a bird covered by feathers. it's actually a bird. later it's going right from those sep to kentucky fried chicken. >> it weighed 140 pounds. >> see you tomorrow. >> shannon: two big stories breaking this hour. president trump set to leave the white house any minute to go to capitol hill. he'll try to close the bill b good morning i'm shannon bream with a special edition of "america's newsroom." hey, eric. >> i'm eric shawn here in new york. most the fireworks happening where shannon is sitting now. >> shannon: you can see we have a bird's eye view of the hearing. behind me 20 senators from the

judiciary committee will have 20 minutes to question neil gorsuch on his record and values and the question is whether the democrats will question the judge on his history and statements or president trump's. >> before that the president set to head to capitol hill to try to twist arms on health care after paul ryan tweaked the bill to appeal to the more conservative branch of the party. the president making the argument last night at the rally in louisville that obamacare needs to be addressed. >> time for democrat leaders in washington take responsibility for the bill they and they alone created. remember what president obama said if you like your plan you can keep your plan if you like your doctor you can keep your doctor. if they told the truth about obamacare it would be so wonderful for the people of this

country because it would just sail right through. obamacare has been a complete and total catastrophe. it's a disaster. >> john roberts now live at the white house with the latest. it seems many in the freedom caucus may now be on the plan. >> the president playing the role of thor trying to wrangle the 216 votes that are necessary to get the bill through. usually takes 218 but with five vacancies the majority is now 216. the bill when it's voted on and paul ryan hopes will be on thursday will look substantially different than the one that passed through the house energy

and ways and means committee weeks ago and introduce manager's amendment to take aim at medicare expansion provisions. it will end years earlier on december 31, 2017. there's a provision for states to require able-bodied medicare recipients to do service and give block to the states to dole out as they see fit opposed to the federal government providing for each enrollee as provided for obamacare. president trump is throwing a bone to conservatives. one holdout rand paul why he was rallying last night selling the need to repeal and replace obamacare. >> some states only have one insurer left and in new york

state it's worse. thursday is our chance to end obamacare and the obamacare catastrophe and begin delivering the reforms people deserve. >> there's a question whether republicans have the votes to pass this 237 members in the house. it takes 216 to get the simple majority. the president will have work cut out for him today but he is confident he'll be able to get this thing through later on this week, eric. >> we'll see what he says when he reaches the hill. meanwhile it seems the president is upping the ante because he's tying it to tax reform. >> because of the rules in the senate it's a reconciliation bill. the repeal and replace of obamacare has to be done first before he can get to the tax cut. last night at the big arena in louisville using that as a lever with senator rand paul to say, hey, if you want your tax reform which a lot of people want you have to get your health care first.

here's the president again. >> i happen to like a lot senator rand paul. i do. i look forward to working with him so we can get this bill passed in some form so that we can pass massive tax reform which we can't do until this happens. >> he said we'll get the bill passed in some form to get to taxes. it's pretty clear to the president and his supporters it's tax reform he really wants to get to he just has to get through obamacare repeal and replace first and serious arm-twisting a packed crowd in a 19,000 seat arena. he knows how to put the pressure on. >> and gracious words for the senator after all he wrote the art of the deal. >> gracious words for the senator and then 19,000 people saying get with it.

>> john roberts as the president prepares to leave the white house to get all to the hill. >> shannon: meanwhile, supreme court nominee neil gorsuch will begin a marathon grilling session. the democrats objecting to his nomination remember entirely because president obama's nominee never got to this part. >> when put on the robe i'm reminded under our constitution it's for this body the people's representatives to make new laws for the executive to ensure the laws are faithfully executed and for neutral and independent judges to apply the law and the people's disputes. >> shannon: texas senator john cornyn sits on the senate judiciary committee. you'll question the judge today. thank you for joining us. >> thank you, shannon. >> shannon: you know the

objection, that president obama's nominee never got this chance and that neil gorsuch sides with big business and corporations and the attempts to try to tie him to president trump. how do you think it will go for him today? >> those are more or less besides the point. she was -- he was nominated ten years ago when confirmed to the 10th circuit court of appeals of denver. he's got a record of a distinguished judge. he's a traditional judge. someone that not believes judges should be policy makers. so i think he's going to be confirmed. he'll have to endure a lot of questions by senators here, 30 minutes at a stretch and then we'll get him over to committee and confirmed no later than the first week of april. >> shannon: the question is how does the confirmation happen?

you need at least eight democrat senators or independents to break the 60 vote threshold to get him to a vote on the floor. are you confident you'll be able to put together with the eight with the charm offensive talking with senators one-on-one or senator blumenthal talking filibuster? >> i'm confident judge gorsuch will be confirmed. it's a test on the senators on the committee and senate. before the george w. bush administration there was no talk of filibustering judges. no one suspected it would take 60 votes to confirm a president's nominee so this is a new innovation. it's been a mistake. as you know, harry reid invoked the nuclear option for lower court judges and cabinet members and it's come back to bite my

democratic colleagues in this new administration. i think it's going to be a real test to see whether they follow the elizabeth warren/bernie sanders wing of the party or return to the tradition of giving the president in up or down vote on his choice of the supreme court nominee. >> shannon: we talked about the fact about the senators that will ultimately vote are up for re-election in 2018 are in states that are red or went for president trump decisively. how much do you think that will weigh on them to hold the line on the judge and facing voters in a couple years? >> there's going to be some tension between their political instruction from their leadership and enlightened self-interest but i bet enlightened self-interest wins every timism the president's heading >> shannon: the president's working on to the hill to work on the house side on the health

care bill and a number of your colleagues have said it's dead on arrival and do you think the coverings in the last couple days will make it more palatable to the senate? >> the first step is to have the house pass it which i'm confident it will then it will be the senate's turn. we'll have opportunities to change the bill and differences will be reconciled and i hope we'll be able to pass it in the senate and get it to the president. this is pretty basic promise we've made at least the last three elections to repeal and replace obamacare and i think it's important to keep your promises and then work through the process to make sure people have more affordable health care choice. >> shannon: we'll see how he does on the hill and watch you with the questions with neil gorsuch today. all right. we'll have complete coverage of the upcoming gorsuch hearing as soon as it begins in half hour

