in there and having hi daughter there is shaping the power struggle. maria: whose side is she on? >> gary cohn and liberal. >> if you don't vote for this, you're standing with nancy pelosi and own that when it's reelection. maria: stuart varney is up. stuart: thank you, maria. russian meddling, bugging trump tower, distractions, right now, the president's getting down to the serious business of legislating change. this is the real make or break. president trump's about to meet with all house republicans. he wants unity, he wants a yes vote on thursday in ending obamacare, he must win that vote to keep his program on track. he stumped for it at a raucous rally in kentucky last night. 18,000 people. a half mile line to get in. he said, finish with obamacare and get on with cutting taxes.

however, headline in the wall street journal today, conservative house republicans say they have the votes to block health care. how about that? well, the salesman in chief, that would be president trump, is trying to turn that around as of right now. you are going to see a grit deal of political nastiness today. democrats get their chance to question supreme court nominee neil gorsuch. yes, it will be nasty and you'll see it. it seems investors not distracted. stocks will open just a little this morning. if the tax cut is still on track the trump rally is still on track. watch it unfold with us. "varney & company" is about to begin. ♪ >> due to unprecedented treatment, judge garland was denied a hearing and this vacancy has been in place well over a year.

i just want to say i'm deeply disappoint that it's under these circumstances that we begin our hearings. >> i do not know of any other supreme court nominee who was selected by interest groups rather than by a president in consultation witthe senate as required by the constitution. >> your nomination is part of a republican strategy to capture our judicial branch of government. >> we have a predicament. in ordinary circumstances, you should enjoy the benefit of the doubt based on your qualifications, but several things have gone wrong that shift the benefit of the doubt. stuart: oh, you could say they were somewhat harsh words from democrats for neil gorsuch, the supreme court nominee. back on capitol hill later this hour, another grilling is coming, this one could get nasty. political payback maybe for merrick garland and the democrats stop everything.

and president trump is on capitol hill doing his best to rally republicans to get obamacare passed on thursday. james freeman with the aul wall street journal editorial page. will he get unity yes or no. >> yes, i think so. stuart: what about the headline, conservatives say he's not got the vote? >> this is testing his sales skill. this is the art of the deal. this is not like a joint session of congress where he's just talking, it's a town hall style, you've got microphones, individu members firing questions at him so he's going to have to deliver and explain the plan, explain why they have to get on board. stuart: the stakes are extremely high. >> they are, yes. stuart: if he doesn't get the unity, if he doesn't get the yes vote on thursday, when the house votes on the obamacare plan, if he doesn't get that, i'm saying that that really unraffles his legislative schedule. is it that bad?

>> well, he has to get a win here. i don't know if the win has to occur thursday. let's say as a hypothetical that he gives more concessions and you still have the house freedom caucus, claims it has more than 21 votes need today defeat this plan and let's say he goes further and says, we'll do more to get rid of more mandates on what has to be in an insurance plan. my personal view is that probably would pass the senate rules, that could be part of the plan. people differ on that, but whatever he has to do to get the deal done, he has to win this. i don't necessarily think it has to be the plan currently sitting on the table. stuart: ash. ashley: the problem he has, he's trying to match what will keep the conservatives to the right of the party happy while not upsetting the moderates. it's a very difficult line to break, because as you can see to one group, you upset the other. stuart: he's on negotiator, negotiator in chief and he'll

negotiate today and as of right now. ashley: self-professed king of that so we'll see. stuart: we do politics and money, viewers know that's what we do. no reprieve for stocks, the tax cut this year, the pushed hard for it last night so we're going to be up 10, 15, maybe 20 points at opening bell. price of oil of no consequence of the stock market, around $48 a barrel, and wells fargo, opening accounts on that, and they're opening up at $57 a share. almost said a barrel. deutsche bank. whoa, looking at fines in the currency markets. can you explain. liz: it looks like they faced fines from the new york federal serve and state regulators of new york. avoided fines by the department

of justice. it's a nasty probe that hit banks and 10 billion in fines from global regulators. if they got off scott free, it looks like from the justice department, it's getting hit hard because they face fines from the new york federal reserve and-- >> all the way down to $17 a share, got it. we're minutes from the senate hearing on the hearing for nominee neil gorsuch. we're joined by the senator from the senate judiciary committee. are you going to need 60 votes in the senate? do you have 60 votes in the senate to get him through? >> whether we have 60 votes or not, i don't think we'll go through a filibuster. i think that neil gorsuch gets confirmed and is on the supreme court and take care of that before easter. stuart: do you think they laid a glove on him yesterday? >> not really. i'm going to sit through the entire hearing today which should be about 12 hours and i

look forward to call into question their line of question. you almost think that trump or leader mcconnell or merrick garland is before the judiciary committee. neil gorsuch an eminently qualified candidate for filling the vacancy on the supreme court, the guy we need to talk about. he's a strong candidate and i look forward to calling the democrats for going down rabbits holes, i don't think they should. stuart: the question as i see it, will justice gorsuch, does he legislate from the bench or not? >> not at all. if you look at his summary of jurisprudence. this man is independent. he reads the constitution, and understands them. reads the prevailing laws and interprets them. >> what i'm hearing is the fight over judge gorsuch is

nothing over the fight of the next supreme court nominee, if there is one in the trump first term. do you agree with that? >> i think that's likely true. the reality, this is a pattern of behavior that dates back to harry reid. it's a do-nothing sort of attitude on the part of the democrats, the minority. we've got to get things done. we've got to support this president and move through an agenda that got us elected, the majority, got him elected to the white house a. stuart: senator tillis. enjoy those 12 hours in the chamber? >> look forward to it like march madness. stuart: you'll be on fox busiss. seyou later. gregg jarrett is here, and describes himself as a recovering lawyer. >> we all sinned and i became a lawyer for a while. stuart: and now you're sitting next to me. >> things are getting worse, aren't they? whew. [laughter] >> i say that judge gorsuch gets confirmed.

>> oh, yeah. stuart: and that he will not need 60 votes in the senate. >> i think that's true. democrats don't want to kwanneder their filibuster right now. wait until a ginsburg replacement. second of all, you need qualities of gorsuch. he couldn't be bourked as much as democrats would like to do it, why is a different personality and demeanor, and second of all, america have come around to originalism which gorsuch, like bourke, engaged in a full-throated embrace. originalism isn't the bogeyman like it was in 198730 years ago when bourke was the first to advance it turning a confirmation hearing and utterly smeared by ted kennedy. ted kennedy is gone and so is joe biden and all you've got left is al franken, kind after clownish pretender. [laughter]

. stuart: and you see-- >> see, made you laugh. al franken does make people laugh. stuart: that was a nasty comment there. >> you see see me when i take my hair piece off. it's real, folks. stuart: will you agree here and now sitting with me for the next two hours to sit with me through the hearings? >> it will be painful, but i'll do it. stuart: you're a good man, jarrett, i don't care what they say. thank you, sir. it's another big day on capitol hill. the senate judiciary committee grilled mr. gorsuch and there could be fireworks in this one and we'll take you there live when it starts. the department of homeland security saying, listen to this one, airline passengers from eight major majority countries cannot bring on large electronics on the carey-- on. they can put it in the baggage,

but not in the carryon. stuart: how about this one. the irs taking this to a satanic cult and took them eight days to catch their mistake. i'm glad they caught it. ught , warren, to help me deal. isn't that right warren? well, you could get support from thinkorswim's in-app chat. it lets you chat and share your screen directly with a live person right from the app, so you don't need a comfort pony. oh, so what about my motivational meerkat? in-app chat on thinkorswim. only at td ameritrade.

>> now we're waiting for the president to arrive on capitol hill. he's on his way, we believe. he will then hold a meeting inside that building with the house republicans. he's trying to persuade them to get behind the plan to change obamacare. he wants unity. he wants it through. i'm sorry, that's the supreme court building. the president will arrive near there any moment. why we've got the supreme court, not quite sure. the department of homeland security has announced a ban on big electronic devices, manning them from the passenger cabin on flights from eight majority muslim countriesment okay, which countries, they're direct flights.

ashley: we're talking egypt. dubai, saudi arabia, morco, waitjordan. the department of homeland security said extremists are seeking, quote, innovative methods to bring down jets. so you can't bring in, laptops, dvd players, cameras, how many people bring dvd players? and you can't put them in checked badge. and wonder, can't they go off in the cargo as well as the cabin? they're talking about bringing in some that they can-- >> they're talking about chatter. >> talking about emirates, big global airlines, that now have to conform to the new rules. stuart: how about that? we have the-- that is the president's mode cade, part thereof, arriving.

ashley: the truck. >> the red truck? i see beyond the red truck. [laughter] >> garrett, you've got a sense of humor, try to hold it in check. [laughter] >> the president's motorcade on the way to capitol hill where the president will meet with house republicans and persuade them to vote yes on the obamacare bill. that's a big deal. and james comey and nsa rogers refuted president trump's wiretapping claim in front of a committee yesterday. governor huckabee is here now. and many viewers are angry about the 6 a.m. tweet about president obama bugging trum tower. if it wasn't for that we'd concentrate on what the president is doing with

obamacare. >> we say that, but truth is, if it wasn't that, the press would find some other reason to be upset with donald trump. let's just accept this. the press hates president trump more than they loved obama and they loved themselves some obama for eight years and this is the way it is. donald trump is going to tweet. he's going to say what he thinks. i like the transparency. sometimes he may step on his own tongue, but so what? i'm delighted to know what he's thinking. it's refreshing. stuart: this is a long running distraction, it's not going to go away. it's at the president's own making. he shouldn't have done this, should he? >> well, i'm not going to argue with him. look, he's the president, i'm not. he gets to do some things the rest of us don't get to do. we can argue he shouldn't do it, but you know what? every time we think he's done something really over the line, time typically ends up confirming that he was more right than it was wrong. i think, let's cool our jets on this one.

we may find out there was a heck of a lot more going on in terms of surveillance. do i think that obama personally ordered it? no, i doubt that, but was there surveillance of private citizens? i think we're going to discover there most certainly was and the new york times said that back in january, so, it's not like that only the trump supporters have even made that allegation. stuart: when the president gets into the meeting with house republicans today he's not exactly on trial, but it's a test of his ability to negotiate. do you tnk he's going to get the votes he needs for the thursday house vote? >> well, i think like any good deal maker, he's going to end up seeing some changes to the deal. i don't think he'll get it for the bill that is currently in form, but remember, no matter what comes out house and the senate. the senate never looks at something the house did and said, gosh, the house, they're terrific and wonderful, let's leave it and don't touch it. that's never happened in the

history of america and it's not going to happen now. part of the deal, this is always in transition, there's always going to be little sausage making going on, not necessarily fun to watch, but it will come out and i think he's going to prove himself to be a great deal maker. stuart: we hear there are tweaks in the works, such as more tax credits for older people, states can impose a work requirement on medicaid recipients. states can get different options how they receive medicaid funds. those are tweets which might help, i presume? >> they're tweaks that help. it needs to be bolder. let states have approaches, co-pays, deductibles, as well as some premiums involving medicaid that is affordable and they also need to realize that tax credits don't mean didley squat to somebody who is broke. a tax credit next year is irrelevant. i know they love to play with

words like let's don't have a subsidy, but, stuart, if you're poor and you can't pay the premium, getting a tax credit next year does not really help you and somebody's got it get out of that think tank mindset and get to the real world where unemployed and barely employed people live and change the approach. stuart: at the end of the day does it go through the senate and get something out there signed by the president by the end of the spring? do you think that? do you think that's going to happen? >> i think it will, but let me just give this warning, it better be darned good because the republicans will own this and what they do with this, if it's not good, if it's not significantly better than obamacare, then they're going to pay dearly for in the 2018 elections and could cost them the majority in either the house, the senate or both. stuart: may i have a quick comment, you were the governor of arkansas. the state is going to execute eight inmates in a ten-day

period. your comment on that, governor? >> it's the only way that they can do it within the context of what the courts have considered in light of the medications used. it's a tough call, but it can be done and people need to understand, this is a good reason that this gorsuch appointment is so important. the courts have got to start acting with a reasonable level of application of the law. the reason we're in the mess we're in with executions across the country is because the courts have intervened so much in what medications can be used, how it has to be applied, that what are arkansas is facing, they have a window of opportunity, and governor hutchinson is making a thoughtful, tough decision, but carrying out the executions, which is his responsibility under the lawhether like or not, it's his job, he has to do it within that window. stuart: thank you we appreciate it. >> thank you.

stuart: the president will hold the meeting with the house republicans pushing for the vote on thursday of the last night in kentucky he was pushing hard to get that vote done and move on to tax cuts. it seems the market believes him. we're going to open, 20, 30 points higher on the dow industrials this morning. we'll be back.

