’ 

Judge GORSUCH. I have not, Senator. 

Senator TILLIS. It is a great movie. It was filmed, I think, out in 

Utah, with Robert Redford, and I think Will Greer was the old 

codger. A lot of this discussion over the past couple of days reminds 

me of a great scene in ‘‘Jeremiah Johnson.’’ 

Jeremiah and Will Greer meet up in the high country, and the 

old—I think his character was Bear Claw said, you know, ‘‘I hate 

skinning bears, but I do not mind hunting them.’’ And Jeremiah 

Johnson was relatively new to the high country. He says, ‘‘I am 

scared of hunting bears, but I do not mind skinning them.’’ 

So they go to bed at night with the understanding that Bear 

Claw would go out in the morning and that Jeremiah Johnson 

would stay behind and skin the bear once he got one. 

And early in the morning, there is this great sunrise, and Bear 

Claw is running through the woods, and right behind him is this 
350 

huge brown bear. He runs up to the cabin. He jumps into the window. The bear jumps in with him. He runs out the front door and 

shuts it and says, ‘‘There is one for you. I will have another one 

shortly.’’ 

[Laughter.] 

Senator TILLIS. Well, that is what Congress is doing to the Supreme Court and to courts across this country. We are not properly 

hunting the bear. We are not living up to that expectation of actually producing a bear where we have taken care of the things that 

we should have before you had to skin it. 

Your job is to determine whether or not it passes constitutional 

muster, whether or not it passes the legal test based on decisions 

that we have made here. For example, in Hobby Lobby, you mentioned had the Affordable Care Act been exempted from RFRA, it 

probably would have produced a different result. 

Judge GORSUCH. One sentence in the statute. 

Senator TILLIS. Yes. Well, you would think that the sponsor of 

the RFRA bill in the House, now Minority Leader Schumer, would 

have remembered that bill. It was a pretty consequential bill. 

So you would think that they would have taken the time if they 

wanted to exempt it. I believe he is a good attorney. He would have 

known that, and he would have exempted it. So they left you no 

other choice because they did not skin that bear if that is, in fact, 

what they wanted to do. 

Let me tell you another reason why not properly preparing the 

bear, the legislative outcome, is a problem. This morning, we heard 

about the case on children with disabilities that the Supreme Court 

decided this morning. It is a bittersweet moment for me. 

On the one hand, maybe it provides some level of comfort to families who have a child with autism and an opportunity to maybe 

put them in a private setting, a residential setting where they can 

get the care they need. On the other hand, the bear is not ready 

to be skinned because I know what is going to happen. 

What is going to happen in all but nine States that have actually 

had the courage and dealt with the opposition to come up with a 

way for a child with autism to have an IEP developed that the public school is not satisfying and have funds go to the private school, 

we have not given clarity to those other 41 States. Parents are still 

going to have to fight. They are still going to be uncertain. 

Why? Because we have not done our jobs. If are serious about 

this issue, do our jobs. Not force you to do that. 

Because now what is going to happen, I am not an attorney, but 

I can pretty much guess what is going to happen in States that 

have not had the courage to take this issue on. In North Carolina, 

a lot of Democrats voted against the bill, because there are special 

interests that do not like opportunity scholarships or do not like 

public funds going to private schools for other reasons. Because 

they think other students will get access to it, and they are willing 

to hold these kids hostage when they know they need this help. 

Now in North Carolina, we have about 1,200 kids with disabilities who have benefited because we skinned the bear, we hunted 

the bear. You did not have to deal with it because we took affirmative action in the State legislature to do it right. 
351 

Now what we are going to do is determine the consequences of 

this action of the Court taking the position they did that is in conflict with how you all ruled in Luke P. They are not going to know 

whether or not they can take the kid in. They are going to have 

to spend a lot of money probably fighting with the school system 

to ultimately get that child in the proper setting to be educated. 

They are still going to have uncertainty. They may have certainty about the legal view of this particular case, but they have 

no certainty about how they are going to help this child, how they 

are going to get them the education they need, how they are going 

to be able to generalize the skills they may learn in the classroom, 

but like in the case of Luke P., not have it transcend into the home 

setting. 

So we have not done anything good as a result of causing you 

all to do our job. In fact, you do not do our job well. Legislators 

are bad judges, and judges are bad legislators, just as you said. 

So we still have to fix that problem, and I do not think that it 

is a problem at all for you to say that we have an overweening addiction, liberals and conservatives, to constitutional litigation. Why 

do they do that? Because we are not doing our job. Because we are 

going off into our individual conferences and not coming to a consensus on something like education for children with autism. 

That is not a hard problem. It is one I solved. It is one my colleagues and I solved when I was Speaker of the House in North 

Carolina. 

So much of what we are talking about today, the five cases, out 

of all the cases that you have been involved in, are almost all rooted in the reality that we have not done our jobs. And we are just 

going, well, you know what, we will let the judges work it out. 

I do not want you to work it out because you cannot possibly 

work it out to the level of specificity that is required to give the 

little guy, that child that needs education, those parents who are 

living paycheck to paycheck, the certainty that they need to take 

care of these very, very difficult challenges. 

So we need to do our jobs. There is not—there is virtually no 

case that was brought up today that people took exception to your 

position, even when you were in the majority and writing the concurring opinion, that is not rooted in a lack of definitive action, bipartisan action, problem-solving action by this legislative body. 

And I, for one, think people should go back to these cases. I am 

not even going to go through them all. TransAm Trucking, Thompson v. Luke P., all of them where they are talking about they did 

not like your outcome. They did not like the legislative fix. It 

should have never required you to fix it. 

And this is something that I just remembered this morning or as 

Senator Hirono was speaking about politics. Was it Republicans or 

Democrats that passed a law in Colorado that was the subject of 

Riddle v. Hickenlooper? 

Judge GORSUCH. I do not know. 

Senator TILLIS. You have no idea. But here is the thing I said 

last night. I do not think Senator Hirono was here when I said it. 

You managed to make a lot of people mad there. You exceeded your 

50 percent threshold because you made Democrats and Republicans 
352 

mad. Because it benefited them to some little guy, small party, 

startup sort of party effort in Colorado. 

I think the numbers defy the narrative that you are for the big 

guy, just by the sheer volume of cases that you have heard where 

there has been great consensus. So this whole narrative of you 

being for the big guy, are you not solving problems that we created? 

You know, I say oftentimes here, we have this tendency in Senate hearings to bring witnesses before us where many of their problems are rooted in decisions that past Congresses have made. And 

then we beat you until you bleed, and then we beat you for bleeding. And that is exactly what we are doing here. 

I think that we really need to look at ourselves and put a mirror 

down there and ask ourselves really a lot of the things that we are 

potentially criticizing you for your problem. They are our problem. 

We did not properly dispose of the bear before you were required 

to skin it. 

I am on the waiver here. So I will always be at the tail end of 

the Committee. No matter how senior I get in the Senate, I will 

still be here as long as I yield back at least 4 or 5 minutes, and 

the chair supports me coming back on the Committee. 

I do not ask questions that have already been asked and answered satisfactorily. And I think you have done a good job of answering a lot of questions over the last 3 days. And I look forward 

to what I hope is the final round, and I look forward to supporting 

your nomination. 

Last thing. There is one thing that I think we do have to talk 

about in the third round, and that has to do with the disturbing 

trend that I see here of increased polarization. But I will wait and 

talk about that in the final round. 

And I yield back my 9 minutes and 1 seconds of time. 

Chairman GRASSLEY. Thank you very much. 

Senator Kennedy. 

Judge GORSUCH. And I am going to watch ‘‘Jeremiah Johnson.’’ 

[Laughter.] 

Senator KENNEDY. Thank you, Mr. Chairman. 

I want to kind of choose my words carefully here. I have listened 

really carefully, and I think I have been here as much as anybody 

else has, if not more. But I still have some questions. I think—I 

think from my questions and from my comments, I have demonstrated pretty clearly I am very impressed with you, Your Honor, 

and I think you would make a great Supreme Court Justice. 

Some have criticized my friends on the other side for asking you 

how you would rule in specific cases. And I do not think that is an 

appropriate question. But if I am going to be honest, I would have 

to say I would love to know the answer to that, too. Because we 

live in a real world, and I can tell you my people, in selecting a 

President, who he was going to appoint to the U.S. Supreme Court 

was one of the main reasons that some of them voted for him. 

And I can assure you that if you are confirmed, and I think you 

will be, and you go on the Supreme Court—and I do not think this 

will happen, but it has happened before—-and you act in a way unlike one could reasonably conclude you would act as if based on 

what you have said here. I do not know how to put it. 
353 

If you went on the Court and started acting like Andy Kaufman 

or something, my clients are going to—I mean, my constituents are 

going to have something to say about it. So I do not want the fact 

that I am still asking you the questions to be misunderstood. But 

this is a big deal. 

I would like you to walk me through one more time how you 

would approach construing a statute. Let us suppose a State passes 

a law that says no law shall discriminate against people on the 

basis of eye color. I doubt that will ever come to the U.S. Supreme 

Court. I doubt a legislature will ever pass it. 

That is in front of you, and you have got to construe it. What is 

the first thing, what are the steps you go through? 

Judge GORSUCH. Senator, I understand entirely the desire of everyone to want to know the views that I might subscribe to personally and get me to make commitments about how I would rule in 

future cases. I understand it. 

Senator KENNEDY. I am not asking you to do that, Your Honor. 

I hope you will understand that. 

Judge GORSUCH. I do, but I am—and I am not saying there is 

any improper questions. There are only improper answers. And as 

a judge, as a sitting judge, I am bound by canons of ethics. 

Senator KENNEDY. Right. 

Judge GORSUCH. And I have tried to be as full and as open as 

I can possibly be, consistent with those canons. And those canons 

are important. They are important to me because if I did make a 

bunch of campaign promises here, what does that mean to the 

independent judiciary? What does that mean to the litigants in 

front of me? What does that mean for the future of this country? 

Those things are important to me, and there is a long line of 

judges who have come before me. And this is an unbroken chain, 

and I do not want to be the weak link. 

Senator KENNEDY. I understand. 

Judge GORSUCH. That is important to me. In terms of statutory 

interpretation, you start with the text of a statute. You look at its 

plain words. You consider how a reasonable person would understand those words, the affected persons at the time. You look at 

them. They have a fixed meaning, and you try and apply it according to its plain meaning as best as you humanly can. 

Senator KENNEDY. Plain meaning to whom, Your Honor? 

Judge GORSUCH. To the average—— 

Senator KENNEDY. To the lawmaker? To the people who have to 

comply? 

Judge GORSUCH. To the people who have to comply. To the average person, the public understanding. 

Senator KENNEDY. Okay. 

Judge GORSUCH. Not a private understanding. We do not live 

back in Caligula’s world. Thank goodness. Caligula, who posted, as 

I have indicated before, his laws so high in a hand so small, nobody 

could read them. He knew what they were, secret law. Ours is public law. That is our system, made by the people and their representatives, a government by the people, for the people. 

And a judge’s job is not to become a legislator and rewrite it and 

fix the problems in it. 

Senator KENNEDY. What if the words are unclear? 
354 

Judge GORSUCH. If the words are—— 

Senator KENNEDY. Well, let me stop for a second. I apologize for 

interrupting, but I am probably going to be cutoff here in a second. 

Suppose the words are clear. Do you just stop? 

Judge GORSUCH. You stop. You are done. Well, unless you have 

a constitutional difficulty. You are talking about a statutory interpretation case, though. So I am assuming we are just dealing with 

statutory interpretation, and if the words are clear, you stop. 

Senator KENNEDY. Would you not want to go take a look at the 

legislative history just to make sure that you are right that the 

words are clear? 

Judge GORSUCH. Senator, the Supreme Court of the United 

States precedent is quite plain on this very point. If the words are 

plain, you stop. 

Senator KENNEDY. In determining whether the words are plain, 

and look, I am not about to—I am not about to debate Supreme 

Court precedent with you. I will lose handily. But I have read a 

number of cases that also say it is okay for a judge to take a look 

not only at the plain meaning of the words, but that legislative history is appropriate. It is not dispositive of what the statute means, 

but it can be helpful. 

And it is also okay for a judge to look at a statute and try to 

imagine what problems the legislative branch was trying to address. And the example I gave last night, admittedly it was late 

and we were both tired, but I would love, and I will bet you, you 

would, too—strike that. I should not have said that. I will bet 

many people would love to have a transcript of the Constitutional 

Convention that drafted our Constitution. 

Now if a Member of that convention made certain comments, and 

they were written down and we had a transcript, you could not go 

to his comments and say, well, he must speak for the whole convention. That would not be right. That is a failing of legislative history. But you are sure—if Benjamin Franklin said it, you would 

want to know it. 

And that is the case where the legislative history or the problems 

that the drafters were trying to address could have an impact. Do 

you think if a statute is clear you should never look at that? 

Judge GORSUCH. Senator—— 

Senator KENNEDY. That is honestly a question, not a suggestion. 

Judge GORSUCH. And I take it that way, Senator, and I am answering it not from my personal preference, but from a matter of 

precedent. And the Supreme Court of the United States precedent 

on this is plain, happily. This one I can give you. If the statute is 

clear, that is the end of the interpretive exercise for a court, period. 

Period. 

You are correct that if there is an ambiguity in the statute, then 

a court will look to other tools, canons of construction, perhaps the 

legislative history. There is debate over how valuable that is that 

we have all discussed several times in the last few days and the 

value and some of the issues associated with that. 

I respect very much the work of this body. When I am a judge, 

I like to get every scrap of information anybody wants to put in 

front of me. I read it all. I take it all seriously. 
355 

There are problems we have discussed with perhaps too much reliance on legislative history, the due process issue. I think that we 

have discussed the Caligula problem. 

Senator KENNEDY. Right. 

Judge GORSUCH. The fair notice problem. 

Senator KENNEDY. Right. 

Judge GORSUCH. The bicameralism and presentment issues we 

have discussed and separation of powers. It is not the law. But you 

look at everything somebody gives you. A judge does not say, ‘‘Ah, 

I am not going to read that brief today because I do not like the 

color of the brief.’’ You know, it should be a lighter shade of blue. 

You know, I look at all material put before me. 

But when the statute is plain, Senator, the precedent of the 

United States says to the judge stop. 

Senator KENNEDY. And when it is not plain, which I think is oftentimes the case—well, many times the case, we can probably 

agree on that. If Senator Tillis or Senator Coons or Senator 

Franken passed a bill, and it is not clear, then would it ever be appropriate for a judge to say, okay, it is unclear. I am going to take 

a look at legislative history, but I am also going to try, through 

looking at the legislative history, try to understand what was the 

problem they were trying to solve. 

Is that ever appropriate? 

Judge GORSUCH. Senator, I am not sure what you mean by that, 

to be honest with you. 

Senator KENNEDY. Well, why did they pass the statute? Would 

you ask yourself why did they pass the statute? 

Judge GORSUCH. Well, one concern I have with that enterprise 

is I have a very difficult time getting in the head of anyone else. 

And trying to get in the head of 535 of you, plus a President, well, 

frankly, Senator, that is often beyond me. 

Senator KENNEDY. Okay. Let me switch to another subject, the 

Third Amendment. I do not remember the language. It is quartering troops. It has not gotten a lot of attention, and there has not 

been a lot of jurisprudence on it. 

But some think that it has privacy implications. Have you given 

any thought to that? 

Judge GORSUCH. Senator, I think it does suggest, hey, my house. 

You got to—is off limits to your troops. There is a privacy implication in there. Yes, I do. 

Senator KENNEDY. Okay. 

Judge GORSUCH. Yes, yes. 

Senator KENNEDY. I think Justice Douglas cited it in either Griswold or one of the privacy line of cases. 

Let me ask you this. I want to talk to you a second about State 

action. I do not need to tell you, you know better than I do, the 

Bill of Rights protects us against government. Some State constitutions have bills of rights that actually establish our rights vis-a-vis 

each other as individuals, but the Federal Bill of Rights does not 

do that. It is our protection against government. 

What is your feeling about the State action? What do you understand a State actor to be? 

Judge GORSUCH. Senator, you are going to have to help me out. 

In what context are we talking about here? State action require-
356 

ment is—the protections of the Bill of Rights are as against the 

State. 

Senator KENNEDY. Right. 

Judge GORSUCH. Against the Government. 

Senator KENNEDY. Right. 

Judge GORSUCH. Yes. 

Senator KENNEDY. Right. 

Judge GORSUCH. If that is what you were getting at, yes. 

Senator KENNEDY. Yes. If—— 

Judge GORSUCH. They are rights as against the Government. 

They are protections as against the Government. 

Senator KENNEDY. But sometimes there are entities that are alleged to be acting in the shoes of the State, agents of the State. 

Judge GORSUCH. Ah, yes. Yes. That is an interesting problem, 

right? Because Congress today has created a multiplicity of arrangements, and is it government or isn’t it government is actually 

a question that arises from time to time. And if you would like a 

look at what I have written in the area, I might refer you to U.S. 

v. Ackerman, another case where I ruled for the little guy maybe, 

if you like. 

And it had to do with whether the National Center for Missing 

and Exploited Children is a governmental entity. And the line of 

cases in the Supreme Court goes all the way back to Dartmouth 

College case, and it is a fun read in terms of the Dartmouth College 

case. What qualifies as a governmental entity? 

The Supreme Court of the United States recently struggled with 

the issue in the context of Amtrak. So there are questions around 

this area as to what is government and what is not. Very important. Because if something qualifies as government, it has to 

square its corners under the Constitution and the Bill of Rights, of 

course. 

So, for example, in the Ackerman case, if NCMEC is a governmental entity, it needs to comply with the Fourth Amendment. You 

cannot invade—cannot invade personal privacy without complying 

with the warrant requirement, for example. Yes, so there are very 

important questions as to what is and what is not a State actor. 

Senator KENNEDY. Yes. Well, I want to be clear for the record. 

You mentioned the little guy, and I know that has come up a lot. 

And everybody is entitled to their own opinion. I was taught justice 

is blind, and it does not matter whether the party, it does not matter its wealth or its status or its power. You decide cases on the 

basis of the law. 

I mean, Lady Justice is wearing a blindfold. So I agree with you 

completely on that, and I understand the other point of view, but 

I do not agree with it. 

Your book on euthanasia. Could you, kind of like you are talking 

to a Tenth grader, give me a summary of your thesis in your book? 

Judge GORSUCH. I can try, Senator. I find it a very hard issue. 

It is one every American has deep, understandable views about. It 

concerns the end of life. 

Chairman GRASSLEY. I am going to ask if you can pull the mike 

just a little bit closer. 

Judge GORSUCH. Oh, I am sorry. Of course. I apologize. The end 

of life, which we all face. 
357 

Senator KENNEDY. Yes. 

Judge GORSUCH. It is a problem all of us face. And it is a book 

in which I struggle with the end of life issues that we all face and 

how we as a people might consider resolving them. I wrote it before 

I became a judge, as a commentator with my thoughts as an individual, not as a judge. 

Senator KENNEDY. Well, what I read of it, as I told you last 

night, I did not read the whole thing. But I read parts of it. It is 

very well written, and it is something that we all have to deal with 

and we all think about. 

Judge GORSUCH. Yes, and I do not—I appreciate you having read 

some of it. I expect until about a month or two ago, it had not been 

exactly widely read. 

Senator KENNEDY. I have a feeling it is now, Your Honor. 

Judge GORSUCH. Well, I expect it will make a good doorjamb for 

most folks. But I conclude that there is a very important interest 

in being left alone at the end of life and that there is an understandable and appropriate zone of privacy there that we need to respect. And we have all experienced it when parent or grandparent 

wants to go home, had enough. It is time. 

Senator KENNEDY. And your thesis, once again—not to re-plow 

old ground, but I want to be sure I understand—is not based on 

religion? 

Judge GORSUCH. Goodness, no, Senator. 

Senator KENNEDY. It is secular. It is based on your secular moral 

values. 

Judge GORSUCH. Well, it is not even my—it is an attempt to 

work through—— 

Senator KENNEDY. I do not mean to imply they are yours. It is 

based on not your—your thesis is based on secular moral values. 

Judge GORSUCH. Yes. 

Senator KENNEDY. That once you cheapen life, once we become 

desensitized to taking life, it is easier to take the life of those who 

are less powerful than you and I. 

Judge GORSUCH. Senator, that is one worry I expressed, and that 

the difference between refusing treatment and killing people raises 

with it questions about what happens to the least amongst us. 

Senator KENNEDY. Yes. 

Judge GORSUCH. The vulnerable, the elderly, the disabled. And 

I do not profess to have the final answer here. I am not a philosopher king. But I do know that when you have a more expensive option and a cheaper option, those who cannot afford the more expensive option tend to get thrust into the cheaper option. 

Senator KENNEDY. Yes. 

Judge GORSUCH. And so those are some of the concerns I worked 

through. It is a long book. It is complicated, and I do not profess 

to have the right final or complete answer. I hoped, at most, to contribute to a discussion on an unanswered social question where all 

people, and I do think all people have a good faith interest in trying to reach some consensus socially on it. 

Senator KENNEDY. Well, it was well written. What I read of it 

was very well written. It got you an Oxford DPhil. It was your thesis, was it not? 

Judge GORSUCH. More or less. 
358 

Senator KENNEDY. Yes. Well, it got you an Oxford DPhil. That 

is pretty good. 

How am I doing, Mr. Chairman? 

Chairman GRASSLEY. You have 2 minutes and 31 seconds. 

Senator KENNEDY. Okay. I am going to yield back my time. 

Thank you, Your Honor. 

Judge GORSUCH. Thank you, Senator. I appreciate it. 

Senator KENNEDY. I appreciate it very much. 

Chairman GRASSLEY. We just got notice on our iPhones that the 

vote is starting right now. So we will recess now, and we will reconvene in 226 for probably, I would guess, a half hour, depending 

on how long the discussion goes on. 

And then we will come back here, and we will start with the 

third round. And I hope not everybody takes a third round, and I 

hope everybody will try to stay in less than 15 minutes. 

Thank you very much. Judge, the time is yours for a while. 

[Recess.] 

Chairman GRASSLEY. I want everybody to know that I normally 

do not start until the Ranking Member is here, but I can go ahead 

because of other things that she is going to be doing for a while. 

Judge, we are starting out for a third round. As I said, I hope 

everybody cannot exceed 15 minutes, and hopefully shorter. I want 

to lead by example for how much time I take. It will be a lot less 

than any of that. I am going to ask you, Judge, about a dozen questions that really you can answer ‘‘yes’’ or ‘‘no,’’ and then I will yield 

back my time. 

I want to give you a hint that all of these questions can be answered by ‘‘yes.’’ 

[Laughter.] 

Chairman GRASSLEY. In Ute Indian Tribe, am I right that you 

held that a country’s prosecution of a Tribal Member for action 

taken on Tribal land caused irreparable injury to Tribal sovereignty? 

Judge GORSUCH. Yes. 

Chairman GRASSLEY. In Fletcher v. U.S., did you rule that Members of another Tribe had a legal right to demand an accounting 

from the Secretary of Interior for funds the Government held in 

trust? 

Judge GORSUCH. Yes. 

Chairman GRASSLEY. In Cook v. Rockwell, did you rule that 

plaintiffs had the right to pursue tort claims against a nuclear 

weapons manufacturing plant for committing environmental 

crimes? 

Judge GORSUCH. Yes. 

Chairman GRASSLEY. In United States v. Magnesium, did you reinstate a lawsuit against a corporation alleged to have violated 

anti-pollution laws? 

Judge GORSUCH. Yes. 

Chairman GRASSLEY. In Energy and Environment Legal Institute, did you uphold a Colorado law requiring that a certain 

amount of electricity sold come from renewable sources? 

Judge GORSUCH. Yes. 
359 

Chairman GRASSLEY. In Orr v. City of Albuquerque, did you hold 

that the pregnancy discrimination claims of two female police officers deserved a trial? 

Judge GORSUCH. Yes. 

Chairman GRASSLEY. Did you in two cases affirm a finding by 

that the Department of Labor’s Benefit Review Board that retired 

miners were entitled to Black Lung benefits from their employers? 

Judge GORSUCH. Yes. 

Chairman GRASSLEY. In Casey v. West Las Vegas Independent 

School District, did you hold that a former school superintendent 

could take her claims for retaliatory discharge to trial? 

Judge GORSUCH. Yes. 

Chairman GRASSLEY. In Crane v. National Science Foundation, 

did you hold that an academic employee had been wrongfully terminated from his university position without appropriate findings 

of fact? 

Judge GORSUCH. Yes. 

Chairman GRASSLEY. In Browder v. City of Albuquerque, did you 

deny qualified immunity to police officers who wrongfully arrested 

a seventh grader for making fake burps in a gym class? 

Judge GORSUCH. I voted that way, yes, in AM v. Holmes. 

Chairman GRASSLEY. In Blackmon v. Sutton, did you deny qualified immunity to staff at a juvenile detention Senator for using a 

restraining chair to punish a pretrial detainee? 

Judge GORSUCH. Yes. 

Chairman GRASSLEY. Those are just a few examples of cases 

where you have ruled in favor of what I would call the little guy. 

But I have one last question. I think that whether you rule for or 

against the little guy or the great big guy is not the real question. 

The real question is whether you apply the law faithfully. Would 

you agree with me on that point? 

Judge GORSUCH. I can tell you I tried my best. 

Chairman GRASSLEY. I yield back my time, which will be 11 minutes and 33 seconds, and encourage my colleagues to do the same. 

Senator DURBIN. 

Senator DURBIN. Thank you, Judge. We have asked previous 

nominees for the Court about their experience in private practice 

and the pro bono work that they have done. Could you tell us briefly what pro bono work you have done as a private lawyer? 

Judge GORSUCH. Oh gosh. Senator, over the course of my career, 

it would be varied at different points in time, different things. As 

a judge, I have done a lot of work on the Rules Committee. I have 

done a lot of work trying to make litigation faster and cheaper together with colleagues. I do not deserve a ton of credit. A lot of— 

we work by consensus on the Rules Committee. 

The Capital Habeas Project, again, was a collegial effort. Before 

that I would point as—you know, I spent time at the Department 

of Justice. That is not pro bono work, but it is public service. As 

a private lawyer, we did all sorts of different things. We would 

modify our fee arrangements. We would do contingent arrangements. We waived our fee arrangements. 

Senator DURBIN. Did you ever represent, either pro bono or otherwise, an unpopular or notorious client? 
360 

Judge GORSUCH. I would think a lot of my clients would have 

been considered unpopular, Senator, and notorious is in the eye of 

the beholder. But certainly, people who were accused of crimes, 

people who were involved in what might be considered scandals. 

Yes, Senator, without revealing any attorney-client information, 

yes. 

Senator DURBIN. Of course. I want to ask you about an email you 

sent at Justice. The subject line was ‘‘Elite Law Firm Pro Bono 

Work for Terrorists,’’ and you included an article about conservatives criticizing lawyers who were representing Guantanamo detainees and a list of their law firms. 

You sent this email to someone working on this Committee, and 

you said, ‘‘I thought you might find this of interest. It seems odd 

to me that more has not been made of this. See especially the list 

of firms below.’’ This was one of several emails you sent criticizing 

and drawing attention to lawyers representing Guantanamo detainees. 

Chief Justice John Roberts when he appeared before this Committee was asked about the fact that he had represented some unpopular clients, and said—here is what he said: ‘‘Our Founders 

thought they were not being given their rights under the British 

system to which they were entitled, and by representing the British 

soldiers, John Adams helped show that what they were about was 

defending the rule of law and not undermining it. And that principle that you do not identify the lawyer with the particular view 

of the client or the views that the lawyer advances on behalf of a 

client is critical to the fair administration of justice.’’ 

So, for the record would you put in perspective any comments 

that you made about people representing Guantanamo detainees? 

Judge GORSUCH. Senator, my friend, Neal Katyal, who introduced me, successfully represented some of those detainees, and I 

have nothing but admiration for those lawyers. And the email you 

are referring to is not my finest moment, blowing off steam with 

a friend privately. The truth is I think my career is better than 

that. 

And when I have seen individuals who have needed representation as a judge, and I have got handwritten pro se filings, and I 

have seen something that might have merit in it, I picked up the 

phone and I have gotten a lawyer for that person. When I have 

seen lawyers who are not representing even undocumented aliens 

appropriately, I have done something about it. 

So, I would like to think that my career taken as a whole, Senator, represents my values appropriately. 

Senator DURBIN. Thank you. Thank you, Judge. Thank you, Mr. 

Chairman. 

Chairman GRASSLEY. Okay. Senator Flake. 

Senator FLAKE. I yield back the balance of my time and encourage my colleagues to do the same. 

[Laughter.] 

Chairman GRASSLEY. Okay. Senator Whitehouse. 

Senator WHITEHOUSE. Good luck with that. 

[Laughter.] 

Chairman GRASSLEY. The chair did not encourage him to do that, 

but I surely did not discourage it. 
361 

Senator WHITEHOUSE. Well, let me start by paying a compliment 

to our Chairman. I think that he has handled these hearings in a 

very gracious way. He has given us a great deal of time and leeway. And whatever our opinions might be about the suitability of 

the nominee, and obviously that is as yet undetermined for many, 

I think we can agree that the Chairman has done a thoughtful and 

good job. And I appreciate the way in which this has been managed. 

Judge Gorsuch, this is probably the last time you will pay attention to me. 

Judge GORSUCH. Do not count on that, Senator. 

[Laughter.] 

Senator WHITEHOUSE. I am not likely to appear before the Court 

unless things should change fairly dramatically. 

[Laughter.] 

Senator WHITEHOUSE. So, there are just a few things that—— 

Judge GORSUCH. Now, that would be interesting. 

[Laughter.] 

Judge GORSUCH. You know, I have had Senator Lee in my courtroom. 

Senator WHITEHOUSE. Yes? And I have argued in the Supreme 

Court, but some time ago. I wanted to tell a story to you need to 

follow-up a little bit on our conversation where I was trying to 

draw an analogy between anti-competitive controlling economic 

power and anti-competitive controlling political power. 

I was elected to the Senate in 2006. I was sworn in in 2007. For 

the first 3 years that I was here—2007, 2008, and 2009—there was 

constant Republican activity on climate change in the Senate. During that period, the Republican candidate for President even had 

a robust climate change platform, and there were probably four or 

five separate bills that had Republican co-sponsors. 

I was on the environment Public Works Committee where Senator Warner—John Warner of Virginia, a Republican, had a bill. 

Senator Susan Collins had a bill with Senator Cantwell. Senator 

Alexander had a bill. I think Senator Graham was even working 

on one. There were a considerable number of them. We did not 

have agreement on that issue yet, but there was activity. People 

were talking. The legislative process was going forward. 

The Citizens United decision was decided in January 2010. The 

fossil fuel industry asked for that decision to be rendered, expected 

it to be rendered, and moved incredibly rapidly to take advantage 

of its new opportunities. And from that moment forward there has 

not been a single comprehensive piece of legislation with a Republican co-sponsor related to carbon dioxide emissions. 

That industry is defending, according to the International Monetary Fund, a $700 billion a year subsidy. So, the amount of weight 

they can throw behind trying to stop any effort to interfere with 

their current status quo goes beyond almost any reasonable number to spend in politics. 

So, just bear that in mind as you go forward that, in my view, 

Citizens United did not expand debate in the public sphere, particularly on that issue. It actually allowed powerful special interests to squash public debate, and I think the conduct of the Senate 

proves that point. So, take that for what it is worth, but I think 
362 

if you look at it at some point, you will find that what I am saying 

is accurate. 

The second thing that I wanted to touch on is the jury. A great 

number of the decisions that I listed in that 16–to–90, corporate v. 

human, 5–to–4 array that the Supreme Court has decided recently 

had the effect of limiting access to a jury, did it with raising pleading standards, did it with limiting class actions, did it with encouraging mandatory arbitration. 

To me, the civil jury matters quite a lot. To the Founders, it was 

one of the casus belli of the Revolution. They took it terribly seriously. Hamilton described it as one of the absolute pinnacles of 

what we needed. Adams described the popular vote and the jury as 

the heart and lungs of liberty. So, this was a big deal. 

De Tocqueville described the civil jury as a political institution. 

He meant that in the best possible way. 

Judge GORSUCH. Right. 

Senator WHITEHOUSE. It was part of our polis, part of the way 

in which the public had the chance to participate in making decisions. He called it part of the sovereignty of the people. Blackstone, 

who was probably the single jurist who most educated the founding 

generation, said that ‘‘The civil jury is what prevents the encroachment of the more powerful and wealthy citizens.’’ 

So, you have a Constitution, a great deal of which is dedicated 

to protecting the individual from the power of government and the 

power of the State, and to dividing up the power of government 

and the State so it does not unify and crush individual behavior, 

or dreams, or wishes. This institution is the one that was designed 

to protect the individual against other more powerful and wealthy 

citizens. And in this world, our most powerful and wealthy citizens 

are these ginormous corporations, ones that collectively in the fossil 

fuel industry enjoy that $700 billion per year subsidy. 

So, I would urge that as you consider this array of cases that 

chips and chips and chips and chips away at the civil jury access 

that regular Americans have, particularly where it involves big corporations because they are the ones who can force mandatory arbitration on people, for instance, they are the ones who tend to be 

the victims of class action suits, for instance, that you bear that in 

mind. 

Are you sensitive to that so-called political institution of the civil 

jury, and do you agree with me that it has a role in defending the 

little guy against the more powerful and wealthy citizens? 

Judge GORSUCH. Senator, I have talked a lot about the Seventh 

Amendment over the last 3 days. Quite a lot. I am a believer in 

the civil jury system, and I do not know whether it is the very bulwark of liberty or the palladium of liberty. 

Senator WHITEHOUSE. You have got the Hamilton quote. Good for 

you. 

Judge GORSUCH. All right? 

Senator WHITEHOUSE. Yes. 

Judge GORSUCH. They debated that—— 

Senator WHITEHOUSE. Yes. 

Judge GORSUCH. Which one it was. 

Senator WHITEHOUSE. Yes. 
363 

Judge GORSUCH. But I am a big believer in it. I spent a lot of 

time in the trial trenches of the law. I saw the value of the jury 

system. And, yes, Senator I am a big believer in civil juries. 

Senator WHITEHOUSE. Good. 

Judge GORSUCH. And my record proves it. 

Senator WHITEHOUSE. Stick with it because it is going away unless the judiciary breathes a little bit of life into it. And at the moment, I think the Supreme Court is leaning the opposite way. 

The last thing I want to ask you has to do with an email that 

you sent back in some time ago, but I think you will remember it. 

Back in February 2006, the scene was Attorney General Gonzales’ 

testimony to this Committee with respect to the terrorist surveillance program. 

Judge GORSUCH. Okay. 

Senator WHITEHOUSE. It was the testimony that led to the Department of Justice Inspector General investigation. And I have the 

declassified version of it here which found that the Attorney General’s testimony was incomplete and confusing, and that it was confusing, inaccurate, and had the effect of misleading those who were 

not knowledgeable about the program, which was obviously all of 

us because it was a classified program, and we had not been read 

into it. 

On this day when the Attorney General of the United States was 

giving misleading, confusing, and inaccurate testimony to this 

Committee, you emailed back to Kyle Sampson and William 

Machella, ‘‘I think the AG is doing a really nice job today. He is 

running circles around the Committee Members.’’ Now, running 

circles around the Committee Members worries me a little bit in 

the context of testimony that proved to be incomplete, misleading, 

inaccurate, and was criticized as such by the inspector general of 

the Department of Justice. 

Do you recall when you sent that memo what you knew about 

that testimony, and when it was that you came to realize that Attorney General Gonzales’ testimony was inaccurate and misleading 

to this Senate Committee? 

Judge GORSUCH. Senator, someone shared that email with me 

this morning, and I looked at it. I do not have an independent 

recollection of it sitting here 11 years later, whatever it is. And to 

my knowledge I did not have any classified information at that 

time that—— 

Senator WHITEHOUSE. I gather that you did help him prepare 

that testimony. 

Judge GORSUCH. Senator, I did as a speechwriter work from public materials. 

Senator WHITEHOUSE. As we know, Director Comey and others 

subsequently testified to all of the drama that surrounded that, 

which was the subject of why—that was the reason that this was 

misleading and inaccurate. There was the confrontation in the Attorney General’s hospital room. There was the mad dash running 

up the stairs to try to beat White House counsel to the Attorney 

General’s bedside. 

I think either Mullen or Comey testified it was the only time 

that they had ever used their sirens to try to get someplace fast, 

and it had kind of creepy Third World overtones, and people, you 
364 

know, rushing to get to the bedside of the stricken Attorney General before a White House counsel could do mischievous things. So, 

it was very significant when it ultimately came out. 

Do you recall what you knew that day or at the time that you 

were preparing the Attorney General’s testimony? 

Judge GORSUCH. That is a—— 

Senator WHITEHOUSE. Had those events taken place, and were 

you aware of them? It must have been the talk of the Department 

if they had happened. 

Judge GORSUCH. Senator, a fair question, and to my recollection 

sitting here, I found out about those things when everybody else 

did. 

Senator WHITEHOUSE. The famous Schumer-Comey hearing. 

Judge GORSUCH. Whenever it came out publicly, Senator. I was 

not—— 

Senator WHITEHOUSE. You were not read into it, and you had not 

heard about the excitement in Attorney General Ashcroft’s hospital 

room. 

Judge GORSUCH. That is my recollection, Senator. 

Senator WHITEHOUSE. Okay. Very well. Thank you. 

Judge GORSUCH. Thank you. 

Senator WHITEHOUSE. You are going to love hearing this, Mr. 

Chairman. I yield back my time. 

[Laughter.] 

Chairman GRASSLEY. Senator Sash—Sasse. 

Senator SASSE. I will go with ‘‘Sash.’’ That is all right, Chairman. 

[Laughter.] 

Judge GORSUCH. I am ‘‘Grouch,’’ so what the heck? 

[Laughter.] 

Senator SASSE. Judge, can we talk a little bit about the Ninth 

Amendment? 

Judge GORSUCH. Absolutely. 

Senator SASSE. It reads, ‘‘The enumeration in the Constitution of 

certain rights shall not be construed to deny or disparage others retained by the people.’’ What does that mean? 

Judge GORSUCH. Well, Senator, I think it means what it says. 

The Ninth Amendment has not been much interpreted by the Supreme Court. There are different views about its effect and its 

meaning, and I do not doubt that there will be cases and controversies in which I would, if confirmed, and maybe even if I am not, 

asked to construe the meaning of that. It is one of those amendments that has not had a lot of judicial attention. We have talked 

about some others. 

Chairman GRASSLEY. There is a publication in 1950 I read called 

‘‘The Forgotten Ninth Amendment.’’ 

Judge GORSUCH. Right. Right. 

Chairman GRASSLEY. Well, that is 60 years ago, and it was forgotten then. 

Judge GORSUCH. Well, Senator Lee has written a book that includes some discussion of this as well. 

Senator SASSE. Judge Bork referred to it at one time as an ink 

blot, seemingly implying that it could just be ignored. Is there any 

precedent that we need to know about to understand the Ninth 

Amendment as it comes down through the courts? 
365 

Judge GORSUCH. There are amendments that have been less interpreted and more interpreted. The Ninth Amendment is one of 

those that has been less interpreted, Senator. 

Senator SASSE. What is the best way to understand how the Constitution divides power between the Federal Government, the 

States, and the people? And, in particular, how do we know whether or not some power that has not been specifically enumerated 

and given to the Federal Government since the people give the 

Government power? The Government does not give us rights. The 

people gave the Federal Government certain enumerated powers. If 

it is not enumerated, how do we know if it belongs to the States 

or to the people? 

Judge GORSUCH. Senator, we have talked a lot about Federalism 

in these last few days. The people in this country are sovereign, as 

Lincoln said. It is a government by the people, for the people. So, 

the people are sovereign, and it depends on what powers they have 

given to the State Government and to the Federal Government. 

And there are variations between the States as to what authorities 

are given and how. 

Nebraska, you have a unicameral legislature last time I checked. 

I do not know if you are the only one. 

Senator SASSE. We are. 

Judge GORSUCH. Right? But that is—the people have organized 

their State Government in a certain fashion, and that is for the 

people to do. 

Senator SASSE. But is there any precedent on the Tenth Amendment that would give us some sense of what might belong to the 

domain of the Ninth? 

Judge GORSUCH. So, we do have precedent in the Tenth Amendment area. I think the leading precedent might be the New York 

case by Justice O’Connor, which we have discussed a couple of 

times over the last couple of days, which makes clear that the Federal Government cannot commandeer State Government, cannot 

tell State government to enforce and how to enforce Federal dictates unilaterally. 

Now, there are some—you know, there are limits to that principle, too. A 55-mile-an-hour speed limit, which is a Federally induced requirement, has been upheld, attached to the spending authorities. There comes a question of how far Congress can go in 

conditioning funds before it winds up commandeering a State Government. 

Senator SASSE. I want to ask more questions about the ways that 

you would recommend that future hearings be conducted, but you 

will not answer. So instead, I will just agree with Senator from 

Rhode Island in commending the Chairman on how he has run the 

last 3 days. 

Thank you, sir. 

Judge GORSUCH. Thank you, Senator. 

Chairman GRASSLEY. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much. Thank you, Mr. 

Chairman. Thank you, Judge. 

Judge GORSUCH. Thank you. 
366 

Senator KLOBUCHAR. Mr. Chairman, you will be excited. I am 

going to mention one of your pieces of legislation here, so it will 

be good. 

I have been waiting for 2 days to talk about antitrust, but events 

of the day keep from getting in the way in terms of what we have 

been focusing on, and I know that is to your chagrin since you have 

taught in the area. We have talked about this. You are an expert 

as well as my counsel, Michael Kades, who has been waiting 

months for this to happen since he is an expert on antitrust. 

Senator Lee and I have a long headed up that Subcommittee, 

and we have been very active a lot of hearings. And I think there 

is good reason to think that this could be a major area of the law 

ahead. We have seen people struggling to afford everything from 

prescription drugs to cable TV, and one way to help bring prices 

down, as you know, is to vigorously enforce our antitrust laws. Vigorous enforcement also fosters small business growth, and reduces 

inequality, and increases innovation. Obviously, if you have only 

two companies competing, you are going to have less of an incentive to be innovative. 

As we discussed in our meeting, tackling concentrations of power 

is a linchpin to a healthy economy and a democracy, and we are 

right now living through an unprecedented wave of mergers. Over 

the last 5 years, there was a 50 percent increase in mergers reviewed by the FTC and the Department of Justice. Just last year, 

then-Assistant Attorney General for antitrust Bill Baer, a lifelong 

antitrust practitioner, said his agency was ‘‘reviewing deals with 

such serious antitrust concerns, that they should never have made 

it out of the corporate boardroom.’’ That is his quote. 

We also have a situation where the President of the United 

States in a rather unprecedented move commented about major 

merger that is currently over at the Justice Department. And 

then—and another major merger involving seed companies actually 

met with the CEOs involved in that merger, and they came out of 

the meeting and said they talked about the merger. And these are 

just things that we have not seen happen since these mergers are 

supposed to be within the purview of the Justice Department. 

So, you have taught a number of antitrust classes at the University of Colorado. And, as you know, although the Supreme Court 

has not addressed the merits of a merger case in decades, recent 

court decisions, Trinko, Credit Suisse, and Legion, have made it 

more difficult to bring antitrust cases challenging anti-competitive 

conduct. Do you think the courts have made antitrust enforcement 

too difficult? What do you say to your classes about this specific 

issue? 

Judge GORSUCH. Senator, thank you for bringing up antitrust. I 

cannot count myself as an expert, but I can tell you it is an area 

I enjoyed practicing in very much. I represented plaintiffs as well 

as defendants. I represented class actions as well as defended 

against antitrust charges. I attempted sometimes, quite unsuccessfully, to interest the Department of Justice and attacking a merger 

or two for a client. You know what that business is like. 

When I teach antitrust, I try to teach everything about antitrust. 

I try not to take a view. I try to teach it in the Socratic method. 

I try to expose my students to the roots of our antitrust decisions— 
367 

Appalachian Coal, what might be classified as the biggest bad 

school. I tried to expose them as well to the Chicago School, which, 

you know, you are a graduate of the University of Chicago, and 

give them some sense of the economics that lie behind that. 

And then, I tried to expose them as well to more recent learning 

in this area and expose them to Professor Sunstein and his book, 

Nudge. So, I try not to take a view. I try to expose them to all 

views so they can make up their own minds. I believe that is an 

important function as a teacher is not to—not to be doctrinaire, but 

to be challenging. And I was very gratified the other day when I 

opened up the mail in my class, which I was teaching antitrust 

when all this happened, and I had said—they were very curious 

whether I was going to get the nomination. I said, nah, it is not 

going to happen, but if it does and I turn into a pumpkin, I will 

have a friend step in to teach the rest of the semester. 

In the mail the other day, I have a tie with pumpkins on it. 

Senator KLOBUCHAR. There you go, yes. So, what do you see as 

the dangers to consumers and innovation if the courts make antitrust enforcement too difficult? 

Judge GORSUCH. Well, the real problem at the end of the day, I 

mean, you have a problem of lack of competition between competitors, and then of course that filters down to the consumer level. 

And what that yields are higher prices, and lower output, the dead 

weight loss to the economy, loss of production, and those are real 

harms. 

And the antitrust laws, as you know, were the original Federal 

regulatory regime. That was it for the national economy for a long 

time, and they are still vital and brilliant in their simplicity and 

design. 