we believe at 9:30 a.m. and you can watch the questioning on the fox news channel and if you have your ipad, computer, or laptop follow along with your special commentary on your second screen. >> meanwhile overseas travellers are about to face new restrictions on what they can pack in their carry-on bags. they're alerting lawmakers about the new rules they're designed to protect us. we'll have the new details about this development coming up. plus we are awaiting the president about to head to capitol hill this morning to convince some of those republicans who are still anxious about health care they can back the new plan. it is expected to be voted on thursday and there's new signs this morning the current plan could be on the edge. our political panel will give us insight coming up. >> as we move toward the crucial

house vote on thursday the seventh anniversary of obamacare's very painful passage this is our long awaited chance to finally get rid of obamacare. ( ♪ ) it just feels like anything is possible here in upstate new york. ( ♪ ) at corning, i test smart glass that goes all over the world. but there's no place like home. there's always something different to do like skiing in the winter, jet skiing in the summer. we can do everything. new york state is filled with bright minds like samantha's. to find the companies and talent of tomorrow, search for our page, jobsinnewyorkstate on linkedin.

>> shannon: republican leaders facing a make or break day on capitol hill. i believe these are live shots of the president and his

motorcade arriving to meet on the house side still many skeptical of the health care law put together. he is arriving to come and try to assuage their fears. we've heard speaker ryan who's done the heavy lifting say he believes the president is a great closer and he'll be able to you see kellyanne conway walking in as part of the delegation to talk to house republicans about getting together on the bill. you know they have to get to 216. there's questions whether they can do that. sean spicer and many others with the white house team. we'll keep you updated. we should see the president momentarily as we watch for that let's bring in amy stoddard and guy benson political editor and

fox news contributor. the hill is keeping a whip count where they feel the house is and say they're down 17. does the president change minds today do you think? >> well, it's not just about changing minds but preventing leakage and we're not talking about leaks of information but the number starts to slide because when something looks like it could die that makes it more likely people will abandon it by trump arriving today he said this is mine, this is trump care, i own it and if you're voting against it you're voting against me and that will do a lot to buck up the spirits of conservatives who don't like anything much on the legislation but don't want to be on the wrong side of a president popular in their districts. >> shannon: there's been such a charm offensive, bowling alley

summits and this president is so engaged so different from obamacare where people thought then-speaker nancy pelosi was doing the hard work of twisting arms and getting people on board. this president seems fully invested. >> well he said that last week and that was an important moment because republican members did not think he was fully invested. there was an effort by staff to distant the president from people on breitbart news were calling it ryan care and you had strategists steve bannon meeting with the most conservative members the house freedom caucus promising them changes to the bill that would scare off moderates and it was important last week for president trump to say to cameras committed to the effort and behind the bill. that was very reassuring. now you have by some estimates are 25 for the bill and it can't

pass and they're trying to find out where they find promises for carve-outs for rural districts and help seniors where they'd be hard hit by a spike in premium prices. that kind of wheeling and dealing sometimes can get you across the finishing lines and sometimes as chris mentioned can embolden people to say it's too dangerous and making promises of changes on the senate side. it's not going to happen, i'm going to vote no because it's a loser. >> shannon: guy, what about the optic. we know the president is a negotiator and what he does and said would be his strength in washington. he holds huge rallies last night with 19,000 an overflow crowd and seems to be very good on the pr side of getting things done. >> he holds a big rally with

20,000 people in a red state which sends a clear message to conservative members and the house of representatives and now she's showing up on capitol hill to press the flesh in person. he's taking complete ownership of this bill. there was skepticism among people would he go all in on the policy issue and do the cajoling he promised and the answer has been a resounding yes. this is his number one first legislative priority. i think speaker newt gingrich had it right. this is my first big legislative test and you're either going to vote with me or with nancy pelosi and that ought to be a pretty easy choice for most republicans especially if it's successfully framed that way. >> shannon: chris, part of the

deal in pulling this together has been to make mick mulvaney the point person on this and he's been busy with the budget and on obamacare or excuse me, the new version of the repeal and replace of obamacare. some are calling it as a.b. said ryan care or some calling it trump care. mick mulvaney was brought in to shepherd this and one of the founding members of the freedom caucus and very conservative. what difference do you think it's made on the president's push on capitol hill to have director mulvaney working so hard on this? >> well, first to the question of nomenclature it's trump care now. this is it. he's selling it. there's no distance. this is not an arm's length affair. this is his bill. it's probably not the bill paul ryan or mick mulvaney would have come up with if they were drafting a conservative

replacement for obamacare. they would have done something different. it's a reflection of the values trump talked about in that more aggressively and phases the medicare repeal over years and provides subsidies and did things republicans previously didn't want to do. this is a bill mulvaney and ryan crafted with an eye to satisfying trump's demands for a more polulist approach. >> shannon: many want to pump the breaks. we're watching and waiting for the president's arrival. you see kellyanne conway and part of the president's advisors as they come in to talk to house gop members and try to rally them and get a unified front on this. a.b., this is by washington standards a break-neck pace.

they want to slow it down. they're aiming for the vote on thursday. obviously if they don't think they have the votes they don't want to put something to it floor and have it fail. why do they go from here if they don't sense they have a lock on the 216? >> you're right, shannon. we know from experience of congress they can't bring it to the floor and see a failure. they'll delay and delay and keep negotiating. trump will have to step in further and make more of a squeeze. look, jim jordan said last night the bill still violates the principles of the freedom caucus and that many of their membership dug in against it. they won't group against it or make it a litmus test of the group we're against it or not they vote individually. if there's no vote on thursday

it means they've really hit a wall and bill have to maybe even start over. as i mentioned in my first comments making promises, part of the changes in the last couple days are promises something will happen at the senate version. republican members of the house don't trust the senate. they send bills over all the time to die so they don't want to hear something's going to change in the senate version. that's the big problem. if we don't see a vote on thursday it's a very bad sign. please remember, both ryan the speaker and trump in his rallies have made it clear in public comments they have to do health care first. why? they're looking for a baseline to tax reform. this is a budgetary constraint they're under. the treasury secretary has put them on the spot by publicly saying the tax reform should be signed by august. you know the wheels of government moves slowly and congress can barely handle one heavy lift at a time left alone

