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Neil Gorsuch Confirmation Hearings. Aired 9:30-10a

Aired March 22, 2017 - 09:30   ET


[09:30:00] JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: This is - this is serious stuff these judges decide.

WOLF BLITZER, CNN ANCHOR: But when you degrade a court, a federal court, and you say this court is political, that's all they're interested - in the Ninth Circuit Court of Appeals, that's OK from your perspective?

TOOBIN: Totally. Totally. A lot of people agree with him about that. I don't happen to agree with the criticism, but the - his right to criticize judges? Boy, I do it all the time.

BLITZER: I want to quickly - quickly show - the Dow Jones, by the way, has just opened after a bad day yesterday. It's already down 30 points right now. We'll keep watching that as well.

NIA-MALIKA HENDERSON, CNN SENIOR POLITICAL REPORTER: Well, yes. And, well, I think that - yes, I mean I think that was the other big headline out of yesterday, a 1 percent drop across the board on the big three indices. And that is a big thing. I mean you can keep the Chamber of Commerce, you know, Republicans happy as long as you see that Dow going up, and that's what Donald Trump has said and tweeted about it and said it's evidence that he's on the right track. But I think yesterday a lot of people opened up their portfolios and saw some big declines and I think that's one of the reasons you see "The Wall Street Journal" weighing in. This is a paper about the business. (INAUDIBLE) numbers.

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: He - yes. Well, that's what makes this so fascinating.


KING: "The Wall Street Journal," we should just underscore -


KING: Is such a conservative -


BLITZER: It's owned by Rupert Murdoch too.

KING: This is yet again someone who's trying to be an ally and a friend trying to send him a message, much like the Republicans allowing the public hearing with James Comey. The Republicans control Congress. They did not have to allow a public hearing. They exceeded to that on purpose because they tried privately to tell the president, mitigate your behavior, change your behavior, but anyone who's going to place a bet that Donald Trump is going to change his behavior -


KING: That is a wasted bet.


BLITZER: Alice, go ahead.

ALICE STEWART, CNN POLITICAL COMMENTATOR: Well, I think there's one way to look at this - this editorial. Look, surely there are some concerns about some factually challenging statements he's made or tweet. But, look, this can be viewed as a challenge for this president to tweet and govern effectively. If he's able to successfully pass some kind of health care, then he can tweet and chew gum and govern effectively at the same time. If he's not able to, then that's a completely different story. But if he's able to do this successfully, I think -


STEWART: But the problem is - but - but -

UNIDENTIFIED FEMALE: As incendiary comments (ph)?

STEWART: No, I - no, I think he's - this is his - like it or not, this is how he communicates with the people. This is how he circumvents (INAUDIBLE) communicate -

KING: And his voters like it to a large degree. His voters like it to a large degree.

UNIDENTIFIED FEMALE: Well, but then he (INAUDIBLE) as long as they were doing well.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: But then members of Congress and his spokesmen and people who work for him find themselves in this position -

STEWART: That's right.

BORGER: Where they have to justify things that they - that they have learned are not true.

KING: Right.

BORGER: And so you see them with (INAUDIBLE) credibility -

BLITZER: Let me just point out the chairman, Chuck Grassley, is now about to sit down. I - knowing Senator Grassley, he's the chairman, he's going to get this thing going momentarily.

BORGER: Let's start.

BLITZER: But finish your thought.

BORGER: Well, they put their own credibility at risk and they put their credibility at risk with their voters. And, remember, Trump supporters are - were not monolithic. There were a lot of people who voted for Donald Trump because they didn't trust Hillary Clinton. Trust was a very important issue.

STEWART: But there were -

BORGER: What will those people decide after they look at this and they - and they, you know, and - and they see Trump's credibility falling to pieces?

STEWART: But a couple of things. I mean they are also people who believed - convinced themselves that Trump was going to be better once he was elected. And now what you're seeing is they're saying, actually he's not better. He's worse. He is the guy that we were afraid that he would be.

The other problem with the credibility, in addition to the lies and the trying to cover it up and the tweets, take a look at what's happening in this situation with this Russia investigation. The problem there is, the more we learn, the more there there there actually is. We've learned that Michael Flynn was not honest about his connections. We've learned now more about Paul Manafort. And then you have Sean Spicer trying to say, oh, he was just a minor figure for a short period of time.

