and not male applicants about family plans? >> senator, those are not my words, and i would never have said them. >> i didn't say that. i'm ask you agree with them? >> and i don't. >> okay. >> you wrote an opinion that noted that eeoc guidance commands deference, "only to the extent its reasoning actually proves persuasive. the guidance provides as follows. because title 7 prohibits discrimination based on pregnancy, employers should not make inquiries into whether an applicant or employee intends to become pregnant. the eeoc will generate such an inquiry as pregnancy, discrimination, where the employer suddenly makes an unfavorable job decision based on -- do you find this instruction to be persuasive? >> senator, there's a lot of words there. if you are asking me to parse them out and give you a legal opinion and i fear that you may

be, i respectfully say i would have to study it in the course of a judicial case. >> let me where i it right down to the operative words. whether employees should or should not make inquiries aas to whether an applicant or employee intends to become pregnant. >> senator, it sounds like you're asking me a case for a controversy, and with all respect, when we come to cases and controversies, a good judge will listen. sock tease said the first virtue of a good judge is to -- >> i think you know why i'm asking these questions. >> this one i don't. >> the reason i'm asking is because about your views on pregnancy women in 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 april 19th class. it was a gender targeted discussion regarding the hardship to kbrsz 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 didn't 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 add morministrators short 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. 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 benefits from a company and then left the company after having the baby? >> no, senator. i would be delighted to actually clear this up where. >> please. >> 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 seven or eight years. it's been a great honor and pleasure. i teach from a standard textbook

that every professor -- well, i don't know if every professor -- a number of professors use. professors lerman and shrog. one of the chapters in the book confronts lawyers with some harsh realities that they're 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. that's 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 you can see for yourself, senator, which

asks the question and it's 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. hypothetical is that it's 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's a choice too. it's a hard choice. or you can push back in some way, shape, or form. we talk about the pros and the cons in this dialogue that they can think through for themselves how they might answer that very difficult question. senator, i do ask for a show of hands. not about the question you

asked, but about the following question. 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. i am shocked every year, senator, how many young women raise their hand. it's 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. couldn't get a job as a lawyer when she graduated stanford law school and had to work as a secretary. i 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. >> 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.

you made a point yesterday of talking about your four heroes, and one of them was justice jackson. i went back to look at some of his cases. i know of him. i don't know much about him. i found his dissent. this was a case which i thought was fascinating because his dissent was not that long, but it was -- had an impact. it was profound. the question, of course, was it is military orders -- he had to go off to determent camp and the it was upheld an opinion by justice black, but among the dissenters was robert jackson, and his

dissent, he said some things that i thought were pretty interesting, and i would like to ask your thoughts on it. he gave a constitution 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 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. 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 confirm that as well. are we up to it in terms of constitutional protection and the role of the court? >> 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 doesn't happen every where else around the world. we take it for granted in this country. it's a remarkable blessing from our forefathers, says and it is a daunting prospected 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.

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. >> let me ask you about another case that's been referred to. yesterday many of us left elle madden sitting in that truck. it was about 3:00 in the morning on i-88 west of chicago. i've driven it many times. it was in january. the temperature in the cab was 14 degrees below zero. he had no heat ner his cab. his dispatcher had told him to sit tight. you either drag that trailer with the frozen brakes behind you out on to that highway or you wait, and so he waited for hours, and finally feeling numb and life-threatening, he unhitched his 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 el madden's side.