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>> well, you're seeing now, president trump arrived on capitol hill. he's walking in. there's tom price behind him, who managing obamacare and changes through congress. he's walking into a meeting with all house republicans. earlier we saw kellyanne conway arrive and gary cohn arrive. all hands on deck, the negotiator in chief has his work cut out for him, he's got to persuade republicans to vote yes on the bill on thursday. there was a headline in wall street journal, read conservative house republicans say they have the votes to block the health bill. so, the negotiator in chief, as we said, has his work cut out for him. he needs those votes and needs them on thursday and trying to persuade them to vote yes now. the price of cold is up this morning, $3 higher.

we're well above $1200 an ounce and futures now suggest a gain of about 25, 30, maybe 35 points right there a the opening bell. now, tax cuts, the president said last night at a big rally, tax cuts are coming late this spring. listen to him. >> thursday is our chance to end obamacare and the obamacare catastrophe, and begin delivering the reforms our people deserve. then we get the tax cuts, and remember, we're going to negotiate and it's going to go to the senate and back and forth, the end result is going to be wonderful, and it's going to work great. stuart: okay. it goes back-- lots of waving of hands and backwards and forwards and that's what's going to happen. and steve cortez is here and he's a money guy. is it this simple, steve, if we

don't have tax cuts we don't have a trump rally, it will end, it will fade, that simple? >> i'm afraid it is that simple, but i believe that's the potential negative out there, but i also believe we're going to get it, we're going to get obamacare repealed and replaced and going to get the tax cuts. i believe that president trump will stake his presidency on getting these done and so, i think the market, by the way, certainly believed that. there's consternation among the mainstream media and capitol hill, can we get this done? and the stock market is saying, yes, we can and will. stuart: i think there was distraction with the russian meddling, wiretapping or whatever of trump tower. i think that's a distraction from the main issue, which is the president's legislative agenda and whether or not he can get growth back to the american economy and that's where we stand. >> right. stuart: with about one and a half minutes to go before we open up trading this wednesday, this tuesday morning. the left-hand side of your screen, that's capitol hill. at's the senate judiciary

committee, which in a couple of minutes will gavel itself to order and the question of judge gorsuch will begin. you will hear some of that. could get kind of ugly when the democrats have a chance to go after the judge, but that's secondary to what's going on in the markets. the markets want a tax cut, they want a tax cut this year, they want obamacare to get passed, and say goodbye to it. they want to cut taxes. liz: this is tough for the president because remember in february he said we would have a phenomenal tack cut plan in two or three weeks and that didn't happen, did he stumble out of the gate with obamacare reform first. james made a good point you need 21 g.o.p. house republicans to go for obamacare reform. and mark meadows says they have 30 to 40 to block it. and to get to the senate, already, three top senators are blocking obamacare reform, ted cruz, rand paul and susan collins.

stuart: it will have to change and the president went to kentucky rand paul's home territory. liz: it's already changing. stuart: there are tweaks add today that bill. we've gotten seconds to go and then we open up the market this tuesday morning and we're going to open a little higher. it's not a rally or an explosive rally anything like that. here we go, it's 9:30. we're off and running and the dow opened with a 52 point gain. how about that. justice gorsuch is just entering the senate judiciary committee chamber where he will be questioned later. right-hand side of your screen. we've got a rally. i'm not going to call it a rally so much as an up-side move on a tuesday morning. agree on that one. okay. go ahead. >> i would add, remember, the obamacare repeal and replace is a tax cut. stuart: that's true. >> nearly 900 billion and cutting more than a trillion in spending. as we start to get that--

>> i'm hearing that some of the tweaking going on is to back date the cuts in obamacare to back date to january the 1st. that's a plus? >> you look at whayou mentioned, ted cruz, mark meadows, house freedom caucus. if the bill moves in that direction you're talking about lost costly for taxpayers, you're talking about a bigger tax cut, if you will. stuart: okay. steve cortez, again, money guy, trump guy, come back in, please. >> do you think we're about to see another leg up for the trump rally? >> i will tell you, too, again, while watching the process isn't always pretty, i will tell you the president was born for this, the art of the deal and revels in this kind of negotiation. i was privileged to meet with him in the oval office and he's having a blast at this job and loves this process and nobody can do it better than he can. and say this on the negative side. one of the reasons he went to kentucky and he did praise senator rand paul, but to send

a message, do you want to go back and face your voters in your district, if your state, in republican districts where the president is incredibly popular and do you want to have to defend the fact that you somehow impeded the trump tax cut? >> i don't think the members of congress will ultimately want to do that. stuart: that's called leverage, steve cortez. by the way when the president went into capitol hill reporters shouted questions at them. do you think you have the votes to pass the bill on thursday? the president replied, i think so. he's usually more emphatic. it's going to be wonderful and fantastic. he said, i think so. when asked do we have the votes. neil gorsuch taking his seat there. the questioning will begin. and by the way, again, from the markets now, the nasdaq has just hit another record all-time high. the price of apple stock has also hit another all-time high. facebook also hit another all-time high. it a--

the producer is telling me this in my ear, it's a broken record. amazon is at an all-time high. netflix is it at an all-time high, this market, especially the big name technology stock has gone up very nicely. 41 points higher for the dow industrials this tuesday morning as neil gorsuch prepares for a grilling in front of the senate judiciary committee. quick point here, google apologized for commercials that appeared before extremist videos on its youtube site. google is trying to fix it. i'm not sure what's happening with google stock thus far this morning. liz: 250 companies upset with google for basically youtube videos from terrorist groups and pro nazi groups carrying ads from volkswagen, mcdonald's, lloyds of ndon, you know, toyota, heinz, all of these companies very angry and they're saying, google, you're not doing enough. your algorithms are not doing enough to block this. you need a person, a body on

this. google is not doing enough, they say to stop this problem. so they're boycotting and google is the biggest advertiser in the world. stuart: it's a big deal, but the stock is up $3 at 870 an ounce. that's pretty close. 870-- i'm sorry records on netflix, alphabet. we've got apple and facebook, all of them at record highs. the dow marching 46 points higher. there you have it, the stocks going straight up as of this morning. they're waiting for one more member of the judiciary committee to arrive and then gavelled up. apparently the-- mr. gorsuch there is having a friendly joke there with a member of the panel there. liz: look at this, we're about 30-- dow 21,000 we're still on the watch for that. stuart: yes, we are, 32 points. steve cortez. >> one thing i want to mention that's fascinating.

when i talk to colleagues and customers on wall street, vehement vehemently against trump, opposed him, didn't vote for him, bummed. and they're wall street people and i can't tell you how much their opinion turned. not that they're trump supporte, but listen to the president because of the policies. the proof is in the ing and we can't ignore what's going on on financial markets. people with skin in the game at risk are betting that the trump rally is real, the trump expansion, forget about the stock market, the expansion of the economy not just for wall street, but main street is real. the optimism how we can grow is palpable. stuart: that's the ignored story. there's signs of growth, optimism in the economy and that's why the dow is up another 60 points and the trump rally holds. >> i will add while we're waiting for the tax cut to justify these valuations and

this rally we're seeing the other piece, quietly there's been deregulation, washington getting off the back of business and that's why you mention the confidence there. you see in the small business owner surveys and see it in consumer confidence. what we'd like now is reforms and tax regulation some of the hard data to show that we've gotten out of the obama slow-growth phase. we've got a good employment report, but we need the policies to get to the 3, 4% growth a year we want. stuart: i doubt whether anything said in the senate judiciary committee hearing today will have much impact on the stock market. i can't see that a the all. this is all aboue makeup of the supre court. we are going to have a very long session today. roughly 10 to 12 hours of questioning, of the judge who you see right there. it's just getting underway. senator grassley gavelling them to order, beginning his opening

remarks. he's just getting going. let's stay on the market for a second. there you have justice gorsuch. what's the correct form of address is judge gorsuch? >> yes. >> if he becomes a supreme court justice he then becomes justice gorsuch, am i right. liz: it's interesting as we watch it, it's truly about the trump agenda pushing forward and neil gorsuch has been a part of this. senator schumer wants to block it, they've been reporting. there are more than a dozen democrats sitting who did approve gorsuch for the appeals court ten years ago, obama, bidens clinton for him, leahy and feinstein said. ashley: don't they have the nuclear option. >> to harry reid. >> they'll get it through. >> sending them a christmas present with a big bow.

stuart: am i right in saying, if it looks like judge gorsuch's confirmation is in trouble, then the leader. senate, mitch mcconnell say, okay, we'll go to a straight vote. you need 51 and you're in the you could do that? >> you know, i mentioned earlier that gorsuch is ideologically identical to robert bourke, who was infamous defeated back in 1987, but their personalities are completely different. i mean, bourke was dour and combative. gorsuch is just the opposite. he's eloquent and witty and charming and he is not going to face the kind of tough questions that bourke did. stuart: knowing what you know about judge gorsuch, would you say that he would legislate from the bench? >> no way. stuart: no way? >> he is like bourke and scalia an originalist, which means he ininterprets as a judge the original words as written by

the authorities of the constitution, not an activist judge who legislate from the bench, the hopes and dreams of the litigants and what a living constitution might be. >> in terms of his manner, you get the same story with people who worked with him through the years, courtesy and professionalism and don't see, there's no pressure on moderate republicans to abandon him. it's a great candidate. and democrats, they're saying what you expect them to say and their hearts are not in it and liberals understand it's not a fight they'll win. liz: it's all an about a question-- sorry, steve. it's the litmus test of questions, he wouldn't have to answer those because he would have to recuse himself if he did answer. joe biden set that rule in 1993 for ruth bader ginsburg and dates to '67. they're not suppose today weigh

in issues that could appear before the court. >> that's what got him in trouble. stuart: for the benefit of viewers who are just joining us or radio listeners on satellite. the story, there are three items on the agenda this morning. our viewers are looking at judge gorsuch anse grassley, they're about to open up the next round of hearings that will go on for a long time of judge gorsuch to the supreme court, that's issue number one. issue number two, president trump who arrived already on capitol hill for a session with all house republicans, he's the negotiator in chief and trying to get them to vote yes and have the vote go through on thursday that repeals and replaces obamacare. item three, the stock market, which is not distracted by the talk of the russians and the russian meddling and bugging of trump tower, not distracted at all. they're looking at an economy that's beginning to grow. where we do have confidence, there is optimism and they're

not distracted by political turmoil and bingo, we're up 54 points. we're going to listen to the first question to judge gorsuch from senator grassley. >> do you have trouble ruling against a president who appointed you. >> i'm sorry, that's a softball, mr. chairman. i have no difficulty ruling against or for any party, other than based on what the law and the facts in the particular case require and i'm heartened by the support i have received from peoe who recoize that there'no such ing as a public judge or a democratic judge. we just have judges in this count country. when i think of what judicial independence means, i think of byron white, that's who i think of.

i think of his fierce, rugged independence. he did his-- he said, i have a job. people asked him what his judicial philosophy was, i'll give the same answer, i decide cas cases. it's a pretty good philosophy for a judge. i listen to the arguments made, i read the briefs that are put to me, i listen to my colleagues carefully, and i listen to the lawyers in the well, and this experience has reminded me what it's like to be a lawyer in the well. it's a lot easier to ask the questions, i find, as a judge than it is to have all the answers as a lawyer in the well. so i take the process, the judicial process very seriously. and i go through it step by step and keeping an open mind through the entire process as best i humanly can and i leave all the other stuff at home.