two and you have to get the biggest pushes out at the start. they're losing time and if they're hoping to get either one done by august they need health care done in the next couple weeks. >> shannon: we've watching a lot of activity at the capitol hill as it appears president trump has arrived. lots of movement. you saw quickly there we recognized sean spicer with him and dr. tom price the former member of congress and there you see omb director, mick mulvaney. it's a big lesson and big argument they have to make, guy. we talked about the conservatives but what about those in the middle that are worried if the deal comes together and it's passed and doesn't work they have to face voters too. >> and that's such a crucial point. there's so much focus in the

press on the right flank but there's a lot of votes that knead to be nailed down in the center of the party and that's the difficult needle paul ryan and the president are trying together to thread. where you have enough conservatives on board with the legislation they're satisfied enough with it they'll pull the lever and then people from swing districts who want to make sure that seniors or near seniors 55 to 64 won't get blown out of the water on premiums. it's a tough balancing act. we're seeing that from the leadership in congress and what strikes me too, shannon, the republicans in congress, their leadership, paul ryan in particular they circled the date for this thursday they didn't have to put a date on the calendar and say this is when we'll have the vote. president trump you played the clip earlier talked about the big vote this thursday.

they're setting this thing up and to a.b.'s point, if that vote doesn't happen it's a very bad sign for the legislation. part of it could be the strategy might be sort of daring members to vote no. sort of a game of chicken. you're either going to vote to repeal and replace obamacare or cross president trump and link arms with nancy pelosi as a new test of the new congress. that's throwing down the gauntlet big time and it's a full-court press on capitol hill. >> shannon: it absolutely is. chris, we saw a little bit of this public calling out when the president had members of the rnc a very conservative group they'd be together with him in the white house last week and he said everyone in here was a no or leaning no or had serious questions. we've had our meeting. they're all yess now.

there's a lot of this publicly putting people on the spot. as guy said calling for the vote and saying this is it. this is your binary choice. that sends a message. >> well, it does. the stakes are quite high. trump isn't really negotiating within the policy space. one of the most striking things is how little anybody's talked about the policy. it's a patch. this is a lame effort that keeps obamacare essentially alive long enough to deflate it at a safe pace. the objective of this legislation is to get enough money to the insurance industry, keep things propped up for long enough so other phases of the legislation can get into place. it's like putting obamacare into hospice. no one's talking about policy republicans are now not talking about health care policy. they're talking about this in regard to what you discussed earlier which is if we do this then we can have tax cuts. if we do this then we can do the trillion-dollar stimulus

infrastructure spending package. if we do this and the president talked about this we can start the trade negotiations he said will revitalize american manufacturing. all these things come after. >> shannon: panel, stick around. thank you for your comments on health care. a big day on capitol hill for that and we're moments from the second day of confirmation hearings for supreme court nominee judge neil gorsuch. we're live outside capitol hill. peter lay out day two for us just minutes away. >> shannon, the big thing that we are hearing from democrats expected to be the sharpest questioners today is they want to know if judge gorsuch will operate independently from the president who nominated him. president trump made waves around the time he was nominated by criticizing a federal circuit court so the democrats are forecasting they want to make sure gorsuch if he becomes a supreme court justice and the court becomes a conservative majority once again he will

stand up to president trump if he ever had to. there are some senators on the west also forecasting some specific points, specific things they want to press gorsuch on like how involved he was in helping president george w. bush craft rules about torture and there's expected to be questions about abortion rights because gorsuch does not have a record ruling on that issue one way or another but just because there's a lot of concerns from the left doesn't mean prominent democrats have made up their minds and senator dianne feinstein said she'll keep her opinions to herself and options open until after the testimony. two to watch to democratic senator blumenthal and minnesota senator klobuchar and what

conservatives will try to do is make sure they make the case and gorsuch is the worthy heir to the scalia seat. they think he is an appropriate person, the best person to continue to conservative legacy on the court of the late justice scalia. gorsuch met with 72 senators from the left and right in private. this is going to be the first chance that senators who like him and senators who may be skeptical of him are going to have to ask questions on camera in front of everybody. the whole world's watching. we think it will get underway in minutes. >> shannon: he's shaking the hands of republicans and democrats alike and moving to the table where he'll officially begin his answers and grilling period. there's been comical moments as you see the number of cameras in

his face. he can't even really see the senators until they get the shots and move out of the way. he's been very good natured about it. yesterday laughing at the whole spectacle and it is a little bit of a spectacle. that's how it works in washington. we expect the chair of the committee, chuck grassley will quickly get things going because he's a stickler for time and already two minutes over. he said this could go ten to twelve hours today but mentioned he likes to be in bed by 9:00. senator grassley said that's his goal for tonight. maybe we can be out of here by 8:30. we'll see. it's a big day. it's 13 months since the open of that seat with the in timely death of antonin scalia and judge gorsuch saying hello to family and friends who has been

described as the toughest job interview in the world taking place publicly and you can see it on fox and online live blogging you can see and watch and listen as we do and he goes through 30 minutes of questions from each person on the committee and we'll believe he'll get started in moment. he's currently on the 10th circuit and graduated from columbia and harvard law school and his wife louise giving him extra encouragement and they're said to be very tight. they have two teen aged daughters and met at oxford where he got his ph.d.. yesterday he was officially sworn in and noul they get started -- now they'll get started.

let's listen in. >> i'm waiting for a very important member of the committee to arrive before we start. >> shannon: we're guessing he's talking about senator dianne feinstein. many on the members will be grilling judge gorsuch. they were here when he was voted through unanimously in 2006 and there was no democrat objection

and now has a decade of record on the bench and they say that makes a difference to the highest court in the country. she'll be an important voice on this and she spoke yesterday about the objections she had and mentioned as many democrats did yesterday they're still very upset president obama's nominee never got to this point. many of them while they have objections they want to make the point. we see senator feinstein arriving. >> the judge is prepared for that and so far it's been a textbook example of how to do

this properly. kudos to the trump team and kelly ayotte and i suspect he'll acquit himself because he's a sharp guy and has been well prepared. >> shannon: let's listen in as senator chuck grassley gets us started. >> good morning. i'd like to welcome everyone and especially our nominee as i just did. this is day two of the supreme court nominee's hearing. we have a long day in front of us so we'll immediately turn to members questions. it's my intention to get through all members' first round of questions today. so it's important that we all stick to our time limits so that we can stay on that schedule. i realize that ten hours is a long time for you to sit there and answer questions from 20 of house -- 20 of us andto defer