And part of the other problem is, while you have things like accusing President Obama of - falsely accusing him of wiretapping Trump Tower, you also have a very - some very serious question ongoing and now we know pretty high level investigations that have been warranted by actual facts that are at the same time being denied by this president and his administration.

BLITZER: Senator Grassley speaking with Senator Blumenthal, Senator Leahy as well. They're going to be getting this hearing momentarily underway.

And I've got to tell you -- and I want John King to weigh in on this - this hearing comes at a time when all these other problems - if there weren't all these other issues out there, including the Merrick Garland issue, how he was treated by the Republican majority in the Senate when President Obama nominated him to the Supreme Court, he didn't even get a hearing, plus all the problems that the president has developed largely of his own doing over these past couple months, presumably this nominee, Neil Gorsuch, would sail through.

KING: I'm not so sure about the last part just because of the climate of the last 20 years. If you go back to when he's replacing Antonin Scalia on the court, Antonin Scalia was confirmed 98-0. That was a different Washington. That Washington doesn't exist anymore. And that Washington, you aired your grievances at the hearing and then you said, "but the president won the election, elections have consequences, he's qualified, the president gets his guy." You bet him up. You lay your markers. Just like they're doing here. You lay your markers on abortion rights. You lay your markers on business interests. You know, the Democrats do that. And the flip side, when it's a, you know, Democratic nominee, the Republicans do that.

[09:35:04] Washington has changed to the point now where part of this, a lot of these votes against Judge Gorsuch from the Democratic side are going to be from Democrats who will privately tell you, of course he's qualified and the Republicans won the election, but my base would - my phones will not stop ringing.


KING: My phones will not stop ringing if I vote yes.

TOOBIN: But, remember -

KING: However, I do want to quickly say this. This is the Trump paradox. We're talking about the credibility crisis, which is real. We're talking about this first big test in the art of the deal. Can he pull this off in a way to - a, to get a bill, but to Jeffrey's point, a bill that in two years, four years, and six years, and eight years helps the Republican Party, doesn't hurt the Republican Party when it comes to the policy implications. We are counting votes now because that's where we are. But like Obamacare, what happens out in the real world will determine the long-term politics of this bill.


KING: But here's a pick conservatives love. The Trump base loves this pick and this is unifying the Republican Party. So depending on how you turn - which - to which degree you turn your head in Washington, you either see a fire or you see something that's fantastic or you see something that's uncertain. Welcome to the 60 days.

STEWART: And, you know, and - well -

BLITZER: Jeffrey, go ahead, very quickly.

TOOBIN: Well, just, you know, Neil Gorsuch, one of the different - one difference between being confirmed 98-0 versus 52-48 like Clarence Thomas is nothing.

KING: Right.

TOOBIN: They call you justice either way. He's going to get confirmed.


BLITZER: That's fair point.

TOOBIN: And so it's - it's (INAUDIBLE).

BLITZER: All right, they're about to start this hearing. We'll take a quick hearing. Our special coverage continues right after this.


[09:37:48] BLITZER: All right, the hearing has just started. Here's the chairman, Senator Grassley.

SEN. CHUCK GRASSLEY (R), CHAIRMAN, JUDICIARY COMMITTEE: And of course we have, as a committee, I don't know that we've recognized your wife, Louise, but she's back and very patient sitting there.

You mentioned yesterday that the confirmation hearing from your mentor, Justice Byron White lasted all of 90 minutes. Yesterday's hearing was a bit longer, and I'm sure that you needed your rest, and I'm glad you had it. I was impressed yesterday, both with your poise and your thoughtfulness throughout the long day.

I came away with I -- I think a greater admiration for you in particular 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've had an opportunity to comment to various other 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 here to understand that I'm 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 I hope that we can move things along, and we won't have to stay a long time, but I am willing to do that; and then tomorrow, we'll have the schedule. I want also committee members as well as the nominee to know that when we finish the questions, we'll move to the regular committee room of the Judiciary Committee. That's just down the hall, Dirksen 226 for close session, as we have done with every Supreme Court nominee, I think since of Senator Biden was chairman of the committee as I recall.

Now I'd like to go to my questions, and as I said yesterday they will be 20 minutes long. Let's visit about judicial independence. Yesterday I predicted that you'd get asked a lot of questions that wouldn't 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 -- as a justice. And as you very clearly explained, it would compromise your independence if you pre-committed to how you'd rule on future cases. It would also be unfair to the future litigants -- and you made that very clear.

