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Will Democrats Filibuster Neil Gosuch?; Senate Judiciary Committee Debates Supreme Court Nominee. Aired 10-10:30a ET

Aired April 3, 2017 - 10:00   ET



JOHN BERMAN, CNN ANCHOR: Yes, the big drama this week is what happens if Democrats are able to successfully filibuster this nomination? Can they get 40 Democrats to try to stand in the way. That means that Republicans would have to go nuclear.

CNN's Sunlen Serfaty on Capitol Hill to set the stage and you know I do expect we will see some drama here today, Sunlen.

SUNLEN SERFATY, CNN CONGRESSIONAL CORRESPONDENT: That's right, John, the drama starts right now, where you have the Senate Judiciary Committee at this moment gathering to meet. This is a committee vote. Democrats have the minority in the committee, 9-11. So in all likelihood, Neil Gorsuch will get out of the committee today just fine.

And that sets up the true showdown later in the week once Neil Gorsuch is considered on the full Senate floor. Of course, a lot of questions over this filibuster, a lot of questions over this so-called nuclear option, but heading into that dramatic moment near the end of the week for Neil Gorsuch, check out this rhetoric from the Senate majority leader and the minority leader.


SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER: Judge Gorsuch is going to be confirmed. The way in which that occurs is in the hands of the Democratic minority. And I think during the course of the week, we'll find out exactly how this will end, but it will end with his confirmation.

SEN. CHUCK SCHUMER (D-NY), MINORITY LEADER: Why doesn't President Trump, Democrats, and Republicans in the Senate sit down and try to come up with a mainstream nominee? Look, when a nominee doesn't get 60 votes, you shouldn't change the rules. You should change the nominee.


SERFATY: Now, the state of play in all of this, the math is extremely important here. As of now, it looks very likely that Gorsuch and the Republicans will not get the 60 votes that they need to break that Democratic filibuster. Yes, there were three Democrats who recently came out and said that they will support Neil Gorsuch, but that is far short of the goal that Republicans and Gorsuch need the support of Democrats to end that Democratic filibuster.

If that happens and if that sticks, which in all likelihood it very well will, John and Poppy, that would force Republicans and Mitch McConnell to enforce the so-called "nuclear option," which would change these longstanding Senate rules on the books for a long time. So, it has some serious implications up here on Capitol Hill. John and Poppy?

POPPY HARLOW, CNN ANCHOR: Absolutely, it would completely change precedent going forward for these nominees. Sunlen, thank you very much. Let's get a closer look at what's ahead this week for these confirmation hearings.

Ariane de Vogue is our Supreme Court reporter. She's joining us from Washington. So, we heard from Neil Gorsuch for some 20 hours just a few weeks ago. Now, he'll go to a committee and then to a full vote. The "nuclear option," I think no question at this point it will be used, correct?

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER: It sounds like that's the way they're going. This committee is going to meet at 10:00 a.m. He won't be present, but the members here will deliver remarks. We expect Gorsuch to advance out of here at the end of the day, only because, really, there are more Republicans than Democrats. But the debate today could get a little bit fiery. The Republicans, they're going to defend and praise Gorsuch, but the Democrats have these concerns.

First of all, they're still furious about Merrick Garland never getting a vote. They call this a stolen seat. They also think that Gorsuch was really evasive in some of his answers during his testimony on things like gay marriage, corporate issues, campaign finance, and then we'll also hear from that ranking member, Dianne Feinstein, and she's going to target women's health issues. Remember, Donald Trump, he said during the campaign that he was going to put pro-life judges on the bench. And the Democrats, they felt like that gave them license to ask Gorsuch more about issues such as Roe v. Wade, and they felt like he didn't answer them, he evaded them.

Here's the most important thing -- this could be the first step in changing the way the Supreme Court nominees are chosen, and that's a big deal for the Senate, but also for the Supreme Court.