need a break. in the meantime i would anticipate a break about 30 minutes for lunch time and hope for the members of the committee i have not made up my mind on this yet but we do have a vote scheduled at noon and -- i'm sorry. ok. two votes at noon. it might be appropriate to use that period of time for our lunch break. i'll make a decision on that later on. so and to accommodate you because you're the person who has to sit there and answer questions so whatever your needs are you let us know. i started yesterday morning, judge and audience, with justice scalia's comments that our

government of laws and not men is the pride of our constitutional democracy. our democracy regards judge to let the people's elected representatives do the lawmaking. you judge said justice scalia's great accomplishment was to quote you, remind us of the differences between judges and legislators. legislators in other words consult their moral conviction to shape law as we best think it to be but you said judges can't do those things. rightly so from my point of view. our constitution is also a charter of liberty. justice scalia said our constitution guarantees our liberties primarily through its structure. that happens to be the separation of powers. you said, judge, much the same

thing and i quote you "what would happen to disfavored groups and individual if we allowed judges to act like legislators." the judge would only need one vote to change his law willy-nilly with preference, end quote. the separation of powers requires judiciary made of judges respectful of the other two branches but not beholden to them. judge must be equally independent of the president who nominates them and us senators who confirm the same judiciary members. let's start with independence from the executive. no one not even the president is above the law. one of the most remarkable things about your nomination is

the broad bipartisan support you've received. you've earned great praise from individuals who aren't exactly staunch supporters of the president but who strongly supported your nomination. yesterday we heard from one of them. president obama's former solicitor general said you will not, quote, compromise principle to favor the president. in 2006 former colorado senator salazar a democrat said you have, quote, the sense of fairness and impartiality and senator rosen praised you for your independence. so let's start with my first question. i'd like to have you describe in any way you want to what

judicial independence means and specifically tell us whether you'd have any trouble ruling against a president who appointed you. >> that's a softball, mr. chairman. i have no difficulty ruling against or for any party other than based on what the law and facts and the particular case require. and i'm heartened by the support i have received by people who recognize that there's no such thing as a republican judge or a democratic judge. we just have judge. when i think of what judicial independence means. i think of byron white. that's who i think of. i think of his fierce, rugged

independence. he said i have a job. he embraced his judicial philosophy was and i give the same answer. i decide cases. it's a good philosophy for a judge. i listen to the arguments made, i read the briefs put to me and i listen to my colleagues carefully and listen to the lawyers in the well. this experience has reminded me what it's like to be a lawyer in the well. it's easier to ask the questions, i find as a judge, then to have the answers as a lawyer in the well. so i take the process the judicial process very seriously. i go through it step by step and keeping an open mind for the entire process as best i humanly can and leave all the other stuff at home. and i make a decision based on

the facts law. those are some of the things judicial independence means to me. it means to me the judicial oath that i took to administer justice without respect to persons. to do equal right to the poor and rich and discharge dutifully the oath of my office. it's a beautiful oath and statutory oath written by this body. that's what judicial independence means to me. happy to talk about the separation of powers too if you'd like, mr. chairman or answer another question. up to you. >> you're record made clear you're not afraid to fulfill your role in depend -- independently and gave order for agencies acting out side their authorities and ruled on case where's congress overstepped its bounds. i think you could maybe speak about the separation of powers

but at the same time maybe you can give me a couple of your cases that demonstrate your commitment to that independence of the executive branch of government. >> sure. on the first point i have decided as i've noted yesterday over 2,700 cases and my law clerks tell me 97% have been unanimous, 99% i've been in the majority. they tell me as well that according to the congressional research service my opinions have attracted the fewest number of dissent from colleagues of anyone they've studied in the last ten years. the congressional research studies says i'm persuasive or believe in collegiality.

i don't see why it has to be a choice. my law clerks tell me in the few cases i have dissented it's equal to a republican to a democrat colleague again because we don't have democrat or republican judges. according to "the wall street journal" of the eight cases i've identified i've been reviewed our court was affirmed in seven of them. now, i think louise might argue for the eighth because the supreme court doesn't like a procedural precedent we were bound to follow so they remanded it back. we decided on the merits as the court instructed and defied. eight of eight. on the separation of powers, it

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

power amalgamated founders worried that would be the very definition of tyranny. you can see why. we're life tenured. you can't get rid of us. it only takes a couple of us to make a decision or nine or twelve depending on the court. it would be a poor way to run a democracy and at the same time with respect legislators may not make great judge because they're answerable to the people and when you come to the court about a case or controversy about past facts you want a neutral, rigidly neutral, fair, scrupulously fair decision maker. you want somebody who's going to put politics aside. so the separation of powers i don't think has lost any of its

genius over 200 years. in fact it's proven it. >> i've heard from people not in the senate say now more than ever we need a justice independent of the president who nominated him or her. so i'd like to ask about your nomination and your in dependence. a lot has been made about the list of judges then-candidate trump proposed as possible nominees. to me it was the most transparent we've had in history and we didn't have secretary clinton give out such a list. of course you were on the first group that came out and otherwise added later so i'm curious when did you first learn you were on candidate trump's

extended list? >> mr. chairman, your right. there were two lists as i recall over the summer and i wasn't on the first list. i remember having breakfast one day with a friend who may be here, brian? there you are. you remember this. we were having breakfast one day and he said, neil, you're not on the list. and i said you're right i'm not on the list. he said you should be on the list. i said i love my life in colorado. i wouldn't change a thing. i'm a happy man. i have a loving wife, beautiful home and children, a great job with wonderful colleagues. i'm a happy person. walking away from breakfast i get an e-mail from brian saying there's a new list and you're on it. and that was the first i heard

of it. >> i assumed you thanked him. >> i don't know about that. i don't -- we were all surprised. >> tell me about the process. does anyone ask you to make promises or assurances at all about your view on certain legal issues or the way that you'd rule in certain cases? >> senator, i think you'd be reassured by the process that unfolded. i tried to live under a shell during the campaign season. watch baseball and football. go about my business but i did hear lots of talk of litmus tests from all around. it was in the air. i don't believe in litmus tests for judge. i've written about that years