and i make a decision based on the facts and the law. those are so of the things judici independence means to me. itns to me, the judicial oath that i took to administer justice without respect to persons. to do equal right to the poor and the rich. and to discharge impartially the duties of my oath. it's a beautiful oath. it's a statutory oath written by this body. that's what judicial independence means to me. happy to talk about the separation of powers, too, if you'd like, mr. chairman, which you referenced there, i'm happy to answer another question, entirely up to you. >> well you record made clear you're not afraid to fulfill your role independently and you just emphasized that. you vacated orders of administrative agencies, acting outside their authority, and you ruled on cases where congress has overstepped its

bounds, so, i think you can maybe speak about the separation of powers, but at the same time, maybe you could give me a couple of your cases that demonstrate your commitment to that independence of the executive branch of government. >> sure. on the first point, you know, i have decided as i noted yesterday, over 2,700 cases and my law clerks tell me that 97% much them haveeeunimous. 99% i've been in the mority. they tell me, as well, that according to the congressional research service, my opinions have attracted the fewest number of dissents from my colleagues of anyone i've served with that they've studied over the last ten years. now, the congressional research service speculates whether that's because i'm persuasive or i believe in cleanlyiollegic

i don't see why it has to be a choice. my law clerks also tell me in the few cases where i have dissent dissented, i'm almost as likely for a democratic colleague and a republican colleague. that's because we don't have democrat or republican judges. according to the wall street journal i'm told that of the eight case that is they have identified that i've sat on that have been reviewed by the united states supreme court, our court was affirmed in seven of them. now, i think louise might argue for the eighth because in that case the supreme court didn't like a procedural precedent as a court we were bound to follow so they remanded it back. we decided on the merits as the court instructed, denied. eight out of eight.

on the separation of powers, it is, mr. chairman, the genius of the constitution. madison thought that the separation of powers was perhaps the most important liberty guaranteeing device in the whole constitution and this is a point of civics that i do think maybe is lost today, how valuable of separation of powers is. that you have in article one the people's representatives make the law. that's your job. and i don't think it's an accent the framers put article one first, your job comes first to make the law. article two, the president's job is to faithfully execute your laws and our job, article three, down at the bottom, is to make sure that the cases and controversies of the people are fairly decided. pan if those rules were

confused, and power amalgamated, founders worried that that would be the very definition of tyranny and you see why. we're life legislators can't get rid of us. or 9 or 12, depending on the court. and it would be a pretty poor way to run a democracy. and at the same time, with respect, legislators might not make great judges because they're answerable to the people and when you come to court with a case or a controversy about past facts, you want a neutral, rigidly neutral, fair, skru scrupulousl

fair person to put that aside. the separation of powers, i don't think has lost any of its1 genius over 200 years, in fact, it's proven it. >> thank you. i've heard my colleagues and-- >> i just want to get a comment now from gregg jarrett, a recovering lawyer with us for the next couple of hours. judge gorsuch opened up there and said to senator grassley, that's a softball question. i was surprised and then an eloquent response by the judge. >> the man is possessed of uncommon eloquence and it's going to get him through this. he'll sail through this confirmation process, i would predict as a consequence of it. i've gone through all of his major decisions, as an appellate court judge. there's nothing in there that raises a red flag. the way there was with robert bourke 30 years ago. so, you know, there's not a lot

of air there. he said at the outset he doesn't get up every morning and doesn't pledge of allegiance to donald trump. he has a fidelity to the law as written and also said and written extensively railing against liberals and activist judges. so, he is who he is. he's a conservative, he replaces a conservative, if confirmed here, and i just don't think there's a lot of ammo against him. stuart: he seems very comfortable. he's talking to his friends and his wife right behind him, lots of smiles here. it's hard to see democrats, james, it's hard to see democrats opposing him for who he is and what he stands for, it's really opposition to all things trump that they're going to go for, isn't it? >> that's certainly the strategy to tie him to the president because he's obviously making a great impression on television and he's given them nothing to go after him with, and the record

is outstanding. you look back, i was corresponding with one of his, a person who was a few years behind him at columbia and saying even then, the same person you're seeing today and the same person you've seen through his legal career, very, very courteous. stuart: look at him. >> impressive, eloquent and-- >> charming. >> charming and thoughtful and most of all, this is someone who obviously, you see him there talking about the article three powers and versus article one and article two and he's like a law professor where you'd want to actually audit the class even if you don't have to. stuart: it's hard to demonize someone who comes across this way. ashley: that's going to frustrate the democrats. stuart: and what's going on, the senate judiciary hearing for judge gorsuch and secondly, president trump is meeting with all house republicans persuading them to unify around

the vote on thursday to repeal and replace obamacare. on the market, we've got a dow jones industrial average up 35 points. that hides the real story. the big story on the market this morning is again, the big technology name, apple, facebook, not microsoft, but amazon, and facebook, and netflix. all at record highs. all of them up this morning, pushing the nasdaq, home of a lot of technology companies, way up again to another all-time record high. that's the back drop to what you're seeing right there. left-hand side of your screen, the hearing for judge gorsuch. lizzie. liz: it should be noted that when judge gorsuch responded to senator grassley, he was essentially asking, can you be dispassionate and separate yourself from the trump administration and he said that last month. when talked with the judge and

said that was disheartening and he laid that down. stuart: i'm going back to judge gorsuch, he was just asked about independent from legislators. independent from president trump, yes. how about independent from legislatures. >> and your 12 co-authors included judges from across the ideological spectrum, such as bill pryor, who was also on president trump's supreme court list, and diane wood, who was reportedly on president obama's li list. you've also touched on the value of precedent in speeches that you've given or in your opinions. for example, in the speech you gave honoring justice scalia last year, you said this,

quote, even when a hard case does arrive, once it's decided it takes on the force of precedent, becomes an easy case in the future, and contributes further to the determination-- determinancy of our law, especially if recent opinions called into question the rati rationale of the individual case. you also suggested there may be circumstances where it's appropriate to revisit precedence. specifically you wrote that it may be appropriate to reconsider a decision where it has become a, quote, precedenceal island and so there may be times where it is appropriate to reconsider certain decisions especially if more recent decisions have

called into the rational decision. brown versus board of education which finally overruled a repugnant example of this. with these in mind i'd like to take to the supreme court precedence. can you tell us the value of press deps in our legal system? >> absolutely, senator, and if i might, mr. chairman, go back just a moment to promises. i have offered no promises on how i'd rule in any case to anyone and i don't think it's appropriate for a judge to do so, no matter who is doing the asking. and i don't, because everybody wants a fair judge to come to their case with an open mind and decide it on the facts and the law. one of the facts and one of the

features of law that you have to decide on is the basis of precedence as you point out. and for a judge, precedent is a very important thing. we don't go reinvent the wheel every day. and that's equivalent point of the law of precedent. and we have an entire law about precedent. the law of judicial precedent. precedent about precedent, if you will. and that's what that 800-page book is about. it expresses a mainstream concensus view of 12 judges from around the country, appointed by, as you point out, presidents of both parties, great minds, justice pryor was kind enough to write a forward to it. it makes an excellent door stop. and in it we talk about the factors that go into analyzing precedent, any consideration of precedent, and there are a bunch of them. you've alluded to some of them. the age. precedent, very important

factor. the reliance built up around the precedent. has it been reaffirmed over the years? what about the doctrine around it? has it built up, shored up or has it become an island, as you point out. those are all relevant considerations, its workability, can people abide it or too confusing for the lower courts and their administration? those are factors that a good judge will take into consideration when examining any precedent. you start out with a heavy, heavy favor for precedent in our system. alexander hamilton it's one important feature-- i think it's hamilton, one important feature of judges, if we're going to give them life, tenure, and they should be

pound by precedents. and another called it precedent is heavy in the law. you consider the factors in that light and, yes, in a very few cases, you may overrule precedent. it's not an inexorable command, the supreme court has said. that's the law of precent, as i understand it and i believe as expressed in that book with my very highly respected colleagues. >> the lower court judge, you're bound by not only supreme court precedent, but, as you've demonstrated, the precedent of your own court, but as a supreme court justice, part of your job will be to decide when existing supreme court precedent need not be reconsidered. how will you decide when you revisit existing precedent? >> mr. chairman, i don't think the considerations change. it's the same analysis that i

would have as a supreme court justice if fortunately enough to be confirmed, that i have when i'm considering circuit precedent as a circuit judge. it's the exact same process. the exact same rules apply. >> okay. this is the 14th sprek hearing that i've participated in, so i have a pretty good idea of some of the questions that you're going to get today. you're going to be asked to make promises and commitments about how you'll rule on particular issues. now they won't necessarily ask you that directly, for instance, how will you rule on this issue or that issue, instead they'll probably ask you about old cases, whether they were correctly decided. of course, that's another way of asking the very same questi. they know that you can't answer, but they're going to ask you anyway. i've heard justices nominated

by presidents of both parties decline to answer questions like these as the nominee put it a judge sworn to judge offer no hands show not only disregard for civics of this particular case, it would display disdain for the entire judicial process, now, you probably know that is what justice ginsburg said at her hearing and it's what we call the ginsburg standard. the underlying reason for this is, of course, is that making promises or even giving hints undermines the very independence that we just talked about. i would like to ask you if you agree with what i just said. >> i do, mr. chairman. >> so let me ask you about a

couple of supreme court cases. in heller, the supreme court held that the second amendment protects an individual right to bear arms. if i ask you to tell me whether heller was rightly decided, could you answer that question for me? >> senator, i'd respectfully respond that it is a precedent of the united states supreme court and as a good judge, you don't approach that question anew, as if it had had never been decided. that would be a wrong way to approach it. my personal views i'd also tell you, mr. chairman, belong over here. i leave those at home. yesterday, he said what he wants is a fair judge and that's what i wanted as a lawyer, i just want add judge to come in and decide on the facts and the law of my clients case and leave what he had for breakfast at the breakfast table and part of being a good judge is coming in and taking

precedent as it stands and your personal views about the precedent have absolutely nothing to do with the good job of a judge. let me ask you about citizens united the government can't restrict political expenditure by a nonprofit corporation. do you agree with that decision? i know people have their views personally about lots of supreme court decisions, and about a lot of other things. we're all human beings. i get that. i'm not an algorithm. they haven't yet replaced judges with algorithms,hough i think ebay is tryingnd maybe successfully. we're all human beings but the judge's job is to put that stuff aside and approach the law as you find it. and that's part of the precedent of the united states supreme court. now i'm sworn as a sitting judge to give the full weight and

respect to due precedent. >> those two cases were 5-4 decisions. so let me ask you about something that was unanimous, hoe sanaa, tabor. the supreme court ruled 9-0, that the obama administration couldn't tell a church who its ministers can be. the only thing controversial about that case was the obama administration actually tried to convince the supreme court that a bunch of government bureaucrats could tell a church who its ministers could be. like i said that case was 9-0. can you tell me if that case is decided correctly. >> respectfully, senator, i give the same answer. >> those are relatively recent cases. let's talk about cases that's been around for a while. let's look at did i don't know wainwright. it was unanimously a long time ago, 50 years or more. it says a criminal defendant has

the right to an appointed attorney if he can't afford one. everyone who watches cop tv shows know that this law. does that make a difference? can you tell me if you agree with the principle of gideon is that the same answer? the same reason? >> mr. chairman, it is certainly a somenal decision of the united states supreme court. no doubt about it. it is a very ol' decision of the supreme court now. it has been reaffirmed many time&)ñ there is a lot of reliance interest built around it. so i could talk to but the factors that a good judge considers in analyzing precedent, and the weight you due a precedent. but i'm not in a position to tell you whether i personally like or dislike any precedent. that is not relevant to my job. gideon is a seminal precedent of the united states supreme court and it deserves respect on that

basis. precedent is kind of like our shared family history as judges. it deserves our he respect because it represents our collective wisdom and to come? and think that just because i'm new, or the latest thing and know better than everybody who comes before me would be an act of hubris, inappropriate to the judicial role. >> what if i asked you about bush versus gore? >> i know some peoplen this room have some opinions on that i'm sure, senator. but as a judge, it is a precedent of the united states supreme court. and it deserves the same respect as other precedents of united states supreme court when you're coming to it as a judge. it has to be analyzed under the law of precedent. >> well, let's go to a kind of a

more controversial issue but along the same lines i've been asking you. i think the case that most people are thinking about right now and the case that every nominee gets asked about, roe v. wade, can you tell me whether roe was decided correctly. >> again, senator, i would tell you roe vs. wade, decided in 1973, is a precedent of the united states supreme court. it has been reaffirmed. reliance interest considerations are important there. and all of the other factors that go into analyzing precedent have to be considered. it's a precedent of the united states supreme court. it was reaffirmed in casey in 1992 and several other cases. so a good judge will consider it as precedent of the united states supreme court, worthy as treatment of precedent like any other. >> what about griswald which was

decide ad few years before roe where the court found constitutional right to privacy. can you tell me your views on griswald? >> senator, that is a precedent that is now 50 years old. griswald involved the right of married couples to use contraceptive devices in the privacy of their own home and it is 50 years old. the reliance interests are obvious. it has been he repeatedly reaffirmed, all very important factors again in analyzing precedent. >> okay. well i think i'm going to stop questioning but i kind of sum up what you and i just talked about in regard to precedent so everybody understand the principles at stake here. there are two reasons why you can't give your opinion on these cases. one, i believe is independence, and the other one is fairness to

future litigants, is that the way you see it? >> it is, senator. if i were to start telling which are my favorite precedents or precedents or if i view precedent in that fashion, i would be tipping my hand and suggesting to litigants that i have already made up my mind about their cases. that is not a fair judge. i didn't want that kind of judge when i was a lawyer and i don't now. i made a vow to myself i wouldn't be. that's the fairness problem. and then the independence problem. if it looks like i'm giving hints or previews or intimations about how i might rule, i think that's the beginning of the end of the independent judiciary, if judges have to make effectively campaign promises for confirmation. and respectfully, senator, i haven't done that in this process and i'm not about to start. >> thank you. i'll yield back, eight seconds.