except for one. you. why? >> senator, this is one of those you take home at night. the law said that the man is protected and can't be fired if he refuses to operates an unsafe vehicle. the facts of the case, at least as i understood them, was that mr. madden chose to operate his vehicle, to dry away. therefore, he wasn't protected by chose to operate. senator -- >> you know the distinction, though. the dispatcher had told him don't leave unless you drag that trailer. >> right. >> and he said i can't do it. it's -- you know, the brakes are frozen, and they went out there at 14 below and unhitched that trailer, he thought, because he was in danger. when you wrote your dissent to this, you said it was an unpleasant option for him to

wait for the repairman to arrive. >> i said more than that. >> no, you didn't. you went on to say that you thought that the statute which we thought protected him, you said, especially in the ephemeral phrase health and safety, you went on to write after all what under the sun at least at some level of generality doesn't relate to health and safety. we had a 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're fired, buddy, and you know, he was blackballed from trucking because of that. never got a chance to drive a truck again. >> senator, all i can tell you is my job is to apply the job you write. the law as written said he would be protected if he refused to operate, and i think by any plain understanding, he operated

the vehicle. 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's 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 the highwy in wyoming in a snowstorm. i know what's involved. i don't make light of it. i take it seriously. senator, this gets back to what my job is and what it isn't, and if we're 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 ing of an agency for worker or otherwise. i would point you, for example,

wd sports or casey energy west crane, simpson versus cu. it's just a few that come to mind that i have scratched down here on a piece of paper. >> judge, we up here are held accountable for our votes. i have been in congress for a while, and i have cast a lot of them. some of them i'm not very proud of. i wish i could do it all over again. i've made mistakes. your accountability is for your decisions, as our accountability is for our votes, and if we're picking and choosing, it's to try to get to the heart of who you are and what you will be if you are given a chance to serve on this 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. hob dw 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 didf time twisting and turning and

trying to find some way to take rifra and say that congress really meant corporations like hobby lobby when they said person. it was dictionary law on so many different aspects of this. what i was troubled by, and i asked you then, i'll 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's right and wrong when it comes to family planning and the court says that's what we'll 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 believes 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-end 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's some kind family planning i like and some i don't like. >> senator, i take every case that comes before me very seriously. i take the responsibility entrusted in me in ask the lawy and judges of the 10th circuit am i a serious and careful judge, i think you'll hear that i am. i'm delighted to valedictorian

aopportunity to talk to you about that decision. as you know in rifra, the religious freedom restoration act, congress was dissatisfied with a level of protection afforded by the supreme court under the first amendment to religious exercise. the court in a case called smith versus maryland written by justice scalia said any neutral law of general applicability is fine. that doesn't offend the first amendment. laws banning the use of paoti, native americans, tough luck. even though it's essential to their religious exercise, for example. this congress decided that that was insufficient protection for religion and in a bill sponsored by senator hatch, senator kennedy, senator schumer when he was in it the house wrote a very, very strict -- it says any sin seerply 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, companion statutes, to muslim prisoners in oklahoma, to native americans who wish to use an existing sweat lodge in wyoming, and to little sisters of the poor. hobby lobby came to court and said we deserve protections too. we're 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. they came to court and said we're entitled to protection too under that law. it's 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 didn't 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's what a good judge does. doesn't make it up. goes to the dikdsary act, and the dictionary act congress is defined person to include corporation. you can't rule out the possibility that some companies can exercise religion, and, of course, we know churches are often incorporated. we know nonprofits, like little sisters or hospitals, can practice religion. in fact, the government in that case conceded that nonprofit

corporations conceded that. that's the case. then we come to the strict scrutiny side. >> i don't want to cut you off. >> i'm sorry. >> i'm going to get in big trouble. >> i don't want to get you in trouble. >> with iowa here. >> i think i would want you to continue your answering his question. >> i'm sorry, mr. chairman. >> no. i want you to continue. >> all right. then you've got the religion -- first half of the test met, right? then you go to the second half. does the government have a compelling interest in the aca and providing contraseptive care? the supreme court of the united states said we assume yes. we take that as given. then the question becomes is it narrowly tailored to require the green family to provide it? the answer there, the supreme court reached, and precedent binding on us now and we reached in anticipation is no, that it