ago. i wasn't about to become party to such a thing. and i'm here report you should be reassured because no one in the process from the time i was contacted anyway expression of interest to the potential interview to the time i was nominated, no one in that process, mr. chairman, asked me for commitments or promises how i'd rule in any kind of case. >> and that's the way it should be. so we've just discussed your independence from the president. there's also independence from the legislative branch. it's odd some of the same folks that will claim you're not independent from the president will try to turn around and extract from you promises and commitments before they pass judgment on your nomination. the irony, of course, is that extracting commitments during the confirmation process is

exactly what would undermine your independence as a judge. one way they'll do this is asking you about precedent so let's talk about that. for starters i have a book you co-wrote an 800-page book on precedent. you're 12 co-authors included judges from across the ideological spectrum including one on president trump's supreme court list and dian wood who was on president trump's list and you touched on the value of precedent and speeches you've given or in your opinions and for instance for justice scalia you said this quote, even when a

hard case has arrived once it's decided it takes on the force of president becomes an easy case in the future and contributes further to the determination of our law end quote if more recent opinions have called into opinion the rationale of the original case and you also suggested there may be circumstances where it's appropriate to revisit precedent. specifically you wrote that it may be appropriate to reconsider a decision where it has become a quote, presidential island surrounded by a sea of contrary law, end quote. so there may be times to reconsider certain opinions if more recent opinions have called into question the rationale of the original decision. i think all of us would agree,

for instance for brown versus board of education is the textbook example of this. so with these things in mind i'd like to explore the approach you'd take to supreme court precedence. could you tell us what you believe is a value of precedent in our legal system? >> if i could go back to promises. i have offered no promises in how i'd rule in any case to anyone and don't think it's appropriate to do so no matter who's doing the asking and everyone wants a fair judge to come to their case anyway open mind and decide on the facts and law. one of the features of law is on

the basis of precedent as you point out. for a judge precedent is a very important thing. we don't go re-invent the wheel every day. that's the equivalent point of the precedent. we have an entire law about precedent. it's a law of judicial precedent. precedent about precedent, if you will, and that's what the book is about expressing the view of 12 judges around the country as i point out great minds and justice breyer was nice enough to write a forward to it. it makes an accident door stop and we talk about the factors that go into analyzing precedent. the age of the precedent is a very important factor. the reliance interest it built up around the precedent, has it

been reaffirmed over the years and what about the doctrine around it. has it been shored up or built up or become an island as you point out. those are all relevant consideration. workability is a consideration too. can people figure out how to abide it or is it just too confusing for the lower courts and their administration? those are all factors a good judge will take into consideration when examining any precedent. you start with a heavy, heavy presumption of precedent. alexander hamilton said that's one important feature -- i think it was hamilton, said that's one important feature of judge. if we're going to give them life tenure allow them that extraordinary privilege they should be bound down by strict rules and precedents. francis bacon called precedent the anchor of the law.

so you start with the heavy p presumption and in few cases you may overrule presidents. not inexorable. >> you're judge by not only supreme court precedent but as you demonstrated the precedent of your own court and as supreme court justice part of your job will be to decide when existing supreme court precedent need not be reconsidered. how will you decide when you revisit existing precedent? >> mr. chairman i don't think the considerations change. it's the same analysis as a

supreme court justice if fortunate enough to be concerned. the same process and rules apply. >> ok. this is the 14th supreme court hearing i participated in. i have a pretty good idea of some of the questions you're going to get today. you're going to be asked to make promises and commitments about how you'll rule on particular issues. now, they won't necessarily ask you that directly, for instance how will you rule on this issue or that issue instead ask you on old cases whether they were correctly decided. that's another way of asking the very same question. they know you can't answer but they're going to ask you anyway. i've heard justices nominated by

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

couple of supreme court cases in heller a person has the right to bear arms if i ask you if it was writely decided could you -- rightly answer that question for me? >> i'd respectly respond it's a precedent of the united states supreme court and as a good judge you don't approach that question anew as if it had never been decided. that would be a wrong way to approach it. my personal views i'd also tell you, mr. chairman belong over here. i leave those at home. yesterday it was said they want a fair judge. i just want someone to decide on the facts and leave what they have for breakfast at the breakfast table. part of being a good judge is coming in and taking precedent as it stands and your person views about the precedent have

absolutely nothing to do with the good job of a judge. >> let me ask you about citizens united. in this case the supreme court held the government cannot expend political expenditure by a nonprofit corporation. do you agree with that decision? >> i'd give the same response. people have their views personally about lots of supreme court decisions and about a lot of other things. we're all human beings. i get that. i'm not an algorithm. they haven't yet replaced judges with algorithms though i think ebay's trying and maybe successfully. we're all human beings but the judge's job is to put that stuff aside and approach the law and part of the precedent of the united states supreme court i'm sworn as a sitting judge to give

the full weight and respect to due precedent. >> those two cases were five to four decision. let me ask you about something that was unanimous. the supreme court ruled 9-0 the obama administration couldn't tell a church what ministers could be. the only controversial thing about that case is the obama decision tried to convince the supreme court a bunch of government bureaucrats can tell a church who the ministers could be. that case was 9-0. can you tell me if that case was decided correctly? >> respectfully i'd give the same answer. >> ok. those are relatively recent cases. let's talk about cases that have been around for a while. let's look at giddy and wainwright. it was decided unanimously a long time ago, 50 years or more saying a criminal defendant has

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

supreme court and deserves respect on that basis. precedent is like our shared family history as judge. it deserves our respect because it represents our collective wisdom and to come in and think just because i'm new or the latest thing and no better than everybody who comes before me would be an act of huberous to the judicial role. >> what if i ask about bush versus gore? >> i know some people in this room have opinions on that i'm sure senator as a judge it's part of the united states supreme court. it deserves the same respect as other presidents of the united states supreme court when you're coming to it as a judge. it has to be analyzed under the law of precedent. >> well, let's go to a kind of a

more controversial issue. it's along the lines i've been asking you. i think the case every nominee gets asked about roe v. wade can you tell me whether it was decided correctly? >> again, i could tell you it was decided in 1973 is a precedent of the united states supreme court. it has been reaffirmed around reliance considerations are important there and all the other factors that go into analyzing precedent have to be considered. tis a precedent of the united states supreme court reaffirmed in casey in 1982 and in several other case. a good judge will consider as precedent of the united states supreme court worthy as treatment as precedent like any other. >> what about griswald which was

decided a few years before roe the case where the court found constitutional right to privacy. can you tell me your views on griswald? >> senator, it's a precedent that's now 50 years old. it involved the right of married couples to use contraceptives in the privacy of their home. it's 50 years old and been repeatedly reaffirmed. all important factors inning precedent. >> well, i think i'm going to stop questioning but i'll sum up what you and i just talked about in regard to precedent. so everybody understand the principle are at stake here. there are two reasons why you can't give your opinion on these cases, one i believe is independence and the other one's fairness to future litigants.