BERMAN: Ariane de Vogue for us in Washington. Again, you're looking at live pictures right now from the Senate Judiciary Committee. This meeting gets underway shortly and they will vote, presumably, today, and Judge Neil Gorsuch will get through this committee before getting to the full Senate later in the week.

HARLOW: So, as we get ready to hear from Senator Chuck Grassley and also Dianne Feinstein, Senator Dianne Feinstein, as they are sitting down. Let's bring in our panel. CNN senior legal analyst Jeffrey Toobin, CNN Supreme Court analyst, Joan Biskupic, CNN senior political reporter Nia-Malika Henderson and CNN contributor and "Washington Post" reporter David Fahrenthold. Nice to have you all here, we are going to bring those opening statements as they begin. So forgive us if we do need to jump in. But Jeff Toobin, just set the scene in terms of history. Is this a particularly nasty battle?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: It's nasty, but it is enormously significant. You know what's going to happen in 2040? 2040, Tiffany Trump and Malia Obama are going to be dueling for the presidency, and Neil Gorsuch will still be on the Supreme Court. I mean, that's -

BERMAN: 30-year consequences, which is why we're actually going to dip in and listen to Senator Chuck Grassley, the Chairman of the Judiciary Committee, in his opening statements right now.

[10:05:01] SEN. CHUCK GRASSLEY (R-IA), CHAIRMAN JUDICIARY COMMITTEE: -- our Associate Attorney General. I'm going to -- I want to explain how we're going to proceed. In addition to the Supreme Court nominee, we need to report out the nominees for Deputy Attorney General and Associate Attorney General.

We all understand that it's important for the Department of Justice to have senior leadership in place. My intention is to have everyone speak on the judge and then vote on his nomination. Then we'll turn to Rosenstein and brand. I'll have a statement on both of them that I'm going to put in the record so we can keep things moving.

Regarding the judge, for the most part, everyone has already indicated one way or another how they intend to vote, so there isn't a whole lot of mystery about how this is going to go at our committee meeting today. But regardless, everyone should have an opportunity to explain their vote. So everybody can speak as long as they want to, but my hope is that members can try to keep their remarks within ten minutes. So that everyone can speak and we can proceed in an orderly way.

Now, I want to -- now I speak, then I'll turn to the ranking member. Today, we're considering the nomination of Judge Neil Gorsuch to serve as Associate Justice of the Supreme Court. Over the last couple months, the nominee's opponents have tried to find fault with him. That fault will not stick. And of course, we've seen that it just hasn't worked.

Before the president made his announcement, the Minority Leader of the Senate declared that any nominee must prove himself, in his words, mainstream, to get confirmed. Well, that test ran into trouble the minute the president selected the nominee. He was confirmed to the Tenth Circuit, 2006, by unanimous voice vote.

In the ten years since, his record on the bench has proved that the judge falls well within the mainstream. He's participated in 2,700 cases. He's voted with a majority 99 percent of the time, and roughly 97 percent of those 2,700 cases were decided unanimously. Two of his former Tenth Circuit colleagues -- one was a Reagan appointee, one was a Clinton appointee -- remarked upon, and now I quote them, "his fair consideration of opposing views, his remarkable intelligence, his wonderful judicial temperament expressed to all the litigants, and his collegiality among colleagues," end of quote.

So, you get words like fair, remarkable, wonderful, collegiality from people that have served with him during that period of time, some appointed by a Republican president and some appointed by Democrat presidents. Then you wonder what the uproar about him is all about. Legal commentators across the political spectrum have recognized that he's mainstream. Even Rachel Maddow, who isn't exactly a conservative, said the judge is a quote, "fairly mainstream choice that you might expect from any Republican president," end of quote.

Once it became clear that Judge Gorsuch is mainstream, opponents then moved the goal post and set a whole different test. Any nominee of President Trump's, the minority leader said, must prove that he is independent. Of course, there's no debate on this question either. The night that -- let me turn my phone off here.