Senator KLOBUCHAR. You know, one issue that is particularly important to me, and this gets into my bill with Senator Grassley, 

which I will not ask you to comment on—he has been very vigorous 

and done some great work in this area—is the pay for delay pharmaceutical agreements where prescription drug companies actually 

pay generic drug companies to keep their cheaper drugs out of the 

market. These deals, in our view, can increase the cost of prescription drugs by billions of dollars a year. There was actually a CBO 

score on that, and until 2013, some courts had treated such agreements as per se legal. 

Then the Supreme Court, as you know, in FTC v. Actavis, held 

that they were subject to the rule of reason. And I know you teach 

that case because it is on your antitrust syllabus. So, what do you 

understand its reasoning and holding to be, and do you believe it 

was correctly decided? You may not want to go into that part, but 

how do you describe this case to your students? 

Judge GORSUCH. Well, it is a great case. And as you will recall, 

and at least as I remember it because I do teach from it. And the 

year it came down, I had my students argue both sides, and half 

of them played the Supreme Court. They correctly predicted the 

outcome. It was quite impressive. 

As I recall, one side was arguing for a per se unlawful rule. The 

other side was arguing for a per se lawful rule. And the Supreme 

Court, through Justice Breyer, as I seem to remember, who himself 

is an antitrust expert, said that the rule of reason applies, in part 
368 

because we as courts, he said, had not had a lot of experience in 

this area, and are very leery about making any per se rules, any 

bright line rules until we have some experience. 

That is one lesson we have learned in antitrust law over the 

years is to be cautious about per se rules in either direction before 

you have some experience, and that you can learn from the economics as you go. 

Senator KLOBUCHAR. As I was looking over that syllabus, I also 

noticed that you assigned both the 2008 DOJ report on monopolization and the FTC’s response. 

Judge GORSUCH. Yes. 

Senator KLOBUCHAR. As you know, this is a big debate. The FTC 

criticized the DOJ’s report because the DOJ’s guidelines were too 

lenient on monopolization. It would hurt consumers. That is their 

position. How do you teach this controversy, and which agency do 

you think had the better understanding of the law? 

Judge GORSUCH. Senator, I teach it the same way as I teach the 

rest of the course, which is in a very Socratic method, and to try 

and expose my students to all the learning that I know of that is 

available. And it is quite a comprehensive course. I think it is considered one of the more difficult classes at the law school, or I hope 

it is. Federal courts maybe even harder, I do not know. 

Senator KLOBUCHAR. So, you do not want to weigh in on this debate. 

Judge GORSUCH. Oh, Senator, there is no way you are going to 

get me—— 

[Laughter.] 

Senator KLOBUCHAR. All right. All right. One last thing here. We 

live in an age where there are dominant internet companies in 

many areas which control access to customers. internet search, social media, online travel are just a few examples. And Senator Lee 

and I both hear concerns in our role with the Subcommittee that 

when such dominant platforms do not deal with potential competitors, their refusal can pose a serious threat to new businesses, consumers, and innovation. 

On refusals to deal as an antitrust violation, in the Novell case, 

you wrote, ‘‘The point of the profit sacrifice test is to isolate conduct 

that has no possible efficiency justification.’’ That principle is not 

explicitly in the Supreme Court cases. So, is it your view that a refusal to deal can violate the Sherman Act only if there is no possible efficiency justification? 

Judge GORSUCH. Senator, I would have to go back and read what 

I wrote Novell to give you a fair and honest answer to that question. But I can tell you in Novell I was attempting to apply the Supreme Court’s teaching in Trinko and Aspen Skiing, which are the 

two refusal to deal cases, as faithfully as I could, and I can tell you 

that. 

You know, we have had some fun refusal to deal cases over the 

years. 

Senator KLOBUCHAR. Yes. 

Judge GORSUCH. Think about it. I mean, Aspen Skiing and—— 

Senator KLOBUCHAR. There you go. 

Judge GORSUCH. Right? 
369 

Senator KLOBUCHAR. Well, there may be more fun to come because, you know, I think one of the things about using such an absolute test and risking immunizing the conduct, particularly in the 

context of the internet, could be a problem because I think we have 

to look at what may be to come here. And we are just beginning 

to see a new kind of competitive marketplace with companies that 

may have control, and it may be really hard for new customers to 

get in. So, that was just something I wanted to plant in your head 

here as we go forward since you will be—if you are confirmed, you 

have a lot of expertise in this antitrust area. 

And I just think we are just seeing more and more issues that 

are new and coming up, even in the last few years. And I know 

there has not been a case for a while, but there could well be one. 

Judge GORSUCH. I appreciate that, Senator. 

Senator KLOBUCHAR. All right. So, thank you very much. 

Judge GORSUCH. Thank you. 

Chairman GRASSLEY. Senator Lee. 

Judge GORSUCH. Mr. Chairman? Mr. Chairman, before this is 

over, I would like to have one word to everyone. I do not know 

when is appropriate moment before folks leave. 

Chairman GRASSLEY. Well, maybe we ought to notify offices and 

tell people to come back—— 

Judge GORSUCH. Oh, gosh no. No, no, no, no. No, no. I just want 

to say thank you before people leave. 

Chairman GRASSLEY. Why do you not do that right now and take 

as long as you want? 

[Laughter.] 

Judge GORSUCH. Does that mean I get to leave? 

[Laughter.] 

Judge GORSUCH. No, I just know some people are walking out 

the door, and I just want to say this for the record, and if there 

is anybody left watching, I still want to catch them, the American 

people. 

I have spent the last, what is it, 2 months in these buildings 

with you, 72 of your colleagues, and I wish the American people 

could see what I have seen. That is all. I think if they had seen 

what I have seen, they would be much bigger believers in their government than they are. 

It is not perfect, my branch is not perfect, but I am a believer 

in it. And I want to thank you, all of you, each and every one of 

you for doing what you do for the American people, the seriousness 

with which you take this project, and, Mr. Chairman, for the courtesies you have all shown me, each and every one of you. 

Thank you. That is what I wanted to say before folks went home. 

Chairman GRASSLEY. God bless you. Senator Lee. 

Senator LEE. Thank you, Judge, and thanks for your nice comments about our institution. We are not an institution that receives 

a lot of praise every day, and that means a lot. 

Judge GORSUCH. You deserve a lot more than you get. 

Senator LEE. I wanted to cover one thing with you very briefly. 

One of my colleagues mentioned a few minutes ago an email that 

you had sent praising remarks by Judge—then-Attorney General 

Alberto Gonzales back in 2006, February 6th, 2006. 
370 

I have got a copy of the transcript from that day. The remarks 

that you were supposedly praising were made and are recorded on 

page 53 of the transcript, which I offer into the record, and I also 

ask unanimous consent to offer those portions of the transcript and 

a copy of the email into the record. 

Chairman GRASSLEY. Okay. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator LEE. The comments that were the subject of that discussion, recorded on page 53 of the transcript, indicate that the Committee took a break and reconvened after lunch at 1:45 p.m. on the 

date in question. The email, which I have offered into the record 

and which was sent by you on February 6th, 2006 to Kyle Sampson 

and Will Machello, was sent at 1:17 p.m. 

Unless I am missing something, that would indicate that your 

email in which you said, I think the Attorney General is doing a 

nice job today, was sent roughly one half hour before the comments 

that were deemed problematic by my colleague and were raised a 

few minutes ago. Do you, Judge Gorsuch, have the ability to see 

30 minutes into the future? 

[Laughter.] 

Judge GORSUCH. Right now, I kind of wish I did. 

[Laughter.] 

Senator LEE. I would find it very impressive if you did, but absent that very remote possibility, I would submit to my colleagues 

that it is impossible that the email that Judge Gorsuch sent on 

February 6th, 2006 at 1:17 p.m., had any reference to the comments made reference to by my colleague from Rhode Island a few 

minutes ago. 

That is all. Thank you. 

Judge GORSUCH. Thank you, Senator. 

Chairman GRASSLEY. Senator Coons. 

Senator COONS. Thank you, Mr. Chairman. Thank you, Your 

Honor, and I want to thank my colleague, Senator Franken, for allowing me to go ahead. I have a speech to give with a colleague 

in the Capitol in a few minutes. 

And I would like to thank Louise and everyone else from your 

family, and your family of clerks and supporters, who steadfastly 

have been with you through what has been I know a very demanding and long process. I think you have shown more diligence and 

more stamina than certainly I would have or many of our colleagues would have. 

I just want to conclude, if I could, a conversation that I opened 

in in my second round of questioning about the Browder case, 

Browder v. Albuquerque. I did not want to leave this unresolved, 

because we had a long conversation about substantive due process, 

and I have made reference before to a practice you engage in of 

writing concurrences, and sort of trying to understand what that 

means and what I can conclude about that. 

So, just to remind everybody, Browder is a case where you dealt 

with a claim that an off duty—a newly off duty police officer went 

roaring through the center of town at 60 miles an hour, sped 

through 11 intersections with his lights on in his police car, and 

rammed a car and killed one person and badly injured another. 

And this is a case that was in Federal court because of Section 
371 

1983, which is an important statute that allows the vindication of 

rights that have been violated, constitutional rights. 

And I was struck in this case that you went out of your way to 

write a concurrence to your own majority opinion. And the way I 

read it was that you argued Federal courts should decline to address Section 1983 violations if there is a remedy under State tort 

law. Why did you go out of your way to write a concurrence that 

would, if applied, significantly narrow a Federal court’s ability to 

consider valid constitutional claims? 

This was a case directly applying substantive due process analysis and where you said, ‘‘I do not think we ought to keep the doors 

of the Federal courthouse open.’’ I have familiarity with 1983 

claims from my own county service and role supervising a police 

department. It plays a central role in making sure that litigants 

who have suffered some loss or injury under color of State law have 

a chance to pursue a remedy. 

Why did you write that concurrence, Judge? 

Judge GORSUCH. Senator, I appreciate the opportunity to clarify 

the record on that because I think there may be some confusion. 

I vindicated the 1983 claim in that case, as I have in many, many, 

many cases, Senator, if you want to pick them out, one here, one 

there. I could give you, for instance, Sutton, which we have talked 

about, or AM we have talked about. Those are just a couple. I could 

give you a whole bunch more if you want. 

What I wrote separately to indicate was sometimes we judges 

judge best when we judge least. And if there is already a State tort 

claim that is perfectly suitable and can achieve everything that the 

plaintiff wants, and, in fact, sometimes the plaintiff wants to be in 

State court, but gets dragged—removed, I should say—that is the 

legal term—to Federal court, okay? That happens not infrequently 

in my Circuit in 1983 cases. 

There is a doctrine called Parratt, a Supreme Court decision, 

that suggests that we should defer to State proceedings in those 

circumstances if they are perfectly adequate, fair, and complete 

remedies. And our precedent, I just pointed out, maybe we had 

missed Parratt, Supreme Court direction. 

I was bound by our precedent. I followed our precedent. But I 

suggested that perhaps we needed to take another look at our 

precedent in light of Parratt, the Supreme Court’s direction. 

I also emphasized, to be clear, Senator, that Parratt only allows 

abstention in circumstances where the State remedy is full and 

complete, and there is no possibility that the State court will be an 

inadequate forum. If you look carefully at that concurrence you will 

see that language there quite clearly and quite prominently, Senator. 

Senator COONS. And perhaps I misread it. In my consideration 

of it, I was struck by this in part because it seemed in Zimmerman 

there was already a 1990 Supreme Court decision that suggested 

Parratt should not be applied in that way, in that context. 

But the larger point for me is that in Browder you are suggesting 

the Supreme Court—you are pointing in the concurrence—you are 

pointing that the Supreme Court could overturn precedent to narrow the scope of 1983 in this way to limit the situations where Federal courts would hear constitutional claims. But in our conversa-
372 

tion about RFRA, and for-profit corporations, and religious rights 

under Hobby Lobby, you pointed repeatedly saying that should be 

done by Congress. This is what the legislative branch should do, 

not what the Court should do. 

So, it seemed to me there was some tension between the way you 

looked at another situation where you issued a concurrence saying 

I am bound. I am bound by precedent, but I do not like it, and I 

think we probably ought to make a change. Instead of pointing it 

our way, you pointed it at the direction of the Supreme Court. 

If you thought 1983 should be narrowed, why did you not call on 

Congress to make that change? 

Judge GORSUCH. Senator, respectfully, I believe you are 

misreading what I wrote. I was not advocating limiting 1983 in 

any, way, shape, or form. I was suggesting that perhaps we as a 

court had not paid sufficient attention to the Supreme Court’s direction in Parratt. That is it. And in all of these cases, I apply our 

precedent and the precedent of the U.S. Supreme Court, and the 

directions of Congress as faithfully as I can without any secret hidden agenda, Senator, none. 

And in Browder, I upheld the plaintiff’s claim. That is what I did. 

That is my record in that case. 

Senator COONS. That is right. The majority opinion, which you 

wrote, which is a three-judge opinion, upheld the claim. But I guess 

what I was—what drew it to my attention was your comments 

about substantive due process. And as I—we said before, two of 

them were Supreme Court cites. 

Judge GORSUCH. Thank you for acknowledging that. 

Senator COONS. But that is a choice to say substantive due process, which is the subject of some debate among scholars and Justices, is uncharted, open ended, murky, has a paradoxical name, 

‘‘substantive due process.’’ And I just wanted to come back again 

because this is where we ended the previous round of questions to 

see If I misunderstand how you interpret substantive due process. 

Are there—what are the factors that you look at, because this 

goes back to the Casey, and Glucksberg, and others. What are the 

factors that you look at to determine whether a right is fundamental and appropriately protected under substantive due process 

under the Fourteenth Amendment? 

Judge GORSUCH. Senator, I look to precedent. And in the 

Browder case, I applied the precedent of our court and of the Supreme Court of the United States. And our precedent indicated 

that the plaintiffs had a claim that should be vindicated, and I 

upheld the plaintiff’s claim. 

There additionally was precedent from the U.S. Supreme Court 

that suggested that in circumstances where the State courts are 

open and available, and there is no indication that there be any unfairness, that perhaps sometimes judges judge best when they 

judge least. Do not make more a new law than you have to. 

That is a principle that I think good judges bear in mind when 

you can. That is not to say you always write the narrowest or craft 

the strictest construction. You try and come up with a fair construction, but that sometimes if everything is available that might 

be made available to a party to be made whole, not to restrict their 

access in a way, shape, or form, Senator. But if everything can be 
373 

done that can be done, then perhaps we should stay our hand once 

in a while. 

Senator COONS. Well, that is reassuring. As I suspect you well 

know, Section 1983 was originally enacted. It has been referred 

casually as the Ku Klux Klan Act because it in the Reconstruction 

Era was an avenue into State court to allow citizens who could not 

get any redress in State courts to get into Federal court. Forgive 

me. 

Judge GORSUCH. Absolutely. 

Senator COONS. As a way to protect constitutional rights that 

were newly enacted after the Civil War. And it is one that in my 

role as a county elected where I was trying to monitor whether or 

not my police department, the police department the county for 

which I was indirectly responsible, was conducting themselves in 

full compliance with the rights of our citizens. 

One of those early indicators is how many 1983 filings do you see 

in any municipality, in any county. And I wanted to make sure I 

did not misunderstand your ruling in Browder, and your concurrence in particular, as indicating some enthusiasm for narrowing 

access to Federal courts for litigants. 

So, if I hear you right, your concurrence—again, an unusual 

thing to do to write concurrence to your own unanimous majority 

opinion—is simply expressing that if you are confident that there 

is no threat to recovery in a State court, that someone injured as 

the individual who was killed was and her family Member, should 

go to State court were tort law is fully developed, and there is a 

great deal of precedent, rather than to Federal court. 

Judge GORSUCH. Right. 

Senator COONS. But this is no suggestion on your part that constitutional rights do not belong in litigation. The transition point 

I made earlier was the 2005 article where you were suggesting 

some have too much enthusiasm for pursuing relief in the Federal 

courts. 

Judge GORSUCH. Senator, I think you now have a have a handle 

on where I was coming from. I appreciate the opportunity to clarify 

that. I think your summary right there at the end gets it. 

Senator COONS. Well, I will have some more questions for the 

record if I might. 

[The information appears as a submission for the record.] 

Senator COONS. I appreciate the opportunity that I have had to 

meet with you and to ask a number of questions, and the seriousness with which you have taken my questions and the deliberations 

of this Committee as a whole. Thank you very much. 

Judge GORSUCH. Likewise, Senator. 

Chairman GRASSLEY. Senator Crapo. 

Senator CRAPO. Well, thank you, Mr. Chairman. I am going to 

simply say thank you, Judge, for giving us this time and for your 

candor with us as we have asked you questions. I am not going to 

ask you any further questions, and will yield back my time. 

Judge GORSUCH. Thank you, Senator. 

Chairman GRASSLEY. Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman, and may I just add 

with a number of my colleagues my admiration for the way you 
374 

have done this. Thank you, Judge Gorsuch, for your family, your 

wife, and your clerks, and you for hanging in there. 

Before I begin, I would like to ask consent that the following letters be entered into the record, Mr. Chairman: The Leadership 

Conference on Civil and Human Rights, Bend the Arc, Jewish Action, and the National Education Association. 

Chairman GRASSLEY. Those three documents, without objection, 

will be entered. 

[The information appears as a submission for the record.] 

Senator FRANKEN. Thank you, Mr. Chairman. 

Judge, during oral arguments for Shelby County, Justice Scalia 

seemed to suggest that it is the Court’s job to step in when Congress’ motives cannot be trusted. Justice Scalia questioned the significant rise in support for the Voting Rights Act when Congress 

voted for its reauthorization in 2006, which passed the Senate 98 

to zero, and the House 390 to 33. 

He essentially said that a Senator would have nothing to gain by 

voting against reauthorizing the Voting Rights Act, and that as a 

result, the Court should not read anything into the overwhelming 

support for the bill. Justice Scalia said, ‘‘It is a concern that this 

is not the kind of question you can leave to Congress.’’ He went on 

to say, ‘‘Even the name of it is wonderful, the Voting Rights Act. 

Who is going to vote against that in the future?’’ 

When the Solicitor General suggested that it would be unusual 

to analyze Congress’ judgment in this way, Justice Scalia said, and 

again quote, ‘‘I am not talking about dismissing it,’’ meaning Congress’ judgment, ‘‘I am talking about looking at it to see whether 

it makes any sense.’’ So, he is suggesting that the Court look at 

Congress’ judgment to see whether it makes sense. 

Now, this highlights two things that are pretty concerning to me. 

One, Justice Scalia’s cynicism about lawmakers’ motives. His remarks demonstrate a contempt for Congress that, in my view, also 

demonstrates a willingness to engage in the kind of judicial activism that many of my colleagues are quick to condemn, a willingness to ‘‘legislate’’ from the Bench. Justice Scalia’s willingness to 

reach beyond the legislative history to question Congress’ political 

motivations disrespects the separation of powers. 

And, two, Justice Scalia’s remarks ignored the facts. When Congress debated reauthorizing the Voting Rights Act of 2006, it developed a significant legislative record: 15,000 pages of hearing testimony, documentary evidence and appendices, State records, and reports from outside experts that demonstrated the continued need 

for the legislation. To suggest Congress’ support for the bill was 

based on anything other than substance ignores the reality that 

more Members of Congress supported the Voting Rights Act because the legislation accomplished on an ongoing basis exactly 

what Congress designed the Voting Rights Act to accomplish. 

Judge Gorsuch, during our courtesy visit I asked what you 

thought about Justice Scalia’s remarks, and I asked you whether 

you agreed that what he said demonstrated a contempt for Congress. You emphatically said that Justice Scalia’s remarks were not 

the words that you would have chosen. 

Judge GORSUCH. Senator, I admire Justice Scalia greatly, but his 

words are his words, and mine are mine. And I would ask you re-
375 

spectfully to judge me based on my credentials and my record. Justice Scalia’s legacy will live on a lot longer than mine, I am sure. 

Senator FRANKEN. I understand that. It was good to hear that 

you would not have said that, but I found that frustrating because 

it was not the answer to my question. Here, despite a unanimous 

Senate vote in support of the Voting Rights Act and a 15,000-page 

legislative record demonstrating that there was a significant debate 

over the bill, Justice Scalia questioned Congress’ motives in deciding to support the bill. 

It seems to me that he is substituting his own personal views for 

the facts on the—in the record. Do you agree a willingness to engage in this kind of speculation could be perceived as judicial activism? 

Judge GORSUCH. Senator, respectfully, I just do not think it is 

appropriate for me to comment on the work of my superiors or Justice Scalia’s words at oral argument, or any other Justice’s comment in oral argument. 

Senator FRANKEN. Well, I think that it is important, this issue 

of judicial activism, because that is something that has disturbed 

me about the Roberts Court. And this is one of the big decisions, 

which is the Voting Rights Act. 

But setting aside that—that was a five-four decision—I want to 

know whether you would—forgetting judicial activism. I want to 

know if you agree with the substance here. Justice Scalia seemed 

to be reaching beyond legislative history in this case to question 

the political motivations underlying congressional action. In your 

view, is that kind of inquiry appropriate for courts to engage in? 

Judge GORSUCH. And, Senator, again, I just do not think it is appropriate for me to sit here and grade a Justice’s comments at oral 

argument. 

Senator FRANKEN. Okay. All right. 

Judge GORSUCH. Judges often make—ask questions at oral argument that are hypothetical or do not represent their actual views 

because they are testing ideas. 

Senator FRANKEN. Okay. Well, that—— 

Judge GORSUCH. I was not there. I did not hear it. I am not going 

to condemn a man for arguments I have not heard, or thought 

carefully about, or know more about. And Justice Scalia’s legacy 

will live on a lot longer than mine. I am confident of that. 

Senator FRANKEN. Well, let us move on to the Shelby decision 

itself. We talked about this in the courtesy visit. This was another 

five-four decision by the Roberts Court. Here, the Court gutted the 

Voting Rights Act. Before that decision, the Act required certain 

States, States with a history of engaging in discriminatory practices at the polls, to get the Federal Government’s approval before 

making changes to their voting laws. It was called pre-clearance, 

and it worked. 

Within 4 years of passing the Voting Rights Act in 1965, nearly 

one million Black voters registered, and the number of Black elected officials in the South more than doubled. But the Shelby County 

majority suggested that discrimination at polls was no longer a 

problem, essentially using the law’s success at preventing discrimination to justify gutting it. So, a sharply divided Court—again, 5– 

4—that is important—struck down a provision that determined 
376 

which States were subject to pre-clearance. As a result, none of 

them are. 

In the wake of that decision, States previously covered by 

preclearance started testing the limits of what they could do. Texas 

and North Carolina passed discriminatory voter ID laws. North 

Carolina eliminated same-day registration and cut the early voting 

period. When North Carolina’s restrictions were challenged in 

court, the Fourth Circuit ultimately struck them down, finding that 

the State’s ‘‘new provisions’’ target African-Americans with almost 

surgical precision. 

You mentioned that Section Two of the act was still in place 

when we were talking before, which allows discriminatory laws to 

be challenged, but only after they have been enacted. So, I pointed 

out that North Carolina, for example, enacted its surgically precise 

restrictions in 2013, but the Fourth Circuit was not able to strike 

down those restrictions until 2016. So, these restrictions were in 

place for years, and these restrictions accomplished exactly what 

they were designed to do when they kept African-Americans from 

voting in the 2014 election. But these restrictions would have been 

stopped by pre-clearance. 

We talked about this, and I asked you does this disturb you at 

all. You replied simply that equal protection of the law was one of 

our country’s great promises, but you did not answer my question. 

We went around the barn a few times on this one, and you told 

me that voting is a fundamental right. I know that. 

This is a job interview. You are applying for a lifetime appointment to the highest court in the land, and vindicating the rights 

of people before the Bench is one of the core functions of that job. 

So, knowing whether you are disturbed by a State’s government’s 

effort to systematically and strategically discriminate against its 

citizens by race is really, really important, and it seemed like an 

easy question to me. 

So, I will ask you again, does that disturb you at all what happened? 

Judge GORSUCH. Senator, if there are allegations of racism in 

legislation in the voting arena, there are a variety of remedies. 

The first, of course, is a claim under the Constitution, the equal 

protection clause. 

Senator FRANKEN. There used to be preclearance, and that used 

to do the job. 

And, again, this is a 5–4 decision. This is what were talking 

about here. I want to emphasize why we are here, and why all of 

this matters so much. 

Some of this—some of us on this side of the aisle have been accused of asking unfair questions, of impugning judges, of essentially turning this into a show, apparently because we are bitter 

about what happened to Chief Judge Garland. 

And, yes, I strongly believe that what happened to Merrick Garland was unfair and disgraceful. 

The argument that we should judge and are judging candidates 

solely based on their qualifications is betrayed by the fact that 

these are the same people who blocked Merrick Garland, and 

Merrick Garland has every qualification. He is a man who is recognized as one of the best appellate judges in this country, in large 
377 

part because he has developed a reputation for bringing judges 

across the ideological spectrum together to craft strong consensus 

decisions. 

So, yes, I was looking forward to his nomination moving forward, 

but I do not blame you, Judge Gorsuch, for what happened to him. 

And, ultimately, this is not about Judge Garland. 

If Justice Scalia had died 1 month ago, and we were here today 

with President Trump’s nominee, we would be talking about the 

same things. I think I and all my colleagues have asked tough but 

fair questions about your record, about your judicial philosophy, 

and about your ability to understand the practical outcomes of 

these decisions. And it is because we are deeply concerned about 

the Roberts Court—what the Roberts Court rulings have done for 

the rights of Americans. 

In one 5–4 decision after another, we have seen the Roberts 

Court go out of its way to answer questions not before it, to overturn precedents, to strike down laws enacted by Congress, and to 

do all of this at great cost to consumers, workers, small businesses, 

to middle-class Americans, to those who do not own a car and do 

not have a driver’s license so it is harder for them to vote. 

We talked about forced arbitration. Through a series of 5–4 decisions, the Roberts Court has eroded Americans’ ability to seek justice in the courts when they have been cheated or mistreated by 

a corporation with vast resources. 

We talked about voting rights and Shelby, another 5–4 decision. 

The Court gutted a key provision of the Voting Rights Act and, 

with it, suppressed African-American votes. That is what it did. 

And in Citizens United, also 5–4, the Roberts Court allowed 

money to pour into our elections. We do not know where a lot of 

it is coming from, and it is eroding Americans’ trust in our most 

fundamental democratic institutions. And the public thinks it 

stinks, Republicans and Democrats alike. 

That is why we are here. This is about people getting to court, 

about people getting to vote. This is about people losing—Americans losing faith in our democracy. 

So, look, while I strongly agree that it is your job to follow precedent, as you have emphasized over and over again, I also want to 

know that you will consider the real-world consequences of your decisions, because the stakes are just too high. 

I want to know that you understand why we have been here and 

why we have been asking you the questions, because—and I think 

Senator Whitehouse spoke very, very clearly on all these 5–4 decisions. 

And I just want to hear from you that you understand what the 

stakes of this are. 

Judge GORSUCH. Senator, I appreciate the opportunity—— 

Chairman GRASSLEY. Please answer and then—— 

Judge GORSUCH. Then I am done. 

Chairman GRASSLEY. But make it as short as you can. 

Judge GORSUCH. I can do that. 

We are all in the same boat together. This ship, we are all in it, 

and either we are all going to hang together or we are going to 

hang separately, to mix my metaphors at this late hour. 
378 

And the fact of the matter is, Senator, of course I care about this 

country. I care deeply about this country, and I know you do too. 

Thank you. 

Chairman GRASSLEY. Senator Cornyn. 

Senator CORNYN. Judge, let me offer an alternative point of view 

to my friend Senator Franken’s dystopian description of where the 

country is and the role of the Court. 

I am particularly concerned about his description of the Court’s 

decision in Shelby County v. Holder, because we were—I was part 

of the Senate Judiciary Committee, a number of us were, when we 

voted to reaffirm the Voting Rights Act, to reauthorize it, and recognized it as one of the great accomplishments of America, in terms 

of protecting and vindicating the rights of people, everyone, to vote. 

But, as you know, Congress and the Supreme Court did not gut 

the Voting Rights Act. Section 2 remains a part of that important, 

historic legislation. 

And so I just recoil when I hear people describe what the Court 

did as gutting the Voting Rights Act. Here is what the Court did. 

Congress, when it reauthorized the Voting Rights Act, did not update the formula by which the—Section 5 applied, which would require preclearance in States so they could not even change their 

own voting laws. Because they were covered by preclearance, they 

had to ask permission of the Federal Government, the Department 

of Justice, and others in order to do so. 

But for some reason, rather than update the formula with current voting records—it had decades-old, several decades-old voting 

information, which had an impact of keeping more States and more 

municipalities, more governmental entities, within the preclearance 

requirements of Section 5. 

The irony of this is the Voting Rights Act has vindicated and protected voting rights in an unprecedented sort of way. And even 

those States that had been swept up into the preclearance requirements, let us say back in the 1960s, had better outcomes for minority voters than many States that were not covered by Section 5, the 

preclearance requirement. 

So the mistake that Congress made when it reauthorized the 

Voting Rights Act is it included a formula that did not reflect current reality, did not recognize that America had made great strides 

forward, thanks to the Voting Rights Act and vindicating minority 

voter rights. 

So I just—I was here. I remember the debate. As a matter of 

fact, I joined several of my colleagues and filed minority views 

when we reauthorized it, pointing out the irony of using decadesold voting records in reauthorizing the Voting Rights Act. 

So what the Court said—the question actually presented—I will 

read it quickly. It says, does the renewal of Section 5 of the Voting 

Rights Act, the preclearance requirement, under the constraints of 

Section 4(b), that was the formula I referred to, exceed Congress’ 

authority under the Fourteenth and Fifteenth Amendments, and, 

therefore, violate the Tenth Amendment and Article IV of the Constitution? 

That is what the Court decided. The Voting Rights Act maintains 

its force and important role in our jurisprudence today, and the 

Court found that the formula simply did not reflect current reality, 
379 

what passed and exceeded Congress’ authority under the Constitution. 

I mention all this not to ask you a question, but just to use the 

opportunity to say, you know, when people agree with the Court’s 

decisions, and I can name a number of them that my friend from 

Minnesota would agree with and applaud, you know, it is great. 

When the Court reaches a decision that disappoints your expectations or perhaps your political agenda, then it is easy to jump on 

the Court and criticize it. 

Nobody likes to lose in a court, but I think you appropriately earlier talked about the importance of not criticizing or characterizing 

the judges because judges, by and large, are patriots, people performing a public service at great financial sacrifice and, unfortunately, sometimes get accused of doing things that are totally unfair and off-base. 

So I just wanted to take a moment to correct the record and what 

the Court actually did. And I happen to come from a State, the 

State of Texas, that is proud of the strides that we have made to 

overcome the record back in the 1960s when we were not so proud, 

we should not have been so proud about minority voting rights. But 

we have made great strides in that area, as have so many places 

that were covered by the Voting Rights Act under Section 4, which 

the Court struck down as not reflecting current reality. 

We should stand up and applaud our great country for trying to 

overcome this legacy of diminishing minority voting rights, and I 

think the Court’s decision is something that reflects that and is to 

be applauded and not condemned. 

So thank you for sitting there and listening. Thank you for your 

willingness to serve. And thank you for the way you have conducted yourself throughout this hearing. I look forward to enjoying 

and watching from afar your service to our country for many years 

to come. 

Thank you. 

Judge GORSUCH. Thank you for your service, Senator. 

Chairman GRASSLEY. Senator Blumenthal. 

Senator BLUMENTHAL. Thanks, Mr. Chairman. 

I would like to enter into the record, if there is no objection, a 

letter from 55 reproductive rights, health, and justice organizations 

opposed to the nomination, and a letter from 72 women lawyers 

who submitted an amicus brief in Whole Woman’s Health v. 

Hellerstedt. Chairman GRASSLEY. Both will be entered in the record, without 

objection. 

[The information appears as a submission for the record.] 

Senator BLUMENTHAL. Judge, you referred, at some point, I 

think, to your clerks as evanescent. I think you used that word. 

But I think many of them are still here, so they have—— 

Judge GORSUCH. They are. 

Senator BLUMENTHAL [continuing]. Been far from evanescent in 

this proceeding. 

Judge GORSUCH. They have been wonderful, as has my family. 

Senator BLUMENTHAL. And congratulations to them and to 

you—— 

Judge GORSUCH. Thank you. 
380 

Senator BLUMENTHAL [continuing]. And to your clerks. 

Judge GORSUCH. Thank you. I appreciate it. 

Senator BLUMENTHAL. I met a couple of them earlier who said 

that, and I am not going to embarrass them by naming them, but 

one of them said that he had left his employment with a law firm 

to help you prepare for this proceeding, so they have been part of 

your team. 

Who else has helped you prepare? 

Judge GORSUCH. First and foremost, my wife, Louise, who has 

been with me through thick and thin. When the gruel is thin, the 

gruel is thick, she is there. She is my rock. 

I also have to thank Senator Ayotte, my sherpa. I did not know 

that was an official title, but it is around here. 

I really appreciate this opportunity. 

Senator Ayotte, I did not know Senator Ayotte until the day after 

my nomination, well, the day of my nomination, February 1st, 

which would have been my father’s 80th birthday. And he smiled 

on me that day because he gave me Senator Ayotte. 

And I do not know how many miles we have logged walking the 

halls together, meeting with you and your colleagues. She has become a fast and permanent friend. 

Where is Mary Elizabeth? 

Mary Elizabeth, who was in your Republican Senate Cloakroom 

and is now in the White House, she has been just so special to me. 

Senator BLUMENTHAL. Anyone else from the White House? 

Judge GORSUCH. Oh, gosh. Is McGinley here? He is one of my 

former law clerks who is now a young lawyer in the White House. 

And I never thought I would actually have somebody carry my 

bag—— 

[Laughter.] 

Mr. MCGINLEY. I never thought I would carry a bag after graduating law school. 

Judge GORSUCH. I feel very guilty about it, because this is a very 

fantastic young lawyer. Watch out for McGinley. 

Senator BLUMENTHAL. Anyone from the Department of Justice? 

Judge GORSUCH. Oh, gosh. Who is here from the Department? 

Well, a whole bunch of folks. 

Senator BLUMENTHAL. So you have been well-prepared. 

Judge GORSUCH. Patrick Bumatay, Eric Tung, one of my former 

law clerks, one of Judge Tymkovich’s former law clerks now in the 

Department of Justice have been helpful. As I know—to produce all 

those documents, I think they spent a lot of time reviewing and 

producing documents for this Committee, and I am very grateful to 

all of them. 

So there have been a lot, a lot of special people. 

Senator BLUMENTHAL. I would be remiss if I failed to ask whether anyone from outside organizations has assisted in this process. 

Judge GORSUCH. I definitely had friends, you know, beat me up 

with questions and things like that, absolutely, Senator, sure. Of 

course. 

Senator BLUMENTHAL. And has anyone from, for example, the 

Heritage Foundation helped you prepare? 
381 

Judge GORSUCH. I do not know who is from Heritage. No one has 

come up to me and said I am from the Heritage Foundation, and 

I am here to help. 

[Laughter.] 

Judge GORSUCH. I have definitely leaned on my friends, Senator, 

and I have leaned on people from the Department of Justice and 

the White House Counsel’s Office, my family. 

Senator BLUMENTHAL. And former clerks. 

Judge GORSUCH. And former, yes, yes, yes, and current clerks 

too. 

Senator BLUMENTHAL. I have a couple substantive questions for 

you. 

Judge GORSUCH. All right. 

Senator BLUMENTHAL. No right is absolute under the Constitution. Is that a correct statement? 

Judge GORSUCH. Well, Justice Black used to think so. 

Senator BLUMENTHAL. He said no law, and he said no law meant 

no law—— 

Judge GORSUCH. Right. 

Senator BLUMENTHAL [continuing]. Limiting free speech. 

Judge GORSUCH. Yes. 

Senator BLUMENTHAL. But, in fact, rights frequently conflict, and 

there is a balancing that takes place, correct? 

Judge GORSUCH. Senator, there are always tensions in the law 

that we mediate. As legislators and judges and the executive 

branch, we all play a role in mediating tensions between competing 

rights. 

Senator BLUMENTHAL. I want to talk a little bit about, in that 

context, the Second Amendment and about the decision in Heller. You undoubtedly know that Connecticut experienced one of the 

worst tragedies in our history when the massacre occurred at 

Sandy Hook. I have long been an advocate of commonsense, sensible measures to combat gun violence, going back to my earliest 

days as State Attorney General. And my colleagues, many of them, 

including Senator Feinstein who mentioned Sandy Hook here and 

Senator Durbin, have been champions of this measure, these kinds 

of measures. 

And I mentioned the balance of rights because that was a theme 

that Justice Scalia mentioned in Heller. He wrote that the Second 

Amendment is ‘‘not a right to keep and carry any weapon whatsoever in any manner whatsoever for any purpose.’’ 

That I would read as a statement that the Second Amendment 

is not absolute. Would you agree? 

Judge GORSUCH. Senator, I would agree that, in Heller, the Court 

held that it protected guns in common use, for example, not every 

weapon or tank or ballistic missile, but guns in common use for 

self-defense, subject to reasonable regulation. That is my recollection sitting here of, more or less, the test the Court—— 

Senator BLUMENTHAL. Well, I will give you the quote, and I think 

it confirms your recollection. He said that the Second Amendment 

did not include ‘‘dangerous and unusual weapons,’’ such as ‘‘weapons that are most useful in military service, M–16 rifles and the 

like.’’ 

Do you agree? 
382 

Judge GORSUCH. Senator, the law is the law. It is the precedent 

of the U.S. Supreme Court. I follow the precedent of the U.S. Supreme Court as a judge. It is the same answer I have given. 

Senator BLUMENTHAL. Well, let me again ask you about another 

part of the Heller opinion. 

Justice Scalia wrote, he said, nothing in Heller was intended ‘‘to 

cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying 

of firearms in sensitive places such as schools and government 

buildings, or laws imposing conditions and qualifications on the 

commercial sale of arms.’’ 

Do you agree with that approach? 

Judge GORSUCH. Senator, I agree that Heller is the law of the 

land and that it is precedent of the U.S. Supreme Court, and it is 

the obligation of judges to apply precedent of the U.S. Supreme 

Court. 

Senator BLUMENTHAL. So it is a correct statement of the law? 

Judge GORSUCH. If you have read from Heller, Heller is the law. 

Senator BLUMENTHAL. And do you believe it is a correct interpretation of the Second Amendment? 

Judge GORSUCH. Well, Senator, it is the controlling interpretation of the Second Amendment. As I indicated maybe yesterday or 

maybe it was today, I do not know—we have spoken about Heller 

so many times. But I think both the dissent and the majority opinion were very fine opinions, very thoughtful, if you want to use the 

term originalist, opinions, Justice Stevens in dissent, Justice Scalia 

in the majority, very thoughtful, detailed look at the original public 

meaning of the Second Amendment. They came to different conclusions, as judges sometimes do in hard cases. 

But I think that is a wonderful case to look at and say there are 

judges doing admirable work of judges who might have reached different conclusions, some of them, if they were acting as legislators 

and voting on their preferences rather than trying to interpret a 

law. 

Senator BLUMENTHAL. But the basic idea of conditions imposed 

on that right, no right being absolute, public safety being a legitimate consideration, is one with which you would agree? 

Judge GORSUCH. Well, Senator, one example I remember, sitting 

here, in Heller, is the felon in possession statute, which I recall the 

Court specifically mentioned, and the dispossession of felons, which 

is a law that we administer regularly in the courts. 

Senator BLUMENTHAL. And in fact, a panel of your court, the 

Tenth Circuit, has held that the Second Amendment does not provide the right to carry a concealed firearm. That is Peterson v. Martinez. 

You were not on the panel, but it was the holding of your court, 

correct? 

Judge GORSUCH. I think that is right, sitting here, but I would 

want to go reread it. 

Senator BLUMENTHAL. I have the opinion. 

Judge GORSUCH. Senator, I trust your representation. 

Senator BLUMENTHAL. And you did not—no one requested a rehearing in that case, so if you had disagreed with it, you could 

have requested a rehearing. 
383 

Judge GORSUCH. Any judge can, as we have discussed—— 

Senator BLUMENTHAL. Right. 

Judge GORSUCH. Request a rehearing sua sponte. Yes. Correct. 

Senator BLUMENTHAL. You know, I asked about your preparation 

because I think you have been very adroit in answering many of 

my questions. And as adept as you have been, I remain troubled 

because you have been less forthcoming, less direct and specific 

than I hoped on whether you agree with the conclusions and results in some of those cases. And I think you probably sense my 

worry or unhappiness about some of those answers. 

And I understand that your approach is that there could be cases 

and controversies involving these decisions, but you have left 

doubt. And the doubt is increased because of statements made by 

the President who nominated you, that he was, in fact, choosing 

someone who would, for example, automatically overrule Roe v. 

Wade. And so I have felt that you had a responsibility to be, if anything, more forthcoming than judges or Justices nominated in the 

past. 

You were fairly clear in your answer on Brown, that you thought 

it ‘‘corrected an erroneous decision,’’ and that it was ‘‘a correct application of the law of precedent.’’ But you gave a different answer 

on Loving, Griswold, Lawrence, Eisenstadt, Obergefell. You said these cases were decisions of the Court. You informed 

us of the holding. But you were unwilling to say that they were 

correctly decided. 

And judges or Justices in the past, and I named some, we are 

more forthcoming, direct, specific, saying they agreed. They 

thought those decisions were correctly decided. 

So I remain troubled, and I am troubled because these doubts affect real lives and real people. Gay and lesbian Americans have to 

wonder whether Lawrence and Obergefell might be overturned, or 

whether you would vote that way. Americans will lack the confidence that Griswold and Eisenstadt will be upheld. 

They have to question whether they will be able to make their 

own reproductive decisions. 

Millions and millions of women who have apprehensions about 

Roe v. Wade and whether you would vote to overturn it will find 

very little basis for confidence in what you have said about those 

decisions. 

And I began by saying that I was looking for core beliefs. Your 

response was that your personal beliefs have nothing to do with decisions that you will make. But we know that core beliefs matter, 

just as words matter. And the distinctions that you have used in 

describing different cases matter. 

The great genius of our Constitution is that it grows to match 

the challenges of different times. The great genius of the Supreme 

Court, in my view, and of many Justices, is that they grow too. And 

I have seen it firsthand in the Justice I worked for, Justice Blackmun. You may have seen it in your brethren on the bench much 

more directly and closely than I. 

So we cannot anticipate with precision and certainty what Justices will do once they are appointed for a lifetime on the Nation’s 

highest court, but the American people hold us on this panel ac-
384 

countable for making our best judgments based on all the information we can glean or elicit. 

And so that is why I have probed as hard as I can for your beliefs, your commitments. I think they matter. 

And I want to thank you for being here and sharing with us your 

ideas, to the extent you have, and say that I will be submitting 

more written questions as well, and I will reserve my own judgment until I have a chance to assess your responses to them and 

the responses that you have given us over the past 3 days. 

Thank you very much, Judge. 

Thank you, Mr. Chairman. 

Chairman GRASSLEY. Senator Graham. 

Senator GRAHAM. Thank you very much, Mr. Chairman. 

Judge, I think we are getting toward the end here. And I only 

have one request, that I never hear about the fish case again—— 

[Laughter.] 

Senator GRAHAM [continuing]. For the rest of my life and yours, 

because if I do, we will defund the Court. 

[Laughter.] 

Senator GRAHAM. I hate that case. 

Judge GORSUCH. It is a great case. 

Senator GRAHAM. Yes, that is your opinion. 

Judge GORSUCH. I make all of my potential law clerks read it. 

Senator GRAHAM. I know. That is why the Geneva Convention 

should apply to them. 

But so, let us just say this, Sonia Sotomayor and Elena Kagan 

have served their Nation well, honorably, and they have not grown, 

in my view, to the way I would have liked them to have grown. I 

do not expect them to decide the cases the way I would have. 

Now, growing means you have to agree with me, I guess. I know 

they are not going to all of a sudden change their judicial philosophy because the General Counsel to—who was the guy? To 

Obama? What was his name? Yes, Greg Craig said that Elena 

Kagan is progressive in the image of Obama himself. He did not 

grow a lot, in my view, in terms of his liberal philosophy. 

And I do not think these two Justices have served the country 

poorly by not coming my way. I just think they have not grown in 

terms of understanding the conservative view of being a judge. But 

they are qualified, and they sit on the Court today, and I understand that. 

As to Judge Garland, a dear man, a fine man, I do not think anything happened here on our watch that is anything unusual. When 

you look at the last 100 years, I think you have had one situation 

where, in the last year of a presidency, a vacancy was filled when 

it came open in the last year by a President of one party and the 

Senate of another. 

And to my friends on the other side, if you think I believe you 

would have done something differently, I do not. I do not. 

Here is what my friend Joe Biden, who I talked to today, by the 

way, as Chairman of the Committee said June 25th, 1992, when 

there was a potential opening in the last year of Bush 41’s presidency. He said it would be—‘‘It would be our pragmatic conclusion 

that once the political season is underway, and it is, action on a 

Supreme Court nomination must be put off until after the election 
385 

campaign is over. . . . If someone steps down, I would highly recommend the President not name someone, not send a name up.’’ If 

Bush ‘‘did send someone up, I would ask the Senate to seriously 

consider not having a hearing on that nominee.’’ 

We agree, Joe. We got your message. 