And of course there's nothing new about all this because we've quoted the Ginsberg standard, after Judge Justice Ginsburg said during her confirmation hearing, and it's probably been repeated several times, but I don't think we can repeat too many times, quote "A judge sworn to decide impartiality can offer no forecasts, no hands 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, end of quote. Senators know a nominee can't answer a question but, of course, those questions get answered (sic) anyway and I would probably want to confess that 13 before you, I have probably have answered -- asked some of those inappropriate questions. You were also asked many questions about how you would decide past Supreme Court cases, but you can't answer those either as Justice Kagan told us quote, "I've pretty consistently said that I don't want to grade or give a thumbs up or thumbs down on particular Supreme Court cases," end of quote.

At the time, the former chairman said quote, "I certainly don't 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," end of quote. You -- 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 don't need to dwell on hypotheticals. You have a 10 year record on the 10th Circuit. You've written over 770 opinions or at lease 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's plenty that we can talk about.

So I'm going to start by -- Thomson School District versus 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 Disability Education Act, we call that IDEA for short, you held that the district didn't have to pay under this statute because all the experts who exam Luke found that he was progressing in his public school.

Judge, where did you get that standard?

JUDGE NEIL GORSUCH, SUPREME COURT NOMINEE: Mr. Chairman the standard under IDEA or, as you said, the Individuals with Disabilities and Education Act, the standard that you've articulated is the standard set by the Supreme Court in a case called Rowley. And there are additional precedents in the 10th Circuit interpreting and -- and developing that standard.

And so, in that case, Mr. Chairman, the panel was applying settled Circuit law and Supreme Court law. Statute, as you know, balance 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 interest of school districts for whom these cases can be very expensive and challenging. And that balance is a policy judgment as to how that's made, that's 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 United States Supreme Court.

GRASSLEY: And you didn't have any discretion to disregard that precedent of either the Supreme Court or the 10th Circuit?

GORSUCH: No, Mr. Chairman. GRASSLEY: And I think you had a Judge Briscoe, a Clinton appointee, was on the panel and, it's my understand, she joined your -- your opinion in full and so the Luke P. opinion was unanimous.

GORSUCH: It was, Mr. Chairman.

GRASSLEY: Congress could of course, as you said, amend IDEA and states could create standards of their own; as Senator Tillis worked to -- to do when he was in the North -- North Carolina legislature. He's not here, but I think he would -- that's my understanding, what he worked on.

GORSUCH: That's my understanding too, Mr. Chairman. And -- and of course their -- I've had other cases involving IDEA where the parents and -- and the child prevailed based on the existing law. The School of the Deaf and Blind case, the Jefferson County case. So it -- it -- it just depends upon the facts and the law in each particular case.

GRASSLEY: Yeah. Well, think you just pointed out my last point, that there's plenty of evidences 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 the little guy.

GORSUCH: That's right, Mr. Chairman.

GRASSLEY: OK. Because you take an oath to administer justice without respect to person and do equal right to both the poor and the rich. And it's -- your tenure on the 10th Circuit I think is a proud testament to the seriousness with which you understand the role of a judge. And you've ruled in favor 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 the this is cameras in the courtroom. And I -- I made a point when I appeared before the judicial council last week and Chief Justice Thomas introduced me. I said, "Remember, today I didn't bring up about cameras in the courtroom." He says, "We getting off to a good start." 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 hadn't 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 court room is one way to improve public access.

Now, I know this isn't 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 hold on quote- unquote, "Come roll over my dead body for that to happen." And the he's not on the courts now, so that's one less person...

(LAUGHTER) ... in -- in -- in opposition. I can -- I -- I can respect that opinion. But quite frankly, it just happens to be wrong for 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 my colleagues on this committee.

We believe that allowing cameras in the Federal Court House 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've sponsored bills called Sunshine in the Courtroom Act, which give judges the discretion to allow media coverage of federal court positions.

Given your discussion with Senator Klobuchar yesterday on the issues, I'm 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 on this process and, I guess if I could ask you to have that open mind, that's all I'd ask you to do at this point.