senator feinstein. [laughter] >> thank you very much, mr. chair. welcome, judge and good morning. >> good morning, senator. >> good to see you again. since we're on roe, i wasn't going to begin with this but i well recall the time we spent in my office around we talked about precedent and in my opening remarks i indicated that if anything had super precedent roe did in terms of the numbers and i put that in the record. here's why it becomes of concern. the president said that he would appoint someone who would overturn roe. you pointed out to me that you viewed precedent in a serious way in that it added stability to the law. could you elaborate on the point that you made in my office on that? >> i would be delighted to,

senator. part of the value of precedent, it has lots of value. it has value in and of itself and it is our history and our history has value intrinsically but it also has instrumental value in this sense. it adds to the determinecy of law. we have lots of tools that allow us to narrow the realm of admissible dispute between parties so that we can, people can anticipate and organize eir affairs. it is part of the reason y the rule of law in this country works so well. we have statutes, we have rules. we have a fact-finding process and a judicial system that's the envy of the world. and precedent is a key part of that because as the chairman pointed out when he quoted a piece of mind, once a case is settled, that adds to the determine sy of the law. what was once a hotly-contested issue is no longer a

hotly-contested issue. we move forward, and senator, the value of that is, the united states supreme court takes something like 70 or 80 cases a year. that is a tiny fraction of all the disputes in our federal legal system, right? >> right. >> my law clerks tell me like something like .001%. they're unanimous in those cases which have divided circuit judges. that is why the supreme court largely takes the case. it divided us. one of the rare cases we disagree. they're unanimous 40% of the time. >> one other question. >> sure,. >> do you view roe as having super precedent? >> well, senator, a super precedent -- >> inç numbers -- >> it has been reaffirmed many times. i can say that, yes. >> yes. dozens. >> all right. i would like now to take you

back to 2005 when you were in the justice department and i want to explain to you why i'm going here. this has to do with torture. the intelligence committee was informed in 2006 and, attorney general gonzalez played a roll in this of the nature of the enhanced interrogation techniques and we were given a very soft view. senator rockefeller became chairman of the committee in 2007 and began a study of three detainees and the enhanced interrogation techniques. when i became chairman in 2009, i added that. and he we took all of the major detainees, and looked at them in a six-year study by. the staff spent long hours

analyzing every cable, every email, looking at more than 100 interviews and essentially putting in a 7,000-page report, 32,000 footnotes documenting where the information, there are no conclusions, there are just facts. that 7,000-page report has remained classified. i have read it. we have put out a 450 page summary which is public and in that summary we indicate that those cases that the administration spelled out were torture produced operable intelligence was simply not so. we elaborate on that in the big report, and my hope is, that one day, not too distance that report will be declassified so the american people can actually see. but i wanted to ask you some questions along these lines. it's my understanding that the set of talking point were

prepared for a press conference for the attorney general on november 22nd, 2005. the talking points asked whether, and i quote, aggressive interrogation techniques employed by the administration yielded any valuable information, end quote. and in the margin next to this question you hand-wrote one word, yes. what information did you have that the bush administration's aggressive interrogation techniques were effective? >> senator, i'd have to see the document. i don't recall sitting here. it has been a long -- >> why don't we do this. i would be happy to share the documen whou. i took these pages out of my binder. i think -- >> fair enough. >> so i wouldn't have to pause, but, let me just hold up that answer. >> sure. >> we'll get you the documents

on that. >> thank you. >> because, let me do the next question. in december 2005 after the passage of the detainee treatment act, you advocated that president bush should issue a signing state to accompany the law. in an email you sent to steve he fenn bradbury and others youç said the signing statement would, and i quote, this is your quote, help inoculate against the potential of having the administration criticized sometime in the future for not making sufficient changes in interrogation policy in light of the mccain portion of the amendment. this statement clearly and in a formal way would be hard to dispute later. puts down a marker to the effect that mccain is best read as essentially codifying existing interrogation policies, end

quote. to be clear, the context was that earlier in 2005 the justice department's office of legal counsel had concluded that cia interrogation tactics like waterboarding and sleep deprivation did not amount to cruel, inhuman or degrading treatment. i read your email as advocating a continuation of these interrogation techniques and worse, saying that senator mccain's amendment actually codified them which it did not. is tat true and doesn't it mean that when you wrote this email, you were condoning waterboarding as lawful? >> senator, i'd want to see the email again. i don't feel comfortable commenting on documents that aren't in front of me. but i can say this that, i do remember -- >> my staff has the documents here. they can bring them down to you

right now. >> that would be great. that would be wonderful. >> then i will put aside this part. you will have the documents because and i will go on to the next subject. >> no that is fine -- >> i want to you look at the documents. >> i like to know what i'm talking about. my recollection generally, i can from 12 years ago -- >> eric, bring him the documents, please. >> thank you, eric. my recollection general, working on the detainee treatment act, senator, was that, that at that time after rasul was issued by the supreme court there were a lot of habeas petitions coming in from detainees at guantanamo bay. some brought my friend neil governor shall.

there were some witheople in capitol hill to try to provide a regime forrocessing of those claims in a way that would conform with the youngstown ideal of the congress and the president acting together in unison and, that senator mccain and senator graham put together legislation that emphasized that not only was torture unacceptable, which it always had been under u.s. law but the cruel and inhuman degrading treatment was also unacceptable under u.s. law. >> let me help you here. i know from the documents that you worked on the graham effort. >> yes. >> for example, a self-assessment that you wrote, that you quote, helped coordinate the legislative effort on the graham amendment within doj and in consultation with dod and others. >> that's absolutely right, senator. i sure did. and i'm proud of it because we managed to come up with a bipartisan bill that i think passed thisç body with over 80r

maybe 90 votes, i don't remember. which did two things. one, affirmedded this country's commitment to prevent cruel and inhuman treatment and provide a regime agreed by the congress and president how guantanamo detainees should have their claims processed. >> except, after you read the documents, just so you know, the conclusion that we come away with is that when the bill on the mccain amendment was about to be voted on, you forwarded press articles explaining what having these two provisions together meant. that was the mccain amendment prohibiting torture and confining it to the army field manuel. >> yes. >> and the graham amendment which would bar habeas, in other

words, a detainee could not use the habeas corpus right to file in a court of law and challenge their conditions of detention. so that was looked at as offsetting mccain but basically preventing habeas corpus from being used and of course it was overturned by the court. >> senator, you're absolutely right that it was eventually litigated as all these things are. it was a bipartisan effort, and it was between the department of defense, the department -- the department of defense wanted congressional approval for something so that they knew what the rules would be. they were desperate to have some congressional involvement and investment in this process and as a lawyer, that is all i was, i was a lawyer for a client,

right, i was advising them on how to go about doing that legally in conjunction with senator graham's office and others t was a bipartisan effort. we put together our best effort. the supreme court of the united states in, eventually many, many years later, found that the process was insufficient and that is the bumadeeeen case. to say there was no process would be inaccurate because the detainee treatment act had a long list of processes and the question is whether they were adequate enough under the sus pension clause, and that was a close case that divided the court very closely and i respect that decision as a precedent of the united states supreme court no less than any other, senator. >> one last question on this. >> sure. >> when president bush signed the detainee treatment act, he issued a statement that said he

would only construe the law consistent with his powers as commander-in-chief. according to press reports, administration officials confirmed, and i quote, the president intended to reserve the right to use harsher methods in special situations involving national security, end quote. in other words, the signing statement reflected the president's belief that he had the power to not comply with the law he had just signed. according to. mails, andç this you'll verify, you were involved in preparing that signing statement and you advocated for the issuance of the signing statement. they even showed you saying to the top state department lawyer that harriet myers, the white house counsel, quote, needs to hear from us, otherwise, this may wind up going the wrong way. >> well, senator, i can tell you what i recall, i need to read

the email. >> that's fair enough. >> my loose recollection of something that happened, 11, 12 years ago, is that there were individuals in maybe the vice president's office who want ad more aggressive signing statement along the lines that you've described and that there were others, including at the state department who wanted a gentler signing statement, and my recollection sitting here is, best as i can give it to you without studying the email, i was in the latter camp. john bollinger, among others i would have associated myself there and i don't know what was in the president's head when he wrote the signing statement. i can't tell you that. i don't know. i can only tell you what i remember, and i certainly would have never counseled anyone that they could disobey the law. >> i have not reason not to believe you, but if you will

read those. >> sure. >> then in my second round, we'll go back to it. >> sure. >> i would be very happy to be -- because i think you'll see we didn't make this up. >> senator, i'm not suggesting you are but there was, there was a tug-of-war among parties in the white house. >> i am sure of that. i want to know which side you were on. >> count me with john bollinger most of the time on these things. okay? >> okay. >> that is my recollection. matt was, man would be another -- mat waxman. that is my recollection. i will study these. >> let me ask you a question about wire tapping. in december of 2005 news broke that president bush had ordered the nsa to intercept the content of certain communications of americans without a court order, outside of the requirements of the foreign intelligence surveillance act known as fisa.

you helped prepare the public defense of the program. for example, in draft testimony that you prepared for attorney general gonzalez deing the program, you wrote these, this. quot these authorities are vested in the president and they are inherent in the office. they can not be diminished or ledge lated away by other coequal branches of government. paul clement, president bush's solicitor general, quote, found this proposition unconvincing and it was removed from the testimony. do you still believe that the president has inherent authority, this is important, to intercept the communications of americans in the united states that can not be legislated away by congress? >> goodness, no, senator. >> good. >> and i didn't believe it at the time. what i was serving at the time, as recall, my recollection and i would be happy to review whatever you have before you, is

that i was acting in the capacity as a speechwriter and taking material produced by the components thatç were responsie for litigating these issues including mr. clement, paul clement, a dear friend of mine and the office of legal counsel and others and assembling it to put words in, together, that sound like english. you know and i think people like my writing. and that was my job. i think i was a a scribe. >> let move on. i would like to go to the heller case. when we met in my office we discussed the heller decision which you said you were open to discussing since the case had been decided. you thought both the majority opinion written by justice scalia and the dissent written by justice stevens were

brilliant examples of originalism where both justices saw to explain the reasoning by looking at original public meaning of the second amendment. which decision did you agree with and why? >> well, senator i think, we've alluded to my difficulty here. i do think everything you just said is accurate. both justice scalia and justice stevens wrote excellent opinions in that case. i am not here though to grade my bosses's work. it would be kind of impertinent of me i would suspect. i'm sure they would think so. i also worry that saying agree with one or the other indicate to client or litigants in future cases because it is now a precedent of the united states supreme court, it's binding, it is the law, whether we like it or not. >> right. >> if i start saying i liked one opinion or i liked the other

opinion i'm signaling -- >> i will let you off the hook. let me go to another one. >> thank you, thank you, senator. >> in d.c. v. heller, the majority opinion written by justice scalia, recognized that, and i'm quoting, of course the second moment was not unlimited, end quote. justice scalia wrote, for example, laws restricting access to guns by the mentally ill or laws forbidding gun possession in schools were consistent with the limited nature of the second amendment. justice scalia also wrote that quote, weapons most useful in military service, m-16 rifles and the like may be banned, end quote, without infink fringing on the second amendment. do you agree with that statement, that under the is being amendment, weapons most useful in military service, m-16

rifles and the like may be banned? >> senator, heller makes clear the standard that we judges are supposed to apply. the question is whether is a gun in common use for self-defense, and that may be subject to reasonable regulation. that's the test as i understand it. there is lots of ongoing litigati about which weapons qualify under those standar and i can't prejudge that litigation. >> no, i'm just asking you do you agree with his statement, yes or no. >> the statements out of the heller decision from the united states -- >> justice scalia's statement. >> whatever is in heller is the law. >> you agree with it. >> not a matter of agreeingç or disagreeing, senator respectfully. a matter of it being the law. and my job is to apply the and enforce the law. >> all right. fair enough. let me give you another one. the fourth circuit. judge harvey wilkinson author ad separate concurrence in a fourth

circuit case, colby v. hogan. here is what he said. no one really knows what the right answer is with respect to regulation of firearms. i am unable to draw from the profound ambiguities of the is being amendment. an invitation to courts to pre. this most volatile of political subjects, and arogate to themselves decisions historically assigned to other more democratic actors. disenfranchising the american people on this life and death subject would be the gravest and most serious of steps. it is their community, not ours. it is their safety, not ours. it is their lives, not ours. to do you agree with judge wilkinson that the second amendment is ambiguous? if so, should the ambiguity be decided by the courts or by legislatures? >> i begin by saying i hold judge wilkinson in high regard.