Here is what Harry Reid said in 2005. ‘‘The duties of the United 

States Senate are set forth in the Constitution of the United 

States. Nowhere in that document does it say the Senate has a 

duty to give presidential nominees’’ a vote. 

Here is what Senator Schumer said before the American Constitution Society. ‘‘We should reverse the presumption of confirmation. . . . We should not confirm any Bush nominee to the Supreme 

Court except in extraordinary circumstances.’’ 

That was in his last year, so it is not very persuasive to me. 

Here is what I would say, that if an opening occurs in the fourth 

year of President Trump’s term, and the political season is afoot, 

that I will be with you all if you say wait until the next election. 

That is the one thing I can say. 

You like precedent? We just created one, and I think we will be 

bound by it. And Joe Biden was going to do it back in 1992, and 

you all would have—shoe on the other foot, we would wait until the 

election was over. 

And why are we here? Because Trump got 306 electoral votes. So 

that is why we are here. That is why you are nominated and not 

somebody else, because I did not expect Donald Trump to pick 

Merrick Garland, even though he is a fine person. I expected him 

to pick from a list of 21, which he told the whole country before 

the election, here is my list. 

Now the one thing you can say about President Trump, when it 

came to the Supreme Court, he showed his cards. It was really unprecedented. And he kept his word, and he chose from that list, all 

highly qualified. 

And I, honest to God, cannot think of anybody I would have chosen above you. 

I ran for President and lasted about 30 minutes. I enjoyed the 

entire process. I was, apparently, the only one. 

[Laughter.] 

Senator GRAHAM. But if I would have won, I would have chosen 

you, too. 

But I think the bottom line is that you are highly qualified, from 

the conservative point of view, that the last 10 years have been a 

testament to good solid judging. You have stood out in all the right 

ways as a judge. You have conducted yourself honorably. And to expect a Republican to pick someone like you would be very much expected, and I am happy he did because, I will be honest with you, 

I was worried he would not. But now we have a great nominee, and 

I hope we can get you over the line here. 

I want to ask you about a case that nobody else will ask you 

about, polygamy, not that I am advocating it. I want to get that 

straight. But the decision, Obergefell—is that how you say it? 

Judge GORSUCH. Obergefell. 

Senator GRAHAM. Okay. Justice Kennedy, the Roberts Court, decided that the due process and equal protection clauses of the Four-
386 

teenth Amendment guarantee the right of same-sex couples to 

marry. 

And that is the law, right? 

Judge GORSUCH. Yes, Senator. 

Senator GRAHAM. Is it possible three people could fall in love and 

want to marry? Are there places in the world where polygamy is 

the practice? 

Judge GORSUCH. Senator, there are places in the Tenth Circuit 

where—— 

Senator GRAHAM. But it is illegal in America, is it not? 

Judge GORSUCH. Senator, we just had a challenge to Utah’s—— 

Senator GRAHAM. But the law of Colorado says it is illegal. 

Judge GORSUCH. It does. 

Senator GRAHAM. Is there any State in the Union that recognizes 

polygamy as a legal marital relationship, that you know of? 

Judge GORSUCH. At the moment, to my knowledge, no. 

Senator GRAHAM. So the point is that, apparently, as a Nation, 

we are all okay with not extending marriage to three people. One 

day, we may not be okay with that. One day maybe we want to 

broaden our view of what marriage should be. 

And that day may come, and you may be the judge. And I guess 

what I am saying is, to Senator Blumenthal, rather than pledge allegiance to all these cases, you should treat them for their precedential value they have, and maybe one day three people will argue 

that we love each other as much as you love your wife or a samesex couple. I do not know if that day will ever come, but if it does 

not come through the political process, the only venue for somebody 

to challenge would be the Court. 

So in terms of Griswold, if you do not—if you cannot figure out 

what you are saying, you are not listening very well. I think what 

you are saying is that if there is ever an effort to overturn Griswold, it will mature as a case in controversy. I think you have been 

very honest with us. I cannot imagine a situation anywhere in 

America where some politician would try to change the law in this 

regard, and I cannot imagine the Court hearing that case. 

But if that ever happened, I am glad you are willing to say I will 

at least listen. And for you to do more than that would, I believe, 

run afoul of what Justice Ginsburg said, ‘‘A judge sworn to decide 

impartially can offer no forecast, no hints, for that would show not 

only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.’’ 

As to Justice Roberts saying I like Griswold, that is certainly his 

right. I do not know if he tipped his hand, but I can say this: If 

you are listening to this man, this judge, I think he recognizes the 

real-world consequences of overturning that decision, and that you 

will apply the law. But if there is ever a case before you that challenges Griswold, I am glad to hear that you are going to listen. 

As to these other cases, I promise you there will be legislative 

efforts to protect the unborn, and some of them may have a different legal theory than Roe v. Wade. Some of them may run into 

the construct of Roe v. Wade. I am glad you are willing to listen 

to those of us on this side of the issue. 

As to same-sex marriage, I have been asked a lot at home to introduce a constitutional amendment to overturn the decision. I 
387 

have decided not to do that because I think it would put the country through something that is not going to bear fruit. 

But to the people who believe that traditional marriage should 

be protected and oppose same-sex marriage, I do not think you are 

all crazy. I think many of you have religious views. But the Court 

has ruled. 

And I do not know if the Court will ever decide that three people 

can get married, but I hope that the judges who hear that case one 

day, if it ever comes, will at least do what you promised to do. Listen. Base the decision on the law, should it change, and the facts 

of that particular case. 

So the bottom line here, Judge, is that you cannot give the answers that the other side would like, because what they want you 

to do is make sure that they can go and tell everybody he is okay 

with all the cases we like. 

The Roberts Court is interesting. When they upheld the 

Obamacare act twice, I have accused of owning Justice Roberts because I voted for him. Actually, I do not really disagree with his 

rulings. I am a bit surprised by it. 

When Justice Kennedy decided that same-sex couples can marry 

and State statutes have to follow, the Roberts Court was not very 

popular over here. 

All I can say about the Roberts Court is it is made up of some 

pretty incredible people. And his time will come, and his time will 

go. 

And if you get to be part of that Court, I think Donald Trump 

will have done a good service for the people of the United States, 

because what he will have done is chosen one of the most qualified 

people I have ever met in my time in the Senate or otherwise, 

someone who has endured 2 days of very difficult questioning, 

shown an understanding of the law that amazes me, has lived a 

life that I can only compliment you on. 

And as to President Trump, whatever differences we have, when 

it comes to this nomination, you did the country a great service. 

To my colleagues, I know it is tough right now. If this man does 

not get 60 votes, then I do not believe we can ever find a Republican in the country, a presidential pick, that will get 60 votes. 

There is nobody I know better in my world, the conservative world, 

than this man. And I hope and pray that you will honor President 

Trump’s selection, as I chose to honor Sotomayor and Kagan. 

Whether they are better qualified, I will let other people decide. 

But I will fight to the death to say that you are equally qualified. 

Thank you very much and Godspeed. 

Judge GORSUCH. Thank you, Senator. 

Chairman GRASSLEY. The Senator from Hawaii. 

Senator HIRONO. Thank you, Chairman. 

Judge Gorsuch, you have sat through many hours under the 

cameras and under the lights over the last 3 days, and that goes 

for all the people who sitting there who have been supportive of 

you. 

And for all that, many of my colleagues across the aisle, particularly, have called it an endurance test, granted. But, Judge, the 

real endurance test is about the struggles facing working families, 

women, people of color, the LGBTQ community, immigrants, and 
388 

Native peoples. It is about the struggles that everyday Americans 

have and face. 

These are the people who will be impacted by the decisions you 

would make on the Supreme Court. These are the people for whom 

the need for justice is often most urgent. These are the people I am 

focused on when I consider your nomination and any nomination 

to the Supreme Court. 

It remains to be seen if you will be a Justice for all or a Justice 

for some. Over the last few days, you have often told us about what 

counts and what does not in terms of what a Justice should do and 

how we should assess your nomination. 

When other Senators and I have asked about your opinions in 

specific cases, like that involving the terrible choice facing Alphonse Maddin between freezing or being fired, you have told us 

to look at your whole record. 

When we asked about decisions where you seem to adopt strange 

interpretations that narrowed laws meant to protect worker safety, 

you said you are a judge and do not take sides, and that if the statute was too limited, Congress should do better. 

When we asked about your decision in Hobby Lobby, which found 

an expansive new right to religious liberty for a corporation that 

employs 32,000 people, you did not explain how you assessed the 

terrible impact this decision had for thousands of women who now 

would be denied access to healthcare. 

During my last round of questions, I asked you about your understanding of the influence of politics on the composition of the 

Court based on your 2005 article, ‘‘Liberals and Lawsuits.’’ It was 

not an attempt at a gotcha moment or to paint you in an unfair 

light. It was an attempt to get to the reality that both you and I 

understand. 

I wonder how you would approach the kind of tough cases that 

reach the Supreme Court and how, say, a Justice Garland would 

approach the same case. I think there would be a big difference. 

We know that Justice Scalia and Justice Ginsburg, both legendary jurists and close friends, would reach dramatically different 

results in cases that matter deeply in the lives of millions, cases 

like Shelby County, Lilly Ledbetter, Hobby Lobby, Roe v. Wade. 

Donald Trump knew this too when he set forth his very clear litmus test for a Supreme Court pick. He said he wanted a Justice 

who, for example, would adhere to a broad view of the Second 

Amendment and who would overturn Roe v. Wade, to quote him, 

‘‘automatically.’’ 

Your article in 2005 made clear you know judicial philosophy 

matters. Of course it does. That is why we are so focused on understanding your judicial philosophy and getting beyond platitudes 

about the judicial role. That is why this confirmation process matters. 

This is serious business. That is why we still have questions. 

That is why I remain concerned. 

Judge Gorsuch, over and over again, you have told us to focus 

on your whole record as a judge and not certain cases or certain 

of your writings in books or articles or emails. In fact, my Republican colleagues suggest we are being unfair to try to look to those 

things to discern how you would approach cases, if confirmed. 
389 

Some have even gone so far as to conflate the questions we are 

raising about your record in the course of our advise and consent 

responsibilities with Donald Trump’s abhorrent attacks on Federal 

judges, attacks like the one on Judge Watson of Hawaii, which he 

repeated last night at a $30 million fundraiser for congressional 

Republicans. 

Apples and oranges do not begin to describe the differences between what Donald Trump said and what we are seeking to do 

here. 

Although I was not in the Senate, I recall during Justice 

Sotomayor’s confirmation hearing that Republican after Republican 

ignored almost the entirety of her nearly 25 years on the Federal 

bench. Instead, they focused in question after question on a gross 

misreading of one speech—one speech—she gave to a group of 

young women about the value of diversity on the bench. Many of 

them cited that speech to justify their opposition to her nomination. 

Judge Gorsuch, was that a fair basis on which to evaluate Justice Sotomayor’s nomination? 

Judge GORSUCH. Was what? Was the speech that she gave a fair 

basis on—— 

Senator HIRONO. To—yes, we have been criticized for focusing on 

some very important cases to try to get to your heart, your judicial 

philosophy. Meanwhile, Justice Sotomayor was judged by some of 

my colleagues based on one speech. And I am asking you whether 

that was a fair basis on which to judge her nomination. 

Judge GORSUCH. Senator, I have declined to offer personal opinions about cases, and I have also declined to offer personal opinions 

about the advice and consent function of the Senate. 

That is your constitutional responsibility, and this body’s, and it 

would be presumptuous of me as a judge at once to say I like or 

dislike the work of the U.S. Supreme Court as a lower court judge, 

and it would be presumptuous of me as a judge to say I like or dislike how this body discharges its constitutional obligations. That is 

really your judgment. 

Senator HIRONO. Judge, excuse me, you have consistently asked 

us to look at your whole record. That is why I asked the question. 

You have said again and again in these hearings that you cannot 

provide your views on specific precedents, but at times, you have 

done that. You have praised the Youngstown case. You have criticized Korematsu. You have praised the Brown decision. You said 

that Cruzan and Glucksberg were rightly decided. 

So how can you express these opinions but refuse to provide your 

views on the Casey, Heller, Roe, Citizens United, Griswold, Gideon, Ledbetter, Gross, University of Texas, Southern Medical Center 

cases? 

Judge GORSUCH. Senator, I have offered my legal judgment as a 

judge about cases. I have not offered any personal views about anything, or I have tried not to very hard. 

I have tried to adhere to Justice Ginsburg’s rule about no hints, 

no previews, no forecasts. Justice Scalia, Justice Souter, Justice 

O’Connor, and all the judges who come before me, I have tried not 

to break the chain. 

Senator HIRONO. You did lend your support, however, to some 

precedents and not others, so that is the question. 
390 

You have told us also several times that judges make terrible 

legislators. You told us that courts lack the staff, capacity, and 

training to the kinds of fact-finding that is an essential part of the 

legislative process. 

And in that context, I do want to return briefly to Shelby County 

and the Voting Rights Act. When Congress reauthorized a key expiring provision of the landmark VRA in 2006, it did so with a 

nearly unanimous vote. And before reauthorizing the protection of 

Section 5 in jurisdictions with a long history of discrimination in 

voting, this Committee alone held nine hearings on the VRA. 

The thousands of pages of material the Senate reviewed, together 

with a record developed in a dozen hearings in the House, clearly 

established a continuing need for Section 5. And yet, in Shelby 

County, the Roberts Court ignored this evidence and the Court’s 

long precedent and made its own determination about the value of 

the extensive evidence reviewed by Congress. It struck down those 

provisions. 

So, so much for judicial modesty. So much for balls and strikes. 

So much for judges judge best when they judge least, which you 

mentioned tonight as a virtue. 

So, Judge Gorsuch, does the Shelby County decision raise the 

kind of concerns you have noted about the limits of judges as policymakers and the problems that arise when a court steps outside 

of the judicial role and acts as a legislative body? 

Judge GORSUCH. Senator, Shelby County is a precedent of the 

U.S. Supreme Court. I am not here to disparage the work of the 

U.S. Supreme Court. 

Senator HIRONO. Both the process and the outcome in the Shelby 

County case raise exactly the kind of concerns that make it so important for us on the Committee and in the Senate to understand 

your judicial philosophy. You are, after all, talking about a lifetime 

appointment to the highest court in the land. 

And after the obstacles to voting we have seen since Shelby 

County, we now know that Congress got it right, that the evidence 

showed a continuing need for Section 5 of the Voting Rights Act, 

and the Supreme Court got it wrong when it substituted its judgment. 

So once again, I am asking this in a different way, and I will give 

it a shot: Judge Gorsuch, doesn’t the outcome of the Court’s action 

in striking down Shelby County suggest you have it right when you 

point to the limits of judges as legislators? 

Judge GORSUCH. Senator, what I would say is, after Shelby 

County, there remain some remedial mechanisms available to individuals concerned about voting rights. There is always an equal 

protection claim under the United States Constitution. There also 

is a Section 2 claim available to anyone who is concerned. It goes 

beyond the Constitution. 

And should Congress wish to legislate, the Court in Shelby County made clear that it could do so with a more updated formula for 

preclearance. So that remains a remedial regime possibility as well. 

Senator HIRONO. The real-life impact of the Shelby County decision was that 13 States passed laws that could be deemed voter 

suppression laws, including—the first State was Texas, which intentionally passed a discriminatory law. 
391 

So I think everyone understood the ramifications and the import 

of that particular decision. And we learned in that decision that it 

matters a great deal for our rights what is the judicial philosophy 

or, as my colleague, Senator Blumenthal, would put it, core beliefs 

of the judges who serve on the Supreme Court. 

If judicial philosophy developed through life experiences, education, et cetera, and that judges should apply instead precedent, 

why would we have so many 5–to–4 decisions in critical cases? 

Judge Gorsuch, I wish that I could say that this hearing has 

been illuminating for what was said by you. Instead, I am left to 

judge your nomination largely on the basis of what you refused to 

say. 

Mr. Chairman, I yield the rest of my time. 

Chairman GRASSLEY. Senator Tillis and Senator Kennedy will be 

the last two. So whenever you finish, the judge will be able to go. 

I may have a few remarks at the tail end. It is up to you guys. 

Senator TILLIS. Thank you, Mr. Chair. 

Just briefly, without objection, I would like to enter some other 

letters that come from a diverse group of people attesting to Judge 

Gorsuch’s qualifications and balance on the bench and in law practice. 

Chairman GRASSLEY. Without objection, they will be entered. 

[The information appears as a submission for the record.] 

Senator TILLIS. I am going to be brief and yield back 10 minutes 

of my time. 

First, I have heard the sort of messaging today about the Roberts 

Court. We have already heard from Senator Graham, whose comments I would like to be associated with. You know, the Roberts 

Court has produced a number of opinions that have made folks on 

my side of the aisle uneasy. 

It seems to me that we have folks down on the other side of the 

street here that do a pretty good job of being objective and following the law. So I am not so sure this branding that they are 

trying to come up with or that some are trying to come up with 

that the Roberts Court always rules one way or the other in a 5– 

4 split, not to mention the multitude of judgements they make over 

there that are unanimous. 

I want to talk a little bit about history and then just thank the 

judge for his contribution. But I do have to go back to some numbers, and I want to call out that, you know, there are folks here 

who have already laid the ground work for a filibuster, for trying 

to hold up the confirmation of an enormously well-qualified judge 

to go on to the Supreme Court. 

But I think when you criticize Judge Gorsuch, you are really 

criticizing, because of the numbers, the entire Tenth Circuit—97 

percent of the time unanimous decisions. He is in the majority of 

decisions in which he participates 97 percent of the time, so I 

would assume the concerns that you would have for Judge Gorsuch 

you would probably have to, to be intellectually honest, place those 

same concerns with anybody coming out, whether they are a Democrat or a Republican judge on the bench or put forth by a Democrat 

or Republican administration. 

A lot of people have used history here to suggest that maybe requiring a supermajority is the norm. It could not be any further 
392 

from the truth. Republicans did not require a cloture vote. They did 

not seek a supermajority for Justice Ginsburg, Justice Breyer, Justice Sotomayor, or Justice Kagan. And I would believe that if we 

applied the same mainstream standard that seems to be being created here, maybe things would be very different on the Bench. 

For example, I do not think most Americans think mainstream 

is to propose abolishing Mother’s Day, to suggest that there is possibly a constitutional right to prostitution, or to urge the establishment of co-ed prisons. Yet those views were espoused by Ruth 

Bader Ginsburg. They are certainly controversial today. I suspect 

they were when Ruth Bader Ginsburg was before this Committee. 

But they did not require a special standard, and they actually 

voted for a confirmation. As a matter of fact, she was voted in 96– 

3. 

Now we will move to nominations under the Obama administration. I submit that most people would not find it mainstream to believe a person of one ethnicity or gender would reach a better conclusion than a person of a different ethnicity or gender. I bet they 

would not think it is appropriate for a judge that is appearing here 

that would say impartiality is an aspiration. But those were the 

views that Justice Sotomayor had when she came before this Committee. 

The aspiration to impartiality is just that—an aspiration. This is 

somebody who got voted to be a Supreme Court Justice, and we did 

not set a different standard. As a matter of fact, the only way that 

Justice Sotomayor was confirmed was through the support of Republicans. They could have filibustered it. Yet or if the Minority 

Leader at the time had gotten up and tried to convince us or convince the Members who were here at the time, we could have held 

up this new standard. It simply does not exist. It does not exist, 

I do not think, in the tenure of any of the Senators on this Committee. 

So the question is: Are we just creating a new set of rules? And 

are we doing that at our own peril? Is this the new norm? Is this 

how we are going to run this process? This is the first time I have 

been through it. It has only happened 112 times in the history of 

the United States. This is the 113th. Are we really going to set that 

standard? Because it is not a standard that really has existed in 

history, but that is what we are on the brink of doing. And I will 

tell you, we could end up on a slippery slope that will not work out 

well for this institution, and I do not think it will work out well 

for the Supreme Court. 

You know, we had a 63–37 vote for Kagan in spite of her comments defending that the Government had the authority to outlaw 

the publishing of a pamphlet, a pamphlet that could have been a 

modern-day equivalent to ‘‘Common Sense.’’ In Sotomayor’s case, 

nine Republicans, of which Senator Graham was a part, voted for 

Sotomayor, in spite of the comments that I just mentioned. 

I really think we ought to go back, listen to what the judge has 

said today and yesterday and the day before, and recognize we 

have an extraordinarily well-qualified nominee before us who will 

do a great job on the Supreme Court. 

And, Judge Gorsuch, I want to apologize for some of the people 

here who I think—I know you are a great, a very kind person, and 
393 

a kind soul. You said there were no inappropriate questions. I for 

one think there were a lot. But I am not going to ask you to respond to that. I am just going to thank you for your kindness. I 

am going to thank you for your energy. I want to thank you for 

your resolve. And I want to thank you for having an impeccable 

record that builds a compelling case for you to be the next Supreme 

Court Justice on the Supreme Court. I wish you the very best. I 

am going to keep you in my prayers. And I look forward to voting 

for your confirmation. 

I yield back the remainder of my time. 

Judge GORSUCH. Thank you, Senator. 

Chairman GRASSLEY. Senator Kennedy. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Judge, I join my colleagues in thanking you for your answers. I 

think they were as candid as you could make them under the rules. 

And I appreciate all the time you spent preparing for this hearing. 

I also join my colleagues in thanking your family, especially your 

partner. This is a tough, tough business sometimes, and it is especially difficult on families. 

You have quite an extended family as well. I have spoken casually with some of your law clerks, and they are very devoted to 

you, and that speaks volumes to me. 

I want to thank Senator Ayotte for her wise counsel and advice. 

I have two quick questions and then a request, but I cannot let 

go unaddressed some of the comments made by my friend from 

Minnesota about the Voting Rights Act. 

I am from the South. The Voting Rights Act, we were the subject 

of the Voting Rights Act. And I can say that I guess this is sort 

of a glass-half-full or glass-half-empty sort of thing. But this country has gone from institutionalized slavery to an African American 

President in 150 years, which in the grand scheme of life, death, 

and the resurrection is not that long, and I am very proud of that. 

I did not agree with our first African-American President on all of 

his positions, but I am very proud of the fact that this country 

made that kind of progress, and I just wanted to say that for the 

record. 

My first question, I do not know whether you picked it up from 

my questions and comments or not, but I have what I think is a 

healthy skepticism about Government. I believe I do have a right 

to privacy, and part of my right to privacy is to be left alone by 

Government sometimes. That does not mean that we do not need 

Government and that I do not have confidence in Government, but 

I think there should be limits to Government. And I think the U.S. 

Congress sets those limits. 

Do you agree with me that our United States Constitution is a 

document of enumerated powers and that neither the Federal Government nor any of its branches have a power unless you can point 

specifically to a place in the United States Constitution that gives 

them that power? 

Judge GORSUCH. Yes, Senator. 

Senator KENNEDY. Thank you. 

It has been my experience—and this I was taught—that justice 

is supposed to be blind. I realize that is a cliche, but cliches become 

cliches because they are true. 
394 

Do you agree with me that the wealth, the status, and the power 

of the parties to litigation should have absolutely nothing to do 

with the result in litigation? 

Judge GORSUCH. Senator, I take an oath written by this Congress; it is a beautiful oath. It is to administer justice without respect to persons, to be blind to who they are, and also to do equal 

right to the poor and to the rich, and to administer the duties of 

my office, to discharge them impartially. 

I have tried to do that here to the best of my abilities. Not perfect. I have tried to do it for the last 10 years as a Federal judge— 

not perfectly, but that is what I try to do each and every day, and 

it is a great privilege and a great honor to be able to do it. And 

I am humbled, I am honored every day I come to work. And I have 

been humbled and honored to be here with you. 

Senator KENNEDY. And I believe you will do that in the U.S. Supreme Court. 

My final statement is not a question. It is a request. It seems to 

me that justice is kind of like healthcare. It is not really accessible 

unless you can afford it. And I am very concerned about the cost 

of litigation in America and the fact that it has affected access to 

our courts. It has just become so expensive that many of our people 

cannot afford to have their day in court. And I know administratively the Federal judiciary has some powers, and I hope once you 

are on the Court you will talk to your colleagues and see if you can 

put your thinking caps on and do what you can to try to control 

the costs of litigation. 

With that, I thank you again. I thank you, Mr. Chairman. I am 

sorry my iPad went off. 

[Laughter.] 

Senator KENNEDY. But it will not happen again. 

Chairman GRASSLEY. I have a few words to say, but before I say 

those to you, Judge, we are going to reconvene tomorrow morning 

at 9:30 when we will hear from outside witnesses. So before I let 

you go, I think that you have demonstrated a great deal of patience, and that is probably necessary to get the votes of the United 

States Senate. You probably cannot show you ever get mad, but, 

boy, you had to be disgusted sometimes, but you did not show it. 

I know you were not, but that is kind of the way I would feel 

if I were in your shoes. 

I suppose the thing that bothers me most about a lot of the questions you got, you seemed to agree with so many people that we 

are trying to get a yes or no out of you, and they did not seem to 

want to take a yes for an answer, even if you did not say yes, because you kept saying I do not know how many times, maybe hundreds of times, ‘‘It is the law, it is the precedent,’’ and how you are 

going to approach those things. There ought to be a great deal of 

satisfaction on people that we got somebody that says the law 

means something, what the people’s elected representatives pass 

mean something, and within our system of judicial interpretation 

of law and the Constitution, that precedent plays a very important 

part, and that we have a document that is going to bring certainty, 

and that certainty is based upon, as it was laid out by our forefathers, to make sure we had stability and predictability in our 

public policies. 
395 

So evidently it did not frustrate you, but I want you to know it 

frustrated me that they would not take really in a sense a yes for 

an answer, even if you did not answer in a three-letter word. 

I think you should know that I am very impressed with the way 

you handled all this testimony. For the last 3 days, the American 

people have witnessed a very impressive command of the law, most 

assuredly the thoughtfulness that you have put into everything you 

do, particularly how you responded to our questions, and that can 

only come from the discipline that you have given yourself as a 

judge already on the Tenth Circuit. And it pretty well ought to 

demonstrate to everybody how you are going to handle it when you 

get to the Supreme Court of the United States. 

So I think you are to be commended for your strength in this enduring process, and I think that the American people witnessed 

most importantly a person who has a great deal of humility. And 

I think it shines through in not only your own non-verbal demeanor, but also in what you say. 

So I thank you very much for being a good witness. Thank you 

very much for your public service. And the meeting is adjourned, 

and you are excused. 

Judge GORSUCH. Thank you, Mr. Chairman, very much. 

[Whereupon, at 7:53 p.m., the Committee was recessed.] 

[Additional material submitted for the record for Day 3 follows 

Day 4 of the hearing.] 

(397) 

CONTINUATION OF THE 

CONFIRMATION HEARING ON THE 

NOMINATION OF HON. NEIL M. GORSUCH 

TO BE AN ASSOCIATE JUSTICE OF THE 

SUPREME COURT OF THE UNITED STATES 

THURSDAY, MARCH 23, 2017 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:33 a.m., in Room 

SH–216, Hart Senate Office Building, Hon. Charles E. Grassley, 

Chairman of the Committee, presiding. 

Present: Senators Grassley, Hatch, Graham, Lee, Sasse, Flake, 

Crapo, Tillis, Kennedy, Feinstein, Leahy, Durbin, Whitehouse, 

Klobuchar, Franken, Coons, Blumenthal, and Hirono. 

OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Chairman GRASSLEY. Good morning to everybody who is here 

and especially those who have prepared for testimony today. We 

welcome everybody on what I think will be the final day of Judge 

Gorsuch’s confirmation hearing. 

We have already heard 2 days of impressive testimony from the 

nominee. I think he has shown great command of the law, and I 

think he has shown a humility with his humble delivery, and I 

think people learned a lot about not only our political system, but 

our judicial system with what has gone on in the last 3 days. 

Today, we will hear from a number of outside witnesses. We will 

hear from a number of distinguished witnesses both in support and 

in opposition to the nominee. They will all speak to the qualifications to be a Supreme Court Justice. I look forward to hearing from 

all the witnesses today. 

Let me modify this a little bit because I am going to spend 

maybe 15 minutes at the Agriculture Committee because the nominee for Secretary of Agriculture is before that Committee, and I am 

a Member of that Committee. And I will have somebody else chair. 

That will not stop the business going on. So that is the only time 

I should probably be away. 

Each of our witnesses will have 5 minutes to make an opening 

statement, and then we will proceed to questionings. If Members 

have questions of the Members, we will obviously accommodate 

that. 
398 

But now I am going—oh, no. Do you have an opening comment? 

I am sorry. I just—I just about forget you. 

Senator FEINSTEIN. I do not. You do not need to worry about 

that. 

[Laughter.] 

Senator FEINSTEIN. I do not, Mr. Chairman. 

Chairman GRASSLEY. Okay. Okay. Now we will go to our first 

panel, who will feature two representatives of the American Bar 

Association. You may come to the table. 

I will start over again. With the Standing Committee on the Federal Judiciary, Nancy Degan and Shannon Edwards. Nancy Degan 

is the chair of the American Bar Association 

Standing Committee on the Federal Judiciary, and Shannon Edwards is the Tenth Circuit representative on the American Bar Association Standing Committee of the Federal Judiciary and served 

as a lead evaluator on the Standing Committee’s investigation of 

Judge Gorsuch. 

I would like to swear you, if you would let me. I do not know 

whether we have to stand. I guess we just do it naturally. 

Do you swear that the testimony you are about to give before 

this Committee will be the truth, the whole truth, and nothing but 

the truth, so help you God? 

Ms. DEGAN. I do. 

Ms. EDWARDS. I do. 

Chairman GRASSLEY. Each answered affirmatively. We would 

now have you give your statement, please. 

STATEMENT OF NANCY SCOTT DEGAN, AMERICAN BAR 

ASSOCIATION, STANDING COMMITTEE ON THE FEDERAL 

JUDICIARY, NEW ORLEANS, LOUISIANA, ACCOMPANIED BY 

SHANNON EDWARDS, AMERICAN BAR ASSOCIATION, STANDING COMMITTEE ON THE FEDERAL JUDICIARY, EDMOND, 

OKLAHOMA 

Ms. DEGAN. Thank you very much. 

It is a privilege to be here. I am Nancy Degan from New Orleans, 

and I am very privileged to chair the American Bar Association’s 

Standing Committee on the Federal Judiciary. 

And as you indicated, Senator, I am joined today by Shannon Edwards from Oklahoma City, who is our Tenth Circuit representative and was the lead evaluator on the Standing Committee’s investigation of Judge Gorsuch. 

The Standing Committee has conducted its independent and 

comprehensive evaluations of the professional qualifications of 

nominees to the Federal bench for the last 60 years plus. The 15 

distinguished lawyers who make up our committee come from 

across the country, representing every Federal Judicial Circuit. 

They annually volunteer, on a pro bono basis, hundreds of hours 

to evaluate nominees to the Federal bench, and we focus solely on 

a nominee’s integrity, professional competence, and judicial temperament. 

We do not consider a nominee’s political affiliation, philosophy or 

ideology. And we do not solicit any information from any nominee 

with regard to how he or she might vote on a particular issue or 

matter that may come before the Court. 
399 

The Standing Committee’s evaluation of a nominee to the Supreme Court is based upon the premise that a Justice must possess 

exceptional professional qualifications. All 15 members of the 

Standing Committee participate in the evaluation of a Supreme 

Court nominee. Each Standing Committee member reaches out to 

a wide range of people within his or her respective Circuit who 

may have information regarding the nominee’s integrity, professional competence, and judicial temperament. 

Additionally, reading groups of scholars and practitioners review 

the written work of the Supreme Court nominee and advise the 

Standing Committee of their findings. The reading groups independently evaluate the nominee’s analytical ability, knowledge of 

the law, application of facts to law, expertise in harmonizing a body 

of law, and the ability to communicate effectively. 

The academic reading groups involved in Judge Gorsuch’s evaluation were composed of experts in their fields from the faculties 

of the University of Pennsylvania Law School and the Loyola College of Law in New Orleans. The practitioners reading group included nationally recognized lawyers who have argued before the 

Supreme Court and served as law clerks to Justices on the Supreme Court. 

These three groups read all of Judge Gorsuch’s published opinions and many of his other writings. During the evaluation of 

Judge Gorsuch, the Standing Committee members contacted almost 

5,000 people nationwide who might have knowledge of Judge 

Gorsuch’s professional qualifications, and these included judges, 

lawyers, academics, and Members of the general community. 

Circuit members then interviewed those who indicated that they 

had personal knowledge of Judge Gorsuch through their dealings 

with him as a judge, colleague, co-counsel, opposing counsel, teacher, organization member, and even classmate. We followed Judge 

Gorsuch’s career from his time at preparatory school through his 

tenure on the Tenth Circuit. All interviews were conducted in confidence to assure accurate information and candid assessments. 

Finally, as we do with every evaluation, we conducted a personal 

interview with Judge Gorsuch. Ms. Edwards and I met with him 

on February 27th and questioned him on a wide variety of topics. 

After our comprehensive evaluation was completed, our findings 

were assembled into a detailed confidential written report, which 

included the written reports of the academic reading groups and 

the practitioners reading group, and this report was approximately 

1,000 pages long. 

Each member of the Standing Committee then studied that final 

report and individually evaluated Judge Gorsuch using three possible rating categories: qualified, well qualified, or not qualified. To 

merit a Standing Committee rating of well qualified, a Supreme 

Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence, and judicial temperament. 

The rating of well qualified is reserved for those found to merit 

the committee’s strongest affirmative endorsement. Having examined Judge Gorsuch through this lens, the Standing Committee 
400 

members unanimously voted that he deserved the well qualified 

rating. 

On March 19th, we submitted a written statement further explaining our process and our rating, and we respectfully request 

that it be made a part of this Committee’s official record. 

Thank you. 

[The prepared statement of Ms. Degan appears as a submission 

for the record.] 

Chairman GRASSLEY. Thank you. 

Ms. Edwards is not going to say anything. Is that right? 

Ms. DEGAN. We are pleased to answer any questions that the 

Committee may have. 

Chairman GRASSLEY. Okay. Yes, I think I have a couple questions. They are somewhat repetitive of maybe some of the things 

that you said, but I would like to have that emphasis. 

But before I give a short statement, I would like to compliment 

anybody who serves on evaluating these judges at all levels, and 

probably at the level of the Supreme Court, it is much more difficult and elongated as it probably should be. But I know David 

Brown, Des Moines, Iowa, who does this with a lot of judges and 

takes it real seriously. 

Ms. DEGAN. Yes, sir. 

Chairman GRASSLEY. And you almost—when you visit with him 

about the work he does, you almost think it is a full-time job. He 

has obviously got to go make money someplace else. So he must 

have some time to practice law, but he really—seems to me like he 

puts a lot of time into it. 

Ms. DEGAN. It is an honor, sir. 

Chairman GRASSLEY. So for both of you, I would compliment you 

on what—— 

Ms. EDWARDS. Thank you. 

Chairman GRASSLEY [continuing]. On what you do. 

As you noted in your testimony, the American Bar Association 

awarded Judge Gorsuch its highest rating of well qualified by 

unanimous vote. The statement explaining the rating states this, 

and you have said this already, but let me repeat it. 

The rating of well qualified is reserved for those found to merit 

the committee’s strongest affirmative endorsement. In other words, 

a rating of well qualified is not given lightly. Would you agree with 

that? 

Ms. DEGAN. Absolutely. 

Chairman GRASSLEY. Okay. Now I just want to mention a few 

points from the report. First, the Standing Committee found that 

‘‘Judge Gorsuch enjoys an excellent reputation for integrity and is 

a person of outstanding character.’’ 

In fact, one of his colleagues on the bench said, let me quote, ‘‘I 

have known and interacted professionally with Judge Gorsuch 

since his appointment to the Tenth Circuit Court of Appeals. In my 

experience as a judge, I cannot identify a person more qualified in 

every sense of the word to serve as an Associate Justice of the U.S. 

Supreme Court. Judge Gorsuch would be an invaluable addition to 

the high court.’’ 

Second, the committee found that the judge’s professional competence exceeds the high criteria reviewed by the committee. In 
401 

fact, the committee report stated, ‘‘Given the breadth and diversity 

and strength of the feedback that we received from judges and lawyers of all political persuasions and from so many parts of the profession, the committee would have been hard-pressed to come to 

any conclusion other than Judge Gorsuch has demonstrated professional competence that is exceptionally outstanding. Time and 

again, those with whom he has worked and those who have been 

involved in cases over which he has presided have applauded his 

intellectual acumen, thoughtful discernment, and written clarity.’’ 

On the judicial temperament, the committee found that lawyers 

and judges alike overwhelmingly praised his judicial temperament. 

And finally, on judicial independence, the committee found ‘‘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.’’ 

As one person interviewed for the report stated, ‘‘In addition to 

his outstanding academic credentials and brilliant mind, Judge 

Gorsuch’s demeanor and written opinions during his tenure on the 

Tenth Circuit demonstrate that he believes unwaveringly in the 

rule of law and judicial independence. In my opinion, he is exceptionally well qualified to serve as a Justice of the Supreme Court 

of the United States.’’ 

I wholeheartedly agree with the American Bar Association’s assessment of Judge Gorsuch, and I have one question. But before I 

do that, I think we had 2 days of about 20 hours total that people 

had a chance, if they were watching, to view some of those things 

that you said about his belief in the rule of law and judicial independence. In fact, if there is any one thing that I heard in answer 

to so many questions that somebody wanted either a yes or no, 

what they really got is I am going to follow the law, and I believe 

in judicial independence and following precedent. 

Now, so I think being a little bit repetitive, but this is my last 

question. Would you describe once again for the Committee the 

scope of review that allowed you to come to these conclusions, and 

then I will go to Senator Feinstein. 

Ms. DEGAN. Yes, sir. To merit the Standing Committee’s rating 

of well qualified, we found, sir, that he was a preeminent member 

of the legal profession, that he has outstanding legal ability and exceptional breadth of experience, and that he meets the very highest 

standards of integrity, professional competence, and judicial temperament. 

And we did this by reaching out to those who had personal 

knowledge about Judge Gorsuch’s integrity, professional competence, and judicial temperament. We interviewed many people 

who not only encountered him as a judge, but also as an opposing 

counsel, as a co-counsel, as Principal Deputy Associate Attorney 

General for the United States, as a private practitioner, as a law 

clerk for the Supreme Court and the D.C. Circuit, and through personal dealings with him. 

So the scope of our investigation was deep and broad, and involved all 15 members of our Standing Committee, in addition to 

the 26 professors from two law schools and the 14 very well recognized practitioners who have appeared before the U.S. Supreme 

Court and who previously acted as law clerks. 
402 

So that is the scope, Senator. And as I said before, we do not give 

the well qualified rating lightly, and I can assure you that every 

member of the Standing Committee reviewed intently the 997 

pages that were compiled from the interview notes and the analyses by the law professors and the practitioners in order to each 

independently reach that rating on a unanimous basis. 

Ms. EDWARDS. Senator, if I might add, our—— 

Senator FEINSTEIN. Could you turn on your mike? 

Chairman GRASSLEY. Yes. Thank you. You sure can add. I think 

for no other reason than all your relatives back home ought to hear 

something. 

[Laughter.] 

Ms. EDWARDS. Some of them are up pretty early. 

Our task was to cast a wide net, and that is what we did. We 

contacted over 5,000 individuals. I personally contacted 344 and received comments from 82. So every one of the committee members 

did likewise, and that is why our report is 944 pages long. 

Chairman GRASSLEY. Okay. Now Senator Feinstein. 

Senator FEINSTEIN. Thanks very much, Mr. Chairman. 

I want both of you to know that I very much respect what the 

American Bar does in these events, and I have read your reports 

now for some 24 years and very much appreciate your work. 

Let me ask you a question, and then I just want to make a comment. Did you review the documents that cover his performance at 

the Department of Justice? 

Ms. DEGAN. These are documents that were recently submitted 

to the Committee. Is that right, Senator? 

Senator FEINSTEIN. That is correct. 

Ms. DEGAN. The Department of Justice sent us Judge Gorsuch’s 

responses to the PDQ, which is actually called the Senate Judiciary 

Questionnaire, on CD–ROM, along with a stack of materials. And 

then DOJ sent us a supplement. We did not receive the responses 

that were recently submitted to the Committee. 

I did take a quick look at what that encompassed just from the 

description on the website of the Senate Judiciary Committee and 

saw that it involved some 170,000 pages. Ms. Edwards and I attended some of the past two days of hearings and heard some of 

the questions that the Committee Members asked of Judge 

Gorsuch. It appeared from his answers that these materials were 

prepared in his role as a Principal Deputy Associate Attorney General and that he, in answering the questions, indicated that he was 

acting as a lawyer. 

And at one point, I believe, Senator, you may have asked him 

about some handwritten note, and he said, ‘‘I do not have any independent recollection of that, but if I wrote it, it is because I have 

that from my client.’’ His client being the Federal Government. 

We did not have an opportunity to review those materials. We 

would base our information on the personal knowledge of those 

who dealt with Judge Gorsuch, and if he was acting in his capacity 

as a lawyer to anyone, that may be protected by the privilege. 

Senator FEINSTEIN. Oh, okay. 

Ms. DEGAN. But we are happy to review that, if necessary, in 

order to determine if we need to adjust the rating. But based on 
403 

what I heard, I do not believe that it would change the opinion of 

the committee. 

Senator FEINSTEIN. I appreciate that. And the documents, I just 

want to clear, are not 150,000 pages. The documents I am referring 

to are much smaller in number, maybe a stack like this. 

Ms. DEGAN. Oh. 

Senator FEINSTEIN. But what they do indicate are some of his 

personal thinking on subjects of great concern, namely torture, and 

in a way, I regret I did not ask more questions. I will do some written questions in that area. 

I happen to hold the view that a Member of this Government is 

held to a different standard than an attorney may be in private 

life. That if you think something is wrong, you have an obligation 

to do something about it, not just say, well, my client wanted—my 

principal wanted this, and so I did it. And we have too much of 

that in this area. 

But I also want you to know that I think the work you do is very 

fine. I read it with care. 

Let me just say one other thing, and I am going to do this because for many of us, what has happened this past year has been 

very painful. And you have also done an evaluation of Judge 

Merrick Garland, who was not given the privilege even of a Committee hearing. So I would just like to read some excerpts from 

your report on him. 

‘‘Garland’s integrity is off the scales.’’ Page 5. 

‘‘Garland is the best there is. He is the finest judge I have ever 

met. There is no one who is his peer.’’ Page 5. 

‘‘Judge Garland has no weaknesses.’’ Page 6. 

‘‘He may be the perfect human being.’’ Page 6. 

‘‘He is unnaturally—’’ 

[Laughter.] 

Senator FEINSTEIN. ‘‘He is—’’ 

[Laughter.] 

Senator FEINSTEIN. ‘‘He is unnaturally blessed with brilliance. 

Things come to him quickly.’’ Page 9. 

‘‘In my opinion, there is no better Federal judge than Chief Judge 

Garland.’’ Page 10. 

‘‘Garland’s integrity is flawless, his competence terrific.’’ Page 16. 

‘‘I know no one, bar none, with more integrity and more commitment to truthfulness and accuracy than Judge Garland.’’ Page 17. 

‘‘There never has been a better candidate than Chief Judge Garland.’’ Page 18. 

‘‘I have never heard anyone say anything bad about Judge Garland.’’ Page 18. 

I read this simply to dispel anybody’s thinking that this man was 

not worthy of this Committee’s hearing. 

So thank you very much for the work that you have done, and 

it is very much appreciated. 

Ms. EDWARDS. Thank you, Senator. 

Senator FEINSTEIN. Thanks, Mr. Chairman. 

Chairman GRASSLEY. You bet. And I think Judge Gorsuch made 

very clear yesterday and the day before his feelings about the competency of Garland as well. 
404 

But the other thing is maybe when I was talking about David 

Brown, I was trying to compliment you all without saying we appreciate your work very much and know you work hard at this. But 

I know how David Brown does it, and I assume I have got some 

understanding of what you go through, although I have never done 

and will never have an opportunity to do it. 

I am going to look right here and then left. Is there anybody on 

our side that wants to be recognized? Senator Graham? 

Senator GRAHAM. Thank you. 

Chairman GRASSLEY. Anybody else that wants to be recognized 

on our side? 

Senator HATCH. I do. 

Chairman GRASSLEY. Okay, but I will get a Democrat before I 

come back to you. 

Senator HATCH. Sure. 

Senator GRAHAM. Thank you both very much for the work you 

do. 

Is it fair to say that the people you called was a group beyond 

the Federalist Society? 

Ms. DEGAN. Yes. 

Senator GRAHAM. Okay. 

Ms. EDWARDS. I do not think we knew if they were in the Federalist Society or not. 

Senator GRAHAM. I do not know how many Members there are, 

but the odds of all of them being called are probably pretty limited. 

Would you say that he is a mainstream judge? 

Ms. DEGAN. Well, Senator, it depends on what you mean by 

‘‘mainstream.’’ We believe that he meets and exceeds the highest 

standards of integrity, professional competence, and judicial temperament. So if that is mainstream—— 

Senator GRAHAM. Probably—— 

Ms. DEGAN. the answer is yes. 

Senator GRAHAM. Well, let us put it this way. If there is a 

stream, he is on the quality end of the stream, right? 

Ms. EDWARDS. He is fishing in it. 

[Laughter.] 

Senator GRAHAM. He is fishing in it. There we go. Are you from 

South Carolina? 

Ms. EDWARDS. I am from Oklahoma. 

Senator GRAHAM. Close enough. 