wasn't as strictly tailored as it could be because the government had provided different accommodations to churches and other religious entities. the greens didn't want to have to write down and sign something saying that they were permitting the use of devices they thought violated their religious believes, and the government had accommodated that with respect to other religious entities and couldn't provide an explanation why it couldn't do the same thing here. that's the definition of strict scrutiny. now, congress can change the law. it can go back to smith versus maryland if it wants to. eliminate rfra altogether. it could say that only natural persons have rights under rfra. it could lower the test on strict scrutiny to a lower degree of review if it wished. it has all of those options available, senator. if we got it wrong, i'm sorry, but we did our level best, and we were affirmed by the united

states supreme court, and it's a dialogue, like any statutory dialogue between congress and the courts. >> thank you. judge. thank you, mr. chairman. >> senator from texas. >> thank you, mr. chairman. before i start, yesterday in my statement i mentaled an op ed written by -- my apologies to him. with a name like cornyn, i'm used to it. >> i get a lot worse. i got a lot worse the other day. >> the title is why liberals should back neil gorsuch. i would like to include this in the record along with other supported letters. >> without objection, all documents will be included. >> 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? >> that's the easiest question of the day, senator.

thank you. no. , and i have to correct myself. senator durbin, it's not smith versus maryland. that's third party doctrine. it's employment division versus smith. i apologize to you for that. >> i'm 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. you look at who the litigants are and who you would like to win, the little guy, as we've heard, and i'll get to that again in a minute, and then go back and try to justify the outcome, but i agree with you. that's 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's intent or the president's own signature enacting a bill into law. senator feinstein raised the question of back when you worked with senator mccain, 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? >> i think so, senator, to the best of my recollection. >> the question is this, judge. there were some in the administration who wanted a single statement basically that the president was signing the law, but, you know, if you could find an argument that the president didn't have to pay attention to the law, then -- or perhaps had authorities that weren't otherwise laid out in the statute, that the president could disregard what congress had passed and what the

president had signed into law. on the other hand, there were those, like you, in an e-mail 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, 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. 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 cod ify existing law with regard to interrogation practices.

senator mccain made that comment. you at least, i guess -- 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, it's -- here, i'll just read it. the executive branch shall construe title 10 of the act in a manner consistent with the constitutional authority of the commander in chief consistent with the constitutional limitations on judicial power. so that's the statement in the signing statement that you sought to make more expansive and accommodate the three concerns that you raised. isn't that correct? >> senator, your understanding of events is a lot fresher than mine, but i -- sitting here i can't disagree with anything you've said. >> i understand this was, what, 12 years ago.

>> something like that. >> you were asked questions initially by senator feinstein without the benefit of actually being able to refresh your memory from reading the e-mails, but i think we've to rest. i want to talk a little bit about the little guy. you know, in the -- in these confirmation hearings, sometimes very complicated and complex issues are dealt with in a rather simplistic and misleading sort of way. first, i want you to talk abouten aarticle that you wrote in the judicature magazine called "access to affordable justice." 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. you point out that litigation becomes so expensive and so time-consuming that essentially it was out of reach. justice in our courts 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? >> i really 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 can't take total credit for it. i thank them, and you can see who i thank. my point there was three-fold. . starting with the fact that too few people can get to court with

their -- with legitimate grievances today. that's a fact. too few people can get lawyers to help them with their problem. i teach 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? i pointed to three potential sources of problems where we lawyers maybe should look internally rather than blame others for the problem. there's plenty of blame to go around. i'm not a big blame guy, but i am a look inside guy. what do i see in our profession? there are three things that i pointed to in that article. first, our own ethical rules. it's a very unusual profession where we're allowed to regulate ourselves.

