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.

furthermore pointing to mark mu eaddow, leader of freedom caucus, 30-plus house republicans strong leading leadership effort to revamp the health care law, he pointed out, honestly, a loss is not acceptable, folks. he pointed out to meadows and said reportedly i believe mark and his group will come along. i don't know if that is donald trump's version of tony soprano. the message is undeniable. get on the stick here. we can sort out the details later f we lose on this, we can kiss our heinies good-bye. that is my quick take that is the prevailing view dominating the bond market. 10-year note, good reflection how the bond market fools, it seems to be saying run-up in yields and tumbling in prices that might have been overdone. that was seemingly presaging a pickup in economic activity. what if that is not a given? the bond market taking all that

back. enjoying a flight to quality here, on belief, order of events and promising development of events won't go the president's way, won't go republicans way. tax cuts could be delayed. as stuart and his pals could say, that lead to ugly rollout of things not exactly as planned. it is still early in the day. four hours of trading to go. all this atç a time, investors rethink the gimme, health care repeal and replace, what it comes afterwards. maybe you get that done before you address the tax cuts near and dear to all the device on wall street. as i like to stress again and again. they're not red or blue or breen, they love their money. they love their money. big money pies, goldman sachs, morgan stanleys, they're all under incredible pressure. looks like tir rich little world is falling apart. so far at least neil gorsuch's is not. back to the hearing.

>> so that every enemy combatant today has a habeas proceeding where the government has to prove by a predone dance of the evidence that you're in fact a enemy combatant f they reach that conclusion you can be held under the law of war as long as you're a threat to our nation. is that a fair summary where we're at? >> that is my understanding. senator. along the way, we, your legislation did prevail in the d.c. circuit and supreme court t was a close call. 5-4 i recall. >> it proves five people can be wrong. s. i disagree. i certainly respect the court's decision. >> you will not get me to commit -- >> i will not even going to try. the bottom line there will be more legislation coming regarding the role of the government in gathering information, but sort of a

civics point of view which senator sasse will take you through there, is difference between law of war and domestic law, do you agree with that? >> yes, sir. >> the common criminal of the goal of the law is to prosecute a crime that one individual or group committed against another individual or groups. that's correct? >> that's right. >> the law of war is about winning the war. >> well, senator -- >> how you fight the war. >> there are, as you know, rules about that too. >> laws about that. >> we're fighting an enemy who has no rules that would do anything, i've always been in the camp i don't want to be like them. i think that is their weakness. the strongest thing we could do is stand up for a process that stood the test of time. which is intelligence gathering in a humane way. because they would cut our heads off doesn't make us weak th we won't cut their heads off. that makes us stronger over the arc of time.

that is my commercial about that there will be more litigation. there are no bad guys or girls when it comes to challenging a president, do you agree with that? people have the right to do that? >> to challenge precedent? >> yes. >> every person is allowed to come to court whatever claim they have. that is how our system works. >> that is how brown versus board of education came about. >> exactly right. >> let's talk about roe v. wade. what is the holding of roe v. wade in 30 seconds? >> the holding of roe vs. wade in 30 second, senator, a woman has the right to an abortion. it developed a trimester school in roe that specified when the state interests and when the women's interests tend to prevail. >> okay. let me break it down. the court said that there's a right to privacy. that the governmenáç can't interfere with that right in the first trimester. beyond the first trimester the

government has more interests as the baby develops, is that fair to say? >> that was the scheme set forth. >> i think medical viability was the test that the court used. >> well, that is the kest that the court came around and applied in casey, in 1992. >> okay. >> and so viability became more of the touchstone, rather than a rigid -- >> is it fair to say medical viability in 1992 may be different than it is in 2022 medically? >> senator, i'm not a soon sift or a doctor. >> i would suggest that medical viability may change as science progresses. so you may have people coming in and saying, and in light of scientific medical changes, let's look at when medical viability occurs. that is one example of litigation. that may come before you. i have legislation that says that 20 weeks the unborn child is a able to feel excruciating

pain, and theory of the legislation is, the state has compelling interests to protect an unborn child from excruciating pain which is caused by an abortion. i'm not asking you to agree with my legislation, i am saying that i am developing, we're one of seven nations allow wholesale on demand, unlimited abortion at 20 weeks, the fifth month of pregnancy. i would like to get out of that club but we'llave a debate in this body in the house, about whether or not we want to change the law to give an unborn child protection against, excruciating pain at 20 weeks because you can, the standard medically is that if you operate on an unborn child at 20 weeks, the medical protocols are such that you have to appliance they're i can't because you don't want to hurt the child in the the process of trying to save the child. so medical practice is such when you operate on an unborn child at 20 weeks, which you can do, you have to apply anesthesia.

my theory is, let's look at it the other way, should you allow abortion on demand for a child that can feel, excruciating pain? is that what we want to be as a nation? i would argue there is compelling interest at that stage of the pregnancy to protect a child against death that will be excruciatingly painful. you don't have to say a word. i'm just letting everybody know, if this legislation passes it will be challenged before you. and you will have to look at a new theory of how the state can protect the unborn. and here is what i think. you will read the briefs, look at the facts and make a decision. am i fair to conclude that? >> senator, i can promise you no more than that. and i guarranty no less than that, in every single case that comes before -- >> this is real world situation that may develop over time because 70 something percent of the american people side with me

on the idea that at 20 weeks, we should not be in the club of seven thankses that allow abortion on demand because that is in the fifth month. that doesn't make us a better nation. there will be people on the other side saying no, that's an erosion of roe, it will bo to the court, maybe if it ever passes here. the only reason i mention this, everybody wants to trillion whatever in court deserves aç person like you. a person like you no matter what pressures are applied to you. will say, over and over and over again, i want to hear what both sides have to say. i want to read their legal arguments. look at the facts and i will decide. that to me is reassuring. that is exactly same answer i got from sotomayor and kagan. no more, no less. we can talk forever about what you may or may not do.

if you do anything different than that i think you would be unworthy of the job. now, about what's going on in the country with president trump. whether you like him or you don't he is president but you have said several times that he is not above the law as president. is that correct? >> yes, senator. >> you told senator leahy if there was a law passed that a muslim could not serve in the military, you believe based on current law that would be an illegal act? >> senator, yes, i see that having all sorts of constitutional problems under current law. >> so if we have laws on the book that prevent waterboarding, do you agree with me that the detainee treatment act prevent waterboarding? >> yes, senator, that is my recollection of it. >> in case president trump is

watching, which he may very well be, one, you did a good job picking judge gorsuch. number two -- [laughter]. here's the bad part. if you start waterboarding people, you may get impeached. is that a fair summary? >> senator, the impeachment power belongs to this body. >> that is even better. would he be subject to prosecution? >> senator, i'm not going to speculate. >> but he is not above the law. >> no man is above the law. no man. >> thank you. i think you're a moon -- man of the law. i really want to congratulate the president to pick you. quite frankly i would worried about who he would pick. maybe somebody on tv. [laughter]. but president trump could not have done better in choosing you, and i hope people on the other side will understand that you may not like him, i

certainly didn't agree with president obama, but i understood why he picked sotomayor and kagan. i hope you can understand why president trump picked neil gorsuch. i hope you will be happy with that, because i am. >> thank you, senator. >> we'll recess until 12:45. neil: all right. continuing with these hearings now in a bit of a break here, about another 30-minute breaker who. so far if you're looking for any fireworks or attempt on the part of democrats to dislodge judge gorsuch or to catch him off-guard or sort of, ill wit that does not appear to be the case. the old line they haven't laid a glove on him still appears here. we're early in the process.