[Laughter.] 

Senator GRAHAM. Would you say he is a reasonable judge? 

Ms. DEGAN. Absolutely. Based on the feedback we received. 

Senator GRAHAM. Would you say he has lived a good life as a 

person? 

Ms. DEGAN. I’ll let you answer that. 

Ms. EDWARDS. My answer is yes. 

Senator GRAHAM. Okay. Did you hear his testimony that he believed the Detainee Treatment Act outlawed waterboarding? 

Ms. EDWARDS. We were here yesterday. 

Ms. DEGAN. I cannot say that we did actually hear that, Senator. 

Senator GRAHAM. I remember hearing that. Okay. So I just want 

to thank you for the service you provide to the Committee and to 

the country, and I hope people are listening to your evaluation. 
405 

As to Judge Garland, everything you said is absolutely true, and 

I will talk more about the way the process in the Senate works. 

But thank you both. You did the Committee and the country a 

great service. 

Ms. EDWARDS. Thank you. 

Ms. DEGAN. Thank you. It has been an honor. 

Chairman GRASSLEY. I am looking to my left, and I did not say 

I am looking at the left. Anybody over here have a question? 

Senator FRANKEN. I do not. 

Chairman GRASSLEY. Okay. Then I will go—I will go back to Senator Kennedy. 

Senator HATCH. How about me? 

Chairman GRASSLEY. Well, I thought you did not raise your 

hand. 

Senator HATCH. I just want to say one thing. 

Chairman GRASSLEY. Oh. Then it is your turn. 

[Laughter.] 

Senator KENNEDY. I will defer to Senator Hatch. 

Senator HATCH. I will be happy to defer to you, Senator. I just 

want to thank you for the work that you have done. 

I agree that Merrick Garland is a wonderful person and a very 

good judge. I went to see him personally. I helped him to get 

through back 19 years ago, maybe more than 19 years ago. And 

that was—that was a problem. There is no question about it. 

But now that has been resolved, do you see any reason why we 

should not totally support Judge Gorsuch? 

Ms. DEGAN. Well, the ABA has given Judge Gorsuch its highest 

rating, and that is the most affirmative endorsement that we give. 

So, no, sir. 

Senator HATCH. And that is hard to get, I have to admit. So I 

appreciate the really hard work that you folks do, and it is very 

meaningful to the Committee at this time. 

Thank you, Mr. Chairman. 

Ms. DEGAN. Thank you. 

Chairman GRASSLEY. Senator Blumenthal. 

Senator BLUMENTHAL. No questions. 

Chairman GRASSLEY. Okay. Now Senator Kennedy. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Thank you, Ms. Degan and Ms. Edwards, for all your hard work. 

I know how—how exhaustive your analysis is. 

How many grades are there, the different levels of qualification? 

Ms. DEGAN. Three. Qualified, not qualified, and well qualified. 

Senator KENNEDY. Okay. So it is basically A, B, and F. 

[Laughter.] 

Ms. EDWARDS. I will add that some of the people that we talked 

to asked us if there was an extremely well qualified. 

Senator KENNEDY. Really? An A-plus? 

Ms. EDWARDS. Yes. 

Senator KENNEDY. And Judge Gorsuch received an A? 

Ms. DEGAN. He did. Well qualified. 

Senator KENNEDY. And how many people contribute to this evaluation? 

Ms. DEGAN. Well, the 15 committee members all participate, and 

in addition, we had two academic reading teams read all of his 
406 

published opinions and other writings, and that was about 26 additional lawyers, academics, who are—who are experts in their fields, 

in the fields that they reviewed. So if it was a securities law case, 

a securities law expert read those opinions. 

And additionally, practitioners, which include those who regularly appear before the Supreme Court, that was 14 additional. So 

if you add all that up, if my math is right, I would say that is 

about 55 people or something like that. And all very distinguished 

lawyers and academics. 

Senator KENNEDY. These 55 attorneys, are they all Republicans? 

Ms. DEGAN. No, sir. 

Senator KENNEDY. Are they all Democrats? 

Ms. DEGAN. No, sir. Very varied. Big firms, small firms. Democrats, Republicans. In fact, we do not even—we do not get into political affiliation, Senator. 

Senator KENNEDY. Good for you. Is it a gender-diverse group? 

Ms. DEGAN. Very gender-diverse. Gender-diverse—every kind of 

diverse you can imagine. 

Senator KENNEDY. Okay. And it is racially diverse? 

Ms. DEGAN. Yes, sir. 

Senator KENNEDY. You probably do not even ask this question. 

But in terms of religion, is your sense is that it is diverse? 

Ms. DEGAN. Our sense is, but we do not ask that question. 

Senator KENNEDY. Okay. And this group together gave Judge 

Gorsuch an A, well qualified? 

Ms. DEGAN. Yes, sir. 

Senator KENNEDY. All right. And some asked to give him an Aplus. Ms. Edwards, is that right? 

Ms. EDWARDS. Yes. 

Senator KENNEDY. Okay. Well, I just want to say for the record, 

I do not know Ms. Edwards. I just had the pleasure of meeting you 

today. My dad was from Oklahoma. I love Oklahoma. 

Ms. EDWARDS. Thank you. 

Senator KENNEDY. But I know Ms. Degan, and she is one of the 

most prominent lawyers in Louisiana, Mr. Chairman. She is an undergraduate graduate of the University of New Orleans. She is an 

honors graduate of Loyola. She is a former adjunct professor at 

Loyola. She practices law with Baker Donelson, one of the premier 

law firms not just in Louisiana, but in the world. 

And I trust her judgment. And my experience with Ms. Degan 

has been that she calls it like she sees it. She is joined here today, 

I would be remiss if I did not recognize I will call him her lesser 

half. 

[Laughter.] 

Senator KENNEDY. Lesser half, but still substantial. Mr. Sid 

Degan, who is another very prominent attorney. He went to UNO. 

He went to Tulane to law school. He founded his own law firm, and 

he is here today volunteering his time. 

I know them both well, and I trust their judgment. If they tell 

me that Judge Gorsuch is the best, you can take it to the bank. 

You can take it home to mama because it is true. And I thank you. 

Ms. DEGAN. Thank you, Senator. 

Chairman GRASSLEY. I believe that is the last of the questioning 

for the Committee and for the American Bar Association. And for 
407 

the country, we thank all of the people that participated and will 

continue to participate in this that you have reported. 

Thank you very much. 

Ms. DEGAN. Thank you. 

Ms. EDWARDS. Thank you. 

Chairman GRASSLEY. We will take 30 seconds for staff to give the 

names of the new people, and I would ask the new people to come 

and stand behind their chair, and I will—and then I will swear you 

before you sit down. 

I am going to go ahead and start the introduction anyway. The 

next panel will be Judge Tacha, Ms. Massimino, Judge Henry, Mr. 

Jaffer, Judge Kane, Mr. Perkins, Ms. Bressack, and Mr. Calemine. 

And if I pronounced anybody’s name wrong, correct me when you 

testify. 

[Pause.] 

Chairman GRASSLEY. Okay. Would you—do you swear that the 

testimony you are about to give before this Committee will be the 

truth, the whole truth, and nothing but the truth, so help you God? 

[Response.] 

Chairman GRASSLEY. I have seen positive response. So I think— 

please seat. And I—we never get everybody to honor the 5-minute 

rule, and I do not expect you to stop in the middle of a syllable or 

anything like that. But if you see the red light come on and you 

can summarize in about 30 seconds or so, it would be very much 

appreciated because I am sure that there will be some questions of 

some of you, and so we want to move things along. 

But I think I am going to do it in the way you are seated there 

from my left to my right. So would you start out, Judge Tacha? 

STATEMENT OF HON. DEANELL REECE TACHA, U.S. COURT OF 

APPEALS JUDGE, RETIRED, DUANE AND KELLY ROBERTS 

DEAN AND PROFESSOR OF LAW, PEPPERDINE LAW SCHOOL, 

MALIBU, CALIFORNIA 

Judge TACHA. I am pleased to do so, and good morning to the distinguished Members of this Committee. 

It is a privilege to appear today to support the nomination of my 

former colleague and my friend, Neil Gorsuch, as an Associate Justice of the U.S. Supreme Court. 

I served with Judge Gorsuch on the United States Court of Appeals for the Tenth Circuit, and I was privileged actually to be 

Chief Judge of that Circuit when Judge Gorsuch was appointed in 

2006. In my brief time today, I will touch on three aspects of Judge 

Gorsuch’s qualifications, all of which I consider very, very important for judges at every level in the judiciary. 

First, Judge Gorsuch, the judge. Judge Gorsuch brings to the 

bench a powerful, powerful intellect combined with a probing and 

analytical approach to every issue. He brings to each case a strong 

commitment to limit his analysis to that case—its facts, the 

records, and the laws cited and applicable. He does not use his judicial role as a vehicle for anything other than deciding the case 

before him. 

The ‘‘case or controversy’’ requirement for jurisdiction is, for 

Judge Gorsuch, a guiding principle for his judicial role. He is a student of constitutional structure and of The Federalist Papers, and 
408 

he takes very, very seriously the appropriate roles assigned to each 

of the three branches of government. 

He is an elegant and accessible writer. In my judicial writing 

classes, I assign some of his opinions to demonstrate the importance of narrative to every case before the courts. His jurisprudence is informed by textualism, originalism, and precedent, but 

not in a formalistic or rigid way, only as the lenses through which 

to seek an appropriate resolution of an issue or a case. 

Judge Gorsuch is a case by case by case judge whose dedication 

is to serving litigants and the third branch of government. 

Second, Judge Gorsuch, the colleague. On a multi-judge appellate 

court, it is my view that one of the most important characteristics 

of an effective and efficient court is the level of collegiality among 

its Members. 

This is not at all about getting along to get along. It is about improving the quality of the work of that court by careful and respectful listening to varying and divergent views, participating and engaging in robust internal debate about procedures and cases, and 

factoring in and listening to the diverse views of each of the other 

judges. 

Judge Gorsuch is such a judge. His attention to the views of his 

colleagues informs his work. He has an acute sense for identifying 

those circumstances where reaching consensus is the highest value 

and, on the other hand, those decision points where personal conviction and reason dictate individual judgment and independent decision-making. 

Judge Gorsuch believes in the court as an organic and flourishing entity where the views, the backgrounds, and the perspectives of all the judges on the court are important to the quality of 

his work. 

Finally, Judge Gorsuch, the person. Neil Gorsuch is my friend. 

He has been from the day he took his role as my colleague in 2006. 

I want to say that again and say it advisedly because it means 

something that, despite the many differences in our life experience, 

in our backgrounds, in our education, and in our interests, Judge 

Gorsuch immediately and always affirmed me, both as a person 

and as a colleague. 

I have watched him with all kinds of people in the courthouse, 

in social settings, and in the rough and tumble of judicial travel 

and duties. He is unfailingly kind. He is thoughtful, and he is empathetic to all people. 

His is the kind of dignity that reflects the dignity he accords to 

all people. Judge Gorsuch lives according to his values. For him, 

faith, family, community, nation, and his beloved Colorado define 

who he is. He is, for me, the gold standard in public service. 

So for all these reasons, I urge the Committee and the full Senate to confirm Judge Neil Gorsuch as an Associate Justice of the 

U.S. Supreme Court. 

[The prepared statement of Judge Tacha appears as a submission for the record.] 

Chairman GRASSLEY. Judge Massimino, I hope I am right on 

that? 

Ms. MASSIMINO. Perfect. 
409 

STATEMENT OF ELISA MASSIMINO, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, HUMAN RIGHTS FIRST, WASHINGTON, 

DC 

Ms. MASSIMINO. Thank you, Mr. Chairman and Ranking Member 

Feinstein and Members of the Committee. It is an honor to be here 

today as you consider the nomination of Judge Neil Gorsuch. 

I speak on behalf of Human Rights First, an independent, nonpartisan organization dedicated to advancing American leadership 

on human rights. My focus today is on the dangers that arise when 

the executive branch claims unfettered authority in the name of 

national security. 

When Presidents override constitutionally mandated checks on 

their power, they threaten fundamental rights, the rule of law, and 

democratic ideals. They also undermine national security. This is 

not a hypothetical concern. Indeed, now would be an especially perilous time to promote to the Supreme Court a judge who would not 

stand up against presidential power grabs. 

The President has advocated torture and other war crimes, banning people because of their faith, deporting refugees without due 

process, and he is done all of this largely while bypassing Congress 

and expressing contempt for judges and the judiciary itself. 

So the key question you should ask of Judge Gorsuch is this. 

How would he respond in the face of what may be unprecedented 

threats to basic rights, separation of powers, and the rule of law? 

In our nearly 40 years, Human Rights First has never opposed 

a judicial nominee, and we do not do so today. Nor do we question 

Judge Gorsuch’s credentials, which are exemplary. I am here simply because his record raises concerns that I think you should address before moving forward with his nomination. The stakes are 

too high to get this wrong. 

Our concerns arise from the public record of Judge Gorsuch’s 

time at the Justice Department. They fall into three areas—subversion of congressional authority, restricting judicial review, and torture. 

On all three of these issues, Judge Gorsuch is not a blank slate. 

As a political appointee at the Justice Department, he was directly 

involved in defending the Bush administration’s claims that the 

President has extraordinary power to disregard laws in the name 

of national security and that the judiciary either cannot or should 

not review such actions. 

These claims constitute a front assault on the integrity of our 

constitutional order. Not surprisingly, they were rejected by the 

courts. 

With respect to Judge Gorsuch’s role on congressional authority, 

after photographs surfaced in 2004 showing horrific abuses at Abu 

Ghraib, Senator McCain spearheaded the Detainee Treatment Act, 

strengthening the ban on torture, which passed the Senate with 90 

votes. Judge Gorsuch pushed for a presidential signing statement 

saying the President could disregard that law to the extent it conflicted with his authority. 

Judge Gorsuch argued that the law was ‘‘best read as essentially 

codifying existing interrogation policies,’’ policies that included 

waterboarding and other forms of torture and abuse that Congress 

specifically intended to prohibit. 
410 

Second, on judicial review, Judge Gorsuch repeatedly sought legislation that would strip courts of habeas jurisdiction, including for 

people who were tortured or unlawfully detained. He also played 

a lead role in the litigation strategy in the Hamdan v. Rumsfeld 

case, where the Government argued that the President has the 

power to disregard the Geneva Conventions and that the courts are 

powerless to review that decision. 

The Supreme Court ultimately rejected these efforts to restrict 

the right of habeas and denied detainees the protections of the Geneva Conventions in the Hamdan and Boumediene cases. 

Third, on torture and standing up for human dignity. Some people, including political appointees in the Bush administration, like 

then General Counsel of the Navy Alberto Mora, were horrified 

when they discovered that our Government had a policy of torturing prisoners, and they tried to stop it. 

Judge Gorsuch, by contrast, seems to have devoted his energies 

to defending it. These were the defining legal debates of our time, 

and Judge Gorsuch was on the wrong side of them. 

Policies he promoted and defended violated American ideals and 

inflicted unnecessary suffering, and they did not strengthen our security. On the contrary, these policies compromised America’s global standing, alienated communities whose support our country 

needs to fight terrorism, and handed our enemies a PR victory. 

Given this record, it is essential that you probe Judge Gorsuch’s 

views on Executive power, on torture, and the appropriate roles for 

Congress and the judiciary as co-equal branches of government. 

Did his actions at Justice reflect his legal philosophy or his desire 

to be a team player? Did he disagree with positions of the administration on torture? And if he did, why did not he follow the example of others and speak out? 

The Senate must get to the bottom of these questions because, 

sooner or later—and with this administration, it is likely to be 

sooner—the Supreme Court will be called on to protect fundamental rights, judicial independence, and separation of powers 

from a President who treats the rule of law as an annoyance rather 

than the foundation of our democracy. 

Thank you. 

[The prepared statement of Ms. Massimino appears as a submission for the record.] 

Senator HATCH [presiding]. Judge Henry. 

STATEMENT OF HON. ROBERT HARLAN HENRY, U.S. COURT OF 

APPEALS JUDGE, RETIRED, PRESIDENT, OKLAHOMA CITY 

UNIVERSITY, OKLAHOMA CITY, OKLAHOMA 

Judge HENRY. Thank you, Senator Hatch, Ranking Member 

Feinstein, Members of the Committee. It is a pleasure and an 

honor to be here today, and I thank this Committee for its wonderful service to the third branch over the years. 

I am Robert Henry, president and CEO of Oklahoma City University, a former State legislator, and a former Attorney General 

of the State of Oklahoma, and a former Chief Judge of the United 

States Court of Appeals for the Tenth Circuit. 

I held that court position from 1994 to 2010, and for the last 4 

years of my service, I was a colleague of Judge Gorsuch. Based on 
411 

my personal experience working with him and my maintained contact through Circuit conferences, correspondence, and judicial gatherings, I am here today to speak in support of his nomination. 

In Federalist 78, Publius—and in this one, that would be Alexander Hamilton—described the nature and virtues of the Federal 

judiciary. As the ‘‘least dangerous’’ branch would have neither 

‘‘sword nor purse,’’ care would have to be taken to protect its vital 

independence. 

Permanency in office would be required, both to promote independence, and to allow for the mastery of the voluminous ‘‘strict 

rules and precedents,’’ in Hamilton’s words. The granting of permanence, the importance of integrity, and the long and laborious 

study required to master the judicial craft led Hamilton, whose 

star, gratefully, has ascended again of late, to observe, ‘‘Hence it 

is that there can be but few who will have sufficient skill to qualify 

for the station of a judge.’’ 

And this is why the Committee is, of course, gathered today. Fortunately, you have before you a candidate that I believe our judicial 

branch’s architect Hamilton would warmly embrace—and not just 

because they both attended Columbia. 

As one who has served with Neil, decided cases with him, traveled and dined with him, discussed our families together, including 

the menageries his daughters have maintained over the years, 

agreed and disagreed with him, I can attest to his truly remarkable 

intellect, his oft-demonstrated integrity, his mastery of Hamilton’s 

rules and precedents, and his fine judicial temperament and 

collegiality. 

Now I believe the subject of intellect speaks for itself and needs 

but summary mention: His honors degrees from Columbia and Harvard Law School; his Marshall Scholarship to Oxford, an honor he 

shares with Justice Stephen Breyer, that resulted in a Doctor of 

Philosophy degree; and his corpus of work, which includes outstanding service awards from the State Department, from the Truman Foundation, scholarly writings, and some 900 opinions that 

lawyers have described as ‘‘straightforward,’’ ‘‘learned,’’ ‘‘well-reasoned.’’ 

Deserving special mention is ‘‘The Law of Judicial Precedent.’’ 

This book, which Judge Gorsuch joined with Bryan Garner, America’s foremost lexicographer and legal rhetorician, and several distinguished Circuit Judges of quite diverse backgrounds is a remarkable work of legal scholarship. Impressively, all these eminent 

judicial co-authors of different political and occupational backgrounds produced a single volume, written with a single voice and 

no signed sections. 

As to integrity, I have never found Neil’s integrity to be in question. His career has subjected himself to various reviews of his public service. He served as a law clerk to two Supreme Court Justices, 

the late Justice Byron White, a highly esteemed judicial figure in 

the Tenth Circuit, where the courthouse is named for him—and not 

just because of his football records, by the way—as well as clerking 

for Justice Kennedy. And this Committee has reviewed him before 

as a Circuit Judge. All of this also speaks to Neil’s mastery of the 

law. 
412 

He has some unique qualifications, though. In the Tenth Circuit, 

we have a lot of cases from the great American West. We have 

cases involved our Native American nations, cases involving land 

and water that are important, and his experience in these areas 

will be helpful to the Court. 

I will skip judicial temperament. It is discussed in my written 

testimony, previously submitted. I am running low on time, and as 

I want to talk about one thing that is especially important to me. 

When Judge Gorsuch and Judge Tymkovich and Judge Lucero 

were in Santa Fe hearing cases one summer, they were very distressed by the quality of legal representation of those charged with 

the most difficult cases that Federal judges must deal with, habeas 

death penalty cases. I have to say that most of these cases come 

from Oklahoma, and our Bar was not adequately doing the job. 

Judges Gorsuch and Tymkovich volunteered, and they came to 

Oklahoma City and Tulsa. They created seminars, symposia. They 

brought their Circuit Judge colleagues to Oklahoma to hear actual 

cases. They met with these lawyers and helped them, trained them, 

and I have had one lawyer, a noted defense lawyer, who said these 

actions had an instrumental effect in improving the advocacy, Senator Hatch, of this most important area. 

Thank you. 

[The prepared statement of Judge Henry appears as a submission for the record.] 

Senator HATCH. Well thank you, Judge. 

Mr. Jaffer. 

STATEMENT OF JAMEEL JAFFER, EXECUTIVE DIRECTOR, 

KNIGHT FIRST AMENDMENT INSTITUTE, COLUMBIA UNIVERSITY, NEW YORK, NEW YORK 

Mr. Jameel Jaffer. Chairman Grassley, Ranking Member Feinstein, Members of the Committee, thank you for inviting me to testify. 

I do not think this Committee has any task more important than 

the one it has been engaged in this week. If Judge Gorsuch is confirmed, he will likely play a key role in shaping American law and 

society for two or three decades or more. 

I think it is clear that Judge Gorsuch has the professional competence to serve on the Court. I agree with Ms. Massimino, though, 

that Judge Gorsuch’s service in the Bush administration raises important questions about his views on Executive power and the role 

of the judiciary in the sphere of national security. 

At the time Judge Gorsuch served in the Justice Department, the 

Bush administration was advancing extremely broad claims of Executive power in the service of unlawful policies relating to surveillance, detention, military prosecution, and interrogation. Judge 

Gorsuch was closely associated with those claims. It would be a 

mistake to confirm him without ensuring that he will defend individual rights as well as the authority of Congress and the judiciary 

in the context of national security. 

I want to recognize at the outset that Judge Gorsuch might approach issues relating to Executive power differently as an Associate Justice than he did as a Justice Department lawyer. At the 
413 

Justice Department, Judge Gorsuch was a lawyer with a client. He 

says he regarded himself as a scribe or a scrivener. 

With respect, I would encourage the Committee to bring a degree 

of skepticism to that characterization. Judge Gorsuch sought out a 

high-level position with the Justice Department in the fall of 2004, 

just 7 months after the publication of the Abu Ghraib photos and 

only 5 months after the Washington Post published one of the torture program’s foundational documents. 

That was a memo written by the OLC, stating that interrogation 

methods would be lawful unless they inflicted the kind of pain ordinarily associated with organ failure or death. It was a chilling document then, and it remains an astonishing document today. 

It is also worth noting that Judge Gorsuch appears not to have 

registered disagreement with any of the policies that he defended, 

though other officials did. Nor is there evidence that he registered 

discomfort with any of the broad arguments that the Justice Department advanced in support of those policies, though, again, others did. 

The documents provided by the Justice Department suggest that 

Judge Gorsuch was comfortable with the policies and with the 

Bush administration’s defenses of them. It was challenges to the 

policies that troubled him. 

Senator Durbin asked Judge Gorsuch about an email in which he 

had criticized lawyers who represented prisoners held at Guantanamo. I thought the answer that Judge Gorsuch gave to that question was a good one. He said that he regretted having sent the 

email and that the email was ‘‘not his finest moment.’’ 

I hope you will give Judge Gorsuch an opportunity in his answers for the record to respond more fully to broader concerns relating to the positions he advanced at the Justice Department. 

Questions relating to Executive power are presented especially 

sharply today. President Trump has issued an Executive order banning Muslims from six countries from traveling to the United 

States. He said that he will consider prosecuting U.S. citizens in 

the military commissions at Guantanamo. He is promised to intensify surveillance of minority communities inside the United States. 

If Judge Gorsuch is confirmed, he will be called on to consider 

the lawfulness of some of those policies, and his conclusions will 

have far-reaching implications for the lives of millions of Americans 

and others and on the relationship of the United States with the 

rest of the world. 

So I urge you not to confirm him without fully exploring his 

views of Executive power. This should not be a partisan issue. We 

all know that the powers abused today by a Republican President 

may be abused tomorrow by a Democratic one. 

The question the Committee should ask is whether Judge 

Gorsuch will safeguard individual rights and the separation of powers, whoever occupies the Oval Office. 

Thanks again for giving me the opportunity to testify. 

[The prepared statement of Mr. Jaffer appears as a submission 

for the record.] 

Senator HATCH. Well, thank you. 

Judge Kane. 
414 

STATEMENT OF HON. JOHN L. KANE, U.S. DISTRICT 

COURT JUDGE, SENIOR, DISTRICT OF COLORADO 

Judge KANE. Thank you, Senator Hatch and Members of the 

Committee. 

I am the only trial judge that is appearing in these hearings. I 

would like to say, Senator, I have no reason for you to remember 

this, but I appeared before you 39 years ago. And I was honored 

to be here then, and I am honored to be here now. 

Senator HATCH. We are honored to have you. 

Judge KANE. Thank you. 

Judges are no different from anybody else. Like you, we have social, political, and religious views, whether the product of culture 

and upbringing, or the result of education, predilection, or intellectual or philosophical pursuit. To don the robe, however, is to surrender the freedom to act on those views so that justice may be 

served. 

The discipline of deciding, irrespective of one’s personal beliefs, 

is the essence of judicial integrity. Being consciously aware of one’s 

views and setting them aside at the start of every case is no easy 

task, nor should it be. The question for any nominee is, does he or 

she have the discipline to do that and decide each case according 

to the rule of law? I believe Judge Gorsuch does, and his opinions 

prove it. 

Long ago I gave up identifying judges as liberal or conservative 

because those words seem to mean whatever the user wants. They 

have no common understanding and provoke no further analysis. 

However one might pigeonhole either of us, the fact is Judge 

Gorsuch and I share few of the same social, political, or religious 

views. In evaluating fitness for the Bench, the real question is, 

does the nominee embrace the discipline of the robe? Do his or her 

opinions reflect any sort of ideological bias? Is the judge fair? Judge 

Gorsuch is not a monk, but neither is he a missionary or an ideologue. 

I read a great many appellate opinions from Circuit Courts 

throughout the United States. To the extent that a judge can be 

judged by his opinions, the ones written by Judge Gorsuch tell me 

a great deal. His are clear, cogent, and mercifully to the point. 

I have been both affirmed and reversed by him, and each time 

I thought he was fair and right. He treats the parties and the trial 

judge’s rulings with respect. He does not ridicule them or take 

cheap shots, nor does he insult or demean other judges who might 

disagree with him. 

His writing is filled with grace and wit. But does he know the 

difference between his personal views and those of the court? Judge 

Gorsuch is the only judge of whom I am aware who has written 

both majority opinions and concurring opinions in the same case. 

The majority opinions were the opinions of a three-judge court. The 

concurring opinions were his separate, additional perspectives. He 

has done this at least twice. He knows the difference between 

speaking for a court and for himself. 

Judge Gorsuch’s opinions also make clear his concern for the separation of powers and his keen awareness of the judiciary’s independence. He has written that legislation belongs to Congress and 

adjudication belongs to the courts. 
415 

He has disagreed with the late Justice Scalia by suggesting there 

is far too much adjudicative activity in the executive branch’s administrative agency rulings. He has questioned the values of the 

Chevron doctrine, which asserts the judiciary should defer to agency interpretations of statutes. The Chevron doctrine intrudes equally upon the authority and prerogatives of the legislative branch. 

As is often the case, Justice Oliver Wendell Holmes said it best. 

In his decision in Lochner v. New York, Justice Holmes wrote, ‘‘The 

case is decided upon an economic theory which a large part of the 

country does not entertain. If it were a question whether I agreed 

with that theory, I should desire to study it further and long before 

making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has 

nothing to do with the right of the majority to embody their opinions in law.’’ 

Like Justice Holmes, Judge Gorsuch knows that his social, political, and religious views have no place on the bench. In embracing 

the discipline of the robe, declaring—dedicating himself to the separation of powers and consistently devoting himself to being fair, 

Judge Gorsuch has earned the right to be considered by you for the 

highest bench in the land. 

I hope you will judge him with the fairness and integrity with 

which he himself has served. 

[The prepared statement of Judge Kane appears as a submission 

for the record.] 

Senator HATCH. Well, thank you, Judge Kane. 

Mr. Perkins, we will turn to you. 

STATEMENT OF JEFF PERKINS, BERTHOUD, COLORADO 

Mr. PERKINS. Mr. Chairman, Ranking Member Feinstein, and 

Members of the Committee. Thank you for the opportunity to give 

voice to my son, Luke, whose access to an appropriate education 

and, thus, to a meaningful and dignified life was threatened by 

views of Judge Neil Gorsuch. 

Luke was diagnosed with autism in 1996 at age 22 months. An 

intensive early childhood program taught him letters, numbers, 

and colors, but he struggled with speech. He developed a restricted 

diet, an erratic sleep cycle, and intolerance to sounds. When overwhelmed, he would tantrum and often injure himself. 

Luke’s care became too much for my wife and me alone. His older 

siblings and hired caregivers helped. My parents moved next door 

to assist. It was clear that his education program was failing, and 

Luke began to regress significantly. Teachers were reinforcing inappropriate behaviors, and he was not participating in meaningful 

educational activities. 

Moreover, his program failed to address his profound inability to 

generalize. Luke might learn a skill in a particular classroom with 

one teacher, but unable to perform it within any other setting. 

While such learning might check off a box on an education plan, 

it provided no meaningful benefit. Multiple experts agreed that he 

needed an intensive program with wraparound services to address 

his educational needs. 

We made many unsuccessful attempts to address these deficiencies with the school district. Since the needed services were not 
416 

available locally, we were left with the agonizing option of sending 

him 2,000 miles away to a specialized school for autistic children 

in Boston. 

When Luke enrolled in Boston Higashi School at age nine, he 

was not toilet trained, ate only a few foods, could not sleep in a 

bed, could not eat with utensils, and did not interact with his 

peers. Within months of enrolling, Luke was toilet trained. He ate 

healthy foods with proper utensils. He was sitting calmly in a 

classroom with peers. He participated in group activities, such as 

roller blading. When Luke visited home during breaks, we could 

shop, eat at restaurants, and even attend church together. 

But this improved life for Luke was costly. Despite my comfortable income as a physician, Luke’s education costs rapidly depleted our reserves. My parents contributed from their retirement 

savings. 

In 2005, we requested reimbursement for Luke’s education under 

the Individuals with Disabilities Education Act. At a due process 

hearing, the independent hearing officer found in our favor. The decision was upheld both by an administrative law judge and a U.S. 

District Court Judge. But when the school district appealed to the 

Tenth Circuit, Judge Gorsuch authored the decision overturning 

these previous rulings. 

His legal reasoning set a new low standard of education required 

under IDEA as merely more than de minimus. De minimus, lacking significance or importance so minor as to merit disregard. 

Judge Gorsuch felt that an education for my son, that was even one 

small step above insignificant, was acceptable. Despite Luke’s inability to meet three-quarters of his educational goals or to use any 

of these skills outside the classroom, his education was judged appropriate. 

That left us only one real option. One of Luke’s parents would 

have to move to a school district that would better accommodate 

Luke’s educational needs. After much prayer and thought, my wife 

decided to permanently relocate. Thankfully, the Dedham School 

District acknowledged Luke’s extraordinary needs, allowing him to 

finish out his time at Higashi. 

Now age 22, Luke will always need support in a world that still 

seems perplexing and threatening to him, but his quality of life 

after 13 years of appropriate education is vastly better than it 

would have been otherwise. He cooks and does household chores. 

He is able to shop, work, eat, and play in the community, and he 

has developed a new passion, Legos. Luke’s mind is uniquely attuned to this plastic brick world. He constructed this particular 

model this January. 

His present life would have been—would not have been achievable without an appropriate education. Thankfully, Luke is unaware of the price paid for his education. The financial cost pales 

in comparison to the human sacrifice: his mother separated from 

her 13-year-old daughter, his parents’ marriage broken. He is also 

unaware of the key place that one judge, with his radically restrictive interpretation of law, played in the fight for his right to a free 

and appropriate public education. 

In his Tenth Circuit ruling, Judge Gorsuch eviscerated the educational standard guaranteed by the IDEA. His interpretation re-
417 

quires that a school provide an education to a disabled child that 

is just above meaningless. His minimalistic interpretation of Federal law in Luke’s case has been used to deny an appropriate public education to countless other disabled children in the Tenth Circuit over the last 9 years. 

Legal philosophy and case law aside, such an interpretation 

clearly fails the common sense test. Why would Congress pass a 

law with such a trivial intent, and why would a parent settle for 

an education for any of their children, regardless of their abilities 

or challenges? To quote Chief Justice Roberts from yesterday’s Supreme Court ruling, ‘‘When all is said and done, a student offered 

an educational program providing merely more than de minimus 

progress from year to year can hardly be said to be offered an education at all.’’ 

On behalf of all children—disabled, typical, and gifted—I urge 

you to deny confirmation of Judge Neil Gorsuch to the Supreme 

Court of the United States. Thank you for providing me this opportunity, and I ask that my full statement be included in the record. 

I look forward to answering your questions. 

[The prepared statement of Mr. Perkins appears as a submission 

for the record.] 

Senator HATCH. Your full statement will be included in the 

record. We appreciate your testimony. 

Ms. Bressack, we will turn to you. 

STATEMENT OF LEAH BRESSACK, 

FORMER LAW CLERK, WASHINGTON, DC 

Ms. BRESSACK. Mr. Chairman, Ranking Member Feinstein, and 

other Members of the Committee, I am deeply honored to have the 

opportunity to address the Committee today and talk about one of 

my mentors, Judge Gorsuch. 

Senator Feinstein, I grew up in California where you and Senator Boxer were my home State Senators, and my family still 

laughs that there was a time when I believed that only females 

could be Senators. 

[Laughter.] 

Ms. BRESSACK. Of course, when I left for college I moved to 

Maine, which also had two women Senators, so take from that 

what you will. 

I served as a law clerk to Judge Gorsuch from 2009 to 2011. I 

would like to direct my remarks to how Judge Gorsuch approaches 

cases. 

His commitment to assess each case from all points of view, and 

never make up his mind until every point of view has been considered, is the quality I respect most about him. First, Judge Gorsuch 

is truly independent. In deciding cases, he does not care what politicians or parties want. He only cares what the law says. 

In the 2 years I worked with him, never once did politics influence a decision he made. I saw the Government win cases. I saw 

the Government lose cases. I saw each private litigant receive the 

same meticulous analysis of its arguments. Judges like Judge 

Gorsuch are the keepers of our independent judiciary. 

Second, Judge Gorsuch works together with judges from all different points of view to build consensus wherever possible. In my 
418 

2 years clerking for the judge, the judge heard many cases together 

with other judges whose judicial philosophies differ from his. Yet 

the great majority of those cases were decided unanimously, and 

that is no coincidence. It is a reflection of the judge’s deep respect 

for the opinions of his colleagues and commitment to craft decisions 

that benefit from their reasoning. 

In my experience as a law clerk, the judge always pushed me to 

research all sides of a case, question the reasoning underlying each 

party’s position, and give all arguments exhaustive consideration. 

That process more or less consumed my life for 2 years. It is a cornerstone of how Judge Gorsuch works, and he will not accept anything else. 

Third, there is no question that a Supreme Court Justice wields 

significant power, but having worked closely with Judge Gorsuch, 

I am confident that a change in title from ‘‘judge’’ to ‘‘Justice’’ will 

not change him. His judicial philosophy is based on the idea that 

the future of this country will be decided by elected representatives, like the Members of this Committee, not by him, and that 

will never change. 

On a personal level, some of my fondest memories of my clerkship with Judge Gorsuch were the afternoon runs that he led us 

on through Denver. Weaving in and out of the city streets, I questioned the judge’s description of these events as jogs when to me 

they felt much more like a sprint. When it was easy—while it was 

easy to begin the run discussing cases with the judge, the true test 

was whether you could continue to communicate about the cases 20 

minutes later when the judge was doing just fine, and most of the 

clerks were out of breath. I now think of those runs as a metaphor 

for the experience of working with the judge. His relentless drive 

pushes everyone around him to try harder and reach higher. 

In casual conversation in chambers, the judge always wanted to 

hear about our experiences exploring the Colorado outdoors. I still 

remember the morning ritual of quizzing clerks on their adventures 

over the weekend. One weekend while hiking in Rocky Mountain 

National Park, I found myself within a few feet of a beautiful red 

fox, and I knew I would have the ace come Monday when the quiz 

occurred on Monday morning. 

We all know the saying that ‘‘You are judged by the company you 

keep.’’ One of the greatest gifts of clerking for 2 years for Judge 

Gorsuch is my co-clerks, whose humility, intelligence, and diligence 

mirror the qualities I admire so much about the judge. 

Many of the judge’s clerks, whose political views span the spectrum, have traveled to be here for this hearing, and we have uniformly recommended him as an extraordinary judge. We believe he 

is a judge of whom all Americans would be proud. 

[The prepared statement of Ms. Bressack appears as a submission for the record. ] 

Senator HATCH. Thank you very much. Mr. Calemine. 

STATEMENT OF GUERINO J. CALEMINE, III, GENERAL COUNSEL, COMMUNICATIONS WORKERS OF AMERICA, WASHINGTON, DC 

Mr. CALEMINE. Mr. Chairman and Members of the Committee, 

my name is Jody Calemine. I am general counsel of the Commu-
419 

nications Workers of America. We are a labor union representing 

hundreds of thousands of workers across this country. Thank you 

very much for the opportunity to testify. 

Our concern about Judge Gorsuch ascending to the Supreme 

Court is about as fundamental as it can get. His jurisprudence is 

a threat to working people’s health and safety. 

This hearing has already paid some attention to Judge Gorsuch’s 

dissent in the TransAm Trucking case, and that attention is justified. That dissent, issued just 7 months ago, reveals an anti-worker 

bias, and features a judicial activism that will ultimately put workers’ lives at risk. 

At issue in TransAm Trucking is a law that protects truck drivers who refuse to operate a vehicle out of safety concerns. When 

driver Alphonse Maddin refused to operate his truck and trailer in 

the manner his supervisor directed him, which was to keep the 

truck parked and hitched to a disabled trailer in subzero temperatures while he froze to death waiting hours for help, and instead 

finally drove his truck to safety, he was exercising that right to 

refuse an unsafe operation, and could not be fired for it. Only one 

judge at any level of this case ever dissented from this view: Judge 

Gorsuch. 

He found that when Mr. Maddin drove his truck to safety, he 

was not refusing to operate his truck. He was operating it, and, 

therefore, could be fired for disobeying orders. Judge Gorsuch has 

said that the result he reached might be unkind, forcing Mr. 

Maddin to choose between dying or losing his job, but he contends 

he is merely applying the unambiguous text of the law to the facts 

of the case. 

Far from it. To reach this result, Judge Gorsuch had to choose 

one particular definition of the word ‘‘operate’’ from the dictionary. 

As it turned out, there are multiple definitions of ‘‘operate’’ in the 

dictionary. Judge Gorsuch chose the definition that allowed him to 

rewrite the law. 

After he was done, a worker’s right to refuse to operate would 

mean only refuse to drive. That is not judicial restraint, and the 

rewrite of the law in this case leads to absurd, deadly results and 

fewer rights for truck drivers. 

As we know, Judge Gorsuch is no fan of agency deference, and 

so we have every reason to expect his judicial activism will narrow 

other worker rights beyond the Surface Transportation Assistance 

Act at issue in TransAm Trucking. Our union members are typically not truck drivers, but rely on other safety laws to protect 

them on the job, like OSHA’s rule allowing us to refuse hazardous 

work. On a very frequent basis, a worker that we represent will 

identify a hazard in the workplace, and the union will stand with 

him and others to stop the work until the hazard is abated. 

Just a few weeks ago, one of our technicians in Detroit discovered significant asbestos contamination where he was supposed to 

do telecom work in an underground vault directly below a manhole 

on a public street. He told his supervisor. His supervisor repeatedly 

told him to blow fresh air into the vault, which would not only expose this technician to friable asbestos floating in the air, but exposed the public on the street above as well. So, the technician re-
420 

fused to do the hazardous work demanded by a supervisor, and he 

and the public are safer for it. 

We take these actions knowing the law is on our side. To us, 

health and safety are not, as Judge Gorsuch dismissively puts it, 

‘‘ephemeral and generic.’’ 

Now, the right to refuse hazardous work under the OSHA Act, 

unlike the statute at issue in TransAm Trucking, is a product of 

agency interpretations of the statute. If Judge Gorsuch takes a 

sledgehammer to workers’ explicit statutory rights as he did in 

TransAm Trucking, imagine what he may do to rights stemming 

from agency interpretations. More workers will die on the job. 

Judge Gorsuch’s dissent in TransAm Trucking, in our view, is 

disqualifying. Ignoring agency interpretations, legislative purpose, 

common sense, and instead picking the narrowest definition one 

can find in the Oxford English Dictionary to redefine our rights, 

that is not applying the law to the facts. It is a form of judicial activism. 

It is said that our health and safety laws are written in the blood 

of working people. Please do not allow Judge Gorsuch to repeal 

these laws from the highest bench in the land with his brand of 

judicial activism. We urge the Senate to reject this nomination, and 

thank you very much for your time. 

[The prepared statement of Mr. Calemine appears as a submission for the record.] 

Senator HATCH. Well, we thank all of you for being here today 

and for your testimony. 

I just have one question for you, Judge Tacha. By the way, welcome. You were a great judge in our Circuit out there, and I really 

appreciate your leadership over the years. 

Judge Tacha, this hearing has been somewhat of a civics lesson 

with the separation of powers being prominent—a prominent 

theme throughout this week. This was the first of three aspects of 

Judge Gorsuch’s qualifications that you described in your testimony. As you put it, he ‘‘takes very seriously the appropriate roles 

assigned to each of the three branches of government.’’ 

Now, this is a critical principle, but it can sometimes seem a tad 

detached or even cold when the facts of the toughest cases are presented. I am sure you wrestled with this when you were on the 

Tenth Circuit. Now, how important is it for a judge, too, as Senator 

Schumer put it in 2009, stick to the law, even when it means ruling against sympathetic litigants? 

Judge TACHA. Thank you, Senator Hatch, and I appreciate your 

kindness in this full Committee, and I might say I was a part of 

the Tenth Circuit, and now I am working in Senator Feinstein’s native California at Pepperdine University. So, I am pleased to be 

both places. 

Your question goes to the heart of what a judge does. And let me 

just say in response to Mr. Perkins, as a parent and as a human 

being, my heart goes out to you for the facts that you have laid forward that were in Luke P. But as a judge, to your point, Senator 

Hatch, the judge must look at the law as he or she sees it at that 

moment. And in particular, in the Luke P. case, Judge Gorsuch was 

following very longstanding precedent. 
421 

This court—I mean, this Committee—I am sorry—has heard 

Judge Gorsuch repeatedly say precedent is important. Precedent 

stands. It is an important piece of how—of the lens that I referred 

to that a judge looks at a case through. And to be absolutely specific, Judge Gorsuch was applying precedent that went all the way 

back to 1982 in the Supreme Court decision of Board of Education 

v. Rowley. So, with all my heartstrings with the family, what Judge 

Gorsuch was called on to do was apply that very longstanding 

precedent for our Circuit. 

Let me also say it was not just our Circuit. I believe it was all 

but two Circuits. All the rest of the Circuits in the Nation were following the same standard in interpreting the IDEA. Further, I can 

say with some authority that he was following not as dicta, but as 

a holding in his case what I wrote in the Urban case. And both required that—the statute as interpreted must be more than de minimus. So, there is a lot of discussion, but it is important to know 

that was longstanding precedent from a long time back. 

Now, I will say, you know, Circuit Judges are really glad when 

the U.S. Supreme Court clears up Circuit conflicts. And so, what 

happened in that case that was issued yesterday was two Circuits 

had chosen one standard, and the rest of us had chosen the other 

standard, three longstanding precedents on interpretation of the 

IDEA. So, yesterday the Supreme Court carried out its very important function of clearing up what the standard would be. 

I have not had time—I have to say I have not had time to thoroughly review the opinion from yesterday, but I know for sure that 

the Luke P. case was based on the Urban case that I wrote, and 

it said the standard must be more than de minimus. 

Senator HATCH. Well, thank you so much. Senator Feinstein. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman, and 

thank you, Judge, for making that clear. I think you made a very 

cogent statement. I gather the standard the Court passed yesterday would have covered Mr. Perkins’ son. Is that correct? 

Judge TACHA. Well, I will not opine on how the law would be applied to particular facts, but it does appear to me that the standard 

that we had been using has changed. 

Senator FEINSTEIN. Thank you. And, Mr. Perkins, I just want to 

thank you for being here. That display you presented is very telling. And one question. When did he do this? 

Mr. PERKINS. He did this in early January of this year, ironically 

about 2 weeks before Judge Gorsuch was nominated to the Supreme Court. 

Senator FEINSTEIN. Well, that is quite amazing because it is 

quite a complicated building of the Capitol, and very much appreciated. So, thank you for being such a good parent. It is very much 

appreciated. 

I wanted to go to Mr. Jaffer, if I could. And I feel I am remiss 

because I wanted to ask some of these questions yesterday and did 

not have an opportunity to do so. So, let me now throw out a question and ask you your view on it. 

The judge acknowledged that he worked on the Graham amendment, which sought to eliminate habeas for Guantanamo detainees, 

and he also acknowledged that in December 2005, after the Detainee Treatment Act was passed, there were different factions in 
422 

the Administration advocating different versions of a signing statement. 