The night Judge Gorsuch was nominated, President Obama, Solicitor General Neal Katyal - I think it's pronounced, wrote a "New York Times" Op-Ed entitled quote, "Why Liberals Should Back Neil Gorsuch," end of quote. Mr. Katyal argued that one basic question should be paramount.

[10:10:04] Quote "Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws?" question mark, end of quote. Mr. Katyal answered his own question, quote, "I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law," end of quote. He went on to write that the judge's record, quote, "should give the American people confidence that he will not compromise principle in favor of the president who appointed him," end of quote.

It's for these reasons and others that David Frederick, a board member of the liberal American Constitution Society, argued in an opinion piece that there is, quote, "no principled reason to oppose," end of quote. Judge Gorsuch, and that we, quote, "should applaud such independence of mind and spirit in Supreme Court nominees." So then another test, Independents' charge didn't stick either.

Next, we heard that the judge is against the little guy and for the big guy. As a national matter, this is really a strange criticism, considering that my colleague, the minority leader, praised Justice Sotomayor as a judge who, quote, "puts the rule of law above everything else, even when doing so results in rulings that go against sympathetic litigants," end of quote.

And the judge himself proves how absurd this argument is by citing a number of cases where he ruled with the so-called little guy. But regardless, it is, of course, a silly argument. No judge doing their job considers the status of the litigants before them when deciding the cases.

That's why liberal Harvard law professor Noah Feldman described the critique that Judge Gorsuch doesn't side with the little guy as a, quote, "truly terrible idea. The rule of law isn't liberal or conservative or shouldn't be," end of quote. In other words, a good judge listens to the arguments, regardless of who makes them, and applies the law, regardless of the results. So, that didn't stick.

So, next we heard that the judge hasn't answered questions. That argument is basically a complaint that he won't tell us how he's going to vote on a whole host of legal questions that he might have to deal with when he sits on that bench. Well, the irony here, of course, is that seeking assurances from the nominee how he'll vote on particular legal questions undermines the very independence that we demand of the Supreme Court, and right now his nominees.

His approach is consistent with the cannons of Judicial Ethics and is consistent with the position taken by Justice Ginsburg during her nomination. In fact, that's where the Ginsburg Rule comes from. She put it this way, quote, "a judge sworn to decide impartiality can offer no forecast, no hints, for what would show for that would show not only disregard for the specifics of a particular case, it would display -- disdain for the entire judicial process," end of quote. Judge Gorsuch's response reflects the Ginsburg principle.

And so at last, after all these charges leveled against the nominee and his record have fallen flat, we learn that the nominee should be opposed because of his record -- not because of his record or his qualifications, but because of clients he had for the groups who now support him. We've heard criticism of the judge's former client, the Department of Justice and its litigating position, opposition on these grounds may be creative, but they are, in fact, baseless.

[10:15:12] Here's the inconsistency. Justice Kagan, for example, argued as Solicitor General that the government could constitutionally ban pamphlet material. When that issue was raised at her hearing, she said she was a government lawyer acting on behalf of her client. That client happened to be the same United States government that Gorsuch had worked for, for a while. But today, the other side is all of a sudden arguing that government lawyers should be held personally responsible for every legal position that the government takes. So, once again, that argument doesn't stand up under scrutiny.

And finally, of course, we've heard criticism of the advocacy groups who are speaking out in support of his nomination and spending quote, unquote, "dark money" on issue advocacy. Now, as an initial matter, I think it speaks volumes of a nominee that at the end of the day, after reviewing 2,700 cases, more than 180,000 pages of documents from the Department of Justice and the George W. Bush Library, and thousands of pages of brief he filed as a lawyer in private practice, all his detractors are left with is an attack on the people who support the nomination.