GORSUCH: You have it. And I'm sure -- I've gotten to know some of these guys pretty well over the last few weeks; some nice folks. GRASSLEY: I want to bring up the part the legislative history will bring up, and I think I'm going to refer to some cases -- I don't know if it's the same cases I've read, but I know you have a different -- maybe a little different point of view on legislative history, and I'd like to know what that is.

But I also remember my first discussions with Justice Scalia, like when he came around my office as you came around my office, I asked him about it and he said it should play any role whatsoever, and I think I've have seen him totally committed to that point of view during the 29 years that he was on the Supreme Court. He didn't lead me astray in my office, and he kept a pretty consistent point of view.

So it deals with a weight that judges should give when interpreting statute. You have been a judge for 10 years so you've had time to think about the role of legislative history in cases that come before you. In fact, there's one in particular that I'd like to discuss one that Senator Feinstein talked about a little bit in her opening statements, U.S. versus Games-Perez, I believe it's pronounced. The defendant in that case was appealing his conviction under a federal felony in position 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 quote "You will leave this courtroom not convicted of a felony, and instead grant the privilege of a deferred judgment," end quote. So there was a real question about whether the defendant actually knew that he was a felon. You upheld his conviction because the sense 10th circuit precedent required you to do so. The 10th 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, quote "Our duty to follow precedent sometimes requires us to make mistakes. Unfortunately this is that sort of case," end of quote. You went on to write quote "It makes no sense to read the word "knowingly" so -- as so modest that it might blush in the face of the very first element, only to regain his composure and reappear at a second," end of quote -- end of your quote.

So you were somewhat critical of the 10th circuit precedent because of its reliance on legislative history. You wrote that legislative history can be misleading because it is, quote "Stocked with ample artillery for everyone, the fight is hard fought, inch -- each inch of the historical careen (ph) is heavily contested but, in the end, almost no ground is taken by either side, end of quote.

You touched on this a little bit yesterday, but I'd like to ask you, when it's appropriate to look to legislative history to interpret statutes? Are there some circumstances when it's more appropriate than others? And what are the dangers?

And, I guess, maybe 30 years ago I told Scalia that history was very important, I'm not sure I agree with that today, knowing the importance of us writing clear statutes, but I thought we didn't always write very clear statutes and I thought you ought to go back in and look what -- what -- what we think about it. But what are the circumstances when it's more important than others and what are the dangers?

GORSUCH: There's 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 don't close your mind to any argument, you put on the robe -- you open your mind. But I think that case illustrates some issues along the lines of what you'd asked me to discuss. So the statute there says and -- simplifying -- that it's 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 -- in that statute and it can be argued both ways. There's 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's 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 world felon and only touchdown 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 didn't 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 -- 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 didn't know he was a felon in that case because the sentencing judge told him he wasn't a felon, as you pointed out Mr. Chairman.

The sentencing judge, I think several times as I recall the record -- and it's been awhile since I've 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 is a case where the government had to square its corners.

And before you could put a man in prison, I think for five years, in that case, may have been longer -- felon possession statutes have rather long sentences attached to them -- that 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's 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.

GRASSLEY: You may have just said this, but I wanna emphasize. So I'd like to know what intersection you understand there is between notice of the law, legislative history and original meaning of the legal texts.

GORSUCH: Yeah. And I -- I -- I did touch on it. I -- I -- I think notice is the key to the rule of law; that the people can understand what's expected of them, that the law is sufficiently clear, that before they're put in prison for five or 10 or 20 years. And that's what federal sent acing statutes require of judges in many, many cases; that we're not putting them in prison on the basis of some secret law, some hidden unexpressed intentions. Or intentions that are very hard to find in the fine print of some book that's not available widely.

But on the basis of what's in the statutory books that we're all charged with knowing.

GRASSLEY: Can I sum up what you just said? If I'm wrong, well me, but you're basically saying the law means what it says it means. Is that right?

GORSUCH: That's a good starting point, right? That the plain text of the statute is a usually a pretty good starting point. And reading it as you'd expect a reasonable citizen to do so.


GORSUCH: Not -- not a -- not -- not a -- not a pointy headed judge.

GRASSLEY: Yeah. I've only got 35 seconds left, so for the benefit of my members I'm starting out on something before my time's up. So I don't 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 this wrong, from my point of view there's lots of times -- and Senator Leahy's been very good in helping me do this.