it's quite extraordinary privilege. usually the legislature, right? 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? i point to some, frenor instanc 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? that was an example i pointed to. why is it that every time certain companies that provide on-line legal services for basic things get sued every time they move into a new state? why is it i can go to wal-mart and get my hair, teeth, eyes taken care of, but i can't get a landlord-tenant contract drawn up? those are all results of our ethical rules. i'm not sure whether they're

worth the price that we pay for them. it's estimated, i've heard -- i can't 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 and procedure, which yield cases like the one we talked about that took 25 years to resolve. that's wrong. that's wrong. should be able to resolve cases in less time than it takes for my law clerks to be born, raidsed, and get through law school. the third thing i pointed to was our legal educational system where we have three years of post-graduate education for everybody who wants to have anything to do with lawyering. the best lawyer in the country in this history came from your state, senator durbin, and he didn't ever go to law school. he always said the best way to

become a lawyer, read the books. still true. other countries around the world don't have three years of postgraduate legal education. now, this is where justice scalia and this is a disagreement. he thought three years was necessary for everybody. i'm not convinced. in england where i studied you could become a lawyer through three years of an undergraduate degree or one year as a postgraduate degree all followed by a lot of on the job practical training, and i wonder whether all that debt is worth it or whether it induces people to pick jobs that they have to pick to pay their debt rather than serve the people they would like to serve. those are the problems i talk about in that article. >> judge, you make this statement that the rules sometimes yield more nearly the opposite of their intended result. expensive and painfully slow litigation that itself is a form

of injustice. can you think about -- can you think of for people of modest means in america than being denied access to the courts because our system is so expensive it's so time-consuming they just simply can't afford it? i think it's a problem that when 80% of the trial lawyers, best lawyers in the country, they certainly think they are. sorry. when 80 percent of them say that good claims are priced out of court and 70% of them say that cases are settled based on the litigation costs rather than merits of litigation, that's a problem run both ways, and these are lawyers who operate on both sides. >> 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 aren't going to take a contingent fee case unless there is some reasonable prospect for their being compensated out of any settlement and judgment. ordinarily. >> some do. >> what we are seeing, senator, is a -- that is filings by the person without a lawyer, and that's what i was trying to address there. lawyers make a difference. i believe that firmly. my grandpa showed that to me. what a difference a lawyer can make in a life. >> let me ask you a case involving the other guy. this was an immigration case that you'll recall was a conflict between two provisions of immigration law. gutierrez versus lynch. i hope i pronounced that approximately correctly.

do you recall the case? >> dow. we've talked a little bit about it with senator feinstein. i'm happy -- >> i'm happy to hear it again because i heard -- i believe it was senator feinstein -- maybe i'm mistaken there or maybe one of my other colleagues. i apologize if i misstated that. that talked about this deference to administrative agencies as being necessary and fundamental doctrine, but can you explain how that ended up hurting the little guy in that case? senator, in that case there were two statutes that this undocumented immigrant faced. he was trying to renamain in th country. one statute said he had a right it 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 he had to spend time out of the country before he could seek relief. i'm not criticizing congress in

any way here, but those two statutes appeared a little in statute trumped. that the man had a right to apply for immediate discretionary relief and didn't have to wait ten years out of the country. then some number of years later i can't remember whether it was three or four i want to say, don't hold me to that, the board of immigration appeals in its infinite wisdom comes back and says we're wrong. court of appeals got it wrong. the ten-year statute trumps. says, though, that we're not just wrong, but wrong retroactively. it's as if our decision never o for immediate discretionary relief was denied the opportunity to do so and told now he had to go start his ten-year waiting period.

now instead of ten years, it's now equivalent of, what, 13 or 14 years and to me that just seemed like he had the rug pulled out from underneath him. i think a person in this country should be able to lrely on the law as it is, and it's a matter of due process and fair notice when he is told that that's the law. you should be able to rely on it. i think it's also a separation of powers question. when with all respect a bureaucracy can overrule neutral dispassionate judges on the meaning of the law based on their political whims at the moment, that's a separation of powers issue, i think, and maybe an equal protection issue too because a political branch can single out people for disfavor. judges are sworn to treat every person equally in that