Now, as a senator who's participated in 14 Supreme Court hearings, I must say these comments strike me as really odd. To hear my friends on the other side tell it, it's only conservatives outside groups who are engaged in the nomination process, but we all know that isn't true. It's no secret that there are dozens of advocacy groups on the left who get involved in the nomination process, and there's absolutely nothing, nothing whatsoever wrong with that. We call it free speech.

A group called the Coalition for Constitutional Values ran ads in support of Justice Sotomayor and Justice Kagan before their confirmation. The American Constitution Society touted Justice Kagan as - quote, "a justice for every American" end of quote. Where did their money come from? I don't know and I suppose a lot of people think that I shouldn't say I don't care, but this is America, where people can spend their money where they want to spend it, and they can use their money for political speech or any advocacy that they want.

And, of course, as we see advocacy groups on the left are engaged on this nomination as well. Liberal billionaires like Tom Steyer, George Soros, found their own dark money organizations like NextGen Climate, a group that describes Judge Gorsuch as, quote, "an extreme candidate, wrong for the Supreme Court under any circumstances," end of quote.

Everyone in this room knows that liberal and progressive groups have been pressuring the minority leader to find a reason, any reason, to filibuster the nominee. Naro has run ads to pressure members to filibuster. We even had some groups called Progressive Change Campaign Committee target a senior, an extremely well respected Democrat over his, quote, unquote, "squishy" comments suggesting he might not filibuster. In short, they've threatened to primary any Democrat who supports the nomination. Now, that's very dark.

And of course, all last year, the groups on the left who coordinated and attacked on me because I didn't hold a hearing on Garland. They followed me all over Iowa, ran commercials, put up billboards, even had a plane pulling a banner over a special event in Des Moines.

[10:20:00] Can you imagine that plane traveling around Iowa with that banner, saying "Grassley, do your job," or mobile billboards, "do your job," at every town meeting I had, or billboards on Florida Avenue, Des Moines, Iowa, all over touting three Republicans that were ashamed of Grassley. I found out they were Republicans maybe 20 years ago. TV ads, radio ads, paid staff bringing people to my town meetings, Op- Eds, clutter my town meetings with trackers, and even brought in somebody, I found out, from Washington State to make sure that everybody knew how bad I was.

Now, that's what I know about dark money, but I don't care about it, because that's the American way we do things in this representative democracy. In fact, at my town meetings, I tell people one thing up front in about two minutes of opening the meeting, because I don't talk -- well, I let them set the agenda, but I say this is what representing a government is about. I'm one half of the process. You're the other half. And how can you be representative of the people if you don't have dialogue with them? And so, these people come with dialogue with me, and it is part of our Democratic system.

Now, I never heard any Democrat complain about all that money that was spent last year. We had a debate. I believe then and I believe now that we took the right course for the Senate and for the court. And I said, regardless of who won the election, we'd process this nominee.

And so, we're processing the nominee. 9:00 p.m. on election night, everybody thought that Hillary Clinton was going to be President of the United States. But a long time before that 9:00 p.m., months before, I said, whoever's elected president, we're going to process that nominee, and that's what we're doing right now.

That's democracy at work. By and large, I disagree with those advocacy groups on most issues, but I don't take issue with their engaging in the process and making their -- voices heard. And I don't try to intimidate or silence them. The bottom line is this -- if you don't like the fact that issue advocacy groups are engaged in the process, the remedy is not to attack, intimidate or try to silence them. The remedy is to support nominees who apply the law as it's written. The remedy is to support nominees who leave legislating to Congress. If you want politics out of the process, the solution is, judges who apply the law as it's written, and leave the policymaking to the other branches, which brings me back to where I started.

Judge Gorsuch is eminently qualified. He's a mainstream judge who's earned the universal respect of his colleagues on the bench and in the bar. He applies the law as we in Congress write it, as the Judicial Oath says, "without respect to persons, and he refuses to compromise his independence." This nominee that we're voting on today is a judge's judge. He's a picture of the kind of justice we should have on the Supreme Court. So, I urge you to join me in supporting his nomination. Senator Feinstein.