In an email Judge Gorsuch sent to Steven Bradbury and others, 

here is what he said, . And this is in the document. ‘‘Along the 

lines proposed below would help inoculate against the potential of 

having the Administration criticized sometime in the future for not 

making sufficient changes in interrogation policy in light of the 

McCain portion of the amendment. This statement clearly, and in 

a formal way that would be hard to dispute later, puts down a 

marker to the effect that the view that McCain is best read as essentially codifying existing interrogation practices.’’ 

Now, this is in December 2005, 9 months after the Bradbury 

memo had concluded that waterboarding, stress positions, sleep 

deprivation, and other techniques were not prohibited by the standard applied under Article 16 of the Convention Against Torture. 

My question to you is, what do you make of this email, ‘‘inoculate 

against being criticized in the future for not making sufficient 

changes in interrogation policy?’’ 

Mr. JAMEEL JAFFER. So, I think that this is a really important 

question. So, in May 2005, the Office of Legal Counsel wrote 

memos that concluded, as you—as you mentioned, Senator Feinstein, that concluded that certain interrogation methods, including 

waterboarding, did not constitute cruel, inhuman, or degrading 

treatment. And my understanding of the email that you—that 

you—that you quoted is that Judge Gorsuch believed that the signing statement—that the way the Administration should interpret 

the law is to essentially ratify those interrogation methods that the 

Office of Legal Counsel had signed off on in May. 

So, I think one really important question is what did Judge 

Gorsuch know about the interrogation methods that the CIA was 

using at the time he urged that President Bush issue a signing 

statement interpreting the DTA in the way that he ended up interpreting it? I think that is a really important question, and I do not 

think it has been answered yet in this—in this hearing. 

Senator FEINSTEIN. Thank you. Thank you. Thank you very 

much, Mr. Chairman. 

Senator HATCH. Thank you, Senator. Senator Graham. 

Senator GRAHAM. Well, thank you. I remember the debate well, 

and here is what Senator McCain said about his amendment, 

which I supported vigorously. ‘‘The amendment I am offering simply codifies what is current policy and reaffirms what was assumed 

to be existing law for years. In light of the Administration’s stated 

commitment, it should require no change in our current interrogation and detention practices. What it would do is restore clarity on 

a simple and fundamental question. Does America treat people humanely? My answer—inhumanely. My answer is no, and from all 

I have seen, America’s answer has always been no.’’ So, that was 

Senator McCain’s view of what we we are trying to do here. 

The Graham amendment, I cannot what the—how the bill was 

passed, but it was overwhelming. What I tried to do is say that the 

Combat Status Review Tribunal System within the military would 

be the primary way of determining enemy combatant status, but 

we would have judicial review of that at the D.C. Court of Appeals. 
423 

I think the Supreme Court said in a five-four decision that the 

CSRT is not an adequate substitute for habeas, and that is the law 

of the land today. We basically redrafted the Military Commissions 

Act, and I feel good about where we are at. 

Mr. Jaffer, is the current system that if you are alleged to be an 

enemy combatant, you can be held as such, but you get a habeas 

hearing in Federal court? Is that correct? 

Mr. JAMEEL JAFFER. That is right. 

Senator GRAHAM. Okay. And the Government has to prove by a 

preponderance of the evidence that you are, in fact, an enemy combatant to be held? 

Mr. JAMEEL JAFFER. That is right. 

Senator GRAHAM. And if you are an enemy combatant, you can 

be held without—under the law of war indefinitely. Is that correct? 

Mr. JAMEEL JAFFER. I am not sure about indefinitely. I think 

that is still an issue in the courts. But, yes, you can be held. 

Senator GRAHAM. Well, there are people at Guantanamo Bay 

who are being held as enemy combatants, and they have been 

there for years. Is that correct? 

Mr. JAMEEL JAFFER. That is right. 

Senator GRAHAM. President Obama left them in that status. 

Mr. JAMEEL JAFFER. Some of them, yes, that is right. 

Senator GRAHAM. Yes, I think there is 48—— 

Mr. JAMEEL JAFFER. That is right. 

Senator GRAHAM [continuing]. That have been determined too 

dangerous to release. So, under the Obama administration, at least 

to those 48, they are being held under the law of war as enemy 

combatants. 

Mr. JAMEEL JAFFER. That is right, Senator Graham. As you 

know, hundreds of prisoners have now been freed from Guantanamo. 

Senator GRAHAM. Right. 

Mr. JAMEEL JAFFER. I do not know how many of them would 

have been freed—— 

Senator GRAHAM. Right. 

Mr. JAMEEL JAFFER.—under the rules that Judge Gorsuch was 

proposing. 

Senator GRAHAM. Right. Do you also know about 30 percent that 

have been freed have gone back to the fight? 

Mr. JAMEEL JAFFER. I do not think that figure is accurate, Senator. 

Senator GRAHAM. How many do you think have gone back to the 

fight? 

Mr. JAMEEL JAFFER. I do not know the number, but—— 

Senator GRAHAM. How many Americans have been killed and 

others have been killed by people released at Guantanamo Bay? 

Mr. JAMEEL JAFFER. Senator Graham—— 

Senator GRAHAM. Do you know? 

Mr. JAMEEL JAFFER. The detainees—I do not know the number. 

Senator GRAHAM. Okay. How about letting me help here? You 

have got to take some risk because you cannot hold people without 

due process. Do you agree with that? 

Mr. JAMEEL JAFFER. I agree with that. 
424 

Senator GRAHAM. I guess the safest way is to never let anybody 

go, but that is not the right way. 

Mr. JAMEEL JAFFER. It is not the way that the Supreme Court 

has proposed that the law should be—has said the law should be. 

Senator GRAHAM. No, the Supreme Court says—they have never 

said you cannot hold anybody indefinitely. You have to give them 

due process. 

Mr. JAMEEL JAFFER. That is right, Senator. 

Senator GRAHAM. Okay. So, I am all for due process, and sometimes you make mistakes. We have actually been aligned more 

than most people would think. I do not believe that waterboarding 

was ever an appropriate technique to gain information, and I am 

sure you agree with that. 

Mr. JAMEEL JAFFER. I do, Senator Graham. I think the question 

is whether Judge Gorsuch agreed with that at the time he was in 

the Justice Department. And my interpretation of that email is 

that he did not. 

Senator GRAHAM. Well, is it fair to say that Judge Gorsuch, who 

I interacted with a lot, said that waterboarding is illegal under the 

Detainee Treatment Act? He said that before this Committee. 

Mr. JAMEEL JAFFER. I read that. I read that. I was—I was 

pleased to read that. I do not think that is the view he expressed 

in the Justice Department. 

Senator GRAHAM. Do you know why—do you know why he said 

that? Because I interacted with him a lot. He never bought the idea 

that waterboarding was consistent with the Geneva Convention. 

He has never bought the idea that it was consistent with other law. 

Some people had that view, and I am just here to tell you that he 

said before the country that waterboarding is now illegal without 

any question. 

And I brought up the situation of the current President, that if 

he decided—and I do not think he will because of General Mattis 

to go down that road—he would be, in my view, violating the law. 

And Judge Gorsuch said no man/woman is above the law. So, I 

hope that gives some comfort to people that Judge Gorsuch understands that the purpose of the Detainee Treatment Act was to outlaw waterboarding and other type techniques. He acknowledged it 

before the country that no President can just seize the law because 

of national security concerns alone. 

Ms. Massimino, do you agree we are at war? 

Ms. MASSIMINO. I do. 

Senator GRAHAM. And this is a complicated endeavor in terms of 

how you fight the war because there is no nation-state to fight, no 

Air Force to shoot down, no Navy to sink. 

Ms. MASSIMINO. It is quite complicated. 

Senator GRAHAM. But we need to adhere to our values, but also 

realize that intelligence gathering is an essential ingredient of law 

of war. 

Ms. MASSIMINO. It is. It has been a huge challenge for us. 

Senator GRAHAM. Thank you all very much. You have done the 

country a great service. 

Senator HATCH. Well, thank you. Senator Durbin. 

Senator DURBIN. Thanks, Mr. Chairman. Thanks to the panel. 
425 

Just to follow-up on Senator Graham’s line of questions. At the 

time of the memo that was sent by Judge Gorsuch on this issue in 

which he said that, ‘‘McCain is best read as essentially codifying 

existing interrogation policies,’’ I am told the waterboarding was 

part of the existing interrogation policies of this country. Is that 

correct? 

Mr. JAMEEL JAFFER. That is correct. 

Senator DURBIN. He could not remember that email nor any details surrounding it. But we clearly through the McCain amendment or the McCain legislation, which I supported, we clearly 

wanted to outlaw waterboarding and any form of cruel, degrading, 

and inhumane treatment of prisoners. So, there was a built-in inconsistency here. 

Mr. JAMEEL JAFFER. I think that is exactly right. 

Senator DURBIN. Codify existing procedures, which included 

waterboarding, and address that as a signing statement on the 

McCain amendment, which would have prohibited waterboarding, 

a clear distinction which Judge Gorsuch, because of a variety of circumstances, did not directly answer. 

Let me move to another issue, and I do not know if it is Mr. or 

Dr. Perkins. Thank you for being here. Thank you for your touching story about Luke and his travels and journey, and all that you 

and your family have done to bring him to this point in his life. 

When Judge Tacha—did I pronounce your name correctly? 

Judge TACHA. Tacha. 

Senator DURBIN. Tacha? When Judge Tacha talked about the 

Tenth Circuit standard, she left out one word: ‘‘merely.’’ ‘‘Merely.’’ 

I am trying to draw an analogy, and it may not be the best one. 

But if I said when it comes to hungry children, the law requires 

you to provide them more than just a little bit of food, that is a 

lot different than saying when it comes to hungry children, the law 

requires you to provide them merely more than just a little bit of 

food. Difference? One word has made a big difference. It has taken 

de minimus lower. 

That was the express statement by Judge Gorsuch which expanded what was the Tenth Circuit standard when it came to your 

son. It was the express phrase ‘‘merely more than de minimus’’ 

that the Supreme Court unanimously struck down yesterday, saying that means no education at all. 

When you saw that opinion, what was your reaction that Judge 

Gorsuch said he was just following Tenth Circuit precedent? 

Mr. PERKINS. Well, I was devastated. At the time the opinion 

came out, Luke had been at Boston Higashi for five and a half 

years. I knew what he had accomplished in that time, all of the 

progress he had made. And to realize that Judge Gorsuch had by 

this subtle word craft taken what would seem to be—making a 

statement that seemed to be saying he was following precedent, but 

actually further restricting an already restricted precedent with 

unfortunately my son in the bull’s eye of that decision. It was very 

hard to take. 

Senator DURBIN. Mr. Calemine, did I pronounce your name correctly? 

Mr. CALEMINE. Calemine. 
426 

Senator DURBIN. Calemine. Mr. Calemine, I am sure—the Chicago Tribune this morning chided me, and I am sure many of the 

Committee Members will be chided, that we spent so much time 

talking about a frozen truck driver. What in the world is going on 

here? We are talking about the Supreme Court. Why should we be 

talking about Alphonse Maddin and whether he was facing hypothermia or frostbite? 

But whether we are talking about one young man—young boy 

with autism or one truck driver, we are really trying to figure out 

this judge and what makes him tick and what his values are. And 

all we can rely on are really important decisions, not the routine 

decisions—they come and go—but the ones where you really have 

a moment where you have to make a call with the law and the 

facts that really defines you. 

Many of the arguments that I have heard here today I have 

heard over and over in this Committee, and that is this is programmatic. Here is the law, here are the facts, here is the judge, 

case closed. We know better. We know better because Merrick Garland is not sitting at the table or was not yesterday. 

The decision was made that it would be Neil Gorsuch for fear 

that Merrick Garland, an Obama appointee, would come in and say 

exactly the same thing. That really tells us that there is more at 

stake here than just this programmatic, robotic application of the 

law. There is something much more fundamental here. 

I thank you for coming and speaking on behalf of working people. 

Thank you, Mr. Chairman. 

Senator GRASSLEY. Senator Lee. 

Senator LEE. Thank you very much. Mr. Jaffer, I just wanted to 

find out whether you are familiar with the column that came out 

in the Wall Street Journal yesterday, an article by Jess Bravin 

talking about the fact that former Justice Department official, John 

Bellinger, corroborated Judge Gorsuch’s account to the effect that 

he pushed back against advocates of waterboarding and other cruel 

interrogation techniques during the Bush Administration. Are you 

familiar with that? 

Mr. JAMEEL JAFFER. I am not familiar with the column, but I am 

glad to hear that. And I think that if you have the opportunity to 

ask questions for the record, it would be great to get more information about precisely what Judge Gorsuch did to push back against 

these interrogation methods. It is great to hear if he did that, but 

it would be good to get that on the record. 

Senator LEE. In the email that has been referenced, dated Thursday, December 29th, 2005 at 4:47 p.m., it is worth noting I think 

that—I do not think he is saying there were no changes being 

made. He used words like ‘‘sufficient’’ and ‘‘essentially,’’ talking 

about sufficient changes and whether they essentially codified existing law, not suggesting that there were no changes at all that 

were made by the law. Would you dispute that? 

Mr. JAMEEL JAFFER. No, I think that is another good line of inquiry. I think it would be important to ask Judge Gorsuch again 

what he knew of the interrogation methods that were being used 

at the time, and what adjustments he thought the Administration 

was going to make as a result of the DTA. I think those are important questions that have not yet been answered. 
427 

Senator LEE. Thank you. Judges Tacha and Henry, it is very 

good to see both of you, and I do have to say it is a little bit more 

comfortable standing on this side of a stand rather than the other 

side. I am used to seeing you in an elevated position with both of 

you in robes, so thank you for being here. 

On the point, Judge Tacha, about the use of the word ‘‘merely,’’ 

when you are looking at what Circuit precedent already demands, 

and you are trying to evaluate whether or not that precedent has 

been satisfied, the use of the word ‘‘merely,’’ as I see it, could mean 

and ordinarily would mean, if I am not mistaken, this law does not 

require everything. It does not require a hundred percent if we are 

measuring this on a one to hundred percent basis. It requires 

merely X percent. 

Ordinarily when a judge would use such language, a judge would 

not necessarily be meaning to denigrate or minimize what the law 

requires, but indicate that the law requires X and nothing beyond 

X. Would that be how you would normally use that as a judge? 

Judge TACHA. That is exactly right. I cannot opine—thank you, 

Senator Lee, for those kind words. I cannot opine what order the 

adjective and everything came in the sentence. But what it does is 

merely define existing precedent, which was our standard—more 

than de minimus. 

So, yes, how that word was used is probably exactly as you describe, which was there is a standard here, there is a standard 

here, there is a standard here, and this one is the standard that 

is selected by the Circuit and followed Supreme Court precedent 

since 1982. 

Senator LEE. And as an Article III judge, even a powerful 

judge—at one point you were the Chief Judge of the Tenth Circuit—it is not your job to write the laws. 

Judge TACHA. It definitely is not, and I will add to that Judge 

Gorsuch is meticulous in that. And you will find throughout his 

opinions, ‘‘this is not our job, this is Congress’ job,’’ or, ‘‘this is the 

President’s job,’’ or whatever. He is so meticulous about the roles 

of the three branches of government. 

And, in fact, he and I have actually had these conversations. One 

of the things that is probably not seen, although you understand 

it in Committee work, is that in an appellate court there is a lot 

of back and forth among the judges on panels and unvalued in en 

banc sittings. I have heard Judge Gorsuch on many occasions say 

it is so important for us to be absolutely meticulous about what the 

role of each of the branches is. 

As I said in my written comments, he is a student of the Federalist Papers and of the founding documents, and really believes 

in that separation of powers. 

Senator LEE. And it is that separation of powers that recognizes 

that in our constitutional republic, it is the people who are sovereign, and the people’s branch is the legislative branch. That is 

the branch of government where there is the most accountability 

to the people at the most regular intervals. 

I see my time has expired. Thank you, Judge. Thank you, Mr. 

Chairman. 

Chairman GRASSLEY. Thank you. I think on the Democratic 

side—I have a list here, but I will go by seniority. 
428 

Senator WHITEHOUSE. Thank you, Chairman. Mr. Calemine, you 

represent a labor union? 

Mr. CALEMINE. Yes, sir. 

Senator WHITEHOUSE. I would like to read from a New York 

Times news story that relates to the Abood case, which is a precedent of the Supreme Court that controls when labor unions like 

yours can charge non-members for services that they render in the 

collective bargaining process. 

Here is what Adam Liptak, the writer in The New York Times, 

wrote: ‘‘In making a minor adjustment to how public unions must 

issue notifications about their political spending, Justice Alito digressed to raise questions about the constitutionality of requiring 

workers who are not members of public unions to pay fees for the 

union’s work on their behalf,’’ the Abood issue. 

‘‘Justice Sonia Sotomayor saw what was going on. ‘To cast serious doubt on longstanding precedent’ ’’—she wrote in a concurrence’ ’’—‘‘ ‘is a step we historically take only with the greatest caution and reticence. To do so as the majority does on our own invitation and without adversarial presentation is both unfair and unwise.’ ’’ End quote of Justice Sotomayor. 

The story continues: ‘‘Michael A. Carvin, a leading conservative 

lawyer also saw what was going on. He and the Center for Individual Rights, a libertarian group, promptly filed the challenge Justice Alito had sketched out. Indeed Mr. Carvin asked the lower 

courts to rule against his clients’’—I will interject into the story my 

own addition that is a rather unusual behavior for a lawyer—‘‘so 

that his clients could hightail it to the Supreme Court,’’ the article 

continues. 

Last year Justice Alito wrote a second majority opinion attacking 

the central precedent in the area, a 1975 decision called Abood v. 

Detroit Board of Education. But the majority in the new case, Harris v. Quinn, stopped short of overruling Abood. ‘‘By now,’’ the story 

in The New York Times continues, ‘‘everyone saw what was going 

on. Readers of today’s decision will know that Abood does not rank 

on the majority’s top ten list of favorite precedents, and that the 

majority could not restrain itself from saying and saying and saying so,’’ Justice Elena Kagan wrote in dissent. 

‘‘Last week,’’ the article continues—this is some time ago—‘‘the 

Court agreed to hear Mr. Carvin’s case, Friedrichs v. California 

Education Association, and it may soon complete the project Alito 

began in 2012, that of overruling Abood.’’ End of my quotation of 

The New York Times story. 

As we know, the Friedrichs case did, in fact, come forward. It 

was expected to be a body blow to unions, according to reporting 

at the time. The Justice—the passing of Justice Scalia put the 

Court back to 5–4, so the Friedrichs decision came in 4–4, and 

went back to the Ninth Circuit, whose decision was upheld because 

it was a tie. 

Could you just react to me as a lawyer who represents a labor 

union on that series of events, and what you—how that makes you 

think about this particular Court and its 5–to–4 decisions? 

Mr. CALEMINE. Certainly. My concern is based on the quotes you 

read from the Times article. Is that—there is a project underway 

to harm workers’ rights, a project under way to harm workers’ or-
429 

ganizations so that workers do not have the ability to exercise the 

bargaining power that they all have and win a better deal for 

themselves at work. 

The notion that there are signals being sent for cases, rather 

than waiting for the case or controversy to arise, is very concerning. And it is one of the reasons why in the case of Judge 

Gorsuch, there has been a lot of talk about all he has done is apply 

the law to the facts in the TransAm Trucking case. 

What he did was he picked out the narrowest definition in the 

dictionary for the word ‘‘operate,’’ and it had a particular result. 

There were other definitions in the dictionary that could have been 

chosen, and once you saw multiple definitions, perhaps you should 

defer to the agency because maybe they know how the law can 

work effectively on the ground given their expertise. 

He chose the most narrow definition, and the result was absurd. 

And the result, if it had carried the day, would have made life a 

little more dangerous for truck drivers. If the kinds of absurd results you get out of that particular definition, things like the word 

‘‘operate’’ only means to drive, then if a trucking company told a 

truck driver to go over the speed limit or speed up, go faster. They 

can see—sometimes you can see the trucks on the computer and 

see how fast they are going. And the truck driver reports back, I 

cannot, I am in a construction zone, full of traffic, but the trucking 

company persists and says go faster, that trucker, if he went the 

speed limit, complied with the law, he would not be protected 

under Judge Gorsuch’s version of that statute. He could be fired for 

going the speed limit because he is driving. 

He would have to completely stop the truck on the highway to 

protect himself for disobeying that order. And you can imagine the 

traffic that could cause if that is the way this statute was carried 

out. Those are the kinds of absurd results. 

In fact, I think Judge Gorsuch’s dissent is Exhibit A for why we 

should have Chevron deference, because instead of picking out a 

dictionary definition, look and see the—look at the agency and see 

how they, the experts, have figured out how this law works in the 

real world. 

Senator WHITEHOUSE. Thank you. My time has expired. 

Chairman GRASSLEY. Senator Tillis, do you want time? 

Senator TILLIS. Yes, sir. Thank you, Mr. Chair. Mr. Perkins, I 

first want to probably just say something. I do not know if you will 

need to respond or not. But probably I do not know anybody on 

Capitol Hill that has actually ratified bills that were sympathetic 

to families and persons with autism. 

As Speaker of the House, we had our State employees’ healthcare 

plan cover autism treatment, which included psychiatric care, psychological care, pharmacy care, and adaptive behavioral treatment. 

And I know if you have studied autism, you know how those are 

critically important. We went on against insurance industry’s wishes to include an insurance mandate in North Carolina to do the 

same thing. 

And the Court case yesterday, on the one hand I am happy that 

it provides other people that are going through your condition with 

an option. But in reality, it is a failing on the part of legislators. 

Now, you live in Colorado still? 
430 

Mr. PERKINS. Yes. 

Senator TILLIS. Promise me you will not vote for a Colorado legislator that will not support a mandate, and will not support opportunity scholarships for children with autism. You do not have to 

make—I may have just broken a law or a rule or whatever. 

[Laughter.] 

Senator TILLIS. But these folks need—there are nine States in 

this Nation. North Carolina is one of them. We have gone probably 

about as far, or maybe further in some cases, than any other. But 

this is an example of where I am going to support Joe Gorsuch, and 

my guess is that Judge Gorsuch the individual, who separates his 

jurisprudence job from his personal feelings, is just okay with what 

the Supreme Court did yesterday. But in reality, the whole need 

for that lawsuit is a failure on the part of the States to solve the 

problem. 

So, in a State like North Carolina, you do not have to—you do 

not have to get into a conflict and a lawsuit with the school system 

because it is still going to be difficult to do. You are still going to 

have to probably hire an attorney and work through all the complexities. They are going to push back. 

So, I hope, and I am glad to hear that my colleagues on the other 

side of the aisle, all of whom are from States who have not done 

this, but they are okay with the fix the Supreme Court got because 

I am going to try and move legislation to make it easier for people 

like you to get the care you need. 

But it is a classic example of legislators—last night I used an 

analogy of a bear skinner and a bear hunter. I will not use my time 

here. But we need to actually skin that bear here, not have the 

courts do it. And I do think that what Judge Gorsuch was doing 

was saying fix the problem. 

He said, and something I will repeat time and time again to a 

question here before one of my colleagues on the other side of the 

aisle, it is not my job to do your job. I think that was a very insightful thing for him to say. In our case, if legislators did their job, 

you would not be before us today, your family situation would be 

better, and Luke would be probably farther along. 

And one other thing I want to tell you. We may need to get Luke 

to come to my office because we are actually putting that same 

Lego model together, and my staff are struggling. 

[Laughter.] 

Senator TILLIS. But thank you for being here. If you have a brief 

comment, and then I have one other question, Mr. Chair. 

Mr. PERKINS. I would just like to comment briefly. I would say 

that the Congress had indeed passed the IDEA, and based on 

my—— 

Senator TILLIS. They did, but let me—— 

Mr. PERKINS. Based on my reading of Judge Gorsuch’s opinion—— 

Senator TILLIS. Mr. Perkins, let me—I do not mean to interrupt 

you, but I want to get one last comment, and I may just have to 

submit it to the record. But here is the problem with the IDEA and 

relying on the vagaries of the IDEA to fix the specific problems 

back in the State. 
431 

I am already reaching out as a result of that Court opinion yesterday, saying how do you actually provide clarity that puts the 

benefit in the hands or the benefit of the doubt in the hands of the 

parent. The way you do this properly is structurally after an IEP 

in the parents’ judgment is failing to allow a child, in your case, 

to generalize the skills and learning in school back at home, how 

do you get—grant them the power to, after just a year, move somewhere else? How do you make sure that the State funding follows 

the child? How do you make sure that Federal funding follows the 

child? How do you make sure that the parent does not have to go 

into a courtroom, or an arbitrator, or all the other things that they 

will still have to do with that court decision? 

How do you get the Members here, and I am thrilled to hear that 

we have such support on the other side of the aisle. How do you 

get us to provide more specificity in the IDEA so the burden is not 

on you? You have your own burden with your—with your beautiful 

child. You should not have to do it. 

It is a failing of Congress. It is not a failing in this case of Judge 

Gorsuch. And I hope that people understand that I am so glad to 

hear in States, none of whom have stepped up and done it, are prepared to actually go with me to those States and convince them to 

do it, because we can solve the problem. 

And I will submit my other questions for the record. 

[The information appears as a submission for the record.] 

Senator TILLIS. Thank you, Mr. Perkins. 

Mr. PERKINS. Senator Tillis, may I have the opportunity that you 

offered me to briefly respond? The IDEA is not a perfect law, but 

the fact of the matter is Judge Gorsuch in his opinion shrank and 

minimized the requirements of the IDEA such that they trivialize 

this law. And as the opinion yesterday characterized, current law 

provides much more significant protection to disabled children than 

Judge Gorsuch’s ruling offered. 

Senator TILLIS. But it does not provide enough, and it is because 

of a failing of legislators and Congressmen, not the courts. Thank 

you, Mr. Perkins. 

Chairman GRASSLEY. Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Judge Tacha, in your testimony, you were talking about Judge 

Gorsuch as a judge, and you said ‘‘His attention to the views of his 

colleagues informs his work. He has an acute sense of identifying 

those circumstances’’—I am reading from your testimony—‘‘where 

consensus is the highest value. And on the other hand, those decisions were personal conviction, and reason dictate individual judgment and independent decisionmaking.’’ Personal conviction. 

Judge TACHA. That is about whether consensus should be built 

on the decision or whether the judge should write independently either as a concurrence or dissent, or whatever. 

Senator FRANKEN. But he says—you are saying that he takes— 

that what is important to him is—well, his colleagues believed, 

‘‘but also his personal conviction.’’ 

Judge TACHA. About how he reads the law. 

Senator FRANKEN. His personal conviction about how he reads 

the law, because what basically he would not tell us are any of his 

personal convictions. 
432 

Judge TACHA. Because he would not bring those to cases. He 

would be—— 

Senator FRANKEN. Well, I am sorry, this is what bothered me is 

that he said his personal convictions did not enter into his decisions. And we spent 3 days here hearing that back—over and over 

and over and over again. ‘‘My personal convictions do not matter,’’ 

but now from someone who is endorsing him say that they do matter. 

And this is what I worry about, that we were not allowed to hear 

any personal convictions, and yet now I am hearing that those matter a great deal. 

Judge TACHA. Senator, could I—could I explain that? 

Senator FRANKEN. Please, may I have more time then? 

Chairman GRASSLEY. Let him finish. Go ahead. 

Senator FRANKEN. Thank you, Mr. Chairman. I belonged to four 

labor unions before I have here. It is really important. Friedrichs 

is an important case. We could not get any personal convictions on 

anything basically. What is your—Mr. Calemine, what is your read 

on—from what you see from his decisions on how you feel about 

how he will rule on Friedrichs? What is your—— 

Mr. CALEMINE. I think—I think—this TransAm Trucking dissent 

is only seven paragraphs long, and I think it is worth reading it 

closely because of what it shows his judicial philosophy being capable of, which is rewriting law. Not just applying the laws written 

by Congress, but rewriting it. 

That is why one should pay attention to that decision as a guide 

on how he might treat other workers’ rights laws. And then you 

pay attention to what he says in that decision, and the way he 

treats the workers’ perspective in that case. For example, he describes the option that his—that the supervisor gave to the worker 

to illegally drag the trailer down the highway as being maybe sarcastically offered. In other words, he is excusing the boss’ outrageous order. 

When it comes to describing the option of staying at the truck 

and freezing, suffering hypothermia, he describes that as merely 

unpleasant. And I am—actually I am adding the word ‘‘merely’’ 

there. He describes it as unpleasant. And he describes—creates an 

analogy for this situation involving an office computer rather than 

a truck and freezing to death. That analogy I believe shows a bit 

about what the real concerns are here, which again, is from the 

boss’ perspective. I think that—— 

Senator FRANKEN. The hostility to the worker here. 

Mr. CALEMINE. Yes, if you—yes, sir. If you let Mr. Maddin drive 

his truck to safety, well, the next thing you know, we will have to 

let him drive the truck to the beach is the sense one gets from it. 

So, we are concerned about his ability to look at things from a 

worker’s perspective. 

Senator FRANKEN. I know I am out of time. I just want to say 

one thing about that, which is that this is—was not about this comfort. He had hypothermia. He had fallen asleep with hypothermia, 

but only was woken up when his cousin called him. And the way 

you freeze to death is you fall asleep and die. So, he was really 

given a choice between dying—possibly dying—or unhitching that 
433 

cab and driving off. And this says to me a lot about the man’s judgment. 

So, thank you, Mr. Chairman, for your indulging. 

Chairman GRASSLEY. Judge Tacha, take a few minutes to say 

what you wanted to say, and then we will go to Senator Kennedy 

if he has—do you have questions, Senator Kennedy? Go ahead. 

Judge TACHA. Just very briefly to the question of personal conviction. What I meant there, and what perhaps I did not get clear, is 

each judge brings to his or her reading of the law their own intellect, their own interpretations, their history, the precedent. And so, 

what—and I am going to give you an example here because it is 

really important. 

Judge Gorsuch and I disagreed in a very, very important case. 

I will not bother you with all the details, but we read the law— 

it happened to be First Amendment law—quite differently. We 

tried to reach consensus. We were in lots and lots of conversations. 

Judge McConnell was in on this, too, and note all three of us appointed by Republican Presidents, and we all three had very different views on this very important First Amendment case. Finally, 

it came to the point where my reading of the law was different 

from Judge Gorsuch and Judge McConnell’s. 

Now, I ultimately became convinced that I was wrong after the 

Supreme Court reversed me 9–0, but they were—it was a wonderful exchange and a wonderful way to bring different judges’ perspectives to the interpretation of whatever the case or the law is. 

Chairman GRASSLEY. Senator Kennedy. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Mr. Jaffer mentioned a few cases that Judge Gorsuch had 

worked on at the Department of Justice. And I note that, in one 

of those matters, the Government actually continued the litigation 

during the Obama administration. In fact, it filed a cert petition, 

made the same argument as the Bush administration had made. 

And the Solicitor General who signed the brief was now-Justice 

Elena Kagan. Of course, she was serving as Solicitor General at 

that time. 

I would like to make the briefs part of the record, Mr. Chairman, 

in the case of United States Department of Defense et al., Petitioners, v. American Civil Liberties Union. 

Chairman GRASSLEY. Without objection, it is included. 

[The information appears as a submission for the record.] 

Senator KENNEDY. All right, just because of the nature of her job, 

my guess is the person on this panel who has been around the 

judge the most in the shortest period of time is Ms. Bressack. 

Am I saying your name right? 

Ms. BRESSACK. Yes. 

Senator KENNEDY. Okay. And I believe you joined the Judge 

right out of law school. 

Why don’t you turn your mike on? 

Ms. BRESSACK. I apologize. 

I clerked on the Southern District of New York and then went 

to clerk for the judge on the Tenth Circuit. 

Senator KENNEDY. Okay. And you finished Vanderbilt Law 

School? 

Ms. BRESSACK. I did. Yes. 
434 

Senator KENNEDY. You were first in your class? 

Ms. BRESSACK. I was. 

Senator KENNEDY. Order of the Coif? 

Ms. BRESSACK. Yes. 

Senator KENNEDY. Okay. You were with the judge probably 

about every working day, right? 

Ms. BRESSACK. Absolutely. 

Senator KENNEDY. That is just the nature of being a clerk. 

Ms. BRESSACK. That is correct. 

Senator KENNEDY. Tell me what he is like. 

Ms. BRESSACK. The judge is an incredibly caring person. I think 

sometimes when we read his opinions and we hear—and we get 

these characterizations that he is very robotic, I think that misses 

the essence of the judge, which is he takes very seriously his job 

of interpreting the law correctly. And he also, obviously, has great 

sympathy for the litigants that appear before him, and he has a 

deep respect for the litigants. And I think anyone who has appeared before him, as well as his clerks, understands that. 

So I think that the sense that I had to respect everyone around 

me I think was really solidified in that year of clerking. And I 

think he is an individual who is not only brilliant but very humble 

in the way that he approaches his important task of applying the 

law to the facts of a particular case, but also clearly understands 

that the litigants in front of him are real people. 

Senator KENNEDY. Okay. And I appreciate all that. Tell me what 

he is really like. 

Ms. BRESSACK. Well—— 

Senator KENNEDY. What is in his heart? 

Ms. BRESSACK. He is just—he is a very caring man. I think that, 

on a personal level, he always wants to know what his clerks are 

planning to do after their clerkship. He takes very seriously the 

choices we make, whether we go into public service, whether we go 

into the private sector. He cares when you have personal events in 

your life, whether you get married, whether you have a kid. 

And I think that beyond just the intelligent judge, he is just incredible human being. 

Senator KENNEDY. Is he political? 

Ms. BRESSACK. Not when we are deciding cases, no. I mean, 

again, when we approach cases, we are just looking at the arguments that are being made by the litigants, the law for us and the 

facts of the case, and politics has no place when we are looking at 

a case in that way. 

Senator KENNEDY. Did you ever see him decide a case based on 

one of the litigant’s wealth or status or power? 

Ms. BRESSACK. No. 

Senator KENNEDY. Okay. Did you ever see him approach a case 

in terms of, here is the result I want, now let me figure out how 

to get there? Or did he approach it from, let me look at the law 

and see what the law says, and then that will determine who wins 

the case? 

Ms. BRESSACK. The latter. What he does is he approaches the 

case, he looks at the arguments that have been made by the parties. He looks at the applicable text, whether it is a contract, a statute, or the Constitution. And then he sincerely takes his task very 
435 

seriously, of attempting to figure out what Congress meant by the 

words of, for example, a statute, or what the parties meant by the 

words of a contract. And that is how he figures out the result that 

is required by the case, not based on the identity of the parties before him, government or individual litigant. 

Senator KENNEDY. Did he read the briefs or did he give them to 

you and say summarize them for me? 

Ms. BRESSACK. No. We read the briefs, and then he read the 

briefs, and then we talked about the briefs. 

Senator KENNEDY. So you both read the briefs. 

Ms. BRESSACK. Absolutely. 

Senator KENNEDY. Okay. Did you ever see him render decisions 

that he felt the law required but he was not necessarily happy with 

the result? 

Ms. BRESSACK. Absolutely. I mean, the job of a judge is a very 

difficult job. I think sometimes there are very sympathetic parties 

that appear before him, but he takes very seriously his oath to 

apply the law before him, and sometimes that means results that 

are not in favor of very sympathetic parties. But that does not 

mean that he lacks sympathy for them. He simply takes very seriously his oath to apply the law. 

Senator KENNEDY. Thank you, Ms. Bressack. 

Thank you, Mr. Chairman. 

Chairman GRASSLEY. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

I think I will just start with you, Dr. Perkins. Thank you so 

much for being here and for sharing your son Luke’s experience 

with us. 

This was a matter of discussion yesterday at the hearing, as you 

probably heard, in light of the Supreme Court’s 8–0 decision rejecting the standard that had been used in your son’s case that denied 

him the help that he needed. 

What did you think when that opinion came out yesterday? How 

did you feel about it? 

Mr. PERKINS. Well, I guess the first thing was just I was very 

happy for Endrew F. and his family, having gone through what 

they went through, to ultimately have that vindication. 

And I think, for ourselves, although belatedly, we did feel vindicated. We felt that, ultimately, when a very similar case made it 

to the Supreme Court—— 

Chairman GRASSLEY. I have been asked to have you speak into 

the mike. 

Mr. PERKINS. Okay. 

When this case was decided, I mean, we felt, in a sense, although 

indirectly, Luke’s case and Luke’s situation was being vindicated. 

Senator KLOBUCHAR. You know, my mom taught second grade 

until she was 70 years old and worked a lot with kids with disabilities in public school. And as a parent of a son who has benefited 

from the IDEA, could you quickly talk about what the law’s mandate, which is to help students achieve ‘‘full participation, independent living, and economic self-sufficiency,’’ means to your family? 

Mr. PERKINS. It is huge. Luke, without an appropriate education, 

would have—was in a very restricted situation. He basically lived 
436 

his life in his house and in a special needs classroom and school, 

and that was it. That was the only context that he could be in. And 

behaviors and a lack of tools to deal with his disability really restricted him. 

Now he has a good life. He enjoys what he does. He is able to 

get joy out of interaction with peers, with his family. It is meant— 

it is a huge difference in his life. 

Senator KLOBUCHAR. Thank you so much. 

Mr. Calemine, just again, briefly, we have little time, I have 

questioned the nominee a lot on the Gutierrez case, which is the 

concurrence that he did to his own opinion regarding the Chevron 

doctrine. And, as you know, Chevron allows some deference to administrative decisions by agencies. 

Could you just briefly talk about the uncertainty this would create for safety rules in your industry, if this was overturned for 

workers? 

Mr. CALEMINE. As I mentioned earlier, the rule that allows us to 

refuse hazardous work, to do hazardous work, is a rule that is not 

explicitly in the OSH Act. It has been developed through agency interpretations of the statute. 

So this creates an opportunity, if the courts are not going to follow Chevron deference, it creates an opportunity to just strip those 

kinds of rights away. And those rights, as we speak, are saving 

lives right now. That is what is at stake here. 

Senator KLOBUCHAR. Thank you very much. 

Last, Ms. Massimino, thank you so much for being here. You 

talked about, in your written testimony, about the importance of 

checks and balances. The Constitution gives the President certain 

powers as Commander-in-Chief, but those powers have the potential to be abused if they are unchecked. 

How should the Supreme Court approach, in your mind, with 

your background with human rights, how should the Supreme 

Court approach the balance between national security and civil 

rights? And what does the judge’s record suggest about how he 

would assess presidential assertions of Executive authority? 

Ms. MASSIMINO. Thank you. 

Well, it is often said that there needs to be a balance between 

security and liberty, but we know from long experience now that 

respect for human rights and individual dignity is the foundation 

of peace and security in the world. That was the wisdom of the 

Universal Declaration of Human Rights that Eleanor Roosevelt 

pushed forward, and it remains true today. 

I heard Judge Gorsuch testify the other day that no man is above 

the law, and that is an important tenet for our democracy. But unfortunately, we know from sad experience, fairly recent, that is not 

enough. 

When the Bush administration authorized torture and other 

abuse against detainees, torture was already a Federal crime. And 

the problem was that the administration, and, in particular, many 

of its lawyers, had a different view of the law. 

So it is not enough to say that no man is above the law. According to the legal memos that were prepared at that time by Bush 

administration lawyers, they believed that the law against torture 
437 

allowed torture. This is the sort of ‘‘Alice in Wonderland’’ kind of 

situation that we were in. 

And that is why I find that email that Senator Feinstein pointed 

to from Mr. Gorsuch while he was at the Justice Department one 

of the most troubling things about his record. He was basically arguing there that the Bush administration ought to interpret the 

McCain amendment—one of the strongest and most bipartisan 

pieces of anti-torture legislation that this body has ever enacted— 

as actually codifying and legalizing torture, rather than prohibiting 

it. 

And when Judge Gorsuch was asked the other day in the hearing 

whether there were any circumstances in which it would be lawful 

for a President to authorize torture or to authorize an act that was 

specifically prohibited through an act of Congress, he did not answer that question. I think it is very important, particularly in this 

environment where we have a President that is asserting these 

kinds of powers, to get an answer. 

Each branch of government has to play its role, and it is going 

to be particularly important that the Supreme Court is willing to 

stand up to Executive overreach in the era that we are in now. 

So I urge you to get clarity from Judge Gorsuch about his specific 

views on those issues. 

Senator KLOBUCHAR. Thank you very much. 

Chairman GRASSLEY. Senator Leahy. 

Senator LEAHY. Thank you very much, Mr. Chairman. 

I appreciate all of you being here. 

I have a question for Mr. Jameel Jaffer. I grew up in a family 

that believes very strongly in the Constitution, especially the First 

Amendment. They had owned a small weekly newspaper and a 

printing business. They said the right to practice any religion you 

want, or none if you want, is important. The fact that you could 

say what you want is important. If you guarantee all that, you 

guarantee diversity. If you guarantee diversity, you guarantee a democracy. But you also have to have an independent judiciary. 

I asked Judge Gorsuch to give me a clear answer to basic questions. I asked him whether the First Amendment prohibits the 

President from imposing a religious litmus test on entry into this 

country. I thought it would be a fairly easy question. He said it is 

currently being litigated, so he could not discuss it. I meant it as 

a softball. 

So does the Constitution allow the President to impose a religious litmus test for entry into the United States? 

Mr. JAMEEL JAFFER. Of course not, Senator Leahy. 

Senator LEAHY. And does it concern you that he would not answer that question? 

Mr. JAMEEL JAFFER. You know, I think that there is a bigger 

concern here. You know, some of the responses that Judge Gorsuch 

gave to questions like this, including about—including in response 

to questions about Executive power, I think we are very abstract. 

And I do not think it is enough, for example, to say no person 

is above the law in response to a question about the Youngstown 

framework. You know, the dispute 10 years ago over torture was 

not a dispute between people on one side who said we should follow 

the law and on the other side people who said we should not follow 
438 

the law. Everybody claimed to be following the law, including the 

Bush administration officials who authorized torture. 

So really, I am hoping that, in questions for the record, the Committee will be able to get Judge Gorsuch to speak more specifically 

about the role he envisions for the judiciary in the context of national security. 

Senator LEAHY. Hope springs eternal, but do not hope too much. 

He might. 

But, Ms. Massimino, you would think someone with my Italian 

background, an Italian mother, I could pronounce that correctly. 

You raised the actions of the Justice Department, and I am very 

concerned that he declined to answer any questions regarding his 

role there, what his views were, even though documents indicate 

that he helped the Bush administration justify torture, indefinite 

detention, and warrantless surveillance. 

Should we be concerned about that work? 

Ms. MASSIMINO. I think you should. And you know, that period 

of time in our history was so important to our democracy. We talk 

a lot here about the law, but, you know, it turned out that the lawyers were actually, in many respects, even more important than 

the law because they were the ones who were trying to interpret 

what the law meant. 

And there were other people at that time, government lawyers, 

who were extremely troubled when they found out what was going 

on, and they tried to stop it. And from the record that we have 

here, it does not appear that Judge Gorsuch was one of them. 

Senator LEAHY. Well, it was a great expansion of Executive 

power that many of us questioned. 

In my remaining time, I know, Mr. Perkins, many of us know 

about the story of Luke. And, you know, I would hate to have been 

in your shoes, but I think I would have felt the same way. 

But we found out yesterday Judge Gorsuch’s application of the 

Individuals with Disabilities Education Act was turned down by 

the U.S. Supreme Court. They said the standards are markedly 

more demanding than the standard that Judge Gorsuch created in 

your son’s case. 

How did you feel about—what did you think when you heard the 

Supreme Court? 

Mr. PERKINS. I was very happy that they reversed a trend that 

clearly Judge Gorsuch and the Tenth Circuit had been part of to 

water down the standards for progress such that they were of minimal practical benefit. And even with these very watered-down 

standards that were part of Luke’s education program, he was only 

meeting 25 percent of his objectives, but I really appreciated the 

fact that Judge Roberts—or Chief Justice Roberts used words like 

every child should have the chance to meet challenging objectives. 

That, indeed, is the case. And when that can happen, even a child 

with severe disability can make tremendous progress. 

Senator LEAHY. Thank you very much. 

Thank you, Mr. Chairman. 

And I thank the Senator from Hawaii. 

Chairman GRASSLEY. Senator Hirono. 

Senator HIRONO. Thank you, Mr. Chairman. 

Thank you all for being here. 
439 

Mr. Perkins, yesterday was a good day for your family with the 

Supreme Court’s decision. 

IDEA is what I would call remedial legislation meant to protect 

a class or a group of people—in this case, people with disabilities. 

And generally, remedial legislation—not even generally. Remedial 

legislation should be broadly interpreted, broadly interpreted to effect its purpose. 

So when you were before Judge Gorsuch and you saw that opinion, do you think that Judge Gorsuch did, in fact, do that, broadly 

interpret IDEA to effect its purpose, in your son’s case? 

Mr. PERKINS. Absolutely not. In fact, he did the exact opposite. 

He took precedent that, frankly, in light of yesterday’s decision, 

was already inappropriately narrow or restrictive, and further restricted that interpretation, such that I really wondered why would 

Congress even bother, if that is really what IDEA meant? 

Senator HIRONO. So do you think that, if Judge Gorsuch had 

looked at legislative history, perhaps, of what was behind IDEA, 

that he may have issued a more expansive ruling than his dissent 

showed? 

Mr. PERKINS. I would hope so. I know that his picture of what 

he felt the law said was a huge distortion of what the actual intent 

was. And so I would have hoped that, if he had looked into it some 

more, he might have been able to see that he had reached a wrong 

conclusion and maybe backtracked in his judicial reasoning and 

come to a more appropriate conclusion. 