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

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

part of the value of precedent and it has lots of value. it has value in and of itself because it's our history and our history has value intrinsically and it adds to the determinacy of law. people can anticipate and organize their affairs. it's part of the reason why the rule of law in this country works so well. we have statutes. we have rules. we have a fact-finding process and a judicial system that's the en try -- envy of this world and as which he chairman pointed out when he quoted a piece of mine, once a case is settled it adds to the determinacy of the law what was a hotly contested issue is no longer a hotly

contested issue. we move forward. senator, the value of that is and the united states supreme court takes 70 or 80 case as a year. that's a tiny fraction of all the disputes in our federal legal system. and they're unanimous in cases when have divided judge that's why the supreme court takes the case and it's a rare case where we disagree. they're unanimous 40% of the time. >> one other question. >> sure. >> do you view roe as having super precedent? >> senator, super precedent -- >> in numbers? >> it's been reaffirmed many times. i can say that, yes. >> yes, dozens. all right. i would like now to go to take

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

e-mail looking at more than 100 interviews and essentially putting in a 7,000-page report 32,000 footnotes documenting no conclusions just fact. the report has remained classified i have read it. we put out a 450 page summary which is public. in that summary the case the administration spelled out where torture produced operable intelligence was simply not so. we elaborate on that in the big report and my hope is one day not too distant that report will be de class so the american people can see. i wanted to ask you some questions along these lines. it's my understanding the set of

talking points were prepared for press conference for the attorney general on november 22, 2005. the talking points ask whether and i quote, aggressive interrogation techniques employed by the administration yielded any valuable, end quote. in the margin you hand wrote one word, yes. what information did you have that the bush's administration aggressive interrogation techniques were productive. >> i'd have to see the document. i don't recall. >> it's been a long time. >> i'd be happy to share the documents with you. i took the pages out of my binders so i wouldn't have to pause and let me just hold up that answer and we'll get you the documents on that because --

ret let me do the next question. in 2005 after the passage of the detainee treatment act you advocated the that president bush should issue a signing statement to accompany the law in an e-mail to steven bradberry and others and this is your quote, help inoculate against the potential of having the administration criticizesome time in the future for not making sufficient changes in interrogation policy in light of the portion of the amendment. this statement clearly and in a formal way would be hard to dispute later. puts down a marker to the affect that mccain is best read as essentially codifying existing interrogation policies, end quote. to be clear the context was that

earlier in 2005 the justice department's office of legal counsel had concluded cia tactics like waterboarding and sleep depriving did not contribute and i read the interrogation techniques and saying senator mccain's amendment codified them which it did not. is that true and doesn't it mean when you wrote this in e-mail you were condoning water boarding as lawful? >> senator, i'd want to see the e-mail. i don't feel comfortable commenting on documents not in front of me. >> my staff have the documents here. they can bring them down to you

right now. >> that would be wonderful. >> i'll put aside this part. you'll have the documents and i'll go on to the next subject. i want you to look at the documents. >> i'd like to just know what i'm talking about. my recollection generally from 12 years ago. >> eric, bring him the documents, please. >> thank you, eric. my recollection generally working on the detainee treatment act, senator, was that at that time after rasul was issued by the supreme court there were a lot of habeas petitions coming in from detainees from guantanamo bay. and there were some on the administration in capitol hill to provide a regime for

processing of those claims in a way that would conform with the youngtown a deal of the congress and president acting together in unison. senator mccain and graham put together legislature that torture was unacceptable under u.s. law and the cruel and inhumane treatment was -- >> i know from the document you worked on the graham effort. >> yes. >> for example, a self-assessment you wrote is that you helped coordinate the effort on the graham amendment and in consultation with dod and others. >> that's right. i sure did and proud of it because we managed to come up with a bipartisan bill that

passed the body with over 80 or 90 votes. i don't remember. it did two things, one, affirmed the country's commitment to prevent cruel and inhumane treatment and provide a regime agreed by the congress and president on how guantanamo bay detainees should have their claims processed. >> accept after you read the documents so you know the conclusion we come away with is that you forwarded press articles explaining what having the two provision prohibiting torture and confining it to the army field manual and the graham amendment which would bar

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

advising them on how to go about do that legally in conjunction with senator graham's effort and others and it was a bipartisan effort and we put together our best effort. the d.c. circuit upheld it and the supreme court of the united states eventually many years later felt the process was insufficient. to say there was no process would be inaccurate too because the detainee treatment act had a long list of prescribed processes and the question is whether they were adequate enough under the suspension clause and that was a close case that divided the court very closely and i respect that decision no less than any other, senator. >> one last question on this. when president bush signed the detainee treatment act he issued a statement that basically said he would only construe the law

consistent with his powers as commander-in-chief. according to press reports administration officials confirm and i quote, the president intended to reserve the right to use harsher methods in special cases involving national security the signing statement reflect the president's belief he had the power to not comply with the law he just signed. according to e-mails and this you'll verify you advocated for the issuance of the signing statement and showed you saying to the stop state department loyer harriet meyers, quote, needs to hear from us or this may wind up going the wrong way. >> i can tell you what i recall. i need to read the e-mail but my

loose recollection of 12 years ago there were individuals in maybe the vice president's office who wanted a more aggressive signing statement along the lines you've described and that there were others including the the state department who wanted a gentler signing statement and my best recollection is i was in the later camp and i don't know what was in the president's head when he wrote the signing statement. i can't tell you that. i don't know. i can ome -- only tell you what i remember and would never have counselled anyone to disobey the