he is a very fine man and a very fine judge. >> can you do yes or no. >> no, i wish i could. >> i wish you could too. >> but you know the supreme court of the united states isn't final because it is infallible as justice jackson reminds us. it is infallible because it is final d, judge wilkinson had his view. and the supreme occur has spoken. and, heller is the law of the land and justice, judge wilkinson may disagree with it, and i understand that. he may, but he will follow the law no less than any other judge in america. i am confident of that. he is a very fine judge who takes his oath seriously. >> okay. i asked you that question on super precedent and -- let me

end with one on workers rights if i might. as you know there have been a number of supreme court cases where the court has made it harder for workers to hold their employers accountable when they have experienced discrimination or be injured on the job and we've discussed that one case, trans am, i think three or four of us. let me give you a short list. lead better versus good we're tire which limited ability of women to seek equal pay. gross v. fpl financial services 2009, which made it more difficult to prove age discrimination. the university of southwest texas medical center v. nasser in 2013 which made it more difficult for employees to prove they had been retaliated against for reporting discrimination including based on race, gender,

national origin, religion and other factors. vance v. ball which made it more difficult for workers to prove just plain discrimination claims. as aç senator whitehouse pointd out, each of these casesas 5-4 and justice school voted with the majory agains the employee in every case. president trump and others have said you are the next school you yaw. so i think it is only fair to ask you, do you disagree with any of the majority opinions that judge school joined in these cases? if so, which ones do you especially disagree with and why. these have already been decided. >> i understand, senator, but again if i indicate my agreement or disagreement with a past precedent of the united states supreme court, i'm doing two things that worry me. sitting here. the first thing i'm doing is i'm

signaling to future litigants at that i can't be a fair judge in their case because those issues keep coming up, all of these issues, as you point out keep coming up. issues around all of these precedents will continue to be litigated and are hotly-litigated. i've had post-ledbetter cases in my court, for example. >> then how do we have confidence for you that you won't just be for big corporations? that you will be for the little men? this is the question that senator hirono i think so well asked yesterday. you know, those of us, i think, on both sides care very much about workers rights but the record is such that one questions whether the court is capable in its present composition to it give a worker a fair shot. so, i'm just looking for something that would indicate

that you would give a worker a fair shot. maybe it is in your background somewhere that i don't know about but i'd like to have you respond to it anyway you can. >> senator, i really appreciate that. i think there is a way you can take a look at this question without me potentially prejudging a case. and i appreciate your respect for that. and just to finish that thought, i'm concerned that i have to look the litigant in the eye in the next case, and if i prejudge that case, they can look at me say you're not a fair judge, and i have no answer for that, got no answer for that. so what i think can give you comfort in this area, senator, i know a case or two has been mentioned yesterday. respectfully, i would suggest that does not represent the body of my work. i've written, participated in 2700 opinions over 10 1/2 years and if you want cases where i have ruled for the little guy as

well as the big guy, there are plenty of them, senator. the yu indian tribe. >> would you be willing to submit some of them? it is hard to read 2hundred cases -- trans am. >> i'm sorry, senator. of course. yu five and six, fletcher. rocky flats case, indicated of rights of people subject to he pollution by large companies in colorado, uranium pollution. i point you to the magnesium case. similar pollution case, in the salt lake city area. colorado's effort with renewable energy, upheld that. city of albuquerque involving pregnancyç discrimination in te police department in albuquerque. wd sports, discrimination claim. casey, crain. simpson versus eu, involving young women harassed by the football team.

ab, broader, sutton, i can give you a long, long list. >> that is helpful. we'll find them and read them. >> the bottom line, senator, i would like to convey to you, from the bottom of my heart, is that i'm a fair judge, around i think if you asked people in the 10th circuit, is he a fair judge, you will get the answer that you got yesterday from both senator bennet and senator gardner and general gotschall, same answer you got from senator allard and 10 years ago. senator, i can't guarranty you more than that, but i can promise you nothing less. >> okay. i have a minute and 21 seconds. let's talk chevron. that's been used, you know, thousands of times, and it really perplexes me.

olympia snowe and i did something that took me 12, 13 years to get to and that is, changing the corporate fuel economy standards and thanks to senator inouye, and senator stevens, they put it finally in a commerce bill and it passed. so now we are on our way to 54 miles a gallon. here's the point. we could do the rules for the first 10 years but who knew we needed the experts to do them from that point on. so what we said in the legislation was that science would prevail, and that's still the law. it's working. the goal is, i read articles they say there will be 54 miles by 2025 if this continues. what is wrong with that? how else could we have done it?

>> i'm not aware of anything wrong with that, senator. i've never suggested otherwise. >> but, but you what you have said is, the congress could not legislate by leaving some of the rules up to the scientists or other professionals in departments, as i understood it in chevron. >> i appreciate the opportunity to correct this misunderstanding, senator. >> sure, appreciate it. >> the case i think you're referring to is gutierrez. >> that's correct. >> it involved an undocumented immigrant to this country, okay? and the question was, there were two conflicting statutes. one said he could apply for immediate discretionary relief in this country from the attorney general. second said, he had to wait outside of the country for 10 years. we had a judicial precedent that said the first statute controls. that was the ruling of our

court. after that, three or four years, i can't remember exactly, the board of immigration appeals, in its infinite wisdom says, our interpretation is wrong. chevron, you have toç undo your precedent, the judicial precedent that this man had relied upon and that he now had towait outside of the country not ju 10 years but 13 or 14 because it took him so long to make up their mind. well, senator, that reminded me of you know, when charlie brown is going in to kick the ball and lucy picks it up at the last second, and that struck me as raising serious due process concerns, fair notice, and separation of powers concerns. when an executive bureaucracy can overturn a judicial precedent without an act of congress. that's what the cases about. and it suggested, respectfully, senator, that under the apa, the administrative procedures act,

this body tasked judges to decide legal questions and left to administrative agencies great deference when it comes to fact-finding, okay? that is how i read section 706, is fact-finding by scientists, biologists, chemists, experts get great deference from the courts. the only question who decides what the law is and can a man like mr. gutierrez, the least amongst us, be able to rely on judicial precedent on the books or can he have the ball picked up going into the kick. >> i have exceeded my time. >> i apologize. >> i apologize. thank you. >> no, i apologize. >> i want make it clear you didn't exceed your time, if you ask the question last second up and you did, whatever time took to be done. if everybody follows that rule i think we'll be treating everybody fairly. before i call on senator hatch, i would like to enter into the

record article "wall street journal" titled this, neil gorsuch, how would you vote, question mark. democrats demand the nominee declare himself on cases, end of the title. i will just quote the first paragraph. democrats have come up empty trying to find something scandalous that neil gorsuch has said so now, they're blaming him for what he won't say to wit, they want him to declare how he would rule in specific areas of law. questions that every supreme court nominee declines to answer, end of quote. without objection i enter that into the record. senator hatch. >> thank you, mr. chairman. judge, as i said yesterday, my goal in this confirmation process is to neither get an understanding or handle on your understanding on the proper role of judges in our system of government. now you gave an interesting lech you are it last year at case

western reserve school of law about justice scalia's legacy. justice scalia you explained emphasized the differen betwee judges and legislator he reminded us as you put it that legislators may appeal to their own moral convictions and claims about social utility to shape the laws they think it should be in the future. but the judges should do none of these things in a democratic society, end quote. i think that accurately describes justice scalia's view. is that also your own view? >> senator, it is though, i got to confess that lecture was attendedç by 20 people and gota lot more attention since. >> we're making sure it gets some more. your opinions on the appeals court, you take great care to identify what issues the court may or may not address. one opinion last year, for example, you used the phrases

such as quote, it's not our job, unquote. and quote, it is simply isn't our business, unquote. what is an appellate court's job, in your view? >> it is a limited, vital role in our separated powers. a judge is there to make sure every person, poor or rich, mighty or meek, gets equal protection of the law. it is chiseled above the supreme court entrance in vermont marble. though i believe the lincoln memorial is made out of colorado marble. and that is a profound and radical promise. that every person is protected by our laws equally. and in all of human history that may be the most radical promise

in all of law. and what it means to me that when i sit on the bench, and someone comes to argue before me, i treat each one of them equally. they don't come as rich or poor, big guy or little guy. they come as a person. and i put my ego aside when i put on that robe, and i open my mind, and i open my heart and i listen. and i tell my clerks their very first and most important job is to tell me i am wrong and to persuade me i am wrong, as i read the briefs and listen to the arguments. if they manage to do that, i tell them their next job is to manage to persuade me i'm wrong again. i want to make sure i leave no stone unturned. i want to get to the bottom of it. i have one client. it's the law. it's a great joy and it's a great privilege and a daunting

responsibility to come in every day and try to get it right. then i go listen to the arguments of the lawyers. i don't treat them as cats paws. they're not there to be toyed with. i treat them, i hope, always as respected colleagues who lived with the arguments, studied the cases, know the facts far better than i do. i might actually learn something from them. i go in with the questions i actuall have i wantnswered. i sit and listen to my colleags after that. senator hatch, i can't tell you how many times in the 10th circuit, i go to conference, i think i know my mind and then one of my colleagues, harris hart was here yesterday, he is often the one, there are plenty others, says something absolutely brilliant, mind and that's the judicial process and that is the role i sigh for the appellate judge. >> thank you. that's very good explanation.

we held a confirmation hearing for justice sonia sotomayor inç 2009. of the senator charles schumer, now the majority leader, was member of this committee and praised the nominee in this way. quote, judge sotomayor puts rule of law above everything else. judge sotomayor hughed carefully to the text of statutes, even doing so rulings that go against so-called sympathetic litigants, unquote. do you agree with senator schumer that your duty as a judge is to follow the law even when it requires running up against sympathetic litigants? >> yes, senator. i can't tell you when i go home and take off the robe, i'm not a human being, that i don't think about many so of those cases. but my job is to apply the law as fairly as i can in each and every case, without respect to

persons. that's my oath. there is not every law in the book i love, you love, i'm sure of that. but my job is not to write the laws, it is to apply the laws, and i try to do that, and that enough is enough for a day's work and it's enough for a life's work. >> in my opening remarks yesterday, i mentioned a letter we received from dozens of yours peers at harvard law school. mr. chairman, i ask consent this letter be includedin the record at this point? >> without objection it will be included. >> signers of all parties idealogues, represent different faiths life-styles and riews, they all support, strongly support your nomination. the letter said that you personify a disinterested philosophy that respects judicial modesty, combined with compassionate appreciation of lives impacted by your decisions. how can you do both?