Senator HIRONO. So I understand that your family had a lot of 

resources. You are a doctor. You had parents who helped you. You 

did different things to accommodate the needs of your child. 

And I am wondering whether, as you sat there before Judge 

Gorsuch, knowing that your family is one of literally thousands, 

hundreds of thousands, in our country who have children who look 

to the IDEA for the kind of educational support that they require, 

what did you think about all the families who do not have the kind 

of resources that you have and what Judge Gorsuch’s ruling would 

have done to their ability to do the best for their child with disabilities? 

Mr. PERKINS. Actually, that is probably one of the most frequent 

thoughts that we had through this whole legal process, is just realizing how overwhelmed we were. With all of the resources, financial, family support resources that we were blessed with, we were 

overwhelmed. And to think that the people out there—I mean, 

many of my patients, I think how in the world, if they had had 

Luke in their family, could they have done this? 

And having a child with a severe disability is completely overwhelming, and sometimes it may seem impossible. I mean, even for 

us with our resources, we felt at many times that this may be impossible, because the law apparently is not on our side. 

Senator HIRONO. Thank you. 

With the brief time that I have left, I would like to ask Mr. 

Calemine, we have concerns about how Judge Gorsuch would rule 

in cases relating to workers’ rights and unions, and I referred to 

his decision in NLRB v. Community Health Services. 

Is that a decision you are familiar with? 

Mr. CALEMINE. Yes. I had to look back in my notes here. 
440 

Senator HIRONO. Okay, familiar enough. 

Mr. CALEMINE. A little bit. 

Senator HIRONO. So he had a dissent there that really disadvantaged these workers who had been illegally denied longer hours, 

and it affected their pay, so they had to get another job. 

Would you share your thoughts on Judge Gorsuch’s dissent and 

his overall judicial record on workers’ rights, really briefly? 

Mr. CALEMINE. Briefly, the dissent in that case involved, I believe, Judge Gorsuch saying that these hospital workers who had 

been unlawfully—their hours had been reduced unlawfully. They 

went out and got other jobs to try to make up for their loss of income. 

What Judge Gorsuch wanted to do in his dissent was to subtract 

the money that they earned from those outside jobs from the total 

backpay award, which meant—it does not recognize—it is an example of not recognizing what life is like for somebody working for 

hourly pay trying to make ends meet. 

Just going out and getting another job itself is a big problem. 

You have new schedules. You have family issues. 

Senator HIRONO. So my question really was whether you think 

that, on the Supreme Court, he would continue—— 

Mr. CALEMINE. That is the concern. 

Senator HIRONO [continuing]. A very restrained view of workers’ 

rights. 

Mr. CALEMINE. That is the concern we have, that the workers’ 

perspective is not going to see a fair shake here. 

Senator HIRONO. Thank you, Mr. Chairman. 

Chairman GRASSLEY. I have one question, and then I will turn 

to Senator Feinstein. When she is done, we will bring on the next 

panel. 

Judge Kane, I bet this is the first time since 1977 you have been 

before this Committee. Is that right? 

Judge KANE. That is correct, Senator. 

Chairman GRASSLEY. You have been a judge for 40 years, but before that, you were a public defender. When you were a public defender, did you adopt every position of your client? 

Judge KANE. Well, I represented a number of murder defendants, 

and I did not agree with them on that. 

[Laughter.] 

Chairman GRASSLEY. So you can represent somebody without 

agreeing with them, just like Judge Gorsuch when he was in DOJ 

could also represent his superiors, as their counsel? 

Judge KANE. Absolutely. 

Chairman GRASSLEY. Okay. 

Senator Feinstein. 

Senator FEINSTEIN. Your Honor, I would just say, this is just my 

view, that for those in government, the standard has to be a little 

bit different. You have to do what is right. 

And this goes up even to the launching of a nuclear bomb. I 

asked someone who was in a position once, if you thought the 

President was absolutely wrong in what he was doing, would you 

deny a launch? And the answer was no. 

And that caused me to think about the obligation that we have 

as service in government to do what is right as far as we know it. 
441 

And I think that even affects attorneys who have bosses because, 

in this case, lives are a real problem. 

In any event, I would like just quickly to put in the record the 

Supreme Court’s opinion in the IDEA case. 

And I would like to just quote a few lines. ‘‘To meet its substantive obligation under the IDEA, a school must offer an’’ educational improvement plan ‘‘reasonably calculated to enable a child 

to make progress appropriate in light of the child’s circumstances. 

The ’reasonably calculated’ qualification reflects a recognition that 

crafting an appropriate program of education requires a prospective 

judgment by school officials.’’ 

So I would like to put that in the record, if I may, Mr. Chairman. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Senator FEINSTEIN. The second thing, in response to my friend 

and colleague who spoke about the Detainee Treatment Act, Senator Graham, I was McCain’s cosponsor on his bill, and I would 

like to read from his statement on the floor on February 13, 2008. 

And in this, he makes clear that his view of the Detainee Treatment Act in 2005 outlawed waterboarding. He says, ‘‘I stated during the passage of that law that a fair reading of the prohibition 

on cruel, inhumane, and degrading treatment outlaws 

waterboarding and other extreme techniques.’’ 

So I would ask that this statement be part of the record, and also 

the opinion in this case. 

Chairman GRASSLEY. Without objection, so ordered. 

[The information appears as a submission for the record.] 

Chairman GRASSLEY. Now should I go to Senator Blumenthal. 

Senator FEINSTEIN. Yes. 

Chairman GRASSLEY. Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. 

And thanks to the members of the panel for sharing your insights and experience with Judge Gorsuch. 

I have a question for Mr. Calemine, but others are free to answer 

it as well. 

As you know, the importance of our consideration here is not 

only the results. In fact, even more important than the results is 

the judge’s method of reasoning, his approach to analysis in cases. 

And a couple cases I think are illustrative. 

In Compass Environmental, Inc. v. OSHRC, Judge Gorsuch voted 

to overturn a fine that was imposed by the Department of Labor 

against a company whose failure to properly train a worker actually caused a death. 

In TransAm Trucking v. Administrative Review Board, as we all 

know now from the discussion that took place when he testified 

here, he voted to reverse the judgment of both an administrative 

judge and the Department of Labor, which held that a truck driver 

had been improperly fired in violation of Federal law. The truck 

driver abandoned his truck in subfreezing weather when the heater 

in his cab failed to function, and did so, in essence, to save his own 

life. 

I wonder if you could comment about the purpose of the laws 

that he was interpreting here, and why you have reservations 

about his analytical approach, his method of reasoning in ap-
442 

proaching these laws, and other cases that have the same effect? 

And I open the same question to others on the panel. 

Mr. CALEMINE. Thank you. 

So the purpose of the laws in the two cases that you just mentioned, Compass Environmental and TransAm Trucking, the purpose of those laws is to protect workers’ health and safety. And one 

of the most alarming things about one of those cases is Judge 

Gorsuch describing those purposes as ephemeral and generic. 

In other words, there is not enough concrete there to allow those 

purposes to guide how we interpret these laws. 

So instead, we turn to things like the Oxford English Dictionary, 

which he did in that particular case. 

Another concern from the other case, from Compass Environmental, is his description of OSHA’s powers as being remarkable. 

And in that case, a worker had been electrocuted to death, and the 

remarkable power imposed by OSHA was a $5,550 fine, just a 

$5,500 fine on the employer, and that is described as remarkable. 

And that is a concern because workers in this country rely on 

that agency and other agencies to enforce their rights every day, 

and we have come to rely on those interpretations. 

We want to know what the law is. We do not want the Second 

Edition 1989 Oxford English Dictionary to suddenly be pulled out 

to change that law, and that is what almost happened in TransAm 

Trucking, a rewrite of the law. 

Senator BLUMENTHAL. Any other members of the panel? 

Ms. BRESSACK. If I might, Senator? 

Senator BLUMENTHAL. Sure. 

Ms. BRESSACK. I am comforted to hear that you specifically note 

that we are not just going to look at the results of cases in judging 

Judge Gorsuch, because, obviously, he has been on the bench for 

10 years, so we are focused on certain cases in which he may have 

ruled against certain workers, but there are a number of other decisions that I believe the panel—the Committee is aware of, where 

he ruled in favor of workers. 

And I believe that the approach he applies in all of those cases, 

irrespective of the result, is to look at the text that was passed by 

Congress and apply it fairly to the facts before him. And I believe 

that it is that process that does not change. It is the results that 

change based on, obviously, the facts of the case before him, as applied to the statute. 

Senator BLUMENTHAL. And the reason I asked about the reasoning and analytical approach is precisely the answer that has 

just been given. To regard a worker protection statute or the concept of health and safety as ephemeral and generic is, in my view, 

a gross understatement of the purpose of these laws, which are 

basic to people who leave their homes in the morning, say goodbye 

to their families, expecting to come home at the end of the day 

without having been injured, maimed, or killed. That is the purpose of these laws. That purpose is not generic or ephemeral. It is 

urgent and important. 

And Mr. Calemine I think well-stated the reservation I have 

based on his use of that language. 
443 

And by the way, I have been here for 7 years. I have never heard 

any United States Senator quote the Oxford dictionary for the 

meaning of a term. Never. Not once. 

And yet, Judge Gorsuch uses it very, very abundantly in his 

opinions to seek a definition for how he is going to apply a statute. 

That is not a real-world approach to health and safety. 

And it concerns me, and that is why I asked the question. 

But it is not the result alone. In those cases, I was concerned 

about the result. He probably has ruled for individuals. And we 

have been throwing around this term, the ‘‘little guy.’’ It does not 

matter whether it is a big or little person or a group of people. It 

is more the concept of preserving worker safety that is important. 

Thank you. 

Chairman GRASSLEY. Thank you, Senator Blumenthal. 

Thank you all for your presentation, more importantly for your 

preparation and for informing the Committee. 

Thank you very much. 

And will the second panel come, but while the second panel 

comes—and please do not sit down until I swear. 

But I want to inform the Members—— 

Senator FEINSTEIN. Swear you in, you mean. You are not just 

going to swear. 

Chairman GRASSLEY. Yes, swear in. 

Here is what I would like to have the Members think about. We 

will not get through this panel presentation—12:25 is when the 

vote starts, so I think we are going to go with this panel until 

12:35. And then we will recess, and I will vote at the end of the 

first vote, and then vote on the second vote immediately. 

So that means we probably will reconvene this panel about 1:05 

or 1:10, in that period of time, and then we will have the rest of 

the panel presentation and the questions. And then we have yet 

one more panel, I believe one more panel after that. 

[Witnesses sworn.] 

Chairman GRASSLEY. Thank you. 

I am going to do something that I forgot to do, and it was very 

wrong, my not doing it. I did not say anything about the last panel 

individually. 

Jeff Lamken is a founding partner of MoloLamken, and he 

clerked for Justice O’Connor. 

Heather McGhee is president of Demos. 

Is that how you—— 

Ms. MCGHEE. Demos. 

Chairman GRASSLEY. Demos. Okay. 

Professor Lawrence Solum is a Carmack Waterhouse Professor of 

Law, Georgetown. 

Fatima Goss Graves, senior vice president for program and president-elect of the National Women’s Law Center. 

Professor Jonathan Turley is on TV all the time. That does not 

say that here, but I can say it. He is the J.B. and Maurice C. Shapiro Professor of Public Interest Law, George Washington University Law School. 

Pat Gallagher is director of the Environmental Law Program, Sierra Club. 
444 

Karen Harned is executive director at the National Federation of 

Independent Business Small Business Legal Center. 

And Eve Hill is partner with Brown Goldstein Levy. She previously served as Deputy Assistant Attorney General for the Civil 

Rights Division from 2011 to 2017. 

We will start there, and we will go until we see how this vote 

goes. 

STATEMENT OF JEFF LAMKEN, PARTNER, 

MOLOLAMKEN, WASHINGTON, DC 

Mr. LAMKEN. Thank you, Mr. Chairman, Ranking Member Feinstein, Members of the Committee, for the opportunity to speak to 

you about Judge Gorsuch. 

Since clerking for Justice O’Connor in 1992, I have had the honor 

of arguing 23 cases before the U.S. Supreme Court, many of those 

as Assistant to the Solicitor General, first under Seth Waxman, 

who was President Clinton’s Solicitor General, and then later 

under Ted Olson, who was President Bush’s. 

I have known Neil Gorsuch—Neil, as I have always known him— 

as a colleague and a friend for more than 20 years. My wife, who 

is here today, has known him even longer, because she went to law 

school with him. 

I like to think I helped recruit Neil to Kellogg Huber after his 

Supreme Court clerkship and his time at Oxford. I think I may 

have edited the first brief he ever wrote as a young lawyer. I understand he has improved substantially since then, and I can tell 

Senator Sasse that he never once used the word ‘‘bigly’’ in a brief. 

Of course, from the outset, it was always clear to all of us that 

he was not only smart and thoughtful and a great writer, but he 

had great judgment. In both the literal and figurative sense, he 

had gray hair from the beginning of his career. 

But I want to speak to you about something other than Judge 

Gorsuch’s legal acumen. I want to speak to you about his kindness, 

his compassion, his generosity of spirit as a person, and why those 

values are integral to who he is and what we should expect from 

him from the Bench. 

Since I first got to know Neil many years ago, he has been one 

of my dearest friends. We both have two daughters, his a bit older 

than mine. And he has always been there for me to listen, to advise, and to commiserate about the trials and travails of the oftendifficult project that is being a parent. 

I have vivid memories of standing in Neil’s backyard in Colorado 

after he became a judge, talking about what then seemed to me a 

very difficult moment. As we spoke, we scooped up horse manure, 

while his family’s pet goat Nibbles tried to ram the judge. I honestly never understood what they saw in that goat. 

Neil’s kindness resonated throughout his family, excluding the 

goat, of course. His daughters were always so sweet to my children, 

even though my kids were considerably younger. 

I remember Neil and his kids repeatedly leading one of my kids 

through one of life’s adventures by the hand, whether trying to balance on skis or trying on hats at a department store. If something 

happens to me and my wife, Neil stands in line to inherit my children. 
445 

Some people say, if you want a friend in Washington, get a dog. 

Those people never got to know Neil Gorsuch; his wife, Louise; or 

his family. Simply put, Judge Gorsuch is a thoroughly decent and 

kind person. 

So why does that matter to this body as it is considering his 

nomination? As a former colleague of mine from the Solicitor General’s Office told me, if you have someone who is that good a person, it means he listens. It means he truly hears. It means he can 

be persuaded. That is, to my mind, the most essential attribute for 

a Supreme Court Justice. 

The Supreme Court has an argument calendar, but the printed 

list of cases and counsel the Court prepares for each session is 

called the ‘‘hearing list.’’ It is the chance for people to be heard. 

When the Chief Justice calls each case, he says we will hear argument in case number, and then he gives the case number and case 

name. The key words there are ‘‘hear argument,’’ not just have argument, but hear it. 

I know that everyone who appears before Judge Gorsuch, before 

Neil, will be heard, genuinely heard, regardless of who they are, 

who they represent, their position, or the nature of the controversy. 

His kindness and his humility make him place extraordinary value 

on listening to the lawyers, to his colleagues, and to those with 

backgrounds different from his own, who may come at the matter 

from a different angle or insight borne of different experiences. 

I have heard a lot of speculation over the last few days and 

months about how Judge Gorsuch might rule on this matter or the 

other. I do not know how he might rule. I do not think he knows. 

These are often really hard cases. That is why they get to the 

Supreme Court, because they are hard, because the judges disagree. But I do know that Judge Gorsuch will struggle with those 

hard cases. 

He will immerse himself in the law, in precedent, in the context, 

in the record, in the briefs and the arguments. He will listen to the 

litigants, listen to his colleagues, to history, to experience and its 

lessons. And he will decide the cases based on where those things 

lead him at the end of the case, based on the force of the better 

argument, not based on a preexisting intuition that may predate 

the case’s beginning. 

That, I believe, is precisely what we should all hope for from our 

judges and Justices. That is true whether you consider yourself a 

Democrat like me, or a Republican, or an independent. If the Senate believes that as well, I believe that Judge Gorsuch should be 

confirmed. 

Thank you. 

[The prepared statement of Mr. Lamken appears as a submission 

for the record.] 

Chairman GRASSLEY. Thank you, Mr. Lamken. 

Now Ms. McGhee. 

STATEMENT OF HEATHER MCGHEE, 

PRESIDENT, DEMOS, NEW YORK, NEW YORK 

Ms. MCGHEE. Chairman Grassley, Ranking Member Feinstein, 

Members of the Committee, thank you so much for the privilege of 

testifying here today. 
446 

My name is Heather McGhee, and I am the president of Demos, 

a public policy organization working for an America where we all 

have an equal say in our democracy and an equal chance in our 

economy. 

What is at stake is not just the critical issues that you have 

heard about over the past few days, but the way that we the people 

make decisions about all of the issues that we face as a Nation and 

whose voices are heard in that process. 

Judge Neil Gorsuch has the potential to be the deciding vote to 

destroy the few remaining safeguards against big money corrupting 

our politics completely. His troubling record on money in politics 

requires this Committee to reject his nomination to the U.S. Supreme Court. 

I would like to make three basic points today. First that the way 

that we fund our campaigns in the U.S. enables wealthy individuals and institutions to take their economic might and translate 

that directly into political power. Second, the Supreme Court’s activism in striking down democratically enacted safeguards is what 

has brought us to this perilous place in our history. In the world’s 

oldest democracy, nearly nine out of 10 Americans have lost so 

much faith in our system that they think a total overhaul is needed. 

Senators, we are near a breaking point—nine out of 10. It is hard 

to imagine things getting worse, and yet the prospect of a lifetime 

seat for Judge Gorsuch has given us a glimpse. 

Fortunately, there is an overwhelming bipartisan consensus supporting pro-democracy reforms, even though Neil Gorsuch is far 

outside of that consensus. Your constituents want you to stand up 

to big money, and your vote on this pivotal Supreme Court seat 

will be one of the best chances you will ever have to do so. 

Leading political scientists have concluded that our Government 

now resembles a plutocracy more than a representative democracy. 

Just 25 individuals pumped more than $600 million into last year’s 

elections. Less than 1 percent of the population provides the vast 

majority of the funds that determine who runs for office, who wins 

elections, and what issues get attention from elected officials. 

They say that he who pays the piper calls the tune, and so, of 

course, our public policies are skewed toward the wealthy and 

away from working-class families and people of color who remain 

massively underrepresented among top donors and in the halls of 

power. 

The role of the Supreme Court in creating this crisis cannot be 

emphasized enough. 

Last week, Demos released a report calculating how much extra 

money has flowed into politics because of Supreme Court rulings 

striking down campaign finance laws. We found that, in the 2016 

election cycle, court decisions were responsible for nearly half of all 

the big money spent. 

Still, it is not too late to reverse course. The Roberts Court campaign-finance rulings have been 5–4 decisions in which the majority’s basic assumptions about politics have been proven false, including the idea that so-called independent expenditures are actually independent of candidates and, therefore, cannot be corrupting, 

and that disclosure laws would be effective. 
447 

With a Supreme Court that was responsive to the facts rather 

than ideology, we could end the super-PACs that the Court created 

and begin to restore our democracy. 

But Judge Neil Gorsuch would have been with the majority in 

Citizens United. His overall record puts him to the right of Scalia. 

And on the question of money in politics, he would take us even 

further down the Roberts Court’s extreme path. 

Judge Gorsuch has had two directly relevant cases. In Hobby 

Lobby, he voted to expand First Amendment rights for corporations, building on Citizens United’s troubling logic. In Riddle v. 

Hickenlooper, he went out of his way to signal openness to applying 

the harshest possible standard of review to campaign contribution 

limits, which would deem a wealthy donor’s check worthy of more 

constitutional protection than the Court has consistently offered for 

our most precious right to vote. 

Judge Gorsuch was given an opportunity in this room to distance 

himself from one of the most unpopular court cases in American 

history, and he failed to do so. 

Thankfully, outside of the Beltway, this is not a partisan issue 

at all. Ninety-one percent of President Trump’s own voters thought 

it was important that he appoint someone to the Supreme Court 

who would be open to limiting big money in politics. Seventy percent of Republicans say that Congress should reject any nominee 

who ‘‘will help the wealthy and the privileged wield too much 

power in our elections.’’ 

The American people are demanding change to a political system 

that favors the already wealthy and well-connected. 

So we urge you to vote against Judge Gorsuch’s nomination and 

to tell your constituents that a key reason you did so was to stand 

with them over big money. They will thank you, and I think you. 

[The prepared statement of Ms. McGhee appears as a submission 

for the record.] 

Senator CRAPO [presiding]. Thank you very much. 

Professor Solum. 

STATEMENT OF LAWRENCE SOLUM, CARMACK WATERHOUSE 

PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW 

CENTER, WASHINGTON, DC 

Professor SOLUM. Thank you very much, Senator. 

Ranking Member Feinstein, I voted for you in 1992, and it is a 

pleasure to appear before you today. 

My statement concerns an aspect of Judge Gorsuch’s judicial philosophy—originalism. And over the course of these hearings, I 

think we have learned several things about originalism, and there 

are still some things that I think might be cleared up. 

What is originalism? It consists of three basic ideas. 

The first idea is that the meaning of the Constitution should be 

its original public meaning, the meaning of the words and phrases 

in context to ‘‘we the people.’’ 

The second idea is that meaning is fixed, not that the law is 

fixed, but that the meaning of the words is fixed at the time they 

are written. 

And the final idea is that original public meaning should constrain what judges do, that judges, the President, the Members of 
448 

this august body, are all bound by the original public meaning of 

the Constitution. 

Over the course of the past 3 days, we have learned some other 

things. We have learned that there are a number of myths about 

originalism, and I think that those myths have, for the most part, 

been cleared up. 

Originalism does not ask the question, what would Madison do? 

A very silly question, when we try to apply the Constitution to 

modern circumstances. 

We have learned that the words of the Constitution can be 

adapted to new circumstances. At the time the Constitution was 

adopted, California did not exist. It was not a State. But we have 

no problem concluding that, nonetheless, California is now a State 

and entitled to two Senators in this body. 

We have learned that Brown v. Board, one of the most important 

decisions in the history of the Supreme Court, is not inconsistent 

with the original meaning of the Constitution. As Judge McConnell 

demonstrated in 1995, Brown v. Board was required by the original 

meaning of the Constitution. 

And we have learned this very clearly, that originalism is not inconsistent with precedent. 

What I would like to say today, most importantly, is that 

originalism is in the mainstream of American jurisprudence, 

originalism in the mainstream of American jurisprudence because, 

throughout our history, for the most part, with some important exceptions, the Supreme Court has been an originalist court. 

But originalism is in the mainstream for another reason. 

Originalism can and should be endorsed by both Democrats and 

Republicans, by progressives and conservatives. This point is important to me personally. I am not a conservative. I am not a libertarian. I am not a Republican. But I do believe in originalism. 

Why is that? It is because I am convinced that giving power to 

judges to override the Constitution, to impose their own vision of 

constitutional law, is dangerous for everyone. 

If you are a Democrat and you know that the next Justice to the 

U.S. Supreme Court will be appointed by a Republican President 

and confirmed by Republican Senate, would you prefer that an 

originalist like Judge Gorsuch be appointed or would you prefer a 

conservative Justice who is a living constitutionalist who believes 

that their values are an appropriate ground for modifying or overriding the constitutional text? 

There is a final reason that originalism is in the mainstream. 

The Supreme Court has never claimed the right to override the 

Constitution. There are cases where the Supreme Court did, in 

fact, depart from original meaning. But in all of those cases, the 

Supreme Court either strained to make its decision consistent with 

the text or ignored the text altogether. 

I support Judge Gorsuch’s nomination because he is an 

originalist. 

[The prepared statement of Professor Solum appears as a submission for the record.] 

Senator CRAPO. Thank you, Professor Solum. 

Ms. Graves. 
449 

STATEMENT OF FATIMA GOSS GRAVES, SENIOR VICE PRESIDENT FOR PROGRAM AND PRESIDENT-ELECT, NATIONAL 

WOMEN’S LAW CENTER, WASHINGTON, DC 

Ms. GRAVES. Thank you, Senator, Ranking Member Feinstein, 

and the Committee. My name is Fatima Goss Graves, and I am 

senior vice president for program and president-elect of the National Women’s Law Center. 

Since 1972, the center has been involved in virtually every major 

effort to secure and defend women’s legal rights. 

I thank you for your invitation to testify today and ask that my 

full written testimony be submitted. 

Over the past few days, Judge Gorsuch has talked a lot about 

how he follows the law rather than his personal views or his feelings, and that he applies the law to facts. But a review of his 

record shows that, time and again, his approach to the law gives 

the benefit of the doubt to employers, to politicians, to other powerful entities rather than the vulnerable individuals who rely on the 

law for protection. And time and again, this approach disadvantages women. 

If you take the case of Betty Pinkerton, an administrative assistant whose sexual harassment claim was dismissed, Judge Gorsuch 

ruled against Ms. Pinkerton on the grounds that her failure to report the harassment she faced for all of 2 months was unreasonable. 

During that period, she had to listen to her boss ask about her 

breast size, ask about her sexual habits. And, under Title VII, 

these sorts of remarks only become a pattern of harassment as 

they add up over time. 

If she complained too early under Title VII, she would have no 

claim. And waiting 2 months, under Judge Gorsuch’s approach, 

again, she had no claim. 

This is an approach that ignores the workplace realities that the 

law is designed to address and the very nature of workplace harassment. 

Or if you take the Hobby Lobby case, in which a corporation challenged the Affordable Care Act’s birth control benefit, which requires health insurance plans to provide birth control without costsharing—access to contraception means, for women, the ability to 

plan their lives, to plan their futures. And the birth control benefit 

relieves women of a steep financial burden, which can run as high 

as $1,000 in upfront costs. 

Judge Gorsuch joined the Tenth Circuit holding under the Religious Freedom Restoration Act that an employer’s religious beliefs 

could override an employee’s right to birth control under the Affordable Care Act, including an especially extreme holding that 

promoting gender equality in public health, the very goals of the 

birth control benefit, were not compelling government interest. 

His concurring opinion was stunning in its refusal to even acknowledge the health impact and the financial burden on women 

who would lose insurance coverage under his approach. 

Ultimately, the case reached the Supreme Court. And unlike the 

decisions joined and written by Judge Gorsuch, the Supreme Court 

instructed that, as a part of RFRA’s balancing test, courts must 

consider the impact on women. 
450 

Judge Gorsuch’s record also shows hostility to the Constitution’s 

protections of the most personal and intimate decisions, which is 

the basis for the right to birth control and the right to abortion. 

Yesterday, Judge Gorsuch declined to say whether Roe v. Wade 

was correctly decided, merely acknowledging that it is actually 

precedent of the Court. And he refused to answer key questions 

about other areas of the law that are core to women’s lives. 

When he was questioned about letters from former students who 

claimed that they had—that he had suggested companies can and 

should ask women and only women about their pregnancy plans 

and their family plans, even in explaining this incident, Judge 

Gorsuch shockingly refused to acknowledge that such behavior 

would violate Title VII. 

And to be clear, statements like these are wildly at odds with the 

very letter and the very purpose of Title VII and the Family Medical Leave Act. 

Finally, we reviewed Judge Gorsuch’s record against a highly unusual backdrop, including promises made by President Trump that 

his nominee would overturn Roe automatically, and that he would 

be selected from lists approved by the Heritage Foundation and by 

the Federalist Society, a really highly unusual occurrence, to say 

the least. 

When you put these extraordinary promises together with the 

judge’s record and his refusal to provide anything but platitudes 

about his judicial philosophy to this Committee, there is only one 

possible conclusion, and that it is that Judge Gorsuch should not 

be confirmed. 

[The prepared statement of Ms. Graves appears as a submission 

for the record.] 

Senator CRAPO. Thank you, Ms. Graves. 

And to the remaining witnesses on the panel, and the Members 

of the Committee, we are about halfway through a vote, and we are 

going to need to take a recess to go vote. 

So what we will do is also give a few extra minutes to that recess, so that folks can get a bite to eat, if they can. 

In fact, do we have two votes? 

Chairman GRASSLEY. I will be back here about 1:10 to take up 

again. 

Senator CRAPO. Okay. So we will recess until 1:10 and continue 

our deliberations at that point. 

The Committee is in recess. 

[Recess.] 

Chairman GRASSLEY. I will abrogate the recess, but I want to explain something. This vote that we thought would get two votes 

done by 1:10, the first vote is not going to end until about 1:20. So 

I will have a chance to get through four people’s testimony, and 

then if we have hopefully a Republican and Democrat vote and 

they are over here, so I can go finish voting. If you wonder about 

the importance of voting for me, I have not missed a vote since 

1993, so that is about 7,900 votes without missing a vote, and I do 

not intend to miss another one. 

Professor Turley. 
451 

STATEMENT OF JONATHAN TURLEY, J.B. AND MAURICE C. 

SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW, THE 

GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, WASHINGTON, DC 

Professor TURLEY. Thank you, Chairman Grassley and Members 

of the Senate Judiciary Committee. It is an honor to appear before 

you today to discuss the nomination of Judge Neil M. Gorsuch for 

the U.S. Supreme Court. I believe that a nominee should be extraordinary to merit the distinction of being one of nine on our 

highest court. I should state at the outset that I do not agree with 

all of Judge Gorsuch’s legal views. However, I believe Judge 

Gorsuch to be an exceptional choice for the Court. 

While many have focused on replacing a conservative with another conservative, the primary concern should be to replace an intellectual with another intellectual. Judge Gorsuch is precisely that 

type of nominee who has the intellectual reach and vigor to sit in 

the chair of the late Antonin Scalia. 

One of the primary complaints regarding past nominees has been 

a lack of substantive writings or opinions on major legal issues of 

our time. Such thin records 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 have focused on two aspects of the 

nomination: first, I have addressed the criteria often used to evaluate a nominee; and, second, I have looked at the cases by Judge 

Gorsuch with a particular emphasis on separation of powers, agency review, and Chevron. 

Every President and Senator has expressed a commitment to 

placing the best and the brightest on the Court, though few agree 

on the qualitative measures needed to guarantee that goal. Historically, the record is not encouraging, to be frank. Our respect for the 

Court often blinds us to the fact that our Justices have ranged 

from towering figures to virtual nonentities. To be blunt, we have 

had more misses than hits when it has come to appointments onto 

the Court. 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, devoid of any particularly interesting 

ideas. 

That is not the case with this nominee. Judge Gorsuch has actively participated in debating some of the toughest questions of 

our time. This is, in other words, a full portfolio of work at the very 

highest level of analysis. 

On the basis of all the criteria I discuss in my testimony, Judge 

Gorsuch is a stellar nominee. I realize that many do not welcome 

a conservative nominee any more than they welcomed a conservative President. However, President Trump has every right to 

nominate someone who shares his jurisprudential views. 

To put it simply, Neil Gorsuch is as good as it gets, and he 

should not be penalized for engaging in the policy and academic debates of our time. In my written testimony, I discuss some of his 
452 

opinions. There are many, 2,700 or so cases with a full record of 

opinions by Judge Gorsuch. The jurisprudence reflects, not surprisingly, a jurist who crafts his decisions very closely to the text of 

a statute, and, in my view, that is no vice for a Federal judge. The 

exception, as I discuss in my written testimony, is Chevron in 

terms of the consistency of his views with those of Justice Scalia. 

There has been a fair amount of discussion of cases, which I would 

be happy to go into further today. 

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 perhaps the nominee. Yet, if history is any judge, even the nominee does not know 

that with any certainty. 

These hearings often remind me of a story of Supreme Court Justice Oliver Wendell Holmes who was traveling by train to Washington, DC When the conductor asked him for his ticket, Holmes 

looked in all of his pockets, and the conductor finally stopped him 

and said, ‘‘Do not worry about your ticket, Mr. Holmes. We all 

know who you are. When you get to your destination, just send us 

the ticket.’’ Holmes responded, ‘‘My dear man, the problem is not 

my ticket. The problem is . . . where am I going?’’ 

Most nominees are in the same position as Oliver Wendell 

Holmes. They are not quite sure where they are going. People of 

good faith can evolve on the Court. I do not expect Judge Gorsuch 

to be a robotic vote for the right of the Court. While conservative, 

he has shown intellectual curiosity and honesty that I think is 

going to take him across the ideological spectrum. 

But in conclusion, I would simply say we are not looking for the 

best imitation or facsimile of Justice Scalia. We are looking for 

someone who can be an intellectual force on the Court in his own 

right. That person, in my view, is indeed Neil Gorsuch, who just 

might eclipse his iconic predecessor. He will not be the same. He 

is going to bring something new. In the end, Gorsuch and Holmes 

share a common destination. He will go where his conscience takes 

him. It might be a track to the left or to the right. But he will follow his conscience. I cannot say what the final terminus 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 the U.S. Supreme Court. 

[The prepared statement of Professor Turley appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Professor. 

Now, Mr. Gallagher. 

STATEMENT OF PATRICK GALLAGHER, DIRECTOR, ENVIRONMENTAL LAW PROGRAM, THE SIERRA CLUB, OAKLAND, 

CALIFORNIA 

Mr. GALLAGHER. Chairman Grassley, thank you for the opportunity to testify here today on behalf of the Sierra Club and its 2.8 

million Members and supporters nationwide. 

A Supreme Court Justice holds considerable power over the laws 

which safeguard the very air we breathe and the water we drink 

and the integrity of our democracy. Unfortunately, Judge Neil 

Gorsuch’s ideology threatens both bedrock environmental law and 
453 

the rights of American citizens to a fair and equal voice in our democracy. For these reasons, the Sierra Club respectfully opposes 

Judge Gorsuch’s confirmation to the Supreme Court. 

Judge Gorsuch has displayed a consistent willingness to close the 

courthouse doors to citizens, while holding them open for corporate 

interests. Think for a moment of the child in Bakersfield, California, struggling to breathe as a result of the oil and gas operations right outside her home and school, or of the family who may 

not be able to take their annual camping trip to the Wayne National Forest in Ohio because of fossil fuel drilling operations at 

that place, or of the families right here in Washington, DC, who 

continue to suffer from the lead contamination of their drinking 

water. 

I presume that everyone in this room would agree that every single one of these people deserves access to the Federal courts to 

remedy these wrongs. Unfortunately, Judge Gorsuch’s writings and 

judicial records show that he would shut the courthouse doors on 

many of these people who want nothing more than to protect their 

air, water, public lands, and their families. 

In 2005, Judge Gorsuch authored an article in the National Review entitled ‘‘Liberals and Lawsuits,’’ where he criticized those 

who seek to remedy injustices in the Federal courts when the executive branch fails to do its job. While Judge Gorsuch has repeatedly stated—reportedly stated that he wishes this National Review 

article would just ‘‘disappear,’’ his judicial record continues to reflect this philosophy, as he has repeatedly denied environmental 

plaintiffs access to the courts. Where citizens must jump through 

multiple, often insurmountable hurdles just to get inside Judge 

Gorsuch’s courtroom, corporations have been able to walk right in. 

Let me cite two examples. 

In 2013, the Sierra Club moved to intervene in a lawsuit that an 

off-road vehicle group brought against the Forest Service, challenging the closure of certain forest trails to off-road vehicles. The 

court granted us intervention, but Judge Gorsuch dissented, concluding that we should have been excluded from the case. Tellingly, 

neither the Government, the off-road vehicle group, nor the majority of judges objected to our participation in that case. 

Second, in 2005, a coalition of citizens groups, including the Wilderness Society and the Sierra Club, challenged a Utah county’s attempt to take over Red Rock wilderness areas that were managed 

by the Bureau of Land Management by claiming that they were 

county highways. Judge Gorsuch ruled that the citizens did not 

have standing to sue. They did not get into the courtroom. 

In an emphatic dissent to Judge Gorsuch’s ruling, one that 

echoes my testimony here today, Judge Lucero, also of the Tenth 

Circuit, stated, ‘‘A citizen’s right to protest and be heard on the supremacy of Federal rules and regulations is ignored.’’ 

Not only has Judge Gorsuch limited access to the courts, he has 

stated open hostility to the Chevron doctrine, a longstanding precedent of the Supreme Court that ensures scientific integrity is respected as our public servants implement clear air and clean water 

regulations. The Chevron doctrine ensures that the laws on the 

books are carried out by career public servants using the best 

available science. 
454 

Here is the most troubling issue. Judge Gorsuch’s opinion that 

Chevron deference violates the Constitution echoes the current 

White House’s extreme anti-agency demagoguery. One month ago, 

Trump senior adviser Steve Bannon gave a speech to the Conservative Political Action Conference in which he professed that a 

White House priority is the ‘‘deconstruction of the administrative 

state.’’ Trump’s massive budget cut for EPA was the next hammer 

to fall. Sadly, Judge Gorsuch’s ideology will further this agenda, 

hamstringing the EPA’s ability to enact pollution safeguards and 

incentivizing corporate polluters to challenge the EPA at every 

turn, thereby forcing Federal judges to second-guess agency scientists. 

In closing, we now stand at a precipice in history. How will we 

deal with climate disruption? How will we lift up our communities 

who lack access to clean drinking water and clean air? How will 

we leave a safe and livable future for our children? 

America cannot afford the appointment of yet another Justice 

whose ideology disfavors citizens groups, favors corporate interests, 

and leads to the degradation of the environment and our democracy. This is why the Sierra Club respectfully opposes the confirmation of Judge Neil Gorsuch to the Supreme Court. 

Thank you very much. 

[The prepared statement of Mr. Gallagher appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Mr. Gallagher. 

Now, Ms. Harned. 

STATEMENT OF KAREN HARNED, EXECUTIVE DIRECTOR, 

NATIONAL FEDERATION OF INDEPENDENT BUSINESS 

SMALL BUSINESS LEGAL CENTER, WASHINGTON, DC 

Ms. HARNED. Chairman Grassley, 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 U.S. Supreme Court. 

NFIB is the Nation’s 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 v. Sebelius, NFIB understands firsthand the importance one Justice can have on the ability of small businesses to 

own, operate, and grow their businesses. After reviewing Judge 

Gorsuch’s 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 bright-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 
455 

well as businesses and ordinary individuals who may be affected by 

that law moving forward. 

Like their larger counterparts, small business owners want—and 

need—certainty. They need bright-line, easy-to-understand legal 

standards. If small businesses do not 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 

unelected bureaucrats. This trend over the last 30 years contravenes the fundamental principle that only Congress, as the 

elected and politically accountable legislative branch, should be 

able to enact and change statutory law. 

When it comes to regulations, small businesses bear a disproportionate amount of the regulatory burden as compared to their larger counterparts. 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 ensuring the business is in full compliance with 

new and ever-changing Federal mandates. The uncertainty caused 

by future regulation negatively affects a small business owner’s 

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, known as 

Chevron deference, has led to a breakdown in our constitutional 

system of checks and balances. 

Therefore, NFIB welcomed Judge Gorsuch’s concurring opinion 

last year in Gutierrez encouraging the Supreme Court to revisit the 

Chevron doctrine. In my written testimony, I referenced three cases 

where the Chevron doctrine has caused serious harm to small business. 

For example, in City of Arlington v. FCC, the Supreme Court invoked Chevron to find that courts must defer to an agency’s interpretation of its own statutory authority. By extending Chevron deference to agency determinations of its own jurisdiction, the Court 

set a dangerous precedent that encourages agency aggrandizement 

of regulatory authority—with minimal judicial oversight. By abdicating its responsibility to determine the scope of an agency’s statutory authority, the Court signaled that agencies may intrude into 

the affairs of States and businesses with impunity—as long as 

their actions are justified as ‘‘reasonable’’ to the slightest degree. 

Our constitutional system of governing and our separation of 

powers doctrine play a large role in empowering the vitality of 

small businesses in the United States. When this system erodes or 

functions less perfectly, there is an adverse impact on small business and our Nation’s economy. 

Small businesses, like every American, have an important stake 

in who fills Justice Antonin Scalia’s seat. NFIB is pleased to sup-
456 

port the nomination of Judge Neil Gorsuch to the U.S. Supreme 

Court. 

Thank you. 

[The prepared statement of Ms. Harned appears as a submission 

for the record.] 

Senator WHITEHOUSE [presiding]. Thank you very much. 

Our next witness is the former Deputy Assistant Attorney General for Civil Rights who has specialized in disability rights. We are 

delighted to hear her testimony. Ms. Hill. 

STATEMENT OF EVE HILL, PARTNER, 

BROWN GOLDSTEIN LEVY, BALTIMORE, MARYLAND 

Ms. HILL. 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 Gorsuch’s approach to and acceptance of America’s disability civil rights laws and the basic principles of disability rights. 

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 

very low expectations into his disability rights jurisprudence, in 

spite of Congress’ bipartisan attempts to dismantle such prejudices 

through Federal disability rights laws. 

Judge Gorsuch’s decisions on the education of our children with 

disabilities are troubling, not just for their devastating human consequences, but also for their dismissiveness of the law as established by Congress. 

The Individuals with Disabilities Education Act, or IDEA, requires public schools to ensure a free appropriate public education 

for each student with a disability. In the Luke P. case that you 

heard about earlier, Judge Gorsuch read the IDEA to require only 

an education that is ‘‘merely more than de minimis.’’ That concept 

appears nowhere in the statutory text of the IDEA or in Supreme 

Court precedent. Judge Gorsuch adopted this standard in spite of 

Supreme Court precedent requiring educational benefits to be 

meaningful, in spite of statutory text requiring appropriate educational programs, and in spite of Congress’ repeated updates to 

the IDEA explicitly calling for high educational standards for children with disabilities. Yet in Luke P., Judge Gorsuch substituted 

his own opinion for that of three decisionmakers who had found 

that Luke’s school did not provide an appropriate or meaningful 

educational benefit. Nor did Tenth Circuit precedent require the 

‘‘merely’’ standard. For a judge that claims fidelity to the principles 

of judicial conservatism, a decision to overrule the findings of three 

lower courts in a way that ignores statutory text and congressional 

intent is deeply troubling. 

Luke’s records showed that he was failing in over 75 percent of 

the goals in his plan. Few parents in this country would find a 25- 

percent success rate to be appropriate or meaningful for their child, 

with or without a disability. Yet Judge Gorsuch found that 25 percent success was a passing grade for Luke’s school. 

Notably, a little over a year after the change in his placement, 

as you heard this morning, Luke made significant progress in the 
457 

goals that his prior school had failed in. It was Judge Gorsuch’s expectations, not Luke’s capabilities, that were de minimis in this 

case. 

Just yesterday, the Supreme Court explicitly and unanimously 

rejected Judge Gorsuch’s ‘‘merely more than de minimis’’ standard. 

The Court found Judge Gorsuch’s standard mischaracterized the 

intent and language of both 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 de minimis progress from year to year can hardly be said to have been offered an education at all.’’ 

Unfortunately, it is likely too late for many of the children with 

disabilities in Colorado, Kansas, New Mexico, Oklahoma, Utah, 

and Wyoming who have been subjected to the soft bigotry of de 

minimis expectations for nearly 10 years. 

Judge Gorsuch’s other IDEA opinions have shifted standards of 

review and created legal minefields of administrative processes to 

undermine the education rights of students with disabilities. And 

Judge Gorsuch’s opinions on the rights of adults with disabilities 

also reflect, rather than challenge, the stereotypes that Congress 

enacted in Federal disability rights law—rejected in disability 

rights law. 

Congress passed the Americans with Disabilities Act, or ADA, to 

open doors to the workplace for people with disabilities. But Judge 

Gorsuch in 2010 held that an employee with multiple sclerosis did 

not have a disability because she was able to work. He made this 

holding in spite of both the ADA and the ADA Amendments Act 

of 2008, where Congress made clear that the ADA provides and has 

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 blatant 

discriminatory 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 the central ADA requirement of reasonable accommodation. 

In the case of Hwang v. Kansas State University, a professor requested a slight extension of her leave time to return to work when 

Kansas experienced an H1N1 outbreak that could have risked her 

life. The university routinely allowed 1-year sabbaticals for other 

professors, but Judge Gorsuch insisted that Professor Hwang could 

only extend her leave if she was already entitled to such a sabbatical. The ADA asks not just whether an employee with a disability was offered what she was contractually entitled to, but also 

whether something more, a reasonable accommodation, is available. Judge Gorsuch ignored that test. Instead, he suggested that 

Congress was wrong to require leave as an accommodation at all 

and that leave of over 6 months was inherently unreasonable, no 

matter what other employees were given. 

You may believe that a judge’s role is to protect the dignity of 

all people and especially those of disempowered minority groups. 

Or you may simply believe that a judge’s role is to remain faithful 

to the clear intent of Congress as expressed in statutes. Either 
458 

way, Judge Gorsuch’s opinions in disability rights issues do not 

meet that standard. 

[The prepared statement of Ms. Hill appears as a submission for 

the record.] 

Senator KENNEDY [presiding]. Thank you, Ms. Hill. 

Senator Hatch, do you have questions? 

Senator HATCH. Yes. Professor Turley—I am sorry. Professor 

Turley. 

Professor TURLEY. Yes, sir. 

Senator HATCH. 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 Ginsburg 

once called ‘‘hints,’’ ‘‘forecasts,’’ and ‘‘previews’’ about his future 

votes or opinions in cases that will come before the Supreme Court. 

Now, 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.’’ 

Now, do you agree with me that results-oriented litmus tests 

based on specific issues are not the best standard for evaluating 

the fitness of a Supreme Court nominee? 