SEN. DIANNE FEINSTEIN (D-CA), RANKING MEMBER JUDICIARY COMMITTEE: Thanks very much, Mr. Chairman. In my view, this is not a routine nomination. So, I want to begin with just some brief comments about what has made this different for me.

The first, of course, is what happened last year, which is unprecedented. As I noted in our last meeting, throughout our nation's history, a total of 19 Supreme Court justices have been nominated and confirmed in a presidential election year. And three of these have been nominated and confirmed after the presidential election took place. So, there was simply no reason that the nomination of Judge Garland could not proceed other than to deny the then President of the United States, President Barack Obama, the ability to fill the seat, and that's what has taken place.

Secondly, press reports indicate that $7 million of dark money was spent to defeat Judge Garland's nomination.

[10:25:01] This, too, was unprecedented. However, with the nomination of Judge Gorsuch, the spending of dark money has only grown. Weeks ago, press began reporting that the Koch brothers through concerned Veterans for America and other conservative donors through the Judicial Crisis Network planned to spend at least $10 million on a political campaign to support Judge Gorsuch's nomination. Since then, the National Rifle Association has launched a $1 million ad buy. And just last Friday, the Judicial Crisis Network announced another $1 million targeted to specific senators in Missouri, Montana, Indiana, and Colorado.

So, this nomination is not the usual nomination. It comes in a different way, and it has proceeded in a way of excessive spending of dark money that in the time I have been on this committee I have never seen before. So, this is deeply troubling, and I don't believe it's the way a serious process of evaluating a Supreme Court nominee should be conducted. I want to be clear, though, although my vote will not be based on these factors, I strongly believe that the expenditure of millions of dollars of unknown dollars should not be permitted in the nomination of a Supreme Court justice. However, we have had four days of full and fair hearings, and today we begin our mark-up. I want to thank the chairman for his leadership and the very cooperative manner in which the hearings were conducted. So I want you to know, Mr. Chairman, you're allowing all members to fully ask questions and have the time they needed to examine Judge Gorsuch's record and hear from outside witnesses is very much appreciated. So, thank you.

GRASSLEY: Thank you.

FEINSTEIN: In reviewing the list of Judge Gorsuch's decisions on the Tenth Circuit, two standout as appearing to indicate his view of how a law should be interpreted and whether precedent should be overturned, and the first, which has been talked about before, but nonetheless very important, is a case called Transam Trucking.

The driver, Alphonse Maddin, was stranded in subzero temperatures for several hours with frozen brakes on a trailer -- on the trailer, and no heat in his cab. It was so cold, his torso was numb and he could not feel his feet. After waiting hours for assistance, Mr. Maddin was instructed to drive the cab and the trailer together or not at all. When he could no longer stand the cold, he unhitched the trailer and drove to get help. Because of this, he was fired.

The Department of Labor found he was illegally fired for refusing to operate the vehicle. In fact, the administrative law judge, the Administrative Review Board, and the majority of the Tenth Circuit all agree that he had been illegally fired for refusing to operate the vehicle as instructed by his employer. Judge Gorsuch disagreed. Instead, he argued in his dissent that the term operate should be interpreted by the Oxford dictionary's definition, that operate should include only operating the cab of the truck, and Maddin's employer could fire him with -- impunity.

I find this striking. First, Judge Gorsuch's argument ignores the reality that Mr. Maddin was given an impossible choice -- risk your own life or the life of others on the road. Secondly, it ignores the fact the judges are not evaluating cases and interpreting law in a vacuum or a law school classroom, but rather, cases are about real people and real life.

In fact, the majority of his own court on the Tenth noted that Judge Gorsuch's narrow interpretation of the word operate was based on one dictionary, while they had found a different dictionary definition that supported their reading of the statute. Simply put, which dictionary a judge happens to select should not and cannot determine whether a just outcome is achieved in a case.