>> senator, i'm just a person. and i remember how hard it is to be a lawyer. i remember what it was like to represent clients who had problems. told my kids, when they asked me what my job was when i was young, to help people with their problems. and as a judge, i have to resolve their problems. one of the hard things about being a judge, is that somebody has to win and somebody has to lose. you make half the people unhappy 100% of the time. that is the job description. you about you have to believe in something larger than yourself and you're part of something larger than yourself. i believe in the rule of law in this country. and i belive in an independent judiciary as one of the keys to it. i feel it has been a calling to

be part of it. and an honor. >> the fourth amendment protects the right to be free from quote, unreasonable searches and seizures, unquote. it was written in the late 18th century when the tools used by law enforcement to investigate crime and monitor suspects were radically different than they are today. in your view, how should a judge previous interpreting and applying constitutional r&c% provisions like the fourth amendment in case where the technologies or methods at issue were obviously not even imagined by the founders? >> may i offer an example, senator. >> sure. >> i think it might be helpful? >> sure. >> i take united states versus jones, recent case from the united states supreme court, involving whether police officers might attach a gps tracking device to a car.

modern technology. how do you apply the original constitution written 200 years ago to that? and the court went back and looked at the law 200 years ago. and one o things it found was that attaching something to someone else's property is a trespass to chattels in common law and would be considered a search. and the court held that if that's a trespass to chattels and a search 200 years ago, it has to be today though the technology is obviously different. so the technology changes but the principles don't, and it can't be the case that the united states constitution is any less protective of the people's libertyies today than it was the day it was drafted. >> well you authored the opinion

in messworks versus toyota motor sales. the 2008 case applied principles in earlier cases involving photography, old technology to determine intellectual property problems for new medium. how should judges approach questions of intellectual property in cases that apply new technologies or applications of old technologies? should they confine themselves to analogous technologies or may judge create new doctrines or case law they believe better addresses the changing technological landscape? >> well, senator i think it is very, very similar sort of question, right? we look back. we find what the law was at the time, the original understanding if you will. >> right. >> we make analogies to our current circumstance. we judges wove analysis. we work with analogies. that is how law making through the judicial process happens.

that is proper judicial decision making. it is very different thing if you want to create a revolution in the area and change the law dramatically. that is for this body to do. it is for judges to interpret the law, as best they can from the original understanding to current second quarter stance -- circumstances and apply it to current circumstances in mesh works that is exactly what we did. we applied copyright to digital media. same principles from the beginning of the copyright act, just applied to a new medium. >> well several of your writings called into question the so-called chevron doctrine. it has been raised here already. most americans probably wonder why a supreme court nominee would talk about a gas station but the concept of chevron is very straightforward. it commands federal judges to defer to an agency's interpretation of the law.

in effect, this deference allowç unelected, unaccountable, bureaucrats to rewrite the law. any middle-schooler however should be able to see how chevron is inconsistent with the basic duty of judges under the constitution. now, as you probably know i'm a chevron skeptic and have led the fight to overturn this decision legislatively with my separation of powers act. i introduced this bill last congress with the support of several colleagues on this committee and will soon reintroduce it. now i, choose its, chose its titlf a reason. reexamining chevron is not being about anti-or pro regulation. rather it is about restoring the constitutional allocation of powers between the three branches. it is about maintaining fidelity to the laws passed by congress and the exact bounds of authority granted to regulatory

agencies. and it is about insuring that the bureaucracy abides by the law, no matter what its policy goals, liberal or conservative. judge, do you agree there is nothing extreme or inherently idealogical when the supreme court said in marbury versus madison, that it quote, it is emphatically the province and duty of the judicial department to say what the law is, unquote? >> senator, marbury versus madison is the cornerstone of the law in it country. >> sure. >> i don't know anybody wants to go back and reconsider that. i hope not. >> i feel the same way. last week "the new york times" reported that the primary line of attack against you is that you are quote, no friend of the little guy, unquote. we've had that come up time and again in these proceedings in the last couple days. harvard law school professor

noaa feldman, who does call himself a liberal, wrote an opinion piece on the subject that appeared la week on bloomberg.com. he opens this way, quote, i don't know who decided that the democratic critique of a u.s. supreme court nominee, judge neil gorsuch, would be that he doesn't side with the little guy. it is a truly terrible idea. now, mr. chairman, i ask this column by professor feldman be placed into the record at this point. >> without objection, so ordered. >> judge, some of your critics question whether you have a solid track record of judicial independence and objectivity. in particular, they questioned whether you would stand up to the current president if he were to exceed his authority under the constitution and laws congress enacted. i would ask, mr. chairman, a an essay on the subject appeared at

scotusblog.com. >> without objection, so ordered. >> judge, how would you respond to that type of criticism? >> senator a good judge doesn't give a wit about politics. or the political implications of his or her decision. decides where the law takes him or her, fearlessly. i walk past every day a bust to byron white in my courthouse. my courthouse is named for byron white. and when i do that, i think about hisç absolute determinatn just to get it right, no matter where it took him. he said, it's a job. you do your very best and you go home. and that's, that's how i approach things. and if you look at my record, senator, respectfully i think it demonstrates that. according to my law clerks again, when i do dissent, which is very rely, i do so in about

equal numbers between judges who happen to be appointed by democrat presidents an who happen to be appointed by republican presidents, and i hate to even use those words because they're all just to me, judges. i don't think of them that way. but my decisions have always been independent, regardless of who i am agreeing with. if i ruled against the government, my goodness, ask the u.s. attorney's office in colorado. i give them a pretty hard time. i make them square their corners, senator hatch. all right? if you want some examples, point you to carlos, krueger, ackerman, three recent fourth amendment cases ruling for the accused, the least amongst us, against the government. >> 2005 before being appointedded to the appeals

court you wrote an op-ed piece for "national review" in which you criticized the reliance on the courts by litigants seeking to achieve policy results that they could not achieve through the regular political process. not that long ago there was consensus courts are not the appropriate place to make policy. now you are criticized for that same common sense idea. i want to give you a chance to respond. how does relying on courts to make policy undermine both democracy and legitimacy of the federal judiciary? >> well, again, goes to our separation of powers. judges would make very poor legislators. we're not equipped for it. we're not responsive to the people. can't elect us. can't get rid of us. you're stuck with us. and we don't have the opportunities to talk to people,

to have hearings like this one, in places like th. i'm permitted four law clerks for one year at a time, right out of law school. kind of an crowd, he replenishes itself every year. if you were to make laws i don't think you design a system where you let three older people with four young law clerks straight out of law school legislate for a country of 320 million. that is just not how anyone would design the railroad. and so those are some of the problems i see, senator. >> thank you. and that -- >> will respect to my law clerks, i love them very much. they're like family but they're not same as your staffs and the investigative powers you have. >> they're lucky to be with you all i can say. in that same, in that "national review" piece, you pointed out some liberal

policies of lawyers have sought to achieve throughç litigation. some of your critics tried to turn this into one of those gotcha moments. claiming that your real qualm was with those policies that were liberal, not that they were achieved through litigation. again i'm going to give you a chance to respond. >> well, i would say in that article i, i'd say a couple of things about it. first, as i pointed out and i believe, the courts are very important place for the vindication of civil rights. >> yeah. >> and for minorities. it is a place where unpopular voices get heard the same as popular voices, inñiñr a democr, in the legislature, majorities win. that's not the case in courts. the best argument should prevail. so they play an important role.

second, i pointed out that one thing that we lack as judges, to make good policy decisions as legislators, is the ability to compromise. these bodies, legislativ bodies, you can put together a compromise. judges, somebody has to win, somebody has to lose, senator. it is not a great place to compromise. again we're not great, well-quipped to do your work. at the same time i did criticize, i pointed out a column by a liberal columnist self-identified liberal columnist, very fine man, an agreed with him that his side had done some, spent perhaps too much time in court instead of in front of the legislature. i can report to you having lived longer, as i did report to you in 2006, that the problem lies on both sides of the aisle. that i see lots of people who

resort to court perhaps more quickly than perhaps they should >> some liberal organizations are claiming that in private practice you represented only big corporations. your former law partner, david frederick who happens to be on board of directors of liberal american constitution society has a very different take.

hearing the confirmation hearing for neil gorsuch. there's also history-making stuff going on outside that chamber specifically earlier this morning president trump held a meeting with all house republicans right there on capitol hill. he's the negotiator in chief. he needs votes to pass the obamacare repeal and reform bill that will be before the house on thursday. when he went into that meeting about the opening of the market, we were actually up a little bit about 50 points. at the end of that meeting, president trump said came out and said, i think i've got the vote that is i need on thursday. that's not a very strong message from the president. later ryan came out and announced that there's 43 pages of amendments tweaking for conservatives in the house to vote for it. evidently the market is

skeptical because we are down 120 points. a reversal of 170 points on the three quarters of 1%. peter with me, on the left-hand side of this you will see judge gorsuch. now we are down 125 points. i say it's because that the market may believe that the president doesn't have the votes he needs for thursday, what say you? >> some of the early optimism that the house freedom caucus initially said we are not standing down but we are not requiring members to oppose. what that really was was an invitation to negotiate with trump and other leaders. that negotiation has been going on. when donald trump comes out of a meeting and doesn't say, it's beautiful, it's huge, i have it all worked out, that causes concern. i may have votes, r him it's a long way. this is a negotiation and this is his first rodeo. ashley: he told house republicans, if you don't get

mind this you'll lose in the mid-term elections. he was laying out harsh words today. stuart: he was playing hard wall. liz: he can afford to lose 21 republicans in the house, right? but he's doing willing and dealing right now. stuart: what are the willing and dealing aspects? you reported on this. a carve-out for upstate new york counties, they do not have to paid into medicaid, is that accurate? >> that's right, $2.3 billion in payments into the state medicaid system, chris collins, cover districts, they've got that. this is being called the buffalo buy-out. equated to ben nelson's kickback to get the 60's vote for obamacare which was rescinded. stuart: now we are down 139 points, peter.

>> i think that's going on here is small stuff like new york and big stuff. as you know, there was 85 billion-dollar kind of shuffle that went to seniors over years and similar amount to the poor. so there's a lot of horse-trading going on. he needs this bill, he needs this vote. liz: the cbo report said it would cut 337 billion, that could be the honey pot to get that willing and dealing going. stuart: i see the market down 128 points since the president came out of the meeting and paul ryan came out of the meeting. >> it's about risk. that's what you're seeing reflective. stuart: herv london is with us. this things knows everything including health care. we are pretty much united on this that there's risk to the president's vote on thursday, whether it passes the house, that's why the market is down.

do you agree with that? >> i do agree with that. i do believe, however, that donald trump will get this bill through. stuart: you think he will? >> notwithstanding all of the concerns that you have raised here today. my feel asking that there's would be a lot of horse-trading. the president has put himself on the line on this one and the republican party has put itself on the line and this will get through. stuart: now we are down 133 points. i want to mention a couple of the tweaks that have been introduced into the ryan plan to get it pass conservatives. end obama -- back date all the way back to january 31st. >> that's correct. instead of this year -- stuart: that's another tweak going on there. work requirement on medicaid recipients. that's in there as well.

towards the conservatives and state wills get an option as to how they receive medicaid funds. stuart: that's a lot of give toward conservatives and the market is nervous that he won't get votes on thursday. >> the caucus in the house is going to be playing hardball and they have. everything that you have mentioned is a manifestation of the hardball that they're playing at the moment. my feeling is in the end ryan has too much at stake, the president has too much at stake, there's no doubt that this is going to go through. it'll squeak through but it'll go through. stuart: the market doesn't necessarily agree with you. >> i realize that. that's the uncertainty that peter made to. markets are alwancertain at times like this. stuart: earlier this morning the big name technology companies,

the biggest and most powerful tech companies in the world went straight up and established new highs, i'm talking facebook, apple, i think alphabet and i believe netflix and amazon, all of them straight up. look at it now. the big name tech stocks are on the downside, most of them are. facebook is hold to -- holding onto 20-cent gains. they hit all time highs earlier. only two of them, apple and facebook are holding on to the highs in the general decline. by the way, we are now at the low of the session for the dow industrials off 140 points. ashley: watch the dollar continuing to slump against major currencies. there's certainly a little bit of uncertainty of donald trump

getting this through congress. >> remember since 2008, dividend yields on stocks were higher than on treasure bonds. for 50 years this wasn't the case, for this recovery that has been the case. some people are selling out of their stocks and going two into the safety of bonds and that's an important element in putting a top on the market. >> so what you're saying that the dow jones average is roughly 350 points off its all-time high when it was over 21,000. is this the beginning of a leg down? >> the s&p is down, largest daily lost since january. ashley: that's what it's about. stuart: depends on thursday vote -- ashley: that's the beginning of it. stuart: my producer is saying it's only a half percent drop. that is true. >> keep in mind that interest rates going up will probably have a more profound effect in the end.