Professor TURLEY. Absolutely. And when I referred to knowing 

what type of Justice that Judge Gorsuch will be, I was referring 

to the fact that he has a well-known jurisprudence; he has a wellknown view of the Constitution. He shares that distinction as a 

nominee with the man he would replace, and that is one of the reasons I believe he will have a lasting legacy. 

The reason that Justice Scalia has such a lasting legacy is that 

he was a relative rarity: He actually 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, 

is going to follow his conscience. He is unlikely to be as predictable 

as many have suggested. I do not think he will be robotic. I think 

that view, his jurisprudential view, will take him to the left and 

the right of the spectrum. 

What we do know is he is a textualist. That should come as no 

surprise, and I do not think that is a vice. But what his opinions 

also show is someone with an intense intellectual curiosity and also 

an intense independence. I could think of no better possible nominee than that. 

I do not want a blind date. I do not want someone who we know 

nothing about. What we have in Judge Gorsuch is someone who 

was not just a pedestrian, not participating in these important debates. He got involved, and I respect that. I do not think we should 

penalize someone for being active in debating these issues. 

Senator HATCH. That is a good point. The suggestion has been 

made in this hearing that concern about the Chevron doctrine, 

which requires deference to executive branch agency interpretations of the law, is just another way of opposing regulation in general. One Democratic Senator even said that without Chevron, 

agencies would not have the authority to address problems at all. 

Do you agree with that characterization? 
459 

Professor TURLEY. No, I do not. I share Judge Gorsuch’s view on 

Chevron. We come from two different places, I think, probably politically. But I think how you view Chevron depends a lot on whether you view it from a constitutional standpoint or from an administrative law standpoint. I think I share Judge Gorsuch’s view looking at it through the lens of a constitutional standpoint. 

Chevron is troubling because it does tend to usurp a traditional 

role of the courts. It is also tends to usurp a role of this body. I 

also do not 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 in one of his opinions, ‘‘What do people think is going to happen if we do not have Chevron?’’ What is 

going to happen is we will be in the same position we were before 

Chevron, which was not a bad position. You had the Skidmore case 

where Justice Jackson, someone that Judge Gorsuch respects a 

great deal, who maintained that, we have to respect agency opinions, we have to give them great weight. The APA itself, I believe 

in Section 706, says that you have to defer to that. 

So there is not a cliff here that people are suggesting. By moving 

away from Chevron, we would see the courts more heavily involved 

in the review of agency decisionmaking and also to give more authority back to this body where I believe it should rest. 

Senator HATCH. Great. I agree with you. 

Ms. Harned, we often speak about the impact of court decisions 

on the parties to a specific case and beyond. Now, I really appreciated your response in this area, and your comments, because I 

think they provide an important perspective on this issue. And I 

am 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. 

Now, you seem to have a very different take. Your testimony emphasizes more broadly that clarity about the law and adherence to 

basic principles such as separation of powers have the most important impact. Now, that is why you have such high praise for Judge 

Gorsuch’s approach not only to making decisions but on writing the 

opinions that explain those decisions as well. 

Now, my view is that the law, not the judge, should determine 

the outcome of individual cases and the broader impact of those decisions. Do you agree with that? 

Ms. HARNED. Absolutely. 

Senator HATCH. Well, that was a nice quick answer. 

[Laughter.] 

Ms. HARNED. There was a good discussion with Senator Tillis 

about this as well, which is that 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. They are not going to be in every agency walking the halls, 

and they need to know that once you all enact a law, the regulation 

is issued that is appropriately within that statutory framework, it 

is 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’ abilities to operate their business. 
460 

Senator KENNEDY. Thank you. 

Senator HATCH. Thank you. 

Senator KENNEDY. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. May I ask unanimous consent—we have Ms. McGhee here from Demos. May I ask 

unanimous consent that Demos’ 2017 report titled ‘‘Election Money 

Resulting Directly from Supreme Court Rulings’’; as well as a 

March 13, 2000, letter from 109 House Members to Chairman 

Grassley and Ranking Member Feinstein urging this Committee to 

question Judge Gorsuch about money in politics; and a 2017 Demos 

report titled ‘‘Money in Politics, Racial Equity, and the U.S. Supreme Court’’; and, fourth and finally, a 2015 Demos report titled 

‘‘Breaking the Vicious Cycle: Rescuing Our Democracy and Our 

Economy by Transforming the Supreme Court’s Flawed Approach 

to Money in Politics’’ all be entered into the record. 

Senator KENNEDY. Without objection. 

Senator WHITEHOUSE. Thank you very much. 

[The information appears as a submission for the record.] 

Senator WHITEHOUSE. Ms. McGhee, welcome. I appreciate that 

you are here and the work that Demos has done to shed some light 

on the problem of money in 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 is 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 

Gorsuch’s favor through a front group, so we do not know who the 

real donors are. It is dark money that is behind that entire operation. And it was the same front group that spent nearly an equivalent amount of money trying to disrupt the nomination of Judge 

Merrick Garland. And, finally, we have the Colorado reporting on 

Judge Gorsuch’s friend and, it appears, his patron in the quest for 

the Tenth Circuit seat, Mr. Philip Anschutz, who is a billionaire, 

who is also 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. 

And I would like to ask you to react to that. 

Ms. MCGHEE. Thank you, Senator Whitehouse. I think you are 

right to express concern about this, the same way that the American people, including 91 percent of President Trump’s 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 of expansively in terms of the influence of the wealthy 
461 

millionaires and billionaires and special interests in our politics to 

even some of the more narrow concerns. 

I was particularly concerned in your exchange, Senator 

Whitehouse, with the judge when you gave him an opportunity to 

talk about something that is his predecessor, his potential predecessor’s—one of his great North Stars, which is the importance of 

disclosure in our campaign finance system. And instead of saying 

clearly that there is a public interest in knowing who is spending 

millions of dollars to buy influence with our politicians, he was 

quite evasive and, in fact, to my dismay, raised the idea that disclosure chills speech and even suggested that the $650 million in secret money from society’s most powerful, which is what we have 

seen since Citizens United, would 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. 

And if you do not mind, I just want to read just one sentence 

from what Senator Scalia said—— 

Senator WHITEHOUSE. Justice Scalia. 

Ms. MCGHEE. Sorry, Justice Scalia said in Doe v. Reed about the 

importance of disclosure, which gives us a sense that he might 

even be parting with Scalia on this important piece: ‘‘There are 

laws against threats and intimidation; and harsh criticism, short of 

unlawful action, is a price our people have traditionally 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.’’ 

Senator WHITEHOUSE. My time has expired, Chairman. Thank 

you very much. Thank you, Ms. McGhee. 

Ms. MCGHEE. Thank you, Senator. 

Senator KENNEDY. Thank you, Senator. 

Chairman GRASSLEY. Chairman GRASSLEY. Thank you. Thanks to Senator Whitehouse 

and you for filling in when I had to go vote. 

Professor Solum, while many try to argue that originalism is inherently conservative, others have pointed out that originalism has 

been ascribed to by liberal judges and academics as well. Professor 

Cass Sunstein at Harvard Law School, for example, once described 

the last Justice Hugo Black as ‘‘a liberal originalist.’’ 

Would you agree that originalism is not by itself ideologically or 

political in nature? 

Professor SOLUM. Yes, I would, Chairman Grassley. And if I 

might just give an example or two, it is absolutely true that much 

of the interest in originalism at the beginning was generated by 

critics of Warren 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 discussing, the rights of corporations. 

Justice Thomas in his opinion in the McDonald case says that incorporation of the Bill of Rights can only be justified under the 

Privileges or Immunities Clause of the United States Constitution. 
462 

The Privileges or Immunities Clause is different than the Equal 

Protection Clause or the Due Process Clause. Those clauses guarantee rights to all persons. The Privileges or Immunities Clause 

guarantees rights only to citizens, and corporations are not citizens. 

Now, this is not a result that corporations will welcome at the 

State level, where the Fourteenth Amendment applies, but it is an 

implication of the original public meaning of the Constitution. 

Chairman GRASSLEY. Thank you. 

Mr. Lamken, you worked with the judge when he was in private 

practice at Kellogg Huber, 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? 

Mr. LAMKEN. Yes, I think it is highly relevant. As somebody who 

was a trial lawyer for many years, the judge has, from what I see, 

a great respect for the record, great respect for the factual development, whether that record is one that is developed by this body in 

support of the statutes that it enacts, or it is a record created by 

the parties at trial. And I think when you are a trial lawyer and 

you are involved in those, you develop that type of great respect 

that is critically important to really understanding what is going 

on in the cases, to understanding not merely what the abstract 

principles of law are, but how they are affecting people, and then 

how the process plays on the trial court. 

I think practical experience as a trial lawyer is something that 

is not as common among our Supreme Court Justices now as it 

should be, and I think that is a good perspective he would bring 

to bear. 

Chairman GRASSLEY. Okay. Ms. Harned, my last question. We 

have heard a lot during these hearings about the rule of law. We 

have heard in particular about how it is 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 businessmen and 

-women, for judges to interpret statutes according to the text? 

Ms. HARNED. Right, 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 judge’s decision, a practice that 

they had been doing that they thought was perfectly legal one day 

is now unlegal—or illegal. And so 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 Gorsuch’s 

work. 

Chairman GRASSLEY. Okay. Thank you. I yield back my time. 

Senator FLAKE [presiding]. Senator Coons. 

Senator COONS. Thank you, Senator Flake. 

Ms. Hill, if I might, earlier today we heard testimony, compelling 

testimony, from Jeff Perkins about his son, Luke, and about the 

consequences for Luke and his family of Judge Gorsuch’s perspective in his opinion in the Tenth Circuit, and then, pointedly, the 

Supreme Court disagreed with Judge Gorsuch’s reasoning. I believe 

the goal of laws passed by Congress, like the ADA and the IDEA, 

is access, opportunity, and participation, not isolation and segregation. 
463 

I would be interested, Ms. Hill, both Judge Gorsuch yesterday 

and Judge Tacha today insisted that Judge Gorsuch was bound by 

precedent, both Circuit and Supreme Court, to set the standard 

under the IDEA as ‘‘merely more than de minimis.’’ Are they right? 

Ms. HILL. I do not believe so. Of course, the Supreme Court yesterday indicated that it was not correct to approach Rowley or interpret Rowley as meaning that the standard was merely more 

than de minimis; rather, the standard was for meaningful and appropriate education, just as Congress had said that it was. 

In addition, I looked more closely at the Urban case. That was 

the case that Judge Gorsuch cited for the de minimis standard, 

which, by the way, still did not use the word ‘‘merely.’’ In Urban, 

there was no dispute about whether sufficient services had been 

provided for this child. There was a dispute about whether a procedural requirement of the IDEA had been followed, and whether 

that failure to follow the procedural requirement had created a 

substantive violation. 

To the extent that there was no argument over whether the free 

appropriate public education had been provided, any argument 

about what the standard for free appropriate public education was 

is largely dicta. 

Senator COONS. Thank you, Ms. Hill. 

Mr. Gallagher, if I might, in a 2013 case—I think it is New Mexico Off-Highway Vehicle v. U.S. Forest Service—the Sierra Club attempted to intervene in a case attacking the Forest Service rule, 

and the Court allowed you to participate. Judge Gorsuch dissented 

and would not have allowed Sierra Club participation in the case, 

even though none of the litigants opposed your participation. 

In another case in 2011, Judge Gorsuch voted to block another 

environmental group from litigation to assert its interests. 

Why do you think it is important that interest groups like the 

Sierra Club be allowed to participate? And how do you think Judge 

Gorsuch’s position would affect advocates’ ability to be engaged on 

litigation around the environment? 

Mr. GALLAGHER. Thank you, Senator. 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 

Pruitt, who essentially eviscerated environmental enforcement 

while the Attorney General of Oklahoma, it is critical that citizens 

be able to enforce environmental laws. This body legislated citizens’ 

rights to enforce environmental laws. There are citizen suit provisions in all of the major environmental laws. 

If we cannot get access to court and Mr. Trump and Mr. Pruitt 

are not going to protect our drinking water, who are we going to 

call? 

Senator COONS. Thank you, Mr. Gallagher. 

Ms. Graves, in Strickland v. UPS, Judge Gorsuch’s Tenth Circuit 

colleagues found that a woman had shown enough evidence of discrimination, discrimination based on sex, to have a jury rule on her 

case. The woman had multiple co-workers testify she was treated 

worse than her male co-workers. Though the law required the court 

to look at the evidence in the light most favorable to the woman, 

Judge Gorsuch again dissented. 
464 

Can you tell us more about this case and what it says about 

Judge Gorsuch’s approach to deciding these opinions? 

Ms. GRAVES. Sure. Thank you, Senator Coons. I think that the 

Strickland case is a good example here of the concern that we have 

when Judge Gorsuch says he just 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, no, that is 

not enough. 

And so in that case, that is 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. 

Senator COONS. Thank you, Ms. Graves. 

Thank you, Mr. Chairman. 

Senator FLAKE. Thank you. 

Senator KENNEDY. Senator KENNEDY. Thank you, Mr. Chairman. 

Ms. McGhee—is it ‘‘McGhee’’ or ‘‘McGee-hee’’? 

Ms. MCGHEE. McGhee. 

Senator KENNEDY. McGhee. 

Ms. MCGHEE. Thank you. 

Senator KENNEDY. I listened 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. 

Ms. MCGHEE. Sure, absolutely. First of all, we believe that based 

on his record in two cases—Hobby Lobby and Riddle v. 

Hickenlooper—that you have a recipe for striking down some of our 

last remaining protections against big money. He went out of his 

way in Hickenlooper—— 

Senator KENNEDY. I do not mean to interrupt you, but I have 

only got 5 minutes. 

Ms. MCGHEE. Okay. 

Senator KENNEDY. I understand that. Do you really expect a 

nominee for the U.S. Supreme Court, whether he or she is nominated by a Democratic President or a Republican President, to 

come before the United States Judiciary Committee and talk about 

what is good policy or bad policy? 

Ms. MCGHEE. Fortunately, he does not have to get into policy to 

just talk about enduring democratic principles. And I also think 

that the Heritage Foundation, the number of right-wing organizations that are anti-campaign finance reform that have backed his 

nomination for the Court would be surprised to learn that he was 

at all ambiguous about Citizens United, which is one of the most 

important court cases in recent memory and 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 did not when he had the opportunity. 

Senator KENNEDY. I think I understand how you feel about Citizens United, but I want to understand your criticism of Judge 
465 

Gorsuch as a nominee for the U.S. Supreme Court. You are criticizing Judge Gorsuch for not coming before this body and offering 

a policy preference in terms of campaign finance in elections in 

America? 

Ms. MCGHEE. I am not criticizing the judge. I am saying that he 

had an opportunity to say basic principles about our democracy and 

upholding an interpretation of the First Amendment that would 

protect a vision of 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 write 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, a matter of settled law, and 

the very possibility of moving into corporations giving direct contributions to candidates based on his concurrence in Hobby Lobby. Senator KENNEDY. And you would prefer to have a nominee who 

agrees with you on those policy issues? 

Ms. MCGHEE. I would prefer to have a nominee who was open 

to considering the facts, and we have seen that since Citizens 

United, the facts have shown that some of the basic premises—the 

idea that independent spending is actually independent and cannot 

corrupt, the idea that disclosure is real—have been proven false. 

Senator KENNEDY. All right. I am going to put you down as 

doubtful on Citizens United. Ms. MCGHEE. Thank you, Senator. 

Senator KENNEDY. Ms. Hill, how do you think judges ought to decide cases? Could you turn your mic on for me? 

Ms. HILL. I think judges should decide the cases based on the 

law as expressed by Congress, interpreted by the agencies, and applied to the facts in front of them. 

Senator KENNEDY. What if the agencies got it wrong? 

Ms. HILL. If the agencies got it wrong, there are administrative 

procedures processes through which to challenge those and correct—— 

Senator KENNEDY. Okay. Do you think that a party’s wealth or 

status or power should have any effect whatsoever on the outcome 

of a case? 

Ms. HILL. No, I do not. 

Senator KENNEDY. Okay. Thank you, Mr. Chairman. I yield back 

my time. 

Senator FLAKE. Thank you. 

Before going to the next panel, let me just ask a couple of questions. 

Ms. Harned, 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? 

Ms. HARNED. Right. Well, that has been—really over the last several decades, we continue to see an increasing regulatory state, and 

in large part that is because of agency deference that courts—or 

deference courts are giving to agencies, the Chevron doctrine. And 

we have seen this firsthand with a number of cases in which we 

have gotten involved. I have several referenced in my testimony 
466 

where, because of that agency deference, small business owners— 

the interpretation of the regulation by the agency governs, and as 

a result, a small business owner is sued and out millions of dollars 

in one case, the Nack v. Walburg case that I talk about here. 

But, more importantly, more broadly, on the regulatory state 

generally, small business owners do bear the disproportionate burden of regulation on their business as compared to their larger 

counterparts. It has been a primary concern, the reason they have 

not been able to grow over the past 9 years. And so 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, because we do think it is responsible 

for increasing the regulatory state in this country. 

Senator FLAKE. All right. Thank you. 

Mr. Turley, I would like your thoughts kind of on that similar 

theme. With Chevron deference, certainly Judge Gorsuch has expressed some skepticism about it, to put it mildly, I hope. But with 

regard to technology, which is an increasing percentage or share of 

our economy, what we have seen over the past several years is you 

have one administration whose agencies will regulate in a certain 

way, and the new administration comes in with maybe a completely different idea. We just dealt with the Congressional Review 

Act on certain tech regulations, internet regulations, just a few 

minutes ago on the floor. And 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 for the 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? 

Professor TURLEY. I do think it is a better way to move beyond 

Chevron. I have been a critic of Chevron for many years. I am a 

particular critic of Brand X, which is the subject of one of these 

opinions. I thought the judge was right on that one. A lot of people 

do not realize that Brand X says that an agency can essentially negate the legal interpretation of a Federal court, and Judge Gorsuch 

appropriately noted that he thought that courts interpret the law 

after Marbury v. Madison, but that is how Chevron works. As I 

have written, it serves as the Marbury of the administrative state 

saying that they can be the final word. 

I think what you are seeing in our system is a dangerous shift 

of the center of gravity. This is a tripartite system that was designed to have three branches held together by a type of inverse 

pressure in a fixed orbit that Madison set. Yet, we have this rising 

fourth branch of administrative agencies. 

I happen to identify with many people in those bureaucracies because they are dweebs like me. They have advanced degrees. They 

are sort of wonky. But the fact is that we have a fourth branch 

that I think is a dangerous change in our system, one that we are 

not having a debate over. Chevron has fueled that change. If we did 

not have Chevron, we would largely go back to the conditions of 

cases like Skidmore where the courts gave a lot of deference, even 
467 

without Chevron. You have the APA which requires deference to 

agencies. What it would do is allow judges to rule on what the law 

means. 

By the way, apropos of your question, Chevron was actually a 

case that was a victory for Judge Gorsuch’s mother. This was actually a victory of Republicans that were trying to reverse measures 

that were put into place by a previous Democratic administration 

and used administrative authority to do that. 

So I would caution those that have suggested that this is going 

to be an apocalyptic moment. What it would do, if we went beyond 

Chevron, is return us to a position closer to the design of our Government. 

Senator FLAKE. Well, 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 the next panel, if you want to set the nameplates. 

It will consist of Ms. Clarke, Mr. Kirsanow, Ms. Warbelow, Ms. 

Fisher, Ms. Miller, Ms. Smith, Professor Marshall, Professor 

Meyer, Ms. Phillips, and Professor Jaffer. 

If you will please stand and raise your right arm. 

[Witnesses sworn.] 

Senator FLAKE. Thank you. Please be seated. 

Kristen Clarke is the president and CEO of the Lawyers’ Committee for Civil Rights Under Law. 

Peter Kirsanow is a partner with the firm Benesch Labor Employment Practice Group and is serving his third term on the U.S. 

Commission for Human Rights—or for Civil Rights, I am sorry. 

And Sarah Warbelow is the legal director for the Human Rights 

Campaign. 

Alice Fisher is a partner in Latham and Watkins’ Washington, 

DC, office and is a member of the firm’s Executive Committee. 

From 2005 to 2008 she served as assistant Attorney General in 

charge of the Criminal Division at the Department of Justice. 

Amy Miller is the president and CEO and founder of Whole 

Woman’s Health. 

Hannah Smith is senior counsel at Becket. She clerked for thenJudge Alito on the Third Circuit Court of Appeals, for Justice Clarence Thomas, and then for Justice Alito on the Supreme Court. 

Professor William Marshall is the William Rand Kenan, Jr., distinguished professor of law at the University of North Carolina. 

Tim Meyer is a former law clerk for Judge Gorsuch from 2007 

to 2008. He is now professor of law and Enterprise scholar at Vanderbilt Law School. 

Sandy Phillips is the mother of Jessica Ghawi—— 

Ms. PHILLIPS. Ghawi. 

Senator FLAKE [continuing]. Who was—thank you. Ghawi, got it. 

Thank you. Who was tragically killed in the 2012 shooting at the 

Aurora, Colorado, movie theater. 

Jamil Jaffer is a former law clerk for Judge Gorsuch from 2006 

to 2007. He currently serves as adjunct professor, National Security Institute founder, and director of the Homeland Security law 

program at the Antonin Scalia Law School at George Mason University. 
468 

I welcome you all to the Committee and look forward to hearing 

your testimony. This will be 5 minutes each. If you can summarize 

that way, we will proceed after that with 5-minute rounds. 

But let us go ahead, Ms. Clarke. 

STATEMENT OF KRISTEN CLARKE, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, LAWYERS’ COMMITTEE FOR CIVIL 

RIGHTS UNDER LAW, WASHINGTON, DC 

Ms. CLARKE. 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 are one of the 

Nation’s historic, nonpartisan civil rights organizations with the 

unique mission of mobilizing lawyers across the country to provide 

critical pro bono support to advance our work. 

The Supreme Court occupies a central place in American democracy. And for African Americans 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 Gorsuch, 

as we have done for all Supreme Court nominees for the last several decades. We do not believe that the record is sufficient to conclude that he meets our standard, which requires demonstration of 

a profound respect for the importance of protecting civil rights afforded by the Constitution and the Nation’s civil rights laws. 

Judge Gorsuch’s views reflect a very narrow definition of what 

constitutes a civil right, and he has deep skepticism about the importance of protecting those rights in the courtroom. Our concerns 

are especially pronounced with respect to the question of whether 

he will fairly interpret and apply one of our Nation’s most important civil rights law, the Voting Rights Act. 

In 2013, the Supreme Court issued a decision that gutted the act 

in Shelby County, Alabama v. Holder. At issue in Shelby County 

were the Section 5 preclearance provision of the Act that helped 

identify and successfully block hundreds of unconstitutional and 

discriminatory voting changes and the Section 4—Section 5 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 argument in Shelby County, Justice 

Scalia referred to Congress’ renewal of the Voting Rights Act as 

the, quote, ‘‘perpetuation of racial entitlement.’’ That was a startling perspective on a law that has ensured that 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 Court’s decision in Shelby 

County is that the carefully considered judgment of Congress was 

set aside. In 2006, the Senate voted to renew Section 5 by a vote 

of 98–to–0 after documenting overwhelming evidence of ongoing 

discrimination against minority voters. 

It is unclear whether Judge Gorsuch appreciates Congress’ broad 

enforcement powers under the Fourteenth and Fifteenth Amend-
469 

ments and unclear whether he brings awareness of the widespread 

voting discrimination and voter 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 the Voting 

Rights Act. 

Equally important are questions concerning Judge Gorsuch’s tenure at the U.S. Department of Justice between 2005 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 

issues that led to the politicization of the agency’s civil rights work. 

Those views were substantiated in a July 2008 Inspector General’s 

report which found that politicization of the Civil Rights Division’s 

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 or elucidate the extent of his involvement and the significant problems that tarnished the work and integrity of the Civil Rights Division at this time. I urge the Senate 

to seek answers to these important questions. 

Before I conclude, I want to say a brief word about Judge 

Gorsuch’s record on criminal justice issues. Criminal justice concerns remain at the forefront for many African American, 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 deference to police officers in excessive-force decisions. 

In closing, I must observe that this nomination arises at a tumultuous moment in our Nation’s history. We have seen intensifying 

efforts to restrict the rights of minority voters, unconstitutional policing practices, rising xenophobia, 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 Law’s 

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. 

Senator FLAKE. Without objection. 

[The information appears as a submission for the record.] 

Ms. CLARKE. Thank you. 

[The prepared statement of Ms. Clarke appears as a submission 

for the record.] 

Senator FLAKE. Thank you, Ms. Clarke. Mr. Kirsanow. 
470 

STATEMENT OF PETER KIRSANOW, COMMISSIONER, U.S. COMMISSION ON CIVIL RIGHTS, AND PARTNER, BENESCH, 

FRIEDLANDER, COPLAN AND ARONOFF, CLEVELAND, OHIO 

Mr. KIRSANOW. Thank you, Mr. Chairman, Members of the Committee. I am Peter Kirsanow, member of the U.S. Commission on 

Civil Rights and partner at Labor Employment Practice Group of 

Benesch Friedlander. 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 the 1957 Civil Rights Act to, among other things, act as a national clearinghouse for information related to discrimination and 

denials of equal protection and in furtherance of that clearinghouse 

function and with the help of my assistant, I have reviewed the 

nearly 200 cases related to civil rights that Mr.—that Judge 

Gorsuch had authored or participated in at the Tenth Circuit. 

These opinions relate to, among other things, title 7, ADA, 

ADEA, IDEA, equal protection clause, and a host of other provisions related to civil rights. And our examination reveals that 

Judge Gorsuch’s approach to civil rights cases is consistent with 

generally accepted textual interpretation of the relevant statutory 

and constitutional provisions, as well as governing precedent. His 

opinions are squarely within the judicial mainstream when it 

comes to civil rights. 

Of the opinions we examined related to civil rights that Judge 

Gorsuch participated in, he was in the minority in only 5 percent 

of those cases. In 43 cases he was on a three-judge panel in which 

the two other panel members were appointed by Presidents of the 

Democratic Party, and in 94 percent of those cases he joined the 

majority opinion or concurred in the result. 

A useful example of Judge Gorsuch’s mainstream textualism, 

mindful of the limits of the judiciary and the prerogatives of the 

Legislature is his dissent in TransAm Trucking v. 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 employer instructions. Judge Gorsuch applied the plain 

text of the statute in a very precise manner and noted that the employee in question had done the opposite of the statutory privilege; 

that is, he had operated the vehicle, not refused to operate the vehicle. 

Similarly, Judge Gorsuch’s reasoned deference to precedent and 

his interpretation of the text of the governing statutes yields cases 

and record on civil rights that is consistent with prevailing civil 

rights norms, for example, Carrera v. Tyson Foods. Judge Gorsuch 

upheld summary judgment against a plaintiff in a hostile environment/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 had immediately discharged the employees who had made provocative gestures and immediately transferred plaintiff upon her request. 
471 

Similarly, in Gaff v. St. Mary’s Regional Medical Center, Judge 

Gorsuch upheld summary judgment in a retaliation claim where 

there was no evidence that the hospital had fired the plaintiff for 

reporting sexually explicit remarks made by a coworker as opposed 

to firing plaintiff because the plaintiff had threatened to shoot such 

coworker. 

As pertains to religious discrimination cases, Judge Gorsuch’s 

record shows that he takes First Amendment issues 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 the 

plaintiff’s beliefs may be at odds with prevailing societal norms. 

An example is Yellowbear v. Lampert in which Judge Gorsuch 

upheld the free exercise rights of an unsympathetic plaintiff who 

had murdered a little girl, which plaintiff had been denied his right 

to access a sweat lodge pursuant to his religious beliefs. Judge 

Gorsuch has also noted that wherefore protections might be available to individuals and families who are given the Hobson’s choice 

of either abiding by their sincerely held religious beliefs or saving 

their business. 

In sum, Judge Gorsuch’s approach to civil rights cases is consistent with the norms in jurisprudence. His record shows that he 

is a careful and exacting judge who has great respect for the constitutional order, the rule of law, the rule of Congress, and the corresponding limits on judicial authority. He is consistent with mainstream textual interpretation of the governing statutes, and, in addition to that, all of his record shows that he will faithfully and 

carefully apply the law to protect the civil rights of all Americans. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Kirsanow appears as a submission for the record.] 

Senator FLAKE [presiding]. Thank you, Mr. Kirsanow. If you are 

wondering where my colleagues are, there is a vote going on right 

now. Chairman Grassley will be back in a minute and I will go and 

vote, but I assume some other Members will come in as well. 

Ms. Warbelow. 

STATEMENT OF SARAH WARBELOW, LEGAL DIRECTOR, 

HUMAN RIGHTS CAMPAIGN, WASHINGTON, DC 

Ms. WARBELOW. Thank you. On behalf of the Human Rights 

Campaign, the Nation’s largest civil rights advocacy organization 

for lesbian, gay, bisexual, transgender, and queer people, I am honored to be here before you today representing our nearly 2 million 

members and supporters nationwide. Unfortunately, I am disappointed that the topic for discussion is President Trump’s nominee to the Supreme Court, Mr. Neil Gorsuch. 

LGBTQ people are no strangers to the Supreme Court. We understand the power of the Court to affirm or deny our most basic 

rights. Jim Obergefell and his partner John Arthur had to be 

medivacked to a tarmac in Maryland in order to marry before John 

died from ALS because their home State of Ohio refused to allow 

them a marriage license. 

Their heartbreak did not end on that Maryland tarmac. The 

State of Ohio attempted to erase their marriage by refusing to 

place Jim’s name as a surviving spouse on John’s death certificate. 
472 

By a narrow 5–4 ruling, the Supreme Court validated Jim and 

John’s relationship and extended marriage equality nationwide. By 

his own words, Judge Gorsuch admitted he would have forced 

same-sex 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 has employed a dangerous 

brand of originalism that ignores the essential context and values 

of each case and the lives that they touch. His record and statements place him squarely in the mold of Justice Antonin Scalia, 

who consistently demeaned and denied the dignity of LGBTQ people from the Bench. Judge Gorsuch has directly questioned the 

Court’s recognition of the fundamental right to personal autonomy 

that has served as the keystone for multiple LGBTQ rights cases. 

Distressingly, Judge Gorsuch accepted a quote from Justice 

Scalia in its entirety, equating marriage equality to bestiality and 

made no effort to distinguish marriage, one of our society’s most sacred traditions, from criminal antisocial behavior. 

Despite records that Judge Gorsuch’s personal friends with 

LGBTQ people, his choice to embrace this line of reasoning reveals 

a level of indifference to the LGBTQ community that should be disqualifying for an individual to be appointed to the U.S. Supreme 

Court. 

During his time on the bench, Judge Gorsuch ruled against Rebecca Castle, a transgender woman working for a community college. After being rehired for a second term, Rebecca transitioned 

and began to use the women’s restroom. Halfway through the semester, the school informed her she would have to begin using the 

men’s restroom based on safety concerns. Rebecca was terminated 

because she refused to subject herself to the dangers of using a 

men’s restroom. 

As Justice Kennedy made clear in Romer v. Evans, false justifications may never be used to cloak bare animus. That is what happened in Rebecca’s case. The Supreme Court Justices must be able 

to discern legitimate government interests from clear hostility to 

vulnerable communities. 

Judge Gorsuch’s other rulings such as Hobby Lobby, while not directly addressing the LGBTQ community, have been used to blatantly defend discrimination against LGBTQ people. Amy Stevens 

is one of these people. After working for a for-profit funeral home 

for nearly 6 years, she informed the owner she would be 

transitioning when she returned to work and would be dressing 

consistent with the women’s dress code. Ignoring the employee’s 

strong record, the funeral home owner stripped her of her job based 

on his belief that it is unacceptable to be transgender. In providing 

the funeral home a pass from complying with Title VII, the judge 

in this case adopted Judge Gorsuch’s 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 

LGBTQ community but Americans widely. 

Areas of law that the majority of Americans view as settled, including marriage equality, are being litigated and debated by 

groups who are emboldened that a Justice like Gorsuch will reopen 
473 

settled law. The Supreme Court will be asked to hear cases such 

as those that could decide whether a public school counselor from 

Mississippi can turn away LGBTQ youth in need, whether City of 

Houston employees may be stripped of their spousal benefits, or 

whether moms like Marisa and Terrah Pavan must both be listed 

on their daughter’s birth certificate. 

We might not agree with every decision a Supreme Court Justice 

may make, but we must believe that their commitment to reaching 

impartial judgments based on fact, not political ideology or bias. 

And they must agree that LGBTQ have a fundamental right protected by the Constitution and that we as individuals and a community are entitled to equal treatment under the law. We need a 

Justice who recognized our basic equality and shared humanity. 

Judge Gorsuch has never met this bar, and that is why the Human 

Rights Campaign opposes his nomination to the Supreme Court. 

[The prepared statement of Ms. Warbelow appears as a submission for the record.] 

Senator FLAKE. Thank you, Ms. Warbelow. 

Ms. Fisher, I will have to excuse myself to vote, but Senator 

Hirono is here. Thank you. 

STATEMENT OF ALICE FISHER, PARTNER, 

LATHAM AND WATKINS, WASHINGTON, DC 

Ms. FISHER. Thank you, Senator Flake. Thank you, Senator 

Hirono. 

It is an honor to be here today. It is a privilege to be able to testify in support of 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 in law school, and we 

worked together as summer associates that summer in 1991. It 

may make me the longest person that knew him today—that is 

who 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. Every day he would walk into work 

and he would stop and he would talk to people, everyone in the office, ask them how they were doing, ask them about their lives, 

about their troubles. And he was so generous with his time and his 

consideration for others. It was almost like it was an unlimited reserve of courtesy, kindness, and with good humor to boot. 

I was the beneficiary of that, and I am forever grateful for the 

time that 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 as a recipient of the way he treated people. I will 

be forever thankful for his support. That is just the man that he 

is. 

He has been, through the years, as you can see, driven by his devotion to his country and his devotion to public service, and he 

comports himself with deep humility when he comes into public 

service. And I can remember our conversations about when he was 
474 

entering public service and how much that meant to him to have 

the ability to do that. 

He has a keen intellect, of course, but he holds himself to the 

highest standard of excellence—in his unwavering commitment to 

the law—and you have heard him and many others talk about that. 

Of course, he is an adoring husband to Louise and a devoted father 

and a devoted friend to many. 

As I have watched 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. 

[The prepared statement of Ms. Fisher appears as a submission 

for the record.] 

Senator HIRONO [presiding]. Thank you. 

Next, we have Amy Miller. Ms. Miller. 

STATEMENT OF AMY HAGSTROM MILLER, PRESIDENT AND 

CHIEF EXECUTIVE OFFICER, FOUNDER, WHOLE WOMAN’S 

HEALTH, CHARLOTTESVILLE, VIRGINIA 

Ms. MILLER. Thank you. Chairman Grassley, Senator Feinstein, 

and Members of the Committee, I am very honored to speak with 

you today. 

My name is Amy Hagstrom Miller. I am the founder and CEO 

of Whole Woman’s Health, a group of women’s health clinics that 

provide comprehensive reproductive services, including abortion 

care. I am here today on behalf of abortion providers, women’s 

health advocates, and the people we serve all across the country 

who deserve access to quality healthcare delivered with dignity and 

respect. 

We are gravely concerned about the nomination of Judge 

Gorsuch to the U.S. Supreme Court. In fact, Whole Woman’s 

Health joined 54 other reproductive health rights and justice organizations in a letter to the Senate opposing Judge Gorsuch’s nomination. 

In our clinics, we offer holistic care for women that includes caring for their heart, their mind, and their body. We envision a world 

where every woman who has decided to end a pregnancy will be 

respected and where she will have the information she needs and 

the quality care she deserves. 

We were the lead plaintiff in last year’s landmark Supreme 

Court case Whole Woman’s Health v. Hellerstedt and witnessed how 

decisions made at the high court directly impact the lives of 

women. I know what happens when politicians find devious ways 

to deny women’s constitutional rights and why it is so important 

to have independent jurists who respect precedent and the rule of 

law. 

Roe v. Wade, the 1973 decision that guaranteed the right to abortion and the right to privacy, has been settled law for more than 

four decades and has been reaffirmed repeatedly by the Supreme 

Court. Nevertheless, that has not stopped legislators across the 

country from putting roadblocks in front of women 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 
475 

that forced over half of the State’s clinics 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 shuttered 

and she now had to drive 250 miles each way to San Antonio. She 

told us there was no way she could take 2 days off work, find child 

care and the money to drive that far. She said, ‘‘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 

mother with three children. We helped her to find a clinic, raise 

money for her abortion, child care, transportation, and lost wages. 

By the time she made it to a Dallas clinic 8 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 shutdown 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 not beholden to an ideological agenda. Judge Gorsuch 

has refused to answer basic questions about his stance on Roe, 

Whole Woman’s Health, or the right to privacy. Yet we know in the 

Utah Planned Parenthood case, he sided with politicians using misinformation and false claims to defund women’s health services. 

And in the Hobby Lobby contraception case, he supported the notion that corporations are people. 

Judge Gorsuch’s positions raise concerns about his ability to be 

open minded, 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 of your constituents. Everyone loves 

someone who has had an abortion, and we all want the people we 

love to be safe and treated with respect, compassion, and dignity. 

I urge you to keep this in mind as you consider the awesome responsibility of entrusting a lifetime appointment to the U.S. Supreme Court. 

Thank you very much. 

[The prepared statement of Ms. Miller appears as a submission 

for the record.] 

Chairman GRASSLEY. Thank you. And Senator Hirono, thank you 

for filling in so we could keep it going. Thank you very much. 

Now, Ms. Smith. 
476 

STATEMENT OF HANNAH SMITH, 

SENIOR COUNSEL, BECKET, WASHINGTON, DC 

Ms. SMITH. Thank you, Mr. Chairman, Senator Feinstein, and 

Members of the Committee. My name is Hannah Smith, and I am 

senior counsel at Becket. Our firm is dedicated to protecting religious liberty for people of all faiths. 

As Judge Gorsuch has said, religious liberty law, quote, ‘‘doesn’t 

just apply to protect popular religious beliefs: it does perhaps its 

most important work in protecting unpopular religious beliefs, vindicating this Nation’s 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 an Associate Justice of the Supreme Court, would be a jurist committed 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 Gorsuch’s position even where he had dissented. 

An examination of these cases reveals that Judge Gorsuch is also 

a remarkable consensus-builder. When he sat together with judges 

who were appointed by a Democratic President, those judges unanimously agreed with him in 80 percent of those cases. Overall, he 

was part of a unanimous decision almost 90 percent of the time, 

and when he actually authored the religious liberty decision for the 

court, he produced a unanimous decision every single time, 100 

percent. 

This is a striking record of coalition-building in an area of jurisprudence that can be quite contentious. I will focus my remarks on 

two areas: first, Judge Gorsuch’s prisoner cases; and second, his decisions involving the Religious Freedom Restoration Act. 

First, Judge Gorsuch has demonstrated repeatedly that he applies the law fairly to protect religious minorities and incarcerated 

persons, some of the most politically powerless in our society. For 

example, in Yellowbear v. Lampert, Judge Gorsuch addressed a 

case where a Native American prisoner had 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—at least 

in the absence of a compelling reason,’’ end quote. Here, there was 

no such compelling reason. 

Judge Gorsuch recognized that, especially in the prison context, 

it is, quote, ‘‘easy for governmental officials with so much power 

over inmates’ lives to deny capriciously one more liberty to those 

who have already forfeited so many others,’’ end quote. Therefore, 

he wrote, that the Government must prove it has a good reason for 

denying religious liberty by offering much more than the Government’s, quote, ‘‘bare say-so,’’ end quote. 

On this point, Justice Sonia Sotomayor quoted Yellowbear in her 

concurrence in another prisoner case, Holt v. Hobbs. There, a unanimous Supreme Court ruled in favor of a Becket client, a Muslim 

prisoner who sought to grow a religiously required beard. 
477 

In two other prisoner cases, Judge Gorsuch voted in favor of a 

Muslim prisoner seeking access to religiously required meals and 

reversed a lower court decision failing to adequately consider a pro 

se prisoner’s request for a kosher diet. 

Second, regarding his RFRA cases, in Hobby Lobby and Little 

Sisters of the Poor, the Government tried to force religious ministries and family owned 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 of the religious objectors, and the Supreme Court vindicated 

his position in both cases. 

Now, some have tried to frame these cases as an irresolvable conflict between religious liberty and women’s rights. Not so. In the 

Little Sisters case at the Supreme Court, the Government conceded 

that it could still achieve its interests by allowing women to access 

contraceptive services on the Government’s own exchanges, 

through another government program, or through other insurance 

plans. The government’s 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 precedents, without regard to a particular ideological 

outcome. His jurisprudence demonstrates an evenhanded application of the principle that religious liberty is fundamental to freedom and to human dignity and that protecting the religious rights 

of others, even the rights of those with whom we may disagree, ultimately leads to greater protections for all of our rights. 

Thank you. 

[The prepared statement of Ms. Smith appears as a submission 

for the record.] 

Chairman GRASSLEY. Thank you, Ms. Smith. 

Now, Professor Marshall. 

STATEMENT OF WILLIAM MARSHALL, WILLIAM RAND KENAN, 

JR., DISTINGUISHED PROFESSOR OF LAW, UNIVERSITY OF 

NORTH CAROLINA, CHAPEL HILL, NORTH CAROLINA 

Professor MARSHALL. 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 originalism and constitutional interpretation. 

The term originalism is new, dating back essentially to the 

1980s, but it has not had only one meaning. At first, it was said 

to be original intent. Then, it was changed to original public meaning. Then, it was changed by some to original public meaning abstracted to allow for technological change. Then, it was changed by 

others to say semantic meaning that might be completely different 

from the common public understanding. 

Nevertheless, despite their lack of consensus on what originalism 

means and what the theory requires, those who support the theory 

argue that originalism should be the governing mode of constitutional interpretation. First, they suggest that originalism promotes 
478 

fealty to a written Constitution and is therefore consistent with the 

Framers’ design. But the early courts did not see it that way. Chief 

Justice John Marshall wrote in McCulloch that ‘‘we must never forget it is a constitution we are expounding, intended to endure for 

ages to come and consequently to be adapted to the various crises 

of human affairs.’’ This means that constitutional interpretation is 

to give meaning and substance to enduring principles over time in 

new contexts. 

The fact that the Framers did not envision this approach is also 

evidenced in the text of the Constitution, which uses very broad 

words such as freedom of speech, equal protection, due process of 

law. Those terms are not conducive to fixed meaning, and the 

Framers likely intended that they would be interpreted and given 

context over time. 

Third, the Framers came from a common-law tradition. They understood that law changed to adapt to new circumstances. It is incorrect to suggest that was inappropriate for that to do so because 

the Framers knew otherwise. 

And finally, the Framers were visionaries. They were not concerned only with addressing the issues of the day; they were concerned with setting forth broad principles that would guide future 

generations. The irony of originalism is that, while it purports fealty to the Framers, it actually demeans the Framers’ enterprise 

because it suggests they were more concerned with solving the 

problems of 1787 than in developing a Constitution that could solve 

the problems of 2017. 

Originalists also err when they suggest that their theory limits 

the ability of courts to insert their political preferences, at least the 

way originalism has been practiced by conservative jurists. For example, there is no originalist theory that can support striking down 

Federal affirmative action, as the conservative Court did in 

Adarand. The text of the Fourteenth Amendment’s equal protection 

clause does not even apply to the Federal Government, and history 

during that period indicated that there were special programs that 

advantaged only African Americans. 

Originalism does not support Citizens United. The Framers did 

not give much credence to corporations. They distrusted them. 

There were very limited charters. It does not support the expanded 

property rights that exist in the Regulatory Takings Doctrine, and 

it is worth noting that Justice Scalia, when he wrote on that, suggested those cases were supported not by text or history but by 

‘‘constitutional culture.’’ 

Now, in my written arguments I suggested some results that 

originalism might lead to that would be troublesome: the end of 

one person, one vote; the overruling of Brown; the idea that 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 a 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 Fourteen Amendment and also segregated 

the schools of the District of Columbia, and would also be news to 

the Brown Court itself, which looked for originalist basis and could 
479 

not find it and expressly disavowed originalism as the basis for the 

holding in that decision. 

Now, but what does this say about originalism? I think it suggests two things. I think it suggests that originalists know in their 

hearts that originalism is fundamentally at odds with who we are 

as a Nation; and second, it also demonstrates that originalism can 

be used to manipulate the particular results that you want to get 

to, so therefore, it does not give the fixed meaning that those who 

support originalists say that it does. 

Originalism then is a doctrine of false promises. It suggests a fealty to the Framers’ design when it is actually antithetical to the 

Framer’s vision. It purports to offer jurisprudence with fixed and 

predictable results when its application is nebulous and variable. 

It claims value neutrality when it has been erratically deployed in 

order to achieve specific results. 

Certainly text and history are 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 v. Maryland in 1819. We should learn that lesson. 

[The prepared statement of Professor Marshall appears as a submission for the record.] 

Chairman GRASSLEY. Thank you, Professor. 

Now, Mr. Meyer. 

STATEMENT OF TIM MEYER, 

FORMER LAW CLERK, NASHVILLE, TENNESSEE 

Mr. MEYER. Mr. Chairman, Members of the Committee, thank 

you for the opportunity to testify today. 