strong, get a chance to can for ten minutes. emotional exceeded that all said and done. by that definition, this hearing should be dragging on until at least 3:00 in the morning. i'm exaggerating, that these guys can not make a concise point. so far judge gorsuch is comporting himself very well. in the meantime we're not losing sight what has been happening on the lower right-hand side of your screen. you're, a lot of health care seems to be gasping for air and own little paddles, president says on capitol hill, guys we have to get on the same stick, to republican leaders, so too will the republican majority in the house in 2018. peter barnes in the white house with this fight, where it stand right now. peter? reporter: neil, the president also saying behind closed doors that republican cost lose senate in 2018. he spoke to house republicans for about 40 minutes and

afterwards, in his comment to cameras he suggested at the wheeling and dealing that has been going on behind the sans that he has been part of in order to get the legislation passed. listen. [inaudible] >> health care plan, that is what we have -- [inaudible] reporter: now last night the house republicans announced changes to the legislation to try to get, make sure that it, republicans have enough votes to pass this for the scheduled vote on thursday. these changes include a new 75 billion-dollar reserve fund of tax credits for older people to help them purchase health insurance coverage once obamacare is he repealed. the states will now be able to, would now be able to take medicaid completely in the form of block grant rather than just,

with just a capitation and other types of formulas. just pure block grants if they choose to. the states could adopt optional work requirements for able-bodied recipient. the repeal of obamacare taxes quickly starting in 2017 retroactively. not started in 2018. it would provide some changes in medicaid and how it is applied to the elderly. neil, reportedly some moderates who are not happy with this legislation. so president still has his work to do aa long with republican leaders. back to you. neil: peter, mentioned conundrum to win over conservatives you potentially tick off moderates. president saying look, we're all in this together, paraphrasing here. the leadership and our control of capitol hill is at stake. did that resonate with anyone? or are they still going to chance this on thursday and sort of see what happens? >> some of these comment made by moderates were made after the president spoke to him. as part of the revisions there

was for example. there was a provision in the bill to help moderate republicans in new york state making sure that medicaid dollars get to where they're supposed to go there under complicated formula involving what local governments kick into the tab there. so that was designed specifically and was only applied to those, applied for to win moderate republican votes in new york state. neil: all right, peter, thankç you very, very, much. by the way to peter's point, that conundrum trying to win over moderates who get very skiddish when it looks like a lot of folks could lose their insurance coverage. conservatives not so much, who worry to entice that coverage or to keep the coverage or to expand that coverage, they're foisting these tax credits which some like rand paul, for example, in the senate believe are glorified subsidies, his version of obamacare light.rulee

chairman congressman pete sessions on all of this. by the way his committee is among those taking up this tomorrow. sir, very good to have you. >> neil, thank you very much. in fact it will be before the rules committee before. the chairman of the ways and means committee, the chairman of the energy and commerce committee and the chairwoman of budget will be presenting their ideas and thinks which they have gone through regular order to pass, will come to the rules committee that will take several hours i'm sure, starting 10:00 a.m. we'll handle all the other members of congress seek to give their opinions and to amend the bill they would like it to be done. neil: do you think that do you think the thursday vote is doable? >> neil, there is no doubt in my mind what we're faced with is a requestion, are we going to stay with what we have, which is ruining our, not only our health care system but also our economic ability, but takes freedom away from people. members of congress are on

obamacare. we understand it. we're legally required to be on obamacare if we seek our employer benefit. and with understand what it is doing across the country and so i am for even though the bill may not be perfect, probably 2/3 of it. i have been a large shape or person of that. and i think it's the right thing. there are things around the edges that are not perfect. we'll try to get votes for that. i think it will pass. i think american people he see the benefits as we move to the senate to pass it there also. neil: i don't know if you were in the meeting with the president, sure, but he seemed to intimate, if it doesn't pass you can kiss that republican leadership in the house and senate good-bye. >> i don't think there is any doubt about it. neil: really? >> if the president wants to believe that there is a lot of truth to it. neil: do you think if this doesn't pass, sir, it is fatal for republicans next year?

>> i, no, you said house leadership and senate leadership. neil: no, no i'm sorry i wasn't clear then. that is my fault. that it would amount to republicans losing control of the house and the senate? >> well i do believe that if we failed to pass a plan, just because, look, i'm for this plan. neil: right. >> but it does not mean that we could not, it would not trigger the need an desire for some more changes to get the 218 votes. i don't think it is all over but this leadership team placed their name on it and we ought to support it. neil: if it doesn't, for some reason people say it is sort of like a shotgun vote and some conservatives, i guess some moderates by extension seem to be saying well, don't rush this on me but donald trump seemed to be saying, it's not perfect but it is the best we have and we got to stick together on this. who has the edge here?

>> well,ç the bottom line is if republicans do not repeal obamacare with an alternative this year, we will get a shot to do it in four years when we get the majority back. we have to do it this year. the president has played ball. the house and senate are playing ball. we have things that are necessarily begun beyond our control on a straight up basis because of legislation that is in the senate that is called the byrd rule. a lot of people back home are holding us accountable for the entire package when in fact we're trying to put together the things that would do it well and correctly. i'm proud of what we're doing. i intend to support the bill but we're going to get the testimony here today, tomorrow, from the rules committee. and then we will see what package gets put together. i don't want to presume that my committee is going to vote in away until they hear the actual facts of the case. neil: congressman, before you

go, i want to remind you, markets there is a steep selloff, about 143 points worth on the belief, this is one view of what is going on, congressman. that, this doesn't look like it's going to pass and the republican again today itself, including the tax cuts, which is near and dear to certainly the market, a lot of other folks i'm sure as well, begins to unravel. are the markets getting ahead of themselves here? are they getting too dreary for word or what? >> in fact they would be. my confidence of where we are is, i think this is going to pass. let me say something, neil, if i can about these tax credits. neil: sure. >> the tax credits are there as a fairness value to those people that do not receive the tax benefit. i receive, and people who work for a large company, or for the government, receive health care on a benefit, non-taxable basis. that means we pay no tax for

that which we receive. it is only fair for members of the congress to recognize that there are people who are entrepreneurs, self-employed people, many of them might be like a real estate agent who do not receive the tax benefit. this is and only a fair thing to do. for any member of the house or senate not to recognize they receive health care on a pretax basis, others should get a start at that, that is an unfair argument and we've got to come around as a party to understand fair is fair. neil: mr. chairman, thank you very much. pete sessions. man in charge of the house rules committee. everything will go through that committee here. it's a crucial committee at that he is the lynchpin of all of that. this selloff continues at the corner of wall and broad. i should ema emphasize all financials issues, likes of goldman sachs, american express, visa, jpmorgan chase, travelers, the insurance giant are all under pressure here. these are the same financial

issues that were running fast and furious on the belief, that well, the tonic they really wanted, that is tax cuts, low regulations. relief on the financial front was all going their way until these latest dust-ups concerning the health care law and that may be in doubt. economically sensitive issues like home depot and 3m, minnesota mining and manufacturing, even mcdonald's and caterpillar feeling the heat. we saw a run-up in the bond market anticipating a slowdown. so again the markets can often be wrong, folks and the markets could be telegraphingç somethig that doesn't materialize. or this simply could be a excuse to sell. right now stocks are not so dear. bonds and rather conservative invests are, and that is ruling the roost here, took no less than president of the united states took a voice to it capitol hill, reminding the party this is for all the marbles, guys. do you really want to lose those

marbles? we'll have more after this. . .

neil: i want to show you two boards here that kind of sum up what's going on. bonds conservative investment looking good on anticipation of things slowing down. you know the drill, when the yield goes down as has been happening price bows going up. people bidding on 10-year treasury notes is a good example. to the right of your screen, the big selloff on the stock market. they're not quite encouraged about the prospect of the markets that have been running up fast and furious since donald trump got elected in november. maybe that agenda will include much lower taxes and ultimately repealing and replacing obamacare, the kind of things market generally want to see, want to see and certainly not panning out or rolling out as quick as they wanted. may be in jeopardy if the repeal and replace of obamacare will not happen. it is way too soon to say that anticipation is very, very high

for a thursday vote on that health care measure, revised measure in the house. where they can't have any room for error. and in order to fix this, so that conservatives will like it, we're getting wind maybe some moderate republicans do not like it. that is one of the things weighing on insurers and others that were expected beneficiaries of an obamacare replacement plan that is yet to materialize. now it still could. again donald trump visiting capitol hill reminding republicans it is up to you. if we botch this, guys, paraphrasing here, we're not going to be in control of the house or the senate next year. and it could be very bad for all of us. let's get the read on all of that, including these confirmation hearings contiing for judge neil gorsuch with senator mike rounds of the beautiful state of south dakota. senator, am i right on that? that the market fears, sir, that this could at least on the health care stuff be unraveling? >> i think it is like we talk

about legislative processes being like making sausage, it is not always fun. it doesn't look very good, most cases if you do it correctly you come out with a good product in the end. this is one we want to get done correctly. i don't think we ought to put a time limit on it, put our way through it and it will be better that obama karr. obamacare is in death spiral. neil: you think the measure sort of tweaked a little bit now, meant to win over conservatives, i don't know where moderates stand on this, they're kind of a wash i guess, it wasn't tweaked enough, it wasn't, you know, fixed enough and that even the likes of rand paul telling me yesterday, sir, that he can't support it, won't support it? >> i'm not going to go so far to say i would not support it. i haven't seen what the house did this morning but i can tell you that our goal should be to look at the end rut after everything is done an whether or not we actually have a fair and open marketplace that he provides for good competition.