vermont -- >> in this case the little guy was actually relying upon a judgment of a court of law. >> yes, he was. >> and was effectively or at least the attempt was to overrule that court decision by an administrative regulation. is that correct? >> yes. >> and if you had applied the chevron test -- we've talked about that a little bit -- said that if it's ambiguous, the statute is ambiguous, and the agency's interpretation is a legal one, then you're obligated to enforce the agency decision rather than the judgment of the court of law. >> we did apply it faithfully, and i also wrote separately to ask questions because i'm a circuit judge. i never drept i would be sitting here, i can tell you that, when i wrote this opinion. part of my job as a circuit

judge is to tee up questions for my bosses,ing and it struck me, here's the question. is this result consistent with the administrative procedures act which says section 706 that we're supposed to defer to agencies when it comes to questions of fact, to the scientists, be to the biologists, but when it comes to questions of law, apa section 706 entrusts courts to decide what the law is. is this consistent with our values of equal protection and due process and separation of powers? those are questions i raised,ing senator, to tee up for my bosses. >> so you actually applied the chevron test in the judgment and wrote a separate opinion raising these questions perhaps for review by the supreme court? >> i follow precedent. >> sounds like even when you disagree with the outcome. >> we got to an outcome we could live with there too, senator, says and applied chevron, but i

did raise in the separate concurrence to raise these questions, and i don't know how i would rule if i was a supreme court justice. i would want to do what a good judge does. keep an open mind, read the briefs, and i could change my mind. i can hear my old boss. he wrote a panel decision at the beginning of the year, and at the end of the year he wrote an opinion for the full court reversing his own panel opinion. some people say that's a man that doesn't have a spine. i say that's a judge with an open mind. well, speaking for myself, the idea that agencies, unelected bureaucrats have the latitude to

interpretate their own legal authorities if the congress is ambiguous and their interpretation is deemed reasonable is a troubling concept because if there's one part of the federal government that is completely out of control of the regular voters in this country, it is the bureaucrats who don't stand for election like members of congress do, and so i hope it's something that we legislatively can look at as a way to help reign in the regulatory state which in my humble opinion has gotten out of control. let me talk to you about the establishment clause. i firmly believe the supreme court has lost its way in limiting religious expression in this country. that's my opinion. part of my conviction stems from an experience i had 20 years ago when i had a chance to argue

before the united states supreme court. i had that chance on two occasions when i was attorney general of texas. this case was called the santa fe independent school district versus chool district in southet 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 united states supreme court where the court held by a vote of 6-3 that student-led prayer was unconstitutional. that led the justice rehnquist to make the statement that rather than neutrality

towards religious expression, that the court now exhibits "hostility to all things religious in public life." we don't seem to have many limits on expressions of sex, violence, or crime in the public square, but we do seem to have conpunctions about religious expression in the public square, and i wonder if you could just talk to us a little bit about your views. not prejudging cases, but the sorts of considerations that you believe the founders, for example, had in mind and, of course, as i'm asking you the question, i'm already thinking through my head here. i'm not asking you to prejudge any future case. let me give you the latitude to answer the question any way you deem fit, but i have to tell you, i'm very troubled by what chief justice rehnquist called

hostility to religious expression in the public square and what that's done to change our country. not in a good way. >> senator, appreciate your thoughts, and it's a very difficult area doctrinally because you have two commands in the first amendment that are relevant here. you have the free exercise clause on the one hand, and you have the establishment clause on the other. you are guaranteed free exercise of religion, and you are also guaranteed no establishment of religion. those two commands are intention because to the extent we accommodate free expression, at some point the accommodation can be so great that someone is going to stabbnd up and say you have established or you passed a law respecting the establishment of religion. right? it's a spectrum, and it's intention, 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 juris prudence to provide a consistent and comprehensive test. i think that's a fair statement. the current dominant test is called a lemon test, and it asks whether the intent is to establish religion, promote a religion, whether entanglement between state and religion. it's proved a difficult test according to six justices at least and have -- never at the