law. >> you can read those and in my second round we can go back and i'd be happy to. i think you'll see we didn't make this up. >> senator, i'm not suggesting you are. there was a tug of war among parties in the white house. >> i wanted to know which side you were on. >> count me in with john bellinger most the time with these things and that's my recollection and max waxman would be another one and that is my recollection sitting here and i'll study these. >> let me ask you a question on wiretapping in december 2005 there was a report that there was the intercept of communication of americans outside of a court order without

the surveillance act known as fisa. you helped prepare the public defense of the program. in draft testimony you prepared for attorney general gonzalez defending the program you wrote this, quote, these authorities are vested in the president and they are inherent in the office. they cannot be diminished or legislated away by other co-equal branches of government. paul clement, president bush's solicitor general quote, found this proposition unconvincing and it was removed from the testimony. do you still believe the president has inherent authority, this is important, to intercept the communications of americans in the united states that cannot be legislated away by congress? >> goodness, no, senator. >> good. >> and i didn't believe it at the time. as i recall, again my recollection and i'd be happy to

review whatever you have before you i was asking in the capacity of a speechwriter and taking material produced by the component responsible for litigating these issues including mr. clement, paul clement, a dear friend of mine. and the office of legal counsel and others and assembling it to put words in together that sounded like english. i think people like my writing and that was my job. i think i was the scribe. >> all right. let's me of on. i'd like to go to the heller case. when we met in my office we discussed the heller decision which you said you were open to discussing since the case had been decided. you thought the majority opinion written by justice scalia and the dissent by justin stevens

were brilliant where both justices sought to explain reasoning by look at the original public meaning of the second amendment. which decision did you agree with and why? >> senator, i think we've alluded to my difficulty here. i do think everything you've just said is accurate. both justice scalia and justice stevens wrote excellent opinions in that case. i'm not here though to great my boss's work. that would be impertinent of me i suspect and they would think so. i would worry saying i agree with one or the other will indicate to litigants in future cases it's the law. if i start saying i like one

opinion or like another opinion -- >> all right. ite -- i'll let you off the hook. >> thank you. >> in heller the majority opinion written by justice scalia recognized that of course the second amendment was not unlimited end quote. justice scalia wrote laws restricting access to guns by the mentally ill or laws forbidding gun possession in schools were consistent with the limited nature of the second amendment. justice scalia also wrote that quote, weapons most useful in military service, m-16 rifles and the like may be banned, end quote, without infringing on the second amendment. do you agree with that statement that under the second amendment weapons that are most useful in military service m-16 rifles and the like may be banned?

>> senator, heller makes clear the standard that we judges are supposed to apply. the question is whether it's a gun in common use for self-defense. that's the test as i understand it. there's lots of litigation on which weapons qualify for those standards and i can't pre judge that litigation. >> do you agree with the statement? >> from the heller decision from the united states? >> the justice scalia statement. >> whatever is in heller is the law and i follow the law. it's not a matter of agreeing or disagreeing. it's a matter of it being the law. my job is to apply and enforce the law. >> all right. fair enough. let me give you another one. the fourth circuit. judge harvey wilkinson offered a separate occurrence here's what

he said, no one really knows what the right answer is with respect to regulation of firearms. i am unable to draw from the ambiguities to prevent the subject and those assigned to more democrat ic actors. disenfranchizing the american people on this life and death subject would be the gravest and most serious of steps. it is their community not ours. it is their safety not ours. this is their lives not ours. do you agree with judge wilkinson the second amendment is ambiguous? if so, should the ambiguity be determined by the courts or

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

with one on workers' right. there's been a number of supreme court cases where the court has made it holder to hold employers' accountable and we discussed the case trans am there's or four of us. let me give you a short list. ledbetter versus goodyear tire which limited the ability of women to seek equal pay. gross v.fbl financial services which made it more difficult to prove age discrimination and in 2013 there was a case that made it more difficult for employees to prove they'd been retaliated against for reporting discrimination including based on race, gender, national

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

signalling to future litigants they can't be a fair judge in their case because those issues keep coming up. all these issues keep coming up. issues around all these precedents will be continued to be litigated and hotly h litigated. >> how do we have confidence in you that you won't just be for the big corporations? that you will be for the little man. this is the question senator hirono asked yesterday. those of us on both sides care very much about workers' rights but the record is such one questions whether the court is capable in its present composition to give a worker a fair shot. i'm just looking for something

that would indicate that you would give a worker a fair shot. maybe it's in your background somewhere i don't know about but i'd like to have you respond to it anyway you can. >> senator, i really appreciate that and i think there is a way you can look at the question without me potentially pre judging the case. and i appreciate your respect for that and just to finish that thought i'm concerned that i have to look the litigant in the eye in the next case and if i prejudged that case they can look at me and say you're not a fair judge and i have no answer for that. got no answer for that. so what i think can give you comfort in this area is, senator, i know a case or two has been mentioned yesterday. respectfully, i'd suggest it does not represent the body of my work. i've participated in 2,700 opinions over ten and a half years. if you want cases where i ruled for the little guy as well as

the big guy there are plenty of them, senator. >> would you be willing to submit some of them? it's hard to read 2,700 pages. >> of course. fletcher, the rocky flatts case which vindicated the rights of people subject to pollution by companies in colorado and uranium pollution. i'd point you to the magnesium case. a similar pollution case in the salt lake city area and one with renewable energy. orr versus city of albuquerque involving pregnancy discrimination. wd sports a discrimination claim, casey, energy west, simpson versus cu involving women harassed by the football team.

sutton, broader -- i can give you a long list. >> we'll find them and read them. >> senator, the bottom line is i'd like to convey to you from the bottom of my heart is that i'm a fair judge. i think if you ask people in the 10th circuit if he a fair judge you'll get the answer you got from senator bennet and from senator salazar ten years ago. i can't guarantee you more than that but i can promise you nothing less. >> ok. i have a minute and 21 seconds. let's talk chevron. that's been used.