i think there is a couple things we need to do with the tax credits. we have to open up those for group health insureds as well. i think that is a big part of the deal i'm concerned with right now. neil: do you think those tax credits, senator, are a subsidy? >> sure they're a subis a did i. neil: i apologize, that sticks in the craw of a lot of your conservative colleagues say, no, we know what the agenda is here, and obamacare light, obamacare 2.0, you heard all of that. what do you say? >> it is not obamacare because obamacare was based on trying to get us to a single-payer system. what they were trying to say there will be a one size fit all in regard to health benefits you can actually get. the only thing that changes are deductibles and co-pays. what we're talking about now under the plan the states will be actively involved. you can pick and choose the types of coverages you want. we do medicaid right now. that is a recognized part of the safety net.

what they're talking about expanding on limited basis the amount of dollars going to incentivize people to buy health care and put more of their money into it. i want to make sure that when we're all said and done with it we have the most efficient delivery of headlight care we can possibly get. that means competitive system. multiple companies vying for the consumers dollars, innovative products and actually put into place a plan in which we can actually allow for health care costs to start to to down again. when you have regulations like you've got right now at the federal left you're not encouraging reduction in health care costs ultimately passed back on to consumers. what you end up with, more people paying higher and higher costs, getting out of the market. at the same time more people ending up on medicaid and when you have people on medicare, the rest of us are going to subsidize that because medicaid doesn't pay the full bore. only pays a part of it. that is passes on to the private market that increases everybody's prices.

we he have to do everything we can to strengthen the private market, group in particular, because that is the most efficient delivery system out there and allow for innovation in the systems and allow doctors to get back down to treating patient the rather than filling out forms. neil: you know, senator, i heard from a number of liberals too, we won on this, neil, paraphrasing again. their thrust republicans are arguing just how big of a government health care program they're going to end up with. they want it to be smaller than what we've got but it will still be mighty big. we win. what do you think? >> we've always had government involved in health care for generations. look we've got medicare. we've got medicaid. but if you don't have a healthy, separate private payer system what the vast majority of americans on it then you can't afford medicare and medicaid because it is subsidized by the private sector paying higher prices because we're paying a lower price for medicare and medicaid.

so the doctors still getting their money, providers still get their money. they have to still operate the hospitals. they will still have innovative approaches and new technologies everybody wants. the reality you can have that if you have a healthy private insurance market. that'shat got to focus on. what do we do to make the private health care market as efficient as possible but as healthy as possible. neil: obviously the president was worried enough to come up to capitol hill and meet with your colleagues today. do you think he has reason to be worried? >> yeah, i think he does. i think there is a reason to be worried because the plan's not perfect right now and everything that -- neil: but will it be perfect by thursday and is thursday a drop-dead date it should be perfect? >> i think what they will call perfect in the house, whether or not they get majority vote in the house. i think they get something done in the house. neil: really?

>> in the senate we start all over again. a lot of us say we only get one opportunity to send the message we'll do it right. we all want to get to yes, i really do believe that. we all want to get to yes. the question what is take to assure us when all said and done we have a product people look back at it, a year from now, two years from now, four years from now, saying it's a good thing they fixed that, because it is so much better than obamacare could have been. neil: senator, thank you very, very much. we appreciate your patience and taking time. we're also going back shortly to the neil gorsuch hearing. so far he be a corded himself quite well. we're still early in the process. keep in mind these guys are running overtime. they're in a little bit of a lunch break. it could drag on to late tonight. looking forward we have charlie gasparino. that is something to look forward to, folks. can i get some help. watch his head.

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neil: had hit all-time high earlier today. since giving background. i think they have a red iphone 7. what were you telling me, ralph, to honor aids? whatever. i thought it was fine in keeping with the color of apple but i'm a little simplistic. they have a cheaper ipad. i guess one that, 300 neck of the woods? is that what i'm hearing? 329. look at this guy. he knows it like have bait tim. ralph is into all this stuff. apparently the market not so much. i don't know what is going on with that apple has reversed. markets having a difficult time today, all having to do with not so much apple and all this toward stuff, but fears republicans could be slip, slipping away here. charlie gasparino on all of that what is going on, bud? >> you look at different charts and you try to ascertain what investors are seeing from not

just the stock market. two charts i like are the peso, which should trade lower as donaldrump's presidency progresses. because you know, it becomes weaker. what you see the peso is trading higher. when the peso line goes down looking at chart, trading higher, less pesos to buy a doll arela. hence a what that means. that is my checks taught me. neil: i like how you dot down direction, it helps me follow it. >> then there's the bond which -- neil: that is very interesting. >> look at the yields. yields are going down, prices are going up. people -- neil: bond market is telegraphing slowdown? >> peso is telegraphing the trump economic plan which involves getting rid of nafta which is not getting off of the ground. stocks are off today major. listen, yesterday was not a great day for the country and

i'll tell you why. not because jim comey dropped any bombshell on us about, that there was a president who was wiretapped. because just the opposite. neil: he also confirmed an investigation some fear could be protracted. >> i think most people feel that investigation may not turn up much other than trump advisors talking to russians who were under surveillance. the real problem it underscored whatever donald trump tweeted out that day was either insane or a lie. neil: you're talking about allegation that his predecessor was tapping his phone. >> yes, yes. neil: rand paul said, you know, detail might be he was ironically right, people were tapped and it might have been snared some of his people and donald trump himself talking to his people? >> big difference. neil: big difference? >> he should know that. he doesn't really understand what is going on, he doesn't care, and he -- >> talking about the president? >> the president.

this is what invesrs are grappling with, when you have someone like that in the oval office what does that mean about getting his economic agenda? amid some really, really important stuff that donald trump has to pass, he's tweeted about arnold schwarzenegger's lousy ratings. he tweeted about -- neil: arnold is doubledown saying very nasty stuff. >> we should expect some very nasty stuff. got on nordstrom's case going after his daughter, canceling his daughter's line of clothing. neil: he was up on capitol hill making a strong health care push. >> i'm sure he can walk and chew gum at the same time. neil: it is easy to pile on saying he is falling apart. >> i'm not saying he is falling apart. neil: i understand that but many in the media are, trying to be fair and balanced do you think just as people got overpsyched on the upside they're getting over depressed?