[laughter] peter: that's the one thing that would last. some of those 21 are going to come our way so this vote will occur in the positive. what i am concerned about is if you have a fed that says, we are going to start selling down some of 4 and a half trillion balance sheet because we are through with this sort of ease, what that's going to mean is trillions of dollars of bonds being sold, driving the price down and interest rate up. if the interest rate is up, that's going to hurt the trump rally, donald trump and janet yellen are going to come together and fight over this, i promise you. stuart: we are juggling three historic balls at this moment. the historic trump rally not exactly in trouble but just pausing. i think we can say that. it is pausing, we are down 120 odd points. second story, the passage of obamacare replace rent bill which ll go to the house on thursday, there's risk that it

will not pass, major derailment for president trump, the negotiator in chief. third big story, left-happened side of the screen, judge gorsuch being questioned at length today 10 to 12 by judiciary committee. so far judge gorsuch has turned in a stelar performance. >> i had told you very frankly that, of course, i felt that if the republicans follow the constitution and probably chief merrick garland would be on the supreme court. today i also respected you for calling chief garland when your nomination was announced. i understand that you respected him as a jurist; is that right? >> very much, so. whenever i see his name attached

to an opinion, it's one that i read with special care. he's an outstanding judge. >> do you think he was treated fairly, yes or no? >> i can't get involved in politics and there's judicial cannons that prevenme from doing that. >> the reason i ask that question since this committee began holding public hearing for supreme court nominations, began 1960, i wasn't here at that time, but there's never been denied a hearing or a vote to a pending nominee ever until chief garland. i can't express that opinion. i think it was shameless. i think it is severely damaged

the reputation of this committee, i think it severely damaged reputation of senators that concurred with that. we were anything but the conscious of the nation at regard and those who probably held the hand of this and swore they would uphold the constitution of the united states did not. now, because more of a problem, because it appears the president outsourced your election to prior right big money interest groups and you may not like the terminology but even republican senators have praised the fact that the pdent had g is group and had a list when he was runng for office of who he could select from. the list given not by -- not

prepared by him but by the special interest groups and they want -- they have an agenda. they are confident you share their agenda, in fact, the first person who interviewed you for the nomination said they saw the nominee who understand things like we do and, mr. chairman, i would ask that an article from the wall street journal entitled trump's supreme court whisperer be included in the record. >> without objection, so ordered. >> and another one which "the new york times", gorsuch, activist, was shaped in the judiciary, those will be included in the record. >> without objection, so ordered. >> now, the two interest groups that recommended you to the

president, i want you to have a chance to talk about this. the federalist society and the heritage foundation applauded the citizens' united decision which allowed unrestricted corporate money to pour into ections. you suggested a constitution law should be grounded solely in the original meaning of the text. you said judges should -- i quote, strive to apply the law as it is, focusing backward, not forward. if they do that, let's go to the first amendment. do you believe that james madison, the other drafters of the first amendment understood the terms speech to include corporate money being funneled into campaigns? >> senator, i can tell you that

the supreme court of the united states has a lot of precedent in this area as you're well aware. quite a lot of it permitting congress to compel disclosure, to limit contributions and a lot of other case law in this area. there's a lot of precedent in this area. >> is there precedent from the drafters that speech include corporate money being put into corporations and being put into campaigns. >> senator, that was exactly what was at issue in austin and again in citizens united and the supreme court issued a variety of opinions on that subject, on that very subject, looking back to the original understanding of the first amendment to see whether it embraced the speech

at issue in those cases and different justices came to different conclusions on that score. >> but nothing in the federalist papers that talked about corporate money going into campaigns; is that right? >> senator -- >> that's an easy yes or no. >> i think there's an awful lot in papersconsidered in citizens united. >> nothing about corporate money? >> i don't remember that term, no, senator. >> trust me -- trust me, there wasn't. >> i trust you. >> okay. >> entirely. >> you don't have to. >> not that much? [laughter] >> i will let it go. [laughter]

>> in citizens united justice kennedy indicated restrictions on campaign donations being justified by concerns about quit -- quid pro quo. both of the reasons he made campaign donations was so when he needs something from him, they are there for me. campaign contributions buying favors. shouldn't congress not the courts make the determination about the potential for corruption specially in we are talking about quid pro quos? >> senator, i think there's lots of room for legislation in this area that the court has left. the court indicated that if, you know, proof of corruption can be demonstrated that a different result may obtain on expenditure limits.

>> you don't believe that putting unlimited amount of money by somebody who has a particular interest in the outcome of actions by the congress, unlimited amount of money into specific campaigns, that's not enough to show the intent to buy favors or enough to show corruption? >> i'm not sure i track the question, senator, i'm sorry. >> if you have corporate money that is basically unlimited under citizens united, funneled through special interest groups, does that at least raise concerns about quid pro quo corruption? >> i think after citizens united made clear that quid pro quo corruption remains a vile concern and a subject for potential legislation and i think there is ample room for this body to legislate even in

light of citizens united, whether has to do wh contribution limits, whether it has to do with expenditure limits, whether it has to do with disclosure requirements. >> if somebody were out to buy a vote or buy a favor, we would all agree that's corruption, is it not? >> i think justice kennedy would agree with you, yes. >> would you agree with me? >> i would follow the law and that's my understanding. that would certainly follow within my understanding of the law. >> if i was a prosecutor, we would call that corruption. >> i trust you there, senator. >> and i did. now, but influence in different ways, for example, when you became a judge you were here in washington, you were working in washington. i understand there were three extremely well-qualified women

attorneys who were on the short list being considered by the bush white house. the denver post did a profile on these women. billionaire, conservative and he made donations to the interest groups that were on the list that recommended you to president trump, have these areas of concern -- >> senator, with respect to my nomination, as i recall -- >> i'm talking about the circuit. >> yeah. as i recall, all of my clients or an awful lot of them came out

of the wood work to say nice supportive things about me and i thk thers probably letters in there from the fellow with the gravel pit there too. >> which one do you think the white house listened to the most ? let's be realistic. >> senator, what they probably listened to was the fact that they see me in action at the department of justice. that's my guess, if you're asking me to guess but that's a guess because i didn't make the decision. >> i raise this because some of the same people helped to fund the group that put you on the list for president trump. president trump as you know has attacked judges who dared to oppose the constitution. he has gone after -- he's said

things that i don't think any one of us would do. so you have to prove you can be an independent judge. you heard that from both sides here. let me ask you a question in this regard. you are a person who believes in religious freedom. you said that before. in the summer 2015 the senate judiciary committee adopted my sense of the senate that, quote, the united states might not bar individuals from entering the united states based on their religion. this past almost every senator with the exception of then senator sessions and a couple of others voted for it. now, does the first amendment allow the use of a religious litmus test for entry into the united states?

>> senator, that's an issue that's currently being litigated actively as you know and -- >> i'm not asking about the litigation in the ninth circuit or anything else. i'm asking about the fact, it's a blanket religious test, is that consistent with the first amendment? >> senator, we have a preexercise clause that protects the free exercise of religious liberties by all persons in this country. if you're asking me how i apply it to a specific case, i can't talk about that for understandable reasons. >> well, could -- >> i'm frank and candid with you as i can be, senator, when you asked me to apply it to a set of fact that is look awful like a pending case in many circuits now -- >> would the president have the authority to ban all jews from the united states or all people

who come from israel? >> senator -- >> would that be an easy question? >> we have a constitution and it does guaranty free exercise and also guaranties equal protection of the laws and a whole lot else besides and the supreme court has held the due process extends even to undocumented persons in this country. >> okay. >> i will apply the law, i will apply the law faithfully and fiercelessly and without regard to persons. >> how about religion? >> anyone, any law is going to get a fair and square deal with me. my job as a judge is to treat litigants that appear in front of me as i wished to be treated when i was a lawyer with my client large or small. i didn't want to do discriminate because they were a large company or a small individual with an unpopular belief and

that's the kind of judge i tried to be, senator, and i think that's my record. >> judge, let me ask you this, do you agree with me that there should not be a religious test in the united states? >> i need to know more specific -- >> let me give you an example, should it be a religious test to serve in the military? >> senator, that would -- that would be inappropriate, yes. that's against the law. >> or do we ban people solely on the religion? >> very important protection. we have not just equal protection guarantied of the 14th amendment which prohibits discrimination on the basis of

race, gender, ethnicity. we also have the religious freedom restoration act that senator hatch mentioned which is a bipartisan bill passed by this body with the support of senator kennedy and schumer when he was in the house and that imposes an even higher standard on the government than the first amendment when it comes to religious discrimination. it says that if there's any sincerely held religious belief the government must meet strict scrutiny for it may regulate on that basis, strict scrutiny being e highest standard known in american law. >> the reason i ask these questions, there is a legitimate concern. i hear stories from my grandparents when signs used to say irish need apply or no catholics need apply. i'm sure senator feinstein can

speak about her religion. president trump promised a muslim ban and he still has on his website to his day, he's called for a total and complete shut down of muslims entering the united states and the republican congressman recently said that the best thing the president can do for his muslim ban is to make sure he has gorsuch before the appeals get to that point. >> senator, a lot of people say a lot of silly things. my grandfather -- >> well, that's -- he wants -- congressman wants you on the court so that he can up old a muslim ban. >> senator, he has no idea how i'd rule in that case and, senator, i'm not going to say anything here that would give anybody any idea how i'd rule in

any case like that that could come before the supreme court or my court of the tenth circuit. it would be grossly improper of a judge to do that. it would be a violation of the separation of powers and judicial independence if someone sitting at this table in order to get confirmed had to make promises or commitments about how they'd rule in a case that's currently pending and likely to make its way to the supreme court. >> well, the president's national security determinations, are those reviewable by the court? >> senator, no man is above the law. >> okay. asserted that the national security determinations are unreviewable by the courts. i've heard president -- other presidents say in the past, i disagree when they say that, do you disagree? >> senator, as a judge, as a

judge, i apply the law and the law here, i think, is youngstown. i looked at justice jackson and justice jackson wrote a brilliant opinion. it's really important to know who he was. >> i wrote a paper. >> i know you did. we talked about it. and here was the fiercest advocate of executive power, when he became a judge he said the robe changes a man or it should. and you go from being advocate to being a neutral adjudicator and the youngstown system of analysis when it comes to presidential power and foreign affairs has three categories, one the president acting with the concurrence of congress. that's when the president is acting at its greatest strength

because there are shared responsibilities in the constitution. he has commander in chief power. this has body in article 1. when the congress and the president are in disagreement, that's the other end of the spectrum. the president is acting at the lowest of his authority. when congress is silent, that's the gray area in between. that's how a court as opposed to a lawyer or advocate approaches the problem. >> let's go to that then. president trump has declared that torture works. he said, i quote him, bring a hell of a lot worse than waterboarding close quote. 2002, memo authored by jay from the office of legal counsel claim that had any effort by congress to regulate the

interrog interrogation combatants would violate the constitution sole vested of the commander in chief and the president. now, considering the fact that congress has passed a law on this, what controls? >> we have a convention against torture and implementing legislation which ban torture. we have the detainee treatment act which we talked about earlier which bans human and degrading treatment. we also have an eighth amendment. >> does the president have the right to authorize torture if it violates the laws that have been passed by congress or the other ones you cited? >> senator, no man is above the law. >> well, then let me ask you another question. president bush's surveillance

program, you were working there, resulted in illegal collection of thousands of americans' communications. now, it was direct violation of surveillance laws. the justice department attorney justified the program. he said the statutes passed by congress cannot infringe the president's inherent power under the constitution to conduct national security searches. so do you believe that president bush's warrantless surveillance program was justified because the president had, quote, inherent power to overwrite surveillance laws and conduct national security searches. >> senator, as a judge before i even tried to decide a question like that, i would want briefs and argument and i would wanting to through the whole judicial process.

i wouldn't begin to try to an attempt to offer an off-the-cuff opinion. >> let me ask you a different way. if congress passed a specific law on surveillance and if a president said, i'm going to violate that law because i'm president, does he have that power? >> no man is above the law, senator. >> okay. senator lee was here a minute ago. senator lee and i did efforts to pass the freedom act to end the nsa bulk collection of americans' records. had a decree from congress that is not permitted. is that still your answer that the president does not have the power to supercede that law? >> senator, i can't issue advisory opinions at this table and cases and controversies.