same time. lemon endures. academics have thoughts about various options and alternatives, i know, and the justices themselves have expressed various and sundry ideas. as a judge of the lower court trying to do what the supreme court wants us to do, it's a bit of a challenge in this area. we struggle a lot. >> well, just as one citizen to another, let me tell i think it's -- unfortunately, the result is like chief justice rehnquist said, hostility to religious expression in the public square, and i think our country is poorer for it. let me -- my final topic at least for this round. let me ask a little bit about originalism and texturalism. our mutual friend brian garner mentioned to me that texturalism isn't the same thing as being a strict constructionist. i know we use that phrase at

least kcolloqially some. if a judge isn't bound by the text of the constitution or the text of a statute, what is a judge going to be bounded by? >> well, senator, i hope it isn't what he had for breakfast. you know, when i was a lawyer, all i wanted was a judge who put all of his personal things aside, her personal views, and come to the law and facts in each case fairly. i do think when we're talking about interpreting the law, there's 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's where we want to start for a couple of reasons with the text of the law. first, we go back to the due process considerations, the fair notice considerations we spoke of earlier. before i put a person in prison, before i deny someone of their liberty or property, i want to be very sure that i can look them square in the eye and say you should have known. you were on notice that the law prohibited that which you're doing. i don't want to have to say how am i supposed to tell? i need an army of lawyers to figure that out. some people can afford armies of lawyers. most americans can't. it's a matter of fair notice and

due process. the other part, again, is separation of powers considerations. if i start importing my feelings if i teet statutes or laws as ink blot tests, i have userped your role. i've taken away the right of self-government by the people for the people, took a jog to the lincoln memorial the other morning before the start of all this. second inaugural address. there it is. believe in governmentople. maybe that's the -- gosh, is that the getiesberg address, isn't it? i read them both. thank you, senator. it's the gettysburg address. it's the gettysburg address.

i'm sorry. it's just a matter of separation of powers. it's not my job to do your job. >> whatsoever escapes me is if people who argue that somehow judges aren't bound by the text of a statute, it is the text of the statute that congress votes on. how in the world if it's something else other than the text that ought to direct the outcome. how can anybody have that kind of fair notice that we depend upon so people can align their affairs consistent with the law. it isn't a matter of strict construction. strict construction in my mind sounz like i'm putting the finger on the scale for a particular interpretation. maybe even pro government interpretation. i don't see it that way at all. a judge should try and reach a fair interpretation, what a reasonable person could have understood the law to mean at the time of his actions. that's a pretty good starting

place for fair notice and for separation of powers, i think, senator. >> thank you, over 100 groups dated march 2017, describing judge gorsuch's troubling money and politics record and a letter dated march 9th, 2017, urging opposition to judge gorsuch's nomination and article of neil gorsuch has ties -- >> without objection they will be included. >> thank you. judge, since we were talking about separation of powers, could you just reflect on

whether the constraint that an appellate court is obliged to take the findings of fact as lower courts have found them and can't indulge in its own fact finding or fact making, does that have a separation of powers element to it? in terms of constraining the free range wanderings of a court that can make up its own facts and go in that direction. >> i haven't thought about that the. >> should the supreme court in the question presented try to keep the questionnaire rowed to the case presented so its not using to enable itself to waunder throughout the legal landscapes throughout the constraints of the case? >> senator, it's generally as you know on the facts. the practice of an appellate

court not to review or overturn the facts of a trial court except in the sprens presence o error. >> that's a very important principal that i take seriously. i was a trial lawyer for a very long time. >> and in constraint of -- >> kind of a similar answer on that, senator, i don't know about that but would say it's an important general practice. sometimes there are exceptions that a court can and should go beyond a question presented but it's pretty rare. usually we stick within -- well, the questions presented are whatever the parties present to us on an intermediate court, they get to choose, we don't get to choose. >> that's part of what separation of powers is about, constraining -- >> we refrain from arguments