>> the media hates him. they will make anything he does much worse. neil: they say at the trump white house you hate them. >> no. they actually like me. that is why we get stories. you but know here's one thing i will tell you, that anybody would tell you that wants much of his economic agenda passed because he and i are on the same page, we are free market capitalists. we want lower taxes. neil: maybe should have done the lower taxes first. >> focus on that stuff, stay away from arnold. who cares about the "apprentice" and this other stuff. he actually called obama sick in that tweet. didn't he say parentheses, sick? neil: i don't remember. >> i do. but in any event -- neil: the market seems to anticipate his brand agenda we love, mr. president, is falling apart. are they overreacting? >> they always overreact. it is moment in time. maybe former gets something

passed and -- neil: make sure i'm getting it right, charlie, we repeal and replace or republicans will lose the house in 2018 and likely the senate. >> maybe -- neil: you buy that? >> republicans don't. listen, i think they should repeal and replace. i think they should go baby steps. maybe this is a decent babe step they should take. neil: what they're doing to win over conservatives they tick off moderates. >> this is tough, man. obamacare had a lot of trap doors in it to screw up whoever wanted to change it. if you want to repeand replace it you are going to face this. as we said, probably should have went for tax cuts first. neil: right. >> let's say, we're stuck with the hand right now. i think what markets are saying they would appreciate a more steady hand as president. someone who didn't say some of the stuff he said. someone who didn't -- neil: but that is water under the bridge. he hasn't said stuff in days. >> yes. neil: okay. >> listen, it is one thing during the campaign to say, to

suggest ted cruz's old man might have killed kennedy, which he did. he called in to "fox & friends and did that. it is another thing -- it weighs on markets and -- neil: you're a hater though. >> i'm with you. are you hater? neil: i'm a mutual -- >> you hate everybody. neil: yeah. >> that is how i am. neil: alienate everyone. to charlie's fine point we're down about 171 points. the hearings are resuming on capitol hill, the neal gorsuch hearings. none of this has to do with the judge who is doing a boffo job not having anyone lay a glove on him. i did that for gasparino, quite the boxer he is is. we'll see in gorsuch can hole up with questions that will go up later into the night. >> detainee treatment amendment? >> senator, that wouldn't fit quite with my recollection. >> please.

>> my recollection is that senator mccain and senator graham wrote the legislation with input from the department of defense and the department of justice and the a whole lot of others besides. i was one voice among a great many and that in terms of when it was struck down, ham den held that the detainee treatment act didn't apply retroactively. it only applied prospectively. then several years later, gosh, i want to say it was 2008 maybe, the court came back around and in bumadean. >> what i'm driving at is the mccain section relative to cruel and inhumane and degrading treatment and i assume or i hope you have had a chance to take a glance at the emails that senator feinstein gave you. you said in your email, i wanted a signing statement to the effect that the view is that

mccain is best read as essentially codifying existing interrogation policies. so what interrogation policies did you think the mccain amendment was essentially codifying? >> senator, i haven't had a chance to look at that, i scarfed down a sandwich over the break. i will be happy to read it, but i'm not sure what i can answer you here sitting off the top of my head. it was 12 years ago. i'm doing the best i can from my recollection. my recollection -- >> i'm trying to get thi from your memory of this email which, i understand there were 100,000 pages of emails. >> exactly, senator. the justice department has produced something like 200,000 pages. >> i will concede that point but your lack of memory at the moment contrast that with your clear statement that you believe that the mccain bill, which i supported, outlawed waterboarding.

>> i, sitting here that would be my understanding, senator. >> the problem with what i've just described is, when you were talking about a signing statement, waterboarding was still happening and you were saying in your email i want to essentially codify existing interrogation policy. there is inconsistency there which we'll have to wait until the second round to resolve. >> okay. >> okay. let me read something to you, and ask you, for reaction. is the statement that was made about eight days ago by a congressman named steve king of iowa, and here is what he said. you can not rebuild your civilization with somebody else's babies. you got to keep your birth rate up and need to teach your children your values. in doing so you can grow your population, strengthen your culture, you can strengthen your way of life. the reaction to that statement was overwhelming. civil rights leader congressman racist.

republican house speaker paul ryan said he clearly disagreed with king's comment. went on to say the speaker clearly disagrees, believes america's long history of inclusiveness is one of its great strengths. what would your reaction to that statement be. >> senator, i can talk about my record. and i can tell you that as a federal judge when a defendant comes to court with an allegation thathe sentencing judge made improper comments based on his eggs ethnicity, me and my colleagues, my colleagues and i removed that judge from the case. i can tell you that when an immigration lawyer fails to provide competent counsel time and time again, i've sent him to the bar for discipline. >> okay. >> i can tell you when it comes to access to justice, i've written on this topic. i've worked on this topic for

the last six years together with many wonderful people on the rules committee trying to make our system litigation system cheaper and faster because it takes too long for people to exercise their 7th amendment liberties, i can tell you together with my colleagues, when we found that the level of representation of inmates on death row was unacceptable in our circuit, a whole bunch of us, i can't take too much credit, tried to do something about it. i can tell you that when prisoners come to court, prosay handwritten complaints. i see something that might be mem i appothat is my record, se. >> can you describe your relationship with professor john fenis. >> sure, he was my dissertation supervisor. >> when did you first mead him? >> whenever i went to oxford. so it would have been 199 --

>> 2. >> could have been 2 or 3, somewhere in there. >> and how, what was his relationship with you or you with him? >> he was my dissertation supervisor and i would describe that as a relationship between teacher and student and he was a very yen -- generous teacher, particularly generous with his red ink on my papers. i member sitting next to the fire in his oxford office, like something out of "harry potter" and he always had a coal fireplace burning. sometimes when i was being raked over the coals. he did not let an argument that i was working on go unchallenged from any direction. >> so that was over 20 years ago you first empty him? >> whatever it is it is, yes. >> do you still have a friendship, relationship with him? >> last time i saw him, gosh,

when, i know i saw him when he retired and there was a party held in his honor, and i remember seeing him then. that was a couple years ago. >> did he know you were from colorado? >> i don't know. it must have -- at some point come out in our conversations. i don't know. >> do you recall saying some words of gratitude for his help in writing your book? >> he did not write my book. senator. he did not help write my book. i wrote my book. i, certainly expressed gratitude to my dissertation supervisor in a book basically, my dissertation. >> i think you were quoted at saying in 2006, you thanked him for his quote, kind support through draft after draft? >> and there were a lot of drafts, senator, golly. that was a very tough degree.

that was the most rigorous academic experience of my life and i had to pass not just him but an internal examiner and external examiner, and that was hard. that was hard. >> in 2011 when notre dame ran a symposium to celebrate his work, you recalled your study under him and you said, quote, it was a time when legal giants roamed among oxford's spires. >> oh, yeah, yeah. >> you called him one of the great scholars. >> and oxford has a stable, it is part of the reason why it was such a privilege. here is a kid from colorado. i got a scholarship to go to oxford. i had never been to england, to europe before, and at oxford at that time they had john fen the is, joe raz. hla heart was still alive. >> let me if i can read a couple statements from professor fenis. in 2009, professor fenis wrote

about england's population. he said england's population had quote, largely given up bearing children at a rate consistent with their community's medium term survival. he warned they were on a path to quote, their own replacement as a people by other peoples more or less regardless of the incomers compatibility, psychology, culture, religion or political ideas and ambitions or the worth or wish schussness of those ideas and ambitions. he went on to say, quote, european states in the early 21st moved into trajectory and demographic and cultural decay, population transfer and replacement by reverse colonization. had you ever he read that before? >> nop >> had you heard it before? >> nope. not to my recollection. >> do could yodistinguh at he said with what congressman deceive king said? >> senator, i, i'm not hear to answer for mr. king or for professor fenis. >> your reaction to these things, do you feel that what professor fenis wrote about

purity of culture and such, is something that we should condemn or congratulate? >> senator, before i expressed any view on that i would want to read it. i would want to read it from beginning to end, not an excerpt. and senator, i've had a lot of professors. i've been blessed with some wonderful professors. and i didn't agree with everything they said and i wouldn't expect them to agree with everything i've said. >> let me ask you this specific one. it was 1993. you were at oxford. this is when you believe you first met this professor. professor fbi s was tapped by then colorado he solicitor general, timothy timkovich to help defend a 1992 state constitutional amendment that broadly restricted the state from protecting gay, lesbian, bisexual people from discrimination. during the course of the deposition which you gave in support of that effort, fenis argued that antipathy toward

lgbt people, specifically towards gay sex was rooted not in religious tradition, western law but society at large. he referred to homosexuality as beastiality in the course of this as well. were you aware of that? >> senator, i know he testified in the case, i can't say sitting here i recall specifics of his testimony or that he gave a deposition. >> i guess the reason i'm raising this, this is a man who apparently had an impact on your life, certainly your academic life and i'm trying to figure out where we can parse his views from your views, what impact he had on you as a student, what impact he has on you today with his views? >> well i guess, senator, i think the best evidence is what i have written. i've written over, gosh, written or joined over 6 million words as a federal appellate judge. i've written a couple of books.