i can't do it. it wouldn't be responsible. but every law that this body passes i take seriously. i respect this body and nobody is above the law in this country and that includes the president of the united states. >> well, when you were there -- i don't know whether these are among the things that senator feinstein gave you. any effort by congress to regulate battlefield combatants would violate the constitution, the commander in chief and the president, and you appeared to

advocate for a similar view when you attempt today give president bush the flexibility not to be bound by senator mccain's legislation. >> senator, my collection is that he was long gone from the president before i ever showed upnd by the time i got there, the department and the president were willing to work with congress to try and establish a regime that would govern operations in guantanamo. that's my recollection. my role was a lawyer and predominantly overseeing litigation filed by others against the government. i had a role as a lawyer, significant one.

senator, handen, i recall was a decision that passed in the first instance on the detainee treatment act. to the extent i was involved in providing advice to the lawyer about the detainee treatment act, i'm sure, yes. >> okay. you read the shelby county decision. if you were on the court which side would you have voted with? >> senator, i admire the various ways --

[laughter] >> you'd be a formidable companion in the courtroom. >> senator feinstein said don't let it go to your head, pat. >> he should. >> i'm not. i'm a lawyer from a small town. >> yeah, right. i heard that story. whenever a lawyer says i'm just a lawyer from a small town, watch out. last time you're going to watch your wallet because it's gone quickly, in my experience and i might have played that line once or twice myself. >> no, but i ask these questions because there were both justices ledo when he was before us and justice roberts and answered president questions and are you

saying there's no president questions you can answer? >> no, senator, i'm happy to say that shelby is recent one, it's controversial one, i understand that. what its presidential reach will prove to be, remains to be seen. for example, as i read it, the decision left room for congress to legislatate in the area to make new findings and to express a newme for section 4 and section 5 coverage and that possibility is live and could yield further litigation undoubtedly would. >> would you join justice

scalia's decision on wal-mart? - >>hateveansw you want. >> i will tell you that my record on class actions will reflect if you look and i know you have, that i represented class actions. i represented people fighting class actions. i've ruled against class actions and i've ruled for class actions. and in each case it depends upon the facts and the law presented to me. the most recent class action case significant that i can think of involved residents who lived near rocky flats, uranium processing plants who made nuclear weapons outside of denver and those folks filed a class action for damage to their property and it took 25 years for that case bouncing up and down and back and forth across the legal system before i finally issued a decision

saying, stop, enough, they win. they had a trial, a jury found for them and they win. finish the lawsuit. and i believe it has been finished and i believe they have been finally paid. of course, it's been so long, many of them it's their children who are getting the money. >> before senator graham, i'd thought we would give directions. we have a vote at noon. it's a roll call vote and senator graham should finish about 11:00, 12:00 and then we will adjourn depending on when your last word is, answer to his question, 30 minutes later, some wheres around 1240:12:45 will i gather the committee back to session and you need to be reminded that you shouldn't be offends as members to vote and you will have your 30 minutes and i hope that's enough because

i want to keep this moving, you can be back here around 12:45 or thereabouts. i will wait until you get the orders. [laughter] >> does that detract from anything? >> we are okay. >> senator graham. stuart: charming judge gorsuch putting it right back to senator leahy with a smile throughout, i do believe he charmed the good senator and certainly the rest of the good members of the senate judiciary committee and probably our audience too. there is great stuff going on outside that hearing specifically concerning president trump, speaker ryan, house republicans and obamacare reform and the impact of that on the market. here is what we have for you. president trump emerged from his meeting with house republicans saying, he thinks he's got the votes for thursday.

speaker ryan came out of the meeting and said, we are going to make a lot of amendments, a lot of fixes to make sure it goes through on thursday. mark meaddows who chair it is freedom caucus is not satisfied. he still wants more changes in the bill which goes to the houston -- house on thursday and until then he's holding his fire, therefore the stock market has come down on the grounds that there is risk that thursday's vote will gohe way of president trump. we are down 180 points. that's close to a 1% drop. wewere down almost 200 points earlier. >> they are looking for a binary outcome. what's happening, it's frustrating is that people are starting to trade not just for this bill but for future. they want regulations in advance. that is challenge if you want to

be an investor here because you don't know if you're going to get the futures traded today for 1159. stuart: herv london is with us. i say that judge gorsuch charmed us, the senate judiciary committee. >> there's no one in the room that could lay a glove on him. he is charming and he does understand the law and he's very, very clever in the answers that he provided suggesting that, look, i can't anticipate what the case i will face, how would you ask me to judge, why would you do so, of course, that's the right response, appropriate response. stuart: senator leahy several times asked him about the travel ban and what he called the muslim ban, also about the torture document earlier this century, on both occasions,

judge gorsuch backed right away, i'm sorry, i can't go there plus the fact that he continued to assert the various principle that no man is above the law including the president of the united states. stuart: he said that so many times. no man is above the law. >> he made his point. stuart: it would be hard to see judge gorsuch refuse. >> he's going get confirmation very easily, unanimous. stuart: unanimous? >> yes. i think it'll be unanimous. >> what are the democrats are going to say? 99% supported them 10 years ago, 12 years ago. stuart: don't the democrats have a strategy to stop, block, reverse, everything? >> in the case of gorsuch you

have somebody that's so charming, so competent that it's very difficult to say rewill resist this man. stuart: okay. >> he has published hundreds and hundreds of opinions. you can find out precisely where he stands on things. he's transparent open book. liz: he's pretty young too, at 49. >> he has another 30 years. >> he was justice clerk for justice kennedy. it'll be the first time that a clerk and his boss serve at the same time. stuart: one more point on the market. when we opened this morning we were up, i think, 50 points. we are now down 150. that means we have a 200-point move in this, what, less than about two hours. that's what we've got on our plate. when we started the trading session the big name technology companies, they were the stand-out. apple had made a record high, facebook, amazon, netflix, they

all made record highs. since the market started to head south, we pulled back on each and every one of those big name technology companies. facebook, amazon, microsoft, alphabet, apple, all of them at this point on the downside. i see judge gorsuch moving his chair back. i think they are about to adjourn, somewhat briefly, i think. ashley: one more question from graham right here and then he will answer that and then after that there's going to be we believe a 30-minute break. stuart: the stocks on the right-hand side were at all-time highs earlier this morning. they've backed up just a little. let's listen to senator graham asking the question before the recess. >> the way the senate works when it comes to executive appointments, judicial nominations and will do long-term dame to the judiciary as a whole because the

most ideological would be rewarded. we don't have that requirement yet for the supreme court and i hope we never will. time will tell. i'm not optimistic. at the time of that vote, the senate had confirmed 19 of the president obama's nominations. that same time in bush's term there had been four confirmed. i thought it was a manufactured crisis, i thought it was politically motivated and when it comes to cries of being unfair, they fall on deaf ears. as to justice garland, fine man, i fully expected trump to lose. he won. i think he deserve it is right of every president to pick qualified people and that's just not me saying that. this is what the papers number

76 said about the requirement of advising consent. this is what mr. halt -- hamilton wrote in 1788, the senate cannot be attempted by the preference they might feel to another to reject the one proposed because they could not assure themselves that the person they might wish to be brought forward by a second or any subsequent nomination. they could not even be certain that a future nomination would present a candidate in any degree or acceptable to them. for what purpose then require the cooperation of the senate. it would be an excellent check upon a spirit of favoritism in the president. it would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection from

personal attachment, from a view to popularity. that was the check and balance consent rules of the game that was established in 1788. when you look at the history of the senate's role in confirming justices to the supreme court, it has changed dramatically. many of the judges the supreme court will confirm without a hearing, some of em recorded both. i'm not saying that my party is not in the fault about judges, we are not. in 2013, in 2013 the game changed in the way that mr. hamilton will be disappointed. it's not that i don't understand, i very much do. when my time came for sotomayor

and kegan to appear before this committee, i knew what would have weighted me if i applied the hamilton standard. partisan people are bound on both sides of the aisle. the veracity by which people wanted me to vote no was real apparent and i could feel it. i believed that if judge -- if thurman can vote for ginsburg and 90 senators for scalia that there was a point in time where it was expect that had you would vote for somebody that you would not have chosen. you would use the qualifications of that person. so we find ourselves here today confirming a nomination of one of the most qualified people i

think president trump could have chosen from the coervative world. you are not an unfit person. i don't think there's any reason that you're his favorite. had you ever met president trump personally? >> not until my interview. >> in that interview, did he ever ask you to overrule row -- roev. wade? >> i would have walked out of the door. >> neil gorsuch is a very hostile appointment and a very bad decision well outside the mainstream of american legal

thought. if you breathe air, drink water, take medicine or in any other way interact with the course this is a very bad decision. i want to ask you to respond to completely political garbage and statements like that were direct today sotomayor and kagen. i remember sotomayor called a racist because she gave a speech because it was edgy and kagen being called patriotic because she was involved in a decision at harvard to kick the rotc unit off the campus. and the reason i didn't buy one was a racist and the other was unpatriotic because that took the time to look at the way they lived their lives and i listened to what people had to say who interacted with them all of

their lives. to my democratic colleagues, if you take the time to listen to people who have interacted with judge gorsuch throughout his entire career, you will find pretty quickly that he's a fine decent man who has tried to be a good father, a good husband, a good lawyer and a good judge. and if you don't want to take the time that says more about you than him, all i can say, that it is impossible to conclude that what nancy pelosi said about you is anything other than political talk because there's no facts to justify that. the aba gave you the most highly qualified rating they could give anybody. i just want you to know that -- stuart: i want to draw your attention to what's going on elsewhere on capitol hill and elsewhere on wall street. let's deal with wall street.

we are down 150 points very roughly on the dow jones industrial average. and this is, we think, because the vote on thursday for obamacare repeal and replacement. there's some risk that the president will get his way with that vote. peter, we had a meeting with house republicans with the president this morning, the outcome of that meeting did not suggest unity, it suggested there's still risk to that vote. what happens if the vote is no on thursday and they turn down the obamacare plan? >> okay, this is a small but mighty signal and the advance warning is if you don't get a deal by thursday the stock market is going to have an accident. not just because of health but knock-on effect. the domino, if you will. we have tax reform, infrastructure and a lot of other things in the cue behind it. this has to be a must-win for the president. don't miss an opportunity, make

this deal happen. stuart: it is surprising that there's still risk concerning that vote on thursday when so many tweaks are being suggested in the obamacare plan as it now exists which will be tweaked, i believe, by thursday. the obamacare taxes will be repealed as january 1st, back dated all the way to january the first, more tax credits for older people, states will be able to win post work requirements on medicaid recipients. states will get an option as to how they receive medicaid funds and a big carve-out for upstate new york to the value of? >> 2.5 billion. they don't have to pay for premium. >> they are moving heaven and earth. >> i think the arm-twisting will

occur undoubtedly. the trump administration has to get this passed. the consquences of not passing it are so severe. liz: 2.3 billion a year. stuart: that's a big carve-out. ashley: you look at the steel stocks, they're hurting as well. an overall concern that the trump administration's agenda overall is going to struggle to get through congress. stuart: that's the main point, isn't it? if the vote is no on thursday that derail it is schedule throughout the rest of the year, the schedule being obamacare, tax cuts,aybe -- ashley: right. stuart: you derail that -- liz: a border wall and that's it. i don't think the markets will be happy with that at all. stuart: that's the risk, isn't it?

liz: that's the risk. >> if you don't get vote on thursday, we are going to have response and the tides will take down all the votes. stuart: mark meaddows chairs house caucus and a group of conservatives are standing in this way of this -- liz: they don't like the expanded tax credits. new entitlement program. stuart: they're in a very strong position to horse-trade. they have enormous leverage at this point. >> again, you have to understand is there's so much at stake that the trump team will do everything in its power to be accommodating and they are doing that at the moment. stuart: is higher premiums -- what we want is lower premiums. is that the sticking point? >> i think they are also trading for futures. this bill and the next two

levels to have bill, we want benefits going forward. that's the hardest thing to negotiate because you can't definite i will say i will deliver. i will listen and bear in mind. stuart: disagreement on the obamacare replacement on thursday's vote and hearings on capitol hill. niel, it's yours. neil: as the guest pointed out here, so far democrats have really not layed a glove on him but more of what's happening to the healthcare bill that's teetering. this is the healthcare rework bill that required president trump to pay a visit on capitol hill and remind republicans, hey, guys, we have to do something. the president warning that if that repeal and replace measure fails he told republicans in the room, you're going to lose the house in 2018.