I am a professor of law at Vanderbilt Law School, and I had the 

honor to clerk for Judge Gorsuch from 2007 until 2008. I am here 

today to enthusiastically support his nomination to the Supreme 

Court. Judge Gorsuch is a brilliant, fair, principled, and independent jurist. He is also the epitome of a gentleman. You will 

never in your life 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 graduates into his or 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 it requires them to invest quite a bit of time 

in teaching these recent law school graduates to be competent assistants and competent lawyers. 

More than that, though, working side by side in close quarters 

every day for a year or more makes the relationship between a 

judge and his or her clerks especially intimate. 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 judge’s temperament and their approach to the law. 

I could not have hoped for a better mentor than Judge Gorsuch, 

and the country could not hope for a better teacher for its brightest 

legal minds. I could say a lot about Judge Gorsuch, about how he 

welcomes his clerks to Colorado and into his family, about how he 

hosted a birthday party for my 1-year-old son in chambers when 
480 

we did not know anybody in Colorado. I could talk about his love 

of being a lawyer, the joy he takes in the back and forth of legal 

argument, or his concern for the integrity of our judicial system. 

Instead, I want to spend my time today talking about what Judge 

Gorsuch has taught me about writing. 

By the time I arrived in Judge Gorsuch’s chambers, I had been 

in school for 21 years and I had probably written thousands of 

pages, including most of a doctoral dissertation. But I did not really 

learn to write until I worked for the judge. Through conversations, 

reading the judge’s work, and reading his careful comments on my 

work, I learned the importance of clarity in legal writing. 

The judge spends hours and many drafts on just the introductory 

paragraphs to his opinions. These sentences, he taught the clerks, 

are the most important. Lawyers need to know how the Court 

thought the Constitution, statutes, and regulations applied to the 

facts of the case. But even nonlawyers, the Judge taught us, should 

be able to understand the stakes in a court case and the basic reason a case came out the way it did. The litigants themselves deserve an explanation that does not require a lawyer to interpret. 

I have taken this lesson with me at each stop on my legal career. 

Judge Gorsuch’s care for writing is important in its own right because the written word is the primary medium through which 

judges communicate. But the judge’s emphasis on writing is part 

of 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 Gorsuch’s respect for litigants and 

the care he took to make sure that he fairly and fully evaluated 

and addressed each of their claims. 

I have a number of examples in my written testimony, but by 

way of one brief example, the Federal courts receive a very high 

number of pro se petitions from prisoners. For many of these petitioners, the Anti-Terrorism and Effective Death Penalty Act, 

passed by Congress in 1996, sets a bar to relief that they cannot 

clear, and consequently, many courts summarily dismiss these petitions. Not Judge Gorsuch. 

When I worked for him, he insisted that each petitioner 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. And to be frank, many of the claims we received 

were prepared without the aid of counsel and were difficult to understand. No matter. The Judge reminded we clerks that the Court 

had a duty to liberally construe that is, to give the benefit of the 

doubt to those who appear on their own behalf seeking the protection of the courts. 

The judge’s concern for fair notice also underlies his deep respect 

for precedent. I can recall many times that Judge Gorsuch wrote 

that while he might have decided a case differently, a prior panel 

of the Tenth Circuit had already addressed the question. 

Indeed, I had the chance this morning to look back at the Tenth 

Circuit decision in Endrew F., which is the case that the Supreme 

Court decided yesterday reversing the Tenth Circuit. And in that 

case, the Court expressly noted that the more than de minimis 

standard that Judge Gorsuch had applied in Thompson is actually 
481 

from an earlier Tenth Circuit case in Urban and a line of cases 

that stretch from Urban until Thompson. 

I will end by noting that in both of these instances, prisoner litigation and disabled students, Judge Gorsuch has ruled on both 

sides of the issues, has come out both ways. Equally importantly, 

though, he has advocated for better representation for prisoners 

who are seeking the protection of our courts and for disabled students. Judge Gorsuch believes that access to the courts and a fair 

opportunity to be heard for all is a critical component of our judicial system. 

And with that, I will look forward to your questions. 

[The prepared statement of Mr. Meyer appears as a submission 

for the record.] 

Chairman GRASSLEY. Thank you, Mr. Meyer. 

Now, Ms. Phillips. 

STATEMENT OF SANDY PHILLIPS, BOERNE, TEXAS 

Ms. PHILLIPS. 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. I am a registered Republican, a gun 

owner, and I live in Texas, but I now vote a straight Democratic 

ticket. I am a mother, and I am here to speak on my efforts to stop 

other families from experiencing my nightmare. 

I am here to speak on the gun violence that takes 33,000 American citizens’ lives each year. On average, 91 Americans are killed 

each day, eight of whom are children. My daughter Jessie was one 

of them. 

Five years ago this July, my beautiful 24-year-old daughter Jessica Ghawi was slaughtered in the Aurora, Colorado, theater massacre along with 11 other beautiful souls. Seventy others were 

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-tipped .223 high-velocity bullets over the 

internet without even showing his driver’s 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 PLCAA 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 Jessie 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 cannot wait to see you. I need my 

momma.’’ I wrote back, ‘‘I need my baby girl.’’ 
482 

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 other end of 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 I have been shot twice. At 

this point I grew alarmed since he was the one calling and not my 

Jessie. I said, ‘‘Where is Jessie?’’ He answered, ‘‘I am sorry.’’ I 

asked, ‘‘Is she okay?’’ And he said, ‘‘I tried.’’ I said, ‘‘Brent, oh, God, 

please tell me she is not dead.’’ And again, he said, ‘‘I am sorry.’’ 

Brent is a firefighter and a paramedic, so I knew at that very 

moment that my daughter was gone. I started screaming, I am 

told, but I have little memory of my husband catching me as I collapsed on the floor. 

Our little girl had been hit six times with the .223s that sprayed 

the theater in mere seconds. One bullet tore through her leg and 

entered into the other leg, making it impossible to escape. Three 

more ripped through her abdomen, one hit her clavicle and shattered it, and one exploded through her left eye, leaving a five-inch 

hole that blew her brains onto the theater seats, floor, and people. 

I live with that image every day of my life. 

This preventable pain and suffering of victims and survivors has 

changed my life. I can no longer remain silent on the sidelines. Our 

Second Amendment begins with the phrase ‘‘a well-regulated,’’ but 

guns are not well-regulated. Our lack of strong Federal laws let 

people who should not have them acquire guns too easily, people 

like Jessie’s shooter, who showed clear signs of severe mental illness that made him dangerous to himself and others, was still able 

to get his hands on military-style weapons and over 4,000 bullets 

he bought for his attack. 

Since this shooting, Colorado has put restrictions on the kind of 

magazine he used and passed new background check laws, but over 

the past few years, a small number of extremists have been pushing courts across the country to accept and endorse a gun-lobbybacked 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, understanding 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 the 

months and years to come. This Committee must know does this 

nominee believe the Second Amendment have limits? Does this 

nominee recognize that it does not override any other constitutional 

rights like my daughter’s 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 confirmed, any Supreme Court nominee must answer 

these questions clearly and convincingly. If not, the public’s safety 

is at risk. 

Thank you for the opportunity to speak with you today. 

[The prepared statement of Ms. Phillips appears as a submission 

for the record.] 
483 

Chairman GRASSLEY. Thank you, Ms. Phillips. 

Now, Mr. Jaffer. 

STATEMENT OF JAMIL JAFFER, 

FORMER LAW CLERK, ARLINGTON, VIRGINIA 

Mr. JAMIL JAFFER. Thank you, Mr. Chairman, and thank you to 

the Committee for having me here today. 

I want to say obviously a very painful story from Mrs. Phillips 

and her daughter Jessie. I think what I want to say to Mrs. Phillips and to the Members of the Committee is that Judge Gorsuch— 

I have known him for 13 years—Judge Gorsuch is the kind of judge 

that Mrs. Phillips and that Jessie would want on the Bench. He is 

the kind of judge that applies the law fairly and evenhandedly to 

all litigants before him. He is the kind of judge that does not rule 

based on a policy preference or a preference for an outcome but on 

the law as it is written by the Members of this body, the Constitution our Framers wrote. He is the kind of judge that applies the 

law in the way we want the law to be applied. He is a judge’s 

judge. 

I have known Judge Gorsuch since he was a private practice attorney at a small law firm here in Washington, DC. I then followed 

Judge Gorsuch to the Justice Department in a different office, but 

I saw him there as a senior Justice Department official. I then 

went with him to the Tenth Circuit when he was confirmed on the 

bench and spent his first 4 months with him on the bench as he 

became a judge. I watched him transform from a passionate, strong 

advocate for his clients into a passionate, strong advocate for justice under the rule of law. 

He is the kind of man that cares about people, 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, we have heard from a lot of individuals on this panel 

about what Judge Gorsuch, if he were to be 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 in the 10 years that he has 

been on the bench. This is not a judge that had a short period of 

time on the bench where we cannot tell what kind of judge he 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, you have heard about a handful of 

cases where people feel like he has not ruled for the little guy. 

Well, let me tell you about some of the cases where he has ruled 

for the little guy: Avila v. Jostens, where he voted to allow a Hispanic employee to bring a claim of race discrimination reversed in 

District Court; Dasgupta v. Harris, where he voted to deny qualified immunity to a university official accused of discriminating 

against an Asian American professor; Orr v. City of Albuquerque, 

where he had that two female police officers could bring pregnancy 

discrimination claims and reversed the District Court there also; 

Gad v. Kansas State, where he allowed a professor of sex discrimination claim to proceed; Allstate Sweeping, where he allowed two 

female contractors to bring a gender bias claim against a male 

Denver airport employee; Chapman v. Carmike Cinemas, where he 
484 

voted to reverse the District Court and allowed a female employee 

who had been sexually assaulted to bring a hostile work environment claim against her corporate employer; Dossa v. Wynne, where 

he voted to allow a female employee to sue her employer for gender 

discrimination; W.D. Sports, where he reversed the District Court 

and allowed a female employee’s sexual harassment suit to proceed 

to trial; Eisenhour v. Weber County, where Judge Gorsuch voted to 

allow a female court employee to bring claims against a male judge 

who had sexually harassed her; Ridgell-Boltz v. Colvin, where 

Judge Gorsuch voted to reverse a District Court dismissal of a female worker’s hostile work environment claim; Lowber v. City of 

New Cordell, where Judge Gorsuch ruled that a female employee 

could sue a city government for sex discrimination, again, reversing 

the District Court. 

In case after case after case, Judge Gorsuch has applied the law 

fairly and evenhandedly to the litigants before him. Yes, it is true 

in the occasional cases, the three or four you heard about over the 

last few days, Judge Gorsuch ruled for a corporate employer, but 

time and time and time again, he has ruled for the little guy, the 

woman, the sexually harassed, the discriminated against, the disabled. 

So the notion somehow that Judge Gorsuch is not capable of 

being an evenhanded, fair judge, the kind of judge that Mrs. Phillips and that Jessie deserve, is absolutely wrong. He is a judge’s 

judge. He will be a credit to our Nation and to this body, and he 

should be confirmed swiftly. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Jaffer appears as a submission 

for the record.] 

Chairman GRASSLEY. Thank you. I am going to call on Senator 

Coons because he has another assignment. 

Senator COONS. Thank you very much, Mr. Chairman. 

I would like to 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 that he respects precedent and 

follows settled law, and I questioned him about critical cases— 

Casey, Lawrence, Obergefell. The judge also wrote that judges 

should, ‘‘apply the law as it is, focusing backward, not forward, and 

looking to text, structure, and history to decide what a reasonable 

reader at the time of the events in question would have understood 

the law to be.’’ 

But these three critical cases, as I questioned him about—Casey, Lawrence, and Obergefell—do not merely look forward. They applied a more inclusive and modern principle of liberty and its understanding to protect the right to privacy, relationships, and marriage. 

Can originalism, as Judge Gorsuch defined it, protect the freedoms the Supreme Court has now recognized for LGBT individuals 

based on the due process clause? 

Ms. WARBELOW. If we press the pause button at the exact moment in time when either the Constitution was written or any single statute was written, we miss the broader context at how it affects and applies to people’s lives. It is not a surprise to anyone in 
485 

this room that in the 1700s LGBTQ community 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 

LGBTQ community should only have recourse through the legislature, that marriage equality was not appropriate topic for the 

courts and should be left solely to the legislatures. 

But the role of the Court is to recognize that minority populations are often disadvantaged when it comes to the tyranny of the 

majority, and a good Justice looks to how people’s lives are affected 

and how the rule of law will apply in the day to day. 

Senator COONS. Thank you, Ms. Warbelow. 

Ms. Miller, there has been a lot of discussion in the course of 

these hearings from President Trump’s campaign promise about 

what kind of Justice he might nominate through questioning of 

Judge Gorsuch this week. And the potential overruling of Roe v. 

Wade seems to always hover in the middle distance in these hearings. 

I am concerned, however, that there is many ways that courts 

can and would limit women’s access to healthcare without explicitly 

overruling Roe. And as you heard perhaps in my questioning of 

Judge Gorsuch, I had questions for him about what his standard 

of complicity meant and where it came from and what its consequences would be. 

In what ways could the Court limit access to reproductive care 

without overturning Roe? And what does Judge Gorsuch’s record 

say to you about how he might approach these cases? 

Ms. MILLER. Thank you for the question. 

I am very concerned about his record and his ability to set aside 

personal beliefs and rule in a fair-minded, independent way. What 

we have seen since 2010, like I referenced in my statement, is 330 

laws that have been passed to restrict women’s access to abortion 

services, even with Roe being stable. We have seen waiting periods. 

We have seen requirements that close physical plants. We have 

seen, you know, really women with undue burden, having to travel 

hundreds of miles and encounter, you know, lots of obstacles. 

So what we really have is a situation where a right exists on 

paper, but it is not—the ability to access it in the real way people 

live their lives is blocked. 

Senator COONS. Ms. Miller, if I might, though, just to clarify, you 

are talking about legislatures acting. Why is that not an appropriate venue, and what is the Court’s role in this? 

Ms. MILLER. Well, what you might, in our case—Whole Woman’s 

Health—we brought to the Supreme Court, we were able to illustrate that legislators went too far, and the Court ruled in our favor, 

saying you cannot just pass laws willy nilly to block people’s access. 

They need to be substantiated by medical fact and medical evidence and that it put an undue burden on women’s ability to access 

their rights to privacy and their right to safe abortion, as guaranteed by Roe. 

Senator COONS. Thank you. I would like to thank you both, and 

I appreciate your consideration, Mr. Chairman, and the oppor-
486 

tunity to talk with you both about legitimate concerns about the 

scope of the right to privacy and its impact on people’s lives. 

Thank you. 

Ms. MILLER. Thank you. 

Chairman GRASSLEY. Senator Hatch now. 

Senator HATCH. Thank you, Mr. Chairman. 

Let me ask Mrs. Smith some questions. I want to thank you for 

your work defending our first freedom, religious freedom. As you 

know, I am one of the authors of the Religious Freedom Restoration Act, one of the prime authors, and also I am 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 Becket Fund, uses these statutes to vindicate the fundamental 

right to exercise religions for men and women of many faiths. Your 

written testimony quoted from Judge Gorsuch’s concurring opinion 

in Hobby Lobby Stores v. Sebelius that RFRA ‘‘does perhaps its 

most important work in protecting unpopular religious beliefs, vindicating this Nation’s long-held aspiration to serve as a refuge of 

religious tolerance.’’ 

In Hobby Lobby, Judge Gorsuch’s court concluded that RFRA can 

apply to a corporation. My guess, however, is that in your practice, 

the most frequent use of these statutes is to defend the individual, 

the little guy, if you will, since we have had talk about that we 

have heard so much about. It is to defend the weak and the powerless and the disfavored. 

Now I have two questions about Judge Gorsuch’s record in this 

area. First, do any of his decisions or opinions in such cases go beyond interpreting statutes the way Congress enacted them and implementing those statutes as Congress intended? 

And second, how critical is it to faithfully interpret and apply 

statutes like these when it might be controversial as well as when 

the plaintiffs are more sympathetic? 

Ms. SMITH. Thank you very much for that question, Senator 

Hatch. 

So your first question was, are there any decisions that go beyond the correct interpretation of these statutes in Judge Gorsuch’s 

10 years on the bench? And I have looked at a lot of his opinions 

that he has written where he has interpreted RFRA and its sister 

statute RLUIPA, which you also mentioned. And I think his jurisprudence very clearly shows that he understands the limits 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 is 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 that there was 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, you know, those two cases show very clearly that 

there was no conflict to begin with between religious liberty and 

women’s rights. But there are some other cases where he has held 
487 

that the religious parties were either insincere or that they did not 

suffer a substantial burden under RFRA. 

There was one case I spoke about in my written testimony where 

a couple had set up a fake church, created to distribute marijuana, 

and they sought the protection of RFRA for their drug running. 

And Judge Gorsuch said, sorry, that is an insincere claim, and 

RFRA is not going to protect you there. 

So I think, you know, Judge Gorsuch’s ability to really require 

the Government, as he has said over the last few days, to square 

its corners, to prove its case, to show that it has a good justification 

for what it is doing, along with his ability to really impose and recognize these reasonable limits on religious liberty where there are 

meritless claims shows that he has a very balanced and thoughtful 

approach to applying these statutes, as he has done so over the last 

10 years on the Tenth Circuit. 

And how critical is it that these statutes be faithfully interpreted 

and faithfully applied? Well, it is absolutely critical. 

And as you know, Senator, you know, RFRA has been used to 

protect religious minorities around the country, and certainly many 

of Becket’s clients are religious minorities. I am thinking here of 

Pastor Soto, who is a pastor of a Native American church out in 

Texas, and the Government created Operation Powwow and went 

in undercover and invaded his religious circle to confiscate eagle 

feathers. 

Now it was because of RFRA and, I might also add, 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 Becket’s clients, Captain Simmer Singh, who is a devoted Sikh, to be able to ask the 

Army to give him an accommodation so that he could wear a religious beard and a turban according to the requirements of his 

faith. And eventually, he was able to get that accommodation, 

thanks to RFRA. And then, eventually, the Army was actually willing to change its regulations 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 question, Senator. I think it is a really important point that we make here that RFRA and RLUIPA protect religious minorities around the country and do this vital work of preserving religious freedom. 

Senator HATCH. Well, thank you so much. 

Chairman GRASSLEY. Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Ms. Phillips, thank you for your testimony honoring your daughter. 

Ms. PHILLIPS. Thank you very much. 

Senator FRANKEN. So sorry for your loss. 

Ms. PHILLIPS. 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. 

Chairman GRASSLEY. You just made that point, and we accept it. 

Ms. PHILLIPS. Thank you. 

Chairman GRASSLEY. Proceed, Senator. 
488 

Senator FRANKEN. Okay. Ms. Clarke, thank you for being here 

today. I would like to talk about voting rights. 

Now as Judge Gorsuch and I discussed yesterday, the Supreme 

Court’s Shelby County decision gutted the preclearance provision of 

the Voting Rights Act, which required certain States, States with 

a history of engaging in discriminatory practices at the polls, to get 

the Federal Government’s approval before making changes to the 

voting laws. 

Shelby County struck down the provision that determined which 

States were covered by preclearance, meaning that none are. I am 

not sure that people fully appreciate just how quickly some of the 

States previously covered by preclearance reacted to Shelby County, the Shelby County decision. 

Let us look at North Carolina. The Shelby County decision was 

issued on June 23, 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 

to move. And it did. Additional provisions were added, and the 

North Carolina Senate approved an omnibus package of restrictions on July 25, 2013, 2 days later. 

No African-American member of the State Senate voted for the 

bill. The House approved the Senate’s 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 allows plaintiffs to challenge restrictions after they have been enacted. So even though litigants 

successfully challenged North Carolina’s restrictions under Section 

2, even though this Fourth court found that the law ‘‘targeted African-Americans with almost surgical decision, the Fourth Circuit 

did not 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, were not counted in the 2014 primary election because North Carolina eliminated 

same-day registration and allowed provisional ballots to be thrown 

out if they were cast at the wrong polling place. 

So I mentioned this to Judge Gorsuch. I wanted to know whether 

Judge Gorsuch was bothered by the consequences of the Shelby 

County decision. He said that Section 2 was still available. 

I responded by pointing out that bringing a challenge under Section 2 can 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 did not answer my question. 

Ms. Clarke, I was not reassured by my conversation with Judge 

Gorsuch. Now I understand that he cannot 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, I think it is important to 

know whether he takes proper measures of the facts. 
489 

And the fact of the matter is, is Section 2 is not adequate on its 

own. Do you agree? 

Ms. CLARKE. Thank you for the question, Senator Franken. 

Section 2 of the Voting Rights Act is no adequate substitute for 

the strong protections that had 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 listened to Judge Gorsuch yesterday in response to your 

question. I listened to his response to Senator Leahy, who asked 

for his view about Justice Scalia’s statement in the Shelby County 

argument, where he referenced the Voting Rights Act as a racial 

entitlement. 

And he refused to disavow that statement or distance himself 

from that statement, and I find that deeply troubling. I believe our 

Nation deserves Justices on our Nation’s highest court who appreciate that the right to vote is central in our democracy and understand and appreciate that right remains under attack. 

You point to the example in North Carolina, and sadly, we have 

seen the floodgates of voting discrimination and voter suppression 

open all across our country since the Supreme Court’s 2013 ruling 

in Shelby County, Alabama v. Holder. Texas is another example. On the day that the Court issued its 

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 Gorsuch’s response to questions on the right to vote and 

on the Voting Rights Act and remain incredibly dissatisfied. 

Again, our Nation deserves a Justice who will take the Bench 

and understand that grave challenges arising under the Voting 

Rights Act and other controversies concerning voting will come before the Court, and we need a Justice who will be prepared to ensure that what remains of the Voting Rights Act is fairly interpreted and applied. 

Senator FRANKEN. Mr. Chairman, may I just ask consent—thank 

you, by the way. Ask consent that the NAACP Legal Defense and 

Education Fund report entitled ‘‘The Civil Rights Record of Judge 

Neil M. Gorsuch’’ be entered into the record? 

Chairman GRASSLEY. Without objection, that will be entered in. 

Thank you, Senator. 

[The information appears as a submission for the record.] 

Senator FRANKEN. Thank you. 

Chairman GRASSLEY. Senator Crapo. 

Senator CRAPO. Thank you, Mr. Chairman. I do not have any 

questions. 

Chairman GRASSLEY. Okay. Then Senator Hirono. 

Senator HIRONO. Thank you, Mr. Chair. 

Chairman GRASSLEY. Am I beginning to pronounce your name 

right? 

Senator HIRONO. I think you have been doing okay so far. Otherwise, I would have corrected you. 

Senator FRANKEN. He is actually—[whispering] it is Hirono. 

Hirono. 
490 

[Laughter.] 

Senator HIRONO. Thank you. Okay. You have to add another 10 

seconds to my time for that. 

[Laughter.] 

Chairman GRASSLEY. Add 15 seconds to her time. 

Senator HIRONO. Thank you. 

So, Ms. Clarke, 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 they 

made it very plain their discriminatory intent. So, generally, these 

kinds of laws do not have that kind of intent, and it is very difficult, is it not, to prove discriminatory effect under Section 2? 

Ms. CLARKE. Senator Hirono, it is, indeed, difficult. But sadly, we 

are seeing States and localities put voting restrictions on the books 

that not only have a discriminatory effect on protected minority 

groups, but we’re seeing evidence of discriminatory purpose animating the laws in North Carolina. Texas’ photo ID is one law that 

we believe clearly was adopted to disenfranchise African Americans, Latinos, the elderly, and students. 

Senator HIRONO. So the very thing that people were concerned 

about, because you argued the Shelby County case, that people 

were concerned about would happen after the Court eliminated 

Section 5 would happen, did happen, and some 13 States, maybe 

more, are passing various kinds of laws that disenfranchise, in effect, voters. 

So, well, I know that you were listening to Judge Gorsuch’s testimony yesterday and the day before, probably all of you were. 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 Woman’s Health, and 

I commend you for that. Thank you for the work that you are 

doing. 

I think you are probably familiar enough with the Hobby Lobby 

case, where the access to contraception coverage for some, well, 

there are thousands of Hobby Lobby employees. And to have Hobby 

Lobby be referred to as a ‘‘family owned business,’’ when they basically had over probably 30,000 employees is a stretch to me. But 

nonetheless, there were thousands of Hobby Lobby employees 

whose right to contraceptive coverage was given very short shrift 

or no consideration at all. 

Ms. Miller, do you consider Judge Gorsuch’s position on Hobby 

Lobby, do you see Hobby Lobby as indicative of where Judge 

Gorsuch would be on issues relating to a woman’s right to choose? 

Ms. MILLER. Thank you for the question. 

I absolutely do. I think that women have a right to healthcare 

that covers all of our healthcare needs, whether it is contraception, 

preventive care, abortion services, pregnancy, everything. And I do 

not think that we can be sort of set aside because of who we work 

for. 

Senator HIRONO. Professor Marshall, there are a number of ways 

to describe originalism, and I have come to the conclusion that 

originalism is used as a tool and a justification to restrict the rights 

of vulnerable Americans. So let me ask you this. 
491 

If originalism had been applied, would the Supreme Court have 

made the—would Supreme Court’s decisions have been what it was 

in the following cases? And I want to cite the cases to you. Griswold v. Connecticut? If they had applied originalism, would the 

Court have come up with that decision? 

Professor MARSHALL. No, Your Honor. No, Senator. Sorry. 

But—— 

[Laughter.] 

Professor MARSHALL. It would be great by me if they were appointing you to the Supreme Court. 

[Laughter.] 

Senator HIRONO. Thank you for that. Loving v. Virginia? 

Professor MARSHALL. No. 

Senator HIRONO. Virginia v. United States? 

Professor MARSHALL. No. 

Senator HIRONO. Lawrence v. Texas? 

Professor MARSHALL. No. 

Senator HIRONO. Obergefell v. Hodges? 

Professor MARSHALL. No. 

Senator HIRONO. Thank you. So, basically, you did write that it 

is basically a philosophy or an approach to construction that conservatives use to restrict rights? 

Professor MARSHALL. I think it was mentioned earlier today that 

originalism took hold as a reaction to the Warren Court. So that 

might give a little bit of sense of the direction that it took. 

There was just a discussion of Shelby County, which I would happen to agree is one of the most important cases decided by the Supreme Court in the last 100 years because of its effect, and yet the 

originalist case for striking down the preclearance provisions of 

Section 5 is very weak. It was recently—a recent article in the Harvard Law Review pointed out the fallacy behind the notion of equal 

dignity that the Court relied on in that case. 

So, yes, it has been selectively used. And as I point out in my 

testimony, in cases like Federal affirmative action, when an 

originalist decision would clearly uphold Federal affirmative action, 

the originalists slid away from that decision. 

Senator HIRONO. Mr. Chairman, I just 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. 

Chairman GRASSLEY. Thank you, Senator. 

Senator Kennedy, do you have any questions? Proceed. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Ms. Miller, I think I understand your position on abortion. I went 

to your website—which is a well-put-together website. 

Ms. MILLER. Thank you. 

Senator KENNEDY. And it is an issue that divides many Americans. Would you ever support a nominee for the U.S. Supreme 

Court that did not agree with you on abortion? 

Ms. MILLER. Senator, whether the nominee agrees with me, to 

me, is not what is at issue here. It is whether they can uphold the 

precedent and the rule of law. 

Senator KENNEDY. Let me rephrase it, and I am sorry to interrupt, but they do not give me much time. 
492 

Ms. MILLER. It is okay. I know. 

Senator KENNEDY. Would you ever support a nominee to the U.S. 

Supreme Court who would not declare in front of the United States 

Senate on the Judiciary that he or she supported Roe v. Wade? 

Ms. MILLER. I think what we have seen Judge Gorsuch do is acknowledge—— 

Senator KENNEDY. No, ma’am. I am asking you—— 

Ms. MILLER. Yes. 

Senator KENNEDY [continuing]. Would you ever support a nominee that would not do that? 

Ms. MILLER. I am trying to answer the question. I am sorry. But 

what I—what we have seen him do is acknowledge that Roe exists, 

but I have not heard him affirm that he is going to uphold it. 

Senator KENNEDY. Okay. But I am not asking about Judge 

Gorsuch. I am sorry. I am probably not being clear. Would you support any nominee for the U.S. Supreme Court who did not come before this panel and say ‘‘I support Roe v. Wade’’? 

Ms. MILLER. I believe that Roe v. Wade is precedent and that it 

is important for the Justices to uphold precedent. 

Senator KENNEDY. Okay. Is that a yes? 

Ms. MILLER. Yes, it is. 

Senator KENNEDY. Okay. And look, that is your right. You are 

an American. I mean, you can believe what you want. 

I do have to ask you this, though. You made a charge that Judge 

Gorsuch decides cases purely on the basis of his personal policy 

preferences, and that is a pretty serious charge. What is your basis 

for saying that? 

Ms. MILLER. So what I said is I am concerned that he will not 

be able to set aside his personal beliefs and rule independently. 

Senator KENNEDY. Why do you say that? What is your evidence 

for that? 

Ms. MILLER. Because I have seen him in the Hobby Lobby case 

and the Planned Parenthood v. Utah case. I think that he ruled in 

favor, as you guys say, of the ‘‘big guy.’’ I would say of the—you 

know, I tend to side with the ‘‘little gal,’’ and I am concerned that 

women’s rights were set aside in favor of big business. 

Senator KENNEDY. Do you think judges ought to decide cases 

based on the wealth or status or power of the parties, based on the 

identity of the parties? 

Ms. MILLER. Absolutely not. 

Senator KENNEDY. You just said you always support the little 

guy, whatever that is. 

Ms. MILLER. I am concerned that women’s rights were set aside 

in favor of a large corporation in the Hobby Lobby case. 

Senator KENNEDY. And what is your—what is your evidence for 

saying that? 

Ms. MILLER. The Hobby Lobby case? 

Senator KENNEDY. No. What is your evidence for making the 

statement about the judges in that case decided it purely on their 

personal policy preferences? 

Ms. MILLER. Because I think the beliefs got in—I think personal 

beliefs and religious beliefs got in the way of objectivity when 

women are trying to access healthcare. 

Senator KENNEDY. And what is your evidence for saying that? 
493 

Ms. MILLER. Reading the Hobby Lobby case. 

Senator KENNEDY. The result? 

Ms. MILLER. Yes. 

Senator KENNEDY. Okay. 

Ms. MILLER. Yes. 

Senator KENNEDY. Professor Meyer, how do you like Vanderbilt? 

Mr. MEYER. Very much, Senator. Thank you. 

Senator KENNEDY. Yes. Do you go to the basketball games? 

Mr. MEYER. Sometimes. We probably should not talk about how 

the first round ended at the NCAA tournament. Yes, thank you. 

Thank you for bringing that up. 

[Laughter.] 

Senator KENNEDY. You spent a year with Judge Gorsuch? 

Mr. MEYER. I did, yes. 

Senator KENNEDY. Yes. You saw him when he was tired? 

Mr. MEYER. I did. 

Senator KENNEDY. Saw him when he was under pressure? 

Mr. MEYER. I did. 

Senator KENNEDY. You probably saw him more than he saw his 

spouse that year, did you not? 

Mr. MEYER. Yes. 

Senator KENNEDY. He works pretty hard, doesn’t he? 

Mr. MEYER. He does work very hard. 

Senator KENNEDY. Works you pretty hard, too, doesn’t he? 

Mr. MEYER. Yes, he did. 

Senator KENNEDY. Have you ever seen him decide a case based 

purely on the personal—his personal policy preferences? 

Mr. MEYER. I did not ever see him bring his personal policy preferences into chambers at all, ever. 

Senator KENNEDY. Have you ever seen him walk in and say, 

okay, Mr. Clerk, do not show me the briefs here. We will look at 

those later. Let us go do some research on who the parties are? 

Mr. MEYER. No. That never happened. He pays scrupulous attention to the briefs. 

Senator KENNEDY. Have you ever seen him decide a case based 

on a litigant’s wealth? 

Mr. MEYER. No. 

Senator KENNEDY. You spent—how long did spend with him? 

Mr. MEYER. I worked for him for about 14 months. 

Senator KENNEDY. Fourteen months. You ever see him in 14 

months decide a case based on the litigant’s status or power? 

Mr. MEYER. No. 

Senator KENNEDY. Did you ever see him succumb to political 

pressure? 

Mr. MEYER. Not at all. Not once. 

Senator KENNEDY. Okay. Did you ever see him sit down and use 

a tic sheet to say, okay, I have decided this many cases for the little guy, whatever that is, and this many cases for the big guy. So 

we need to give one to the little guy. Did he ever—is that his approach? 

Mr. MEYER. Absolutely not, Senator. 

Senator KENNEDY. I am out of time. 

[Laughter.] 

Senator KENNEDY. Thank you. Thank you, Mr. Chairman. 
494 

Mr. MEYER. Thank you, Senator. 

Chairman GRASSLEY. Senator Blumenthal is next, but I am hoping that if no other Members come in who have not asked questions that I will ask my questions, and then I will close. 

Senator Blumenthal. 

Senator BLUMENTHAL. Yes, thank you. 

Chairman GRASSLEY. Yes. 

Senator BLUMENTHAL. 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 I can 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. 

Ms. PHILLIPS. Senator Blumenthal, you know you are my hero. 

Senator BLUMENTHAL. Well, thank you. 

Ms. PHILLIPS. And the work that you are doing in Connecticut, 

the whole country should look to as the leadership that you have 

given there to emulate throughout the country. 

So thank you. 

Senator BLUMENTHAL. I deeply appreciate those comments, but 

much more important, I deeply appreciate the work that you are 

doing day in and day out. And I know that every day, 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 weapons and impose commonsense measures like 

universal background checks is absolutely reprehensible. 

And I was disappointed in Judge Gorsuch’s response to me when 

I asked him these questions because he failed to agree with me in 

my reading of the statute and used the same kind of disclaimer 

that he did in response to numerous other questions that I put to 

him that he would not answer about a particular case or controversy, would not state his personal views. 

And I think that a person’s 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 automaton, 

and I was looking to what was in his heart, as one of my colleagues 

put it. 

So I just really 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. 

Ms. PHILLIPS. I am honored, sir. Thank you. 
495 

Senator BLUMENTHAL. I want to ask—Ms. Miller, I want to 

thank you for the great work that you are doing at Whole Woman’s 

Health and the service that you provide for women every day. 

And as you may know, yesterday, when I asked Judge Gorsuch 

about Brown v. Board of Education, he said, in effect, that decision 

was correctly reached, that the result was correct, that 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 every day. It is not just the results of those cases. 

It is the core constitutional principle underlying them. 

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? 

Ms. MILLER. I appreciate your question, and I am very thankful 

for your support. 

I cannot 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 have not seen Judge 

Gorsuch affirm his support for Roe. He has acknowledged it exists. 

And the woman’s right to privacy is a fundamental right for our 

ability to realize our full humanity and for us to participate in society as equal citizens. We have to be able to control our reproduction and via contraception and sometimes via access to safe abortion care. And I think that is a fundamental right that has been 

approved and reaffirmed by the Supreme Court for over 40 years. 

Senator BLUMENTHAL. 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. 

Chairman GRASSLEY. I have three questions I want to ask, and 

I would like to have my time start now. But I want to yield a few 

seconds to Senator Kennedy because he asked for that. Go ahead. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Chairman GRASSLEY. Out of my time. 

Senator KENNEDY. I will be lightning fast if it is coming out of 

your time. 

Professor Jaffer? Am I saying that right? 

Mr. JAMIL JAFFER. Yes, sir. 

Senator KENNEDY. I just want to clear up the record. Did you 

mean to speak for anybody today other than yourself? 

Mr. JAMIL JAFFER. Well, thank you, Senator Kennedy, for the opportunity to clarify. I certainly did not, and I wanted to apologize 

to Mrs. Phillips. I did not mean to suggest that I was speaking on 

behalf of her or her family. 

Senator KENNEDY. Okay. I did not take it that way, but I appreciate you clearing the record. 

Thank you. 

Mr. JAMIL JAFFER. Thank you. 

Chairman GRASSLEY. I will bet Mr. Kirsanow thinks that if I ask 

him a question, it is because he has not spoken lately. But I do 

have a question for you. 

You have watched the last 2 days of testimony. A lot of it has 

focused on Judge Gorsuch’s record on civil rights. I would like to 
496 

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? 

Mr. KIRSANOW. 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 you are 

looking for an outcome-driven judge, he is your wrong judge. If you 

are looking for someone who will apply the statutory text as written by this body, that is your judge. 

Chairman GRASSLEY. Okay. Now, Ms. Smith, now while Hobby 

Lobby seems to get the most attention, Judge Gorsuch has applied 

Federal law protecting religious freedom, specifically the Religious 

Land Use and Institutionalized Persons Act—I think you referred 

to that already—to protect the First Amendment rights of other 

Americans as well. 

For example, could you tell us a bit about Calbone, and then I 

think you already mentioned Yellowbear but say it again for the 

benefit of responding to me. And then how—so it really does—I 

think it is going to show that Judge Gorsuch, depending on your 

response, has applied these statutes to protect Americans of all 

faiths. 

Ms. SMITH. Thank you very much, Chairman. 

Yes, so the first case that you mentioned was Abdulhaseeb v. 

Calbone, and that was a case I think that really demonstrates just 

what a fair judge Judge Gorsuch is because 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 counsel 

in that case. So they appointed counsel so that this Muslim prisoner would have the benefit of a real lawyer who knew what he 

was doing to help him argue his case effectively before the Court. 

They also gave an extended schedule. So they extended the briefing schedule so that 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 Institutionalized Persons Act, and Judge Gorsuch 

agreed with that decision of the Court. 

And then in Yellowbear, the case that I discussed in my opening 

statement. It is a very significant case involving a 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 Arapaho Native American. 

And Judge Gorsuch, in a unanimous opinion, wrote an eloquent 

opinion saying that, you know, prisoners are denied so many of 

their civil liberties when they go to prison, but religious exercise 

should not be one of them. And he went on to find that the Government had not proven its case, that they had not shown that they 

had a 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 both of these are really important cases to show 

that, you know, Judge Gorsuch applies Federal statutes as Con-
497 

gress has written them to protect the religious liberty of, in these 

two cases, a Muslim prisoner and a Native American prisoner. 

Chairman GRASSLEY. 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 during oral arguments? 

Have you ever witnessed him change his mind about a case during 

oral argument? 

Mr. MEYER. Thank you, Senator. 

Oral argument is incredibly important to the judge. It is part of 

the basic notion that the litigant should have a fair opportunity to 

be heard. And yes, I have seen the judge change his mind based 

on oral arguments. 

The briefs, of course, are the fullest presentation of the parties’ 

arguments. But what oral argument does is it gives you the opportunity to interact and pose some questions to counsel that they 

may have not actually addressed in their briefs. And I have seen 

a number of cases that the judge’s thinking has been shaped in certain—on certain questions by the exchanges he is had with counsel. 

His preparation for oral argument is incredible. I mean, 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. It is a huge amount of time. 

Chairman GRASSLEY. Okay. Senator Blumenthal, I was told you 

would like to ask one more question. 

Senator BLUMENTHAL. I have one more brief question, Mr. Chairman. 

Chairman GRASSLEY. Go ahead. Please proceed. 

Senator BLUMENTHAL. Professor Marshall, I was struck in your 

testimony by your reference to Brown v. Board of Education, and 

as you will note in my discussion with Ms. Miller, I mentioned the 

distinction that there was in Judge Gorsuch’s comments on the privacy cases versus Brown in the way that he acknowledged that the 

privacy cases were decisions of the Court, and he declined to say 

whether or not he thought they were correct, and Brown v. 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 that I did not have time to raise yesterday 

with Judge Gorsuch, which is whether Brown v. Board of Education is somehow distinguishable because it is an originalist case? 

I do not believe it is, but you are the professor. So let me ask 

you. 

Professor MARSHALL. No, it is not an originalist case, or at least 

if it was, it would be a surprise to the framers and the drafters of 

the Fourteenth Amendment, who supported segregated schools in 

the District of Columbia. It would be a surprise to the Justices who 

wrote and signed on to the Brown case. 

They looked for an originalist backing, and they specifically requested information on whether it was supported by originalism. 

They were told no, and they decided the case anyway. So it is very 

difficult to get to that point. 

Some originalists try to get there, and the reason why they try 

to get there is because of how difficult it would be to say we have 
498 

a theory of the Constitution that does not support Brown v. Board 

of Education. But my answer would be the problem is not with Brown v. Board 

of Education. The problem is with the theory that, if honestly applied, does not get there. 

Senator BLUMENTHAL. And just by way of historical enlightenment, I think I remember correctly—it has been a while since I 

looked at the history—actually, Chief Justice Warren asked Justice 

Frankfurter to find an originalist justification for Brown. He went 

to one of his law clerks, I think it was Alexander Bickel, who then 

wrote about it subsequently. 

And Bickel could not find anything. Frankfurter could not find 

anything. And Warren said, well, we are going to reach the result 

anyway. We will write the opinion without an originalist justification. Am I roughly correct in that? 

Professor MARSHALL. You are absolutely correct. 

Senator BLUMENTHAL. Thank you. I am sorry I am not in your 

law school class. 

Chairman GRASSLEY. If you want to—— 

Professor MARSHALL. I think you could teach it. 

Chairman GRASSLEY. If you want to review—or a view of a farmer after that discussion, I would say that you very clearly say that 

it is not originalist. Gorsuch said that it was not, and I think you 

backed up what he said because he said yesterday that he did not 

consider that part of—or that you can call him an originalist, at 

least on that point. 

Okay. I want to thank—— 

Senator BLUMENTHAL. Thank you, Mr. Chairman, for your courtesy and being able to ask the question. 

Chairman GRASSLEY. Yes. So 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 your preparation. And it is all part of a very important part that Congress does 

not get—and thank God does not get involved in very often because 

we do have continuity on the Supreme Court, but it is very important for all the testimony. So I want to thank you for that. 

And then for the benefit of the Committee, I said earlier this 

week, so this should not come as a surprise, questions for the 

record are due by tomorrow at 5 p.m. The record will also remain 

open until tomorrow at 5 p.m. 

[The information appears as a submission for the record.] 

Chairman GRASSLEY. The hearing is now adjourned. 

Thank you all. 

[Whereupon, at 3:46 p.m., the Committee was adjourned.] 

[Additional material submitted for the record for Day 1, Day 2, 

Day 3, and Day 4 follows.] 
(499) 

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ADDITIONAL SUBMISSIONS FOR THE RECORD

A list of material and links can be found below for Submissions for the Record 

not printed due to voluminous nature, previously printed by an agency of the 

Federal Government, or other criteria determined by the Committee: 

Constitutional Accountability Center, Elizabeth B. Wydra, President, 

Washington, DC, statement: 

https://www.judiciary.senate.gov/imo/media/doc/Constitutional 

%20Accountability%20Center%20-%20Statement.pdf 

Demos, ‘‘Breaking the Vicious Cycle: Rescuing Our Democracy and 

Our Economy by Transforming the Supreme Court’s Flawed Approach 

to Money in Politics,’’ Adam Lioz, New York, New York, report: 

https://www.judiciary.senate.gov/imo/media/doc/Demos%20-%20 

Breaking%20the%20Cycle.pdf 

Demos, ‘‘Court Cash: 2016 Election Money Resulting Directly From 

Supreme Court Rulings,’’ Adam Lioz, Counsel and Senior Advisor, 

Policy and Outreach, Juhem Navarro-Rivera, Senior Policy Analyst, 

and Sean McElwee, Policy Analyst, New York, New York, report: 

https://www.judiciary.senate.gov/imo/media/doc/Demos%20-%20 

Court%20Cash.pdf 

Endrew F. v. Douglas County School District RE–1 (2017), legal case: 

https://www.judiciary.senate.gov/imo/media/doc/Endrew%20F.%20v. 

%20Douglas%20County%20School%20District%20Re-1%20(2017).pdf 

Herndon-Reston Indivisible, Herndon, Virginia, letter to Hon. Charles E. 

Schumer, a U.S. Senator from the State of New York, January 26, 2017: 

https://www.judiciary.senate.gov/imo/media/doc/Herndon%20Reston 

%20Indivisible%20-%20LetterlRedacted.pdf 

Laird v. Tatum, 92 S. Ct. 2318, legal case: 

https://supreme.justia.com/cases/federal/us/408/1/case.html 

Lawyers’ Committee for Civil Rights Under Law, ‘‘Report on the 

Nomination of Judge Neil M. Gorsuch as an Associate Justice of the 

United States Supreme Court,’’ Washington, DC, March 2017, report: 

https://www.judiciary.senate.gov/imo/media/doc/Lawyers’%20 

Committee%20for%20Civil%20Rights%20Under%20law%20-%20 

Report%20on%20Neil%20M%20Gorsuch.pdf 

National Association for the Advancement of Colored People Legal 

Defense and Educational Fund, Inc. (LDF), ‘‘The Civil Rights 

Record of Judge Neil M. Gorsuch,’’ New York, New York, and 

Washington, DC, March 16, 2017, report: 

https://www.judiciary.senate.gov/imo/media/doc/NAACP%20Legal 

%20Defense%20Fund%20Report%20on%20Neil%20Gorsuch.pdf 

Post, Robert C., and Reva B. Siegel, Yale Law School, ‘‘Questioning 

Justice: Law and Politics in Judicial Confirmation Hearings,’’ 

Yale Law School Legal Scholarship Repository, January 1, 2006, article: 

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article= 

1173&context=fss—papers 

Æ