i have been a lawyer and a judge for 25 or 30 years. that is my record. and i guess i would ask you to respectfully to look at my credentials and my record and some of the examples i've given you. from my record about the capital habeas work. about access to justice. i've spoken about overcriminalization publicly. those are things i have done, senator. >> what about lgbtq individuals? >> senator, there are, what about them? >> well, the point i made is -- >> they're people and. >> of course. >> what you said earlier was that you have a record of speaking out, standing up for those minoritys who you believe are not being treated fairly. can you point to statements or cases you have ruled on relative to that class? >> senator, i've tried to treat each case and each person as a person not of this kind of person, not of that kind of

person. a person. equal justice under law. is a radical promise. in the history of mankind. >> does that refer to sexual orientation as well. >> senator, the supreme court of the united states has held that single sex marriage is protected by the constitution. >> judge, would you agree if an employer were to ask female job applicants about their family plans but not male applicant that would be evidence of sex discrimination prohibited by title vii of the civil rights act? >> senator i would agree with you, it is highly inappropriate. >> you don't believe it is prohibited? >> senator, sound like a potential hypothetical case that might be a case or controversy i might have to decide and i wouldn't want to prejudge it sitting here at confirmation table. i can tell you it would be inappropriate. >> inappropriate. do you believe that there are ever situations where the cost to an employer of maternity

leave can justify an employer asking only female applicants and not male applicants about family plans? >> senator, they are not my words and i never would have said them. >> i didn't say you said them. i'm asking you if you agreed with the statement? >> i'm telling you i don't. >> in wayne versus kansas state, the case involved a cancer-stricken professor, noted opinion eeoc guidance commands deference only the reasoning provesersuasive. eeoc guidance on pregnancy discrimination provides as follow. because titleprohibits discrimination based on presidency employers should not make inquiries whether an applicant or employ he intends to p.m. pregnant. ee. oc will regard that evidence of pregnancy or discrimination where the employer makes unfavorable job decision affecting a pregnant worker. do you find this instruction to be persuasive. >> there is a lot of words there

and if you're asking me to parse them out to give you legal opinion i respectfully i have to study it in the course of a judicial case. >> let me bring it down to the opera at this time words. use maternity benefits. once signed to a letter that was

a pretty brave thing to do. that student didn't just make that decision after you were nominated it last night, university of colorado law school conference she had voiced concerns with administrators shortly after your april 19th class and also confirmed that the administrato told her they would raise this matter with you though they never actually did so. when we receive information like this which raises questions about your views then conduct on important issues, i want to get to the bottom of it. my opening statement i would be bringing this up. did you ask your students in class to raise your hands if they know the woman who had taken maternity benefits from a company and left the company after having the baby? >> know, senator. i was be delighted to actually clear this up. >> please. >> at first i heard this was the night before my confirmation hearing. i've been teaching legal ethics at the university of colorado

for seven or eight years theater teacher ms. standard textbook that every professor -- a number of professors use. it's an excellent textbook. they harp harsh realities when they enter the park is the law. as you know and i know, we have an unhappy and unhealthy profession in a lot of ways. lawyers commit suicide at rates far higher than the population. alcoholism, divorce, depression are also an extremely high rate. young lawyers also face the problem of having enormous debt when they leave law school. and that is a huge innovation for them to be able to do public service like you when i are so privileged to be able to do. we talk about those things. there is one problem in the book

that i'd be happy to share with you the book and the teacher's manual for so you can see for yourself, which asks the question, and then it's directed to young women because sadly this is reality they sometimes days. the problem is this. suppose an older partner women at the firm that you are interviewing not asks you if you intend to become pregnant soon. what are your choices as a young person? you can say yes, tell the truth, hypothetical and not get the job and not be able to pay your debt. you can lie, maybe get the job. you can say no. that is a choice, too. is a hard choice. or you can push back in some way, shape or form. we talk about the pros and cons in a socratic dialogue that they can think through for themselves how they might answer that very

difficult question. senator, i do ask for a short hands not about the question you asked and answered everybody, how many of you have had questions like this has to do employment environment? an inappropriate question about your family planning. i am shocked every year, senator, how many young women raise their hand. it is disturbing to me. i knew this stuff happen when my mom was a young practicing lawyer graduated law school in the 1960s at age 20 she had to wait for a year to take the bar. i knew it happened with justice o'connor, couldn't get a job as a lawyer when she graduated in law school and had to work as a secretary. i am shocked it still happens every year that i get when -- not men -- raising their hand to that question. thank you for the opportunity to clarify that, senator. >> and i wanted to give you that

opportunity. i showed you yesterday we get to the bottom of this and give your chance to tell your story. he made a choice yesterday talking about you for heroes and one of them was justice jackson. i went back to look at some of his cases. i just know of him. i don't know much about him. and i found his defense in court not to. this was a case that i thought was fascinating because this dissent was not that long, but it had an impact. it was profound. the question was the military orders in the united states in the treatment of japanese americans. for a court not to was caught up in it and was told he had no choice you had to go to an internment camp in the military directive is challenged in this case. it was interesting that it was upheld by justice black but among the dissenters was robert

jackson in his dissent, he said something that ithought were pretty interesting and i would like to ask your thoughts on them. he gave a constitutional condemnation of what he considered the military's race exclusion orders, but what he articulated in the second half of the opinion is what i would like to ask you about. he really raised a question about the role of the courts, even the supreme court in time of war, in times of fear, when it came to military orders and whether the courts and the constitution were up to it. that was really an amazing challenge to us as a nation, a nation of laws. so what do you think about the role of the court challenging the military or the commander-in-chief in time of

war and i senator graham reminded us come in many people believe we are at war and i believe you confirm that as well. are we up to it in terms of constitutional protection in the role of the court? >> we better be. >> senator connie a wise old judge, kind of like judge johnson, you're going to hear from and will come talk to you, from colorado, a hero of mine, he taught me that the test of the rule of law is whether the government can loosen its own court and accept the judgment of those scores. that doesn't happen everywhere else around the world. we take it for granted in this country. it is a remarkable blessing from our forefathers and it is a daunting prospect as a judge to have to carry that and to do it on the supreme court of the

united states is humbling, that prospect to me. i pledge to you that i will do everything i can to uphold the constitution and the laws as a good judge should at all times. >> let me ask you about another case that has been referred to. yesterday, many of us left out madden synonym that trapped about 3:00 in the morning on i 88 west of chicago. it was in january. the temperature in the cab was 14 degrees below zero. he had no heater in his cab. his dispatcher told him sit tight. either trackback trailer with the frozen breaks behind you onto the highway or you wait. and so he waited for hours and finally, feeling numb and life-threatening, he unhitched a trailer and took his tractor to a place where some gas field to warm up and then return to it when they fixed it.

seven different judges took a look at the facts and came down on the side except for one. you. why? >> senator, this is one of those who take home at night. the law says that the man is protected and can't be fired if he refuses to operate an unsafe vehicle. the facts of the case, at least as they understood them was that mr. madden chose to operate vehicle, to drive away. and therefore wasn't protected by the law. it would be protected if he refused to operate, but he chose to operate. >> you know the distinction, though. the dispatcher told and don't leave msu trackback trailer. and he said i can't do it. the brakes are frozen and they went out there and 14 below and not hitched a trailer he thought because he was in danger.

when you write your dissent is based, you said it was an unpleasant option for him to wait for the repair man to arrive. >> i said more than that. >> u.n. on to say that you thought the statute which he thought protect them, you said, especially in the ephemeral and generic phrase health and safety, u.n. on to write, after all, went under the sun at least at some level of generality doesn't believe in health and safety. we had a pretty clear legislative intent for a driver who feels he's in danger of his life perhaps and you dismiss itd say no. you are fired, buddy. he was flat out from trucking because of that. never got a chance to drive the truck again. >> senator, all i can tell you is my job is to apply the law you write. the law as written is said that it would be protected if he

refused to operate. and i think by any plane understanding, he operated the vehicle. if congress wishes to revise the law, i wrote this. it was an unkind decision. i said it may have been a wrong decision, bad decision. my job is to write the law, senator. and if congress passes a law saying a trucker in the circumstances gets to choose how to operate his vehicle, i will be the first one in line to enforce it. i've been stuck on the highway in wyoming in a snowstorm. i know what's involved. i don't make light of it. i take it seriously. the senator, this gets back to what my job is and what it isn't. if we are going to pick and choose cases out of 2700, i can point you to so many in which i found for the plaintiff and employment action or affirmed the finding of an agency of some sort for a worker or otherwise.