that haven't been adequately developed for risk of -- mistakes. >> let's talk about money. in particular let's talk about dark money. are you familiar with that term? >> in the loosest sense. >> how would you describe it in the loosest sense to make sure you and i are on the same wave length. >> money not spent by a candidate or party -- >> and where you actually don't know who the true source of the money is. >> okay. >> is that a fair enough definition for us to agree on? >> sure. >> okay. could you let us know first what you know about the campaign that is being run to support your confirmation? there's been a lot of talk how this is outside of politics an

we're above politics but there's a group planning to spend $10 million on tv adds in which their own press release describes as a comprehensive campaign of advertising, media research, grassroots activity, all agd up to the most robust of political battles. sounds pretty political to me wonder how much you have heard about it? >> a lot about it, senator, i've heard a lot about it from you and others. >> what do you know about it? >> i know there's a lot of money being spent as as i understand it it by both sides. >> well, i wouldn't leap to that conclusion at this point. >> okay. i know what i have heard and read from family, acquaintances, i know what you have just indicated -- >> do you know who is spending

the money? >> senator, i could speculate based on what i've read and what i've heard, but i don't know individuals who are contributing. i don't know that. >> do you know if your friend mr. -- is contributing? >> i don't know. >> do you think that it should matter who is contributing? do you think there's a public interest in the public knowing who is contributing? >> well, senator, i think we've got a long tradition from buckley versus vallejo, indicating that this body has robust authority to regulate disclosure. >> but my question is do you think there's a public interest in disclosure of political funds in a democracy.

that's i don't think a prejudgment. that's just a values proposition and one of the considerations that you ought to be able to answer without much hesitation. >> and senator, what i'm prepared to say is i recognize that as a matter of first amendment interest the supreme court has validated the proposition that disclosure serves important functions in a democracy. at the same time, the supreme court's also acknowledged those disclosure functions can sometimes themselves have unintended consequences as with the naacp case which i know you're familiar with where you can use disclosure as a weapon to try to silence people. and we have a long history in this -- >> hardly the case with respect to the dark money operation that is funding this campaign in your favor, isn't it? >> senator, i'm not prejudging any case. what i am suggesting to you is that there are interests here in

the area of first amendment disclosure. that's what we're talking about in my mind generally what are competing, in order for voters and citizens to make decisions the supreme court in buckley validated the interest that this body has in regulating disclosure. >> and the theory so did the citizens united. >> in citizens united. and also recognized in naacp. >> we're going to break a way for a while. sean spicer is at the lectern now. >> after president obama signed obamacare into law, we are hoping to make this the last -- now under president trump we will finally be able to take the step forward reform over health

care system. i think americans remember the line used if you like your doctor you can keep your doctor, if you like your health care plan, you can keep your health care plan, but for those americans those prove to be nothing more than empty promises, premiums and deductibles skyrocketed leaving many who had plans unable to use them, insurers fled the place, one in five americans only have one insurer on their plans, president trump and congress will keep their promise by reforming the system once and for all which is what we are doing with the american health care act and part of the three-prong approach that we continue to outline will finally give the americans health care system they deserve, leads to more affordable higher quality health care opportunities.

this is an on going process and the president has made it clear congress should be open suggested by members in both chambers who share their commitment to improving the health care system. the house introduced several technological including immediate relief from obamacare taxes from 2017 rather from 2018 ensuring that millions who paid obamacare taxes can reclaim them. protecting life by prohiblting taxpayer dollar being used to purchase insurance plans that cover abortions, maintaining baseline funding for elderly and

disabled populations giving the states the optional work requirements for able bodied dependants as part of medicaid programs, allowing for a responsible unwinding so people who enroll before 2020 will continue to be support beside i the program and providing a more generous program recognizing those pop lulations have unique needs. after returning the president received his daily intelligence briefing then signed s 442 the nasa administration transition authorization act of 2017 acting on another of the president's most ambitious promises to the american people. many may recall in his joint address the president said quote american