i put into, for example, wb spores or casey energy west, crane, simpson versus e.u., just a few that come to mind that i scratched down here and a piece of paper. >> judge, we appear are held accountable for votes. i've been in congress for a while and that's cast a lot of them. some of them are not very proud of. i wish i could do it all over again. your accountability is for your decision as our accountability is for votes. if we are picking and choosing, is to get to the heart of who you are and what you will be given a chance to serve on the supreme court. i would like to go if i can't for just a moment to this famous case, which you and i discussed at length, hobby lobby. i still struggle all the way through the senate with a lengthy decision was trying to make a corporation into a

person. boy did the courts spend a lot of time twisting and turning and trying to find someay tsay that congress really meant corporations like hobby lobby when they id person. it was dictionary of law and so many different aspects of days. what i was troubled by, i asked you then and i will ask you again. when we are setting out as that court date to protect religious liberty and freedom of the green family, the corporate owners and their religious beliefs about what is right and wrong when it comes to family planning and the court says that's what was decided in the what the green family decides when it comes to health insurance. he made a decision that thousands of employees did not have protection of their religious beliefs and their religious choices when it came to family planning. they closed the door as options the health insurance and by taking your position to the next

that, to all those who work for closed-end corporations in america, 60 million people have their health insurance and their family planning in their religious belief denigrated, downsized to the corporate religious belief, whatever that is. did you stop and think when you're making this decision about the impact it would have on the thousands and thousands if not millions of employees if you left it up to the owner of the company to say as he told me, there's some kind of family planning i like and some i don't like. >> senator, i take every case that comes before me very seriously. i take the responsibility entrusted to me in my current edition very grave. i think if you asked the lawyers and judges that the 10th circuit, and a serious and careful judge?

i think you wiear that i am. i am delighted to have an opportunity to talk to you about that decision. as you know, the religious freedom restoration act, congress was dissatisfied with the level of protection afforded under the first amendment to religious exercise. the court in a case called smith versus maryland written by justice scalia said any natural law of general applicability is fine. that doesn't offend the first amendment. so laws banning the use of peyote, native americans tough luck, even though it is essential to their religious exercise, for example. this congress decided that was insufficient protection for religion and in a bill sponsored by senator hatch, senator kennedy, senator schumer when he was announced that a very, very

strict law and he says that many sincerely held religious belief cannot be abridged by the government without a compelling reason. and even then, it has to be narrowly tailored. strict scrutiny. the highest legal standard known in american law. i've applied that same law, rfra and luke the, and muslim prisoners in oklahoma to native americans who wish to use an existing sweat lodge in wyoming and little sisters of the poor, hobby lobby came to court and said we deserve protections, to raise small family held company, small number of people who own it. they exhibit their religious affiliation openly in their business. they pipe in christian music. they refuse to sell alcohol or

things that hold alcohol. they closed on sundays though it cost them a lot. and they came to court and said we are entitled to protection, to, under that law. we looked at the law and it says any person with a sincerely held religious belief is basically protect it except for strict scrutiny. what does that mean in that statute? congress didn't define the term. so what does the judge do? a judge goes to the dictionary act as you alluded to. the dictionary act is an act prescribed by congress that defines terms for merit otherwise defined. that's what a good judge does. goes to the dictionary act in congress is to find person to include corporation so you can't rule out the possibility that some companies can exercise religion. of course we know churches are often incorporated and we know

nonprofits like little sister is our hospitals can practice religion. the government in that case conceded nonofit corporations can exercise religion, conceded that. so that is the case. then we come to the strict scrutiny side you >> i do want to cut you off. i'm going to get in big trouble. >> i think i would want you to continue their answer this question. >> i'm sorry, mr. chairman. >> no, i want you to continue. >> so then you got the religion, the first-half net. then you go to the second half. does the government have a compelling interest providing contraceptive care? the supreme court said we assume yes. we take that a scathing. if it narrowly tailored to require the green friendly to provide a? the answer supreme court reached an impressive binding on us now

and we reached in anticipation is no, that it was in a strictly tailored as it could be because the government had provided different accommodations to churches and other religious entities. the greens didn't want to have to write down and find something stated that they were permitting the use of devices they thought violated their religious beliefs. the government accommodated that with other religious entities and couldn't provided explanation why it couldn't do the same thing here. that is the definition of strict screwed me. no congress can change the law. it can go back to smith versus maryland if it wants to, eliminate rfra altogether. if altogether. a casino by natural persons have rights under rfra. it could lower the test on strict scrutiny to lower the degree of review if you wish. it has all of this options availae, sator

if we got it wrong, i'm sorry, buwe did our level best and we were affirmed by the supreme court and that the dialogue like any statutory dialogue between congress and the courts. thank you, mr. chairman. >> senator from texas. thank you, mr. chairman. before i start coming yesterday my statement i mention an op-ed in "the new york times" written by neil topsail, my apologies if i've shared his name. with a name like corn and -- >> i would like to ask incentives be included in the record along with other supportive letters. >> without objection, all documents will be included. >> said judge, i have a pretty basic question for you. does a good judge decide who should win and then work backward to try to justify the

outcome? >> is the easiest question today, senator. thank you. no. i have to correct myself. it is not smith versus ireland here that is third party doctrine. i apologize to you for that. >> well, i'm glad to hear you answer my question the way you did. i expected that she would. that seems to be implied in some of the questioning that you are getting. you are looking for the litigants and you would like to win. the little guys we've heard a note at the we've heard and i'll get to that again in a minute. and go back and try to justify the outcome. i agree with you, that is not what the judges do. i want to return briefly. i know something you talk to senator feinstein and senor durbin about to give you every opportunity to make sure this is crystal clear. i remember back when george w. bush was president of the united

states, there is a practice of signing statements that went along with his signing legislation into law that was criticized by some of our friends on the other side of the aisle as somehow undermining congress' intent or the president's own signature and acting as though into law. so senator feinstein raised the question back when he worked with senator mccain, senator graham on the detainee treatment act, the signing statement that the president ultimately issued that went along with signing the legislation into law. did i characterize that correctly? >> i think so, senator, to the best of my recollection. >> the question is this, judge, there were some in the administration who wanted a single statement, basically the president was signing the law, but if you could find an argument that the president didn't have to pay attention to the law, or perhaps had authorities that weren't otherwise they doubt that the

president could disregard the congress had passed and what the president has signed into law. on the other hand, there were those like you and india now who laid out the case for a more expansive signing statement. you make the point on the foreign relations public front, allowing us to speak about this development positively rather than grudgingly would be helpful. we all appreciate the limitations, the usefulness of legislative history, it would be helpful as this provision is litigated, which it inevitably would be, to have a statement of policy from the executive branch on why this law was enacted. and third, that you sd it would help inoculate against the potential of having the administration criticized in the future for not making sufficient changes when in fact, all of the bill did was to codify existing

law with regard to interrogation practices. senator mccain made that comment. so you at least -- i hate to put it in these terms. you lost that argument in a sense because the vice president's lawyer prevailed and not argument and they had a single statement, basically making reference -- read it. the executive branch shall construe title x in a manner consistent with the authority of the president to supervise the unitary executive branch and its commander-in-chief and consistent with the constitutional limitations on judicial power. so that is the statement in the signing statement that you sought to make more expansive than accommodate the three concerns that you raised. is that correct? >> senator, your understanding of events is a lot fresher than mine. sitting here i can't disagree with anything you said.

>> i understand this was 12 years ago and euros question initially by senator feinstein without the benefit of being able to refresh your memory from reading the e-mails. i think we have covered that enough and i hope lay back to rest. i want to talk a little bit about the little guy. you know, in his confirmation hearings, sometimes very complicated and complex issues are dealt th in a rather simplistic and misleading sort of way. first of all, i want to talk to you a little bit about an article that she wrote in the judicature magazine called access to affordable justice. and i know if someone is actually practiced law in the trenches as you've said you have a mutated, you are concerned in

writing this article about your concerns for access to justice for the little guys. and little gals i guess. and you point out that litigation becomes so expensive and so is time consuming but essentially it was out of reach just in our courts of law to reserve legitimate disputes was out of reach for people of modest means. could you expand on this concerns you raise? >> i appreciate this opportunity and venue to talk about these things because these i care about and i can talk about is the judge. i wrote that article in conjunction with input from a lot of wonderful people so i can't take total credit for it and i thank them and you can see who i think. my point they are was threefold,

starting with the fact that too few people can get to court with legitimate grievances today. that is a fact. too few people can get lawyers to help them with their problem. i teach young folks law only fossil unable to afford their own services. think about that. think about that. and hundreds of thousands of dollars in debt. how did that go be made raight lawyers? how did ey help people who need legal services? i pointed to three potential sources of problems where we lawyer should maybe look internally rather than blame others for the problem. there's plenty of blame to go around. i'm not a big blade guide, i am a book inside guy. what i see in our profession? three things i pointed to in the article. first, our own ethical rules.

it's an unusual profession where allowed to regulate ourselves. it's quite extraordinary privilege. easily the legislature. lawyers basically regulate themselves and do all of our ethical rules necessarily help our client produced some of them help us more than they help our clients? and i point to sun that, for instance, regarding the unauthorized use of law. why is it that you have to be a lawyer to help parents with disabled children in administrative proceedings to seek relief under idea is an example we pointed to. why is it that every time certain companies that provide online legal services for basic things get sued every time they move into a new state. why is that i can go to wal-mars taking care of, but i can't get a landlord tenant contract drawn

up. those are all results of our ethical rules. i'm not sure whether they are worth the price that we pay for them. it's estimated i've heard. i can't verify that ethical rules result in a $10 billion a year surplus to lawyers and clients every year. that was one. number two was their own rules and procedure, which yield cases like the one we talked about and took 25 years to resolve. that is wrong. that is wrong. we should be able to resolve cases in less time than it takes for my law clerks to be born, raised and get through law school. in the third thing i pointed to with their legal educational system, where we have three years of postgraduate education for everybody who wants to have anything to do with lawyering. the best lawyer came from your state, senator durbin and he did

never go to law school. and he always said the best way to become a lawyer, read the books. still true. other countries around the world don't have three years of postgraduate legal education. this is where justice is going and i were in disagreement. he thought three years was necessary for everybody. i am not convinced. in england, where i studied, you could become a lawyer through three years of an undergraduate degree or one years of postgraduate degree followed by a lot of on-the-job practical training. i wonder whether all that debt is worth it or whether it induces people to pick jobs that they have to take to pay their dad rather than serve the people they would like to serve. those are the problems i talk about in that article. >> judge, you make the statement that the rule sometimes yield more nearly the opposite of their intended result

they just simply can't afford it? >> i think it's a problem when 80% of american college of trial lawyers, best lawyers in the country arguably, they certainly think they are,. sorry. when 80% of them say that good claims are priced out of court and 70% of them say that cases are settled based on the litigation costs rather than the merits of the litigation, that is a problem running both ways and these are lawyers who operate on both sides of the v. >> basically, either have to be able to pay a lawyer's hourly

rate or you have to agree to some contingent fee arrangement and, lawyers aren't going to take a contingent fee case unless there is some reasonable prospect for their being compensated out of any settlement and judgment ordinarily. >> ordinarily. some do. what we're seeing today though, senator, is an explosion of pro se, a filings by the person without a lawyer. that is what i was trying to address there. i think access to justice in large part means access to a lawyer. lawyers make a difference. i believe that firmly. my grandpa showed that to me. what a difference a lawyer can make in a life. >> judge, let me ask you about another case involving the little guy. this is an immigration case that you will recall was a conflict between two provisions of immigration law. gutierrez versus lynch, i hope i

pronounced that approximately correctly. would, do you recall the case? >> i do. we talked a little bit about it with senator feinstein and i'm happy -- >> i'm happy to hear it again because i heard, i believe senator feinstein, maybe i'm mistaken there or maybe one of our other colleagues, i apologize if i misstated that, that talked about this deference to administrative agencies as being necessary and fundamental doctrine but can you explain how that ended up hurting the little guy in that case? >> so senator, in that case there were two statutes that undocumented immigrant faced. he was trying to remain in the country. one statute said that he had the right to apply for immediate discretionary relief from the attorney general. no promises about the outcome but he could at least apply to the attorney general. the other statute seemed to suggest that he had to wait 10 years out of the country before he could seek relief. i'm not criticizing congress

anywhere here, okay, but those two statutes appeared a little in conflict, so the case came to our court in the first instance and our court held the first statute trumped. that the man had a right to apply for immediate discretionary relief and didn't have to wait 10 years out of the country, and then some number of years later, whether it was three or four, i want to say, don't hold me to that, the board of immigration appeals in its infinite wisdom comes back and says we're wrong. court of appeals got it wrong. the tenure statute trumps. okay. says, though, that we're not just wrong but we're wrong retroactively. so if our decision never existed. and this man who had relied on our holding to apply for immediate discretionary relief was denied the opportunity to do so and told, now he had to go

start his 10-year waiting period. now instead of 10 years, it is equivalent of 13 or 14 years. to me that seemed like he had the rug pulled out from derneath him and i think a person in this country should be able to rely on the law as it is and it's a matter of due process and fair notice when he is told that's the law, he should be able to rely on it. i also think it's a separation of powers question. when, with all respect, a bureaucracy can overrule neutral, dispassionate judges on the meaning of a law, based on their political whims at the moment, that is a separation of powers issue and i think equal protection issue. a political branch can single out people for disfavor. judges are to treat every person

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

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

live with there, too, senator and applied chevron but i raised it in a separate concurrence to raise these questions. you don't know how i would rule if i was supreme court justice on the question, i have to be honest with you, senator cornyn. i would want to do what a good judge does, keep an open mind, read the briefs. i could change my mind. i think my old boss who i clerked for hill. he wrote a panel opinion going one way by the beginning of the year. by the end of the year he wrote an en banc opinion for the full court reversing his own panel opinion. some people say that is a man who doesn't have a spine, something like that. i say that is a judge with an open mind. >> well, speaking of, for myself the idea that agencyies, unelected bureaucrats have the, have the latitude to interpret

their own legal authorities if the congress is ambiguous in their interpretation is deemed reasonable, is a troubling concept because if there is one part of the federal government that is out of control is the bureaucrats that don't stand for election as congressman today. i hope we can look at it to rein in the regulatory state which in my humble opinion has gotten out of control. let me talk to but the establishment clause if i may. i firmly believe the supreme court has lost its way in limiting religious expression in this country. that's my opinion, and part of my conviction stems from an experience i had 20 years ago

when i had a chance to argue before the united states supreme court. i had that chance on two occasions when i was attorney general of texas. this case was called the santa fe independent school district versus d.o.e. the school district in southeast texas around galveston, had a practice of football games inviting a student to offer a prayer or a poem or maybe just an inspirational thought before the football game. they got sued by the aclu, and that case inned up going to the united states supreme court where the court held by a vote of 6-3 that student-led prayer was unconstitutional. that led the late chief justice rehnquist to make the statement

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

rehnquist called hostility to religious expression in the public square and what that's done to change our country not in in a good way. >> senator, i appreciate your thoughts and it's a very difficult area doctrinally because you have two commands in the first amendment that are relevant here. you have the free exercise clause on the one hand and you have the establishment clause on the other. so you're guaranteed free exercise of religion and you're also guaranteed no establishment of religion. those two commands are intentioned because to the extent we accommodate can free expression, at some point the accommodation can be so great someone is going to stand up and say you've established or you passed a law respecting the establishment of religion, right?

it's a spectrum and it is a tension. as in some areas of law judges have to mediate two competing and important values that our society holds dear. the court has struggled in establishment clause jurisprudence to provide a consistent, comprehensive test. i think that's a fair statement. that the current dominant test is called the lemon test and it asks whether the intent is to establish religion, promote a religion, whether the effect is to help advance a religion, and whether there is too much entanglement between state and religion. it is prove ad difficult test according to six justice who expressed dissatisfaction with

this test but never at the same time. so lemon endures. academics have thoughts about various options and alternatives i know and the justices themselves have expressed various and sundry ideas. i can tell you as a lower court judge trying to faithfully do what the supreme court wants us to do is a bit of a challenge in this area. we struggle. >> just as one citizen to it another, let me tell you i think it is a morass and unfornately the result like chief justice rehnquist said, hostility to religious expression in the public square and i think our country is poorer for it. let me, my final topic at least for this round, let me ask you a little bit about originalism and textualism. our mutual friend brian garner,

textualism is not the same thing as strict constructionist. we use that phrase at least colloquially some. if a judge is not going to be bound by the text of the constitution or the text of a statute, what is a judge growing to be bounded by? >> well, senator, i hope what he had breakfast and when i was a lawyer, all i wanted was a judge who put all of his personal things aside, her personal views, and come to the law and the facts in each case fairly, and i do think we're talking about interpreting law there is no better place to start than the text. maybe here i have to blame sister mary rose margaret. she taught me how to read.

she taught me how to diagram a sentence. it was under pain of the hot seat paddle, which hung above her desk for all to see. you say, she could teach a monkey how to read. i think she did. me. i think that's where we want to start for a couple reasons to the xt of the law. first we go back to the due process considerations. the fair notice considerations we spoke about earlier. before i put a person in prison or deny someone their liberty or property, i can be sure i look them in the eye and say, you should have known. you were on notice that the law prohibited that which you're doing. i don't want to have to him say how am i supposed to tell? i need an army of lawyers to figure that out. some people can afford armies of lawyers.

most americans can't. it is a matter of fair notice and due process. separation of powers considerations. if i start importing my feelings, if i treat statutes or laws as rorschach ink blot tests i usurped your role. i have taken away the right of self-government by the people, and for the people. i took a jog to the lincoln memorial the other morning before the start of all this, second inaugural address. there it is. believe in government for the people, and by the people. maybe that is the, gosh, is that the, it is "gettysburg address" isn't it. i read them both. thank you, senator, it is "gettysburg address." it is the gettysburg, address.

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

that's a pretty good starting place for fair notice and for separation of powers, i think, senator. >> thank you. thank you, judge. >> thank thank you. sny [inaudible] >> thank you, chairman. let me ask unanimous consent to put into the record a letter from -- neil: we are still monitoring the gorsuch hearings but i want to bring to your attention a comment from mark meadows, he of the freedom caucus, heads that 30-strong congressman, group of largely conservative congressman who are not too keen on this health care repeal rework, whatever want to call it saying while he is not taking the view as the group as a whole, the caucus as a whole how to vote, you would need 21 members to say forget about it, he says when it comes to himself, i'm going to be a no even if it sends me home. again he is not speaking on behalf of the group but there had been expectation as good

many of the house caucus members, freedom caucus members are not really keen on the health care law. if this is accurate and he is sending a signal here, it would be, despite the president's visit to capitol hill today to remind everybody, the republican leadership, to stay on board and republican rank-and-file to stay on board, and if they don't they could lose the house and senate next year, congressman meadows not deterred saying that if it sends him home so be it. he is not voting for it. dow down now at lows of the day, 200 points. back to neil gorsuch here. >> how about the he question presented? should the supreme court in the question presented try to keep the questionnaire row to the case presented so it is not using an expansi question presented to enable itself to wander throughout the legal landscape beyond the constraints of the case? >> senator, it is generally, as you know, on the facts the

practice of an appellate court not to review or overturn facts of a trial court except in the presence of clear error. >> very rare. >> that is a very important standard. >> yep. >> i hadn't thought about it in separation of powers but very important principle i take seriously. i was a trial lawyer very long time. >> in constraint ever narrowing the question does that have separation of powers tone on its own. >> i don't know about that but it is an important general practice. sometimes there are exceptions that a court can and should go beyond a question presented but it is pretty rare. usually we stick within -- well, the questions presented are whatever the parties present to us on an intermediate court. they get choose. we don't get to choose. >> that is part of what separation of powers is about in terms of constraining the judicial branch to actually cases in controversy, correct? >> we generally refrain

examining arguments that haven't been developed or made for risk of improvident mistakes. >> let me turn to another topic. let's talk a minute about money. in particular let's talk about dark money. are i familiar with that term? -- are you familiar with that term. >> in the loosest sense. >> how would you describe it in the loosest sense to make sure you and i are on the same wavelength? >> senator, as i understand it, you may be referring to money not spent by a candidate or a party. >> where you actually don't know who the true source of the money is? >> okay. >> is that a fair enough definition for us to agree on? >> sure. >> okay. could you let us know first what you know about the campaign that is being run to support your confirmation? there has been a lot of talk how this is outside of politics and

we're above politics but there is a group planning to spend $10 million on tv ads in which their own press release describes as a comprehensive campaign of paid advertising, earned media, research, grassroots activity and a coalition enterprise all adding up to the most robust operation in the history of confirmation battles. that sounds pretty political to me. and i'm wondering what you know about that. >> i have heard a lot about it, senator, from you, from others. i've heard a lot about it. >> do you know, what do you know about it? >> i know that there is a lot of money being spent on this by, as i understand it, by both sides. well -- >> i wouldn't leap to that conclusion at this point. >> okay. i know what i've read. i know what i have herd from friends and family and acquaintances and i know what you're saying, what you have just indicated.

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

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

that there are interests here in this area of first amendment disclosure. that is what we're talking about, in my mind generally. >> yep. >> okay. that are competing. on the one hand in order to for informed voters and citizens to make decisions supreme court in buckley, has validated the interest that this body has in regulating disclosure. >> and the theory so did the court in citizens united. >> the theory in citizens united. the court recognized also in naacp for example, that disclosure can be used as a weapon to science voices. we have a long history of anonymous speech serving valuable functions in this country. >> here is a live example right now. we have this $10 million that is being spent on behalf of your confirmmation. do you think, for instance, that we on this panel ought to know

who is behind that and, well, answer that and then i will go on to a related question. >> senator that is policy question for this body. >> it is also a question of disclosure. you could ask right now as a matter of courtesy, as a matter of respect to the process, that anybody who is funding this should declare themselves so that we can evaluate who is behind this effort, right? that wouldn't be a policy determination. that would be your values determination? >> it would be a politics question. and i'm not, with all respect, senator,oing to get involved in politics. and if this body wishes to pass legislation that's a political question for this body. and there is ample room for this body to pass disclosure laws for dark money or anything else it wishes to. they can be tested in the courts.

so senator, with all respect the ball is in your court. >> do you really think that a supreme court that decided citizens united doesn't get involved in politics? >> senator, i think every justice on the supreme court of the united states is a remarkable person trying their level best to apply the law faithfully. i'm -- >> deeply involved in politics, did they not? they changed the entire political environment, the entire political ecosystem with one decision. you must recognize that? >> senator, it's a precedent of the united states supreme court. there were thoughtful opinions by justices on both sides. >> i didn't say that they weren't thoughtful. i was responding to your question, your response that they don't get involved in politics. what could be more involved in politics than to open this ocean of dark money flooded into our politics. >> senator, what i mean to suggest is that i believe every

justice on that court is trying to apply the first amendment and the laws of this country faithfully. you may disagree with them. many people do. i understand that. it's hard. judges make half the people unhappy one one% of the time. that is our job description -- 100% of the time. people do criticize judges. i understand your criticism but i do not question their motives, senator. >> this is a little different. i think you see more like 90% of the public unhappy with citizens united because they see the problem that it caused in our democracy, and in that case it wasn't just a question of two parties and you're going to make one of them angry because you decided for the other. this is the supreme court operating in its role as the legal constitutional guide to the prays of america