we changed the corporate fuel economy standards. thanks to senator inoway and stevens they put it in a commerce bill and it passed. now we are on our way to 54 miles a gallon. here's the point. we could do the rules but who knew we needed the experts from then on and we said in the legislation that is science would prevail. that is still the law. it's working. the goal is -- i've read articles that it will be 54

miles by 2025. how else could we have done it? >> i'm not aware of anything wrong with that, senator. i've never suggested otherwise. >> but what you said is that congress could in the legislate by leaving some of the rules up to the scientists or other professionals independents as i understood it at chevron. >> i appreciate the opportunity to correct the misunderstanding. the case i think you're referring to is gutierrez. >> that's correct. >> it involved an undocumented immigrant to this country and the question was there were two conflicting statutes. one said he could apply for immediate discretionary relief in this country from the attorney general. the second said he had to wait outside the country for ten years. we had a judicial precedent that said the first statute controls. that was the ruling of our court.

after that, three or four years i can't remember exactly. the board of immigration appeals in its infinite wisdom said our interpretation is wrong. chevron, you have to undue the judicial precedent this man had relied upon and that he now had to wait outside the country not just ten years but 13 or 14 because it took them so long to make up their mind. that reminded me of when charlie brown's going in to kick the ball and lucy pick it up at the last second and it struck me as raising serious due process concerns, fair notice and operation of powers when they can turn over a judicial precedent without the act of congress. that's what the case is about and suggested, respectfully senator, under the

administrative procedures act judges have to ask legal question and left a difference when it came to fact finding. that's how i read section 706. it's fact finding by scientists, biologists, chemists, the experts get great deference from the courts. the only question is who decides what the law is and can a man like mr. gutierrez the least amongst us be able to rely on judicial precedence on the books or can he have the ball picked up before the kick. >> i've exceeded my time. thank you. >> i want to make clear to everybody you didn't exceed the time because i said if you ask your question before the last second's up we'd give whatever time it took for that to be done and if everybody follow rule i think we'll be treating everybody fairly. before i call on senator hatch i'd like to enter into the

record an article in "the wall street journal" entitled neil gorsuch how would you vote democrats demand the nominee declare himself and i'll quote the first paragraph, democrat have come up empty trying to find something scandalous that neil gorsuch has said so now they're blaming him for what he won't say to wit they want him to declare how he would rule in specific areas of law. questions that every supreme court nominee declines to answer end of quote. i would objection i enter that in the record, senator hatch. >> thank you, mr. chairman. judges, i said yesterday my goal in the confirmation process is to get an understanding or handle on your understanding of the proper role of judges in our

system of government. you spoke of justice scalia's legacy. justice scalia you explained emphasizes the difference between judges and legislators and reminded us legislators may appeal to their own morale conviction and social utility to shape the laws they think should be in the future and judges should do none of these things in a democratic society, end quote. i think that accurately describes justice scalia's view. is that also your own view? >> senator, it is though i have to confess that lecture was attended by 20 people and got more attention since. >> we're making sure it gets some more. in your opinions on the appeals court you take great care to identify what issues the court may or may not address and one opinion last year for example you used phrases such as it's

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

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

responsibility to come in every day and to try to get it right and then i listen to the arguments of the lawyers. i don't treat them as cat's pause. they're not there to be toyed with. i treat them, i hope always, as respected colleagues that lived with the arguments, studied the case and know the facts far better than i do. i may learn something from them. i go in with questions i have i want answered and then listen to colleagues after and senator hatch i can't tell you how many times in the 10th circuit i've gone through that process and go to conference and think i know my mind and then one of my colleagues harris harts was here yesterday and there's others who says something absolutely brilliant and changes my mind. that's the judicial process. that's the role i see for the appellate judge. >> thank you.

that's a very good explanation. we held a confirmation hearing for justice sotomayor in 2009 and the minority leader was a member of committee and said she puts the rule of law above everything else and judge sotomayor has adhered to the text of statutes even when rulings goes against sympathetic litigants, end quote. do you agree with senator schumer your duty is to follow the law even when it comes to running against sympathetic litigants? >> yes, senator. i can't tell you when i go home and take off the robe i'm not a human being, that i don't think about some of those cases but my job is to apply the law as fairly as i can in each and every case without respect to persons.

that's my oath. there's not every law on the book i love, you love, i'm sure of that. but my job isn't to write the laws it's to apply the laws. i try to do that and that enough is enough for a day's work and enough for a life's work. >> in my opening remarks yesterday i mentioned the letter we received from dozens of your peers at harvard law school. mr. chairman i ask this letter be entered in the record. >> without objection it will be included. >> it will represented different life styles and views and they all strongly support your nomination. the letter said you personify a disinterested philosophy combined with appreciation of the lives impacted by your decision. how can you do both?

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

be part of it. it's an honor. >> the fourth amendment protect the right to be free from quote, unreasonable searchs and seizures end quote. it was written in the late 18th century when the tools used by law enforcement to investigate crime and interview suspects were radically different than today. in your view how should a judge approach constitutional provisions like the fourth amendment in case where's the technologies and/or methods at issue were not even imagined by the founders? >> may i offer an example? >> sure. >> i take the united states versus jones. a recent case for the united states supreme court whether police officers might attach a gps tracking device to a car.

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

earlier cases involving photography to determine the intellectual property protections for digital modelling a new medium. how should judges approach cases of intellectual properties should they confine themselves to analogous technologies or make new doctrine and case law that better address the changing technological landscape? >> senator, i think it's a similar sort of question. we look back, we find what the law was at the time, the original understanding, if you will, and we make analogies to our current circumstance. we judges work with analogies. we work with analogies and how law making through the judicial process happens. that's proper judicial decision

making. it is a very different thing if you want to create a revolution in the area and change the law dramatically. that's for this body to do. it's for judge to interpret the law as best they can from the original understanding to current circumstances and mesh works is what we did. we looked at all case law and having to do with copyright and applied it to digital media. same principles from the beginning of the copyright act just applied to a new medium. >> several of your writings have come and the question of the so-called chevron doctrine it's been raised already. most americans probably wonder why a supreme court nominee would talk about a gas station but the concept chevron is straightforward it demands

interpretation of the law and the deference allows bureaucrats to rewrite the law. any middle schooler should be able to see how chevron is inconsistent with the basic duties of judges under the constitution. as you know i'm a chevron sceptic and have led the fight to overturn the decision legislatively with my separation of powers act. i introduced last congress with support of several colleagues on this committee and will soon re-introduce it. i chose its title for a reason. re-examining chevron is not about being anti or pro regulation but about the constitutional powers between the branches and fidelity to the laws passed by congress and the bounds of authority grant to

regulatory agencies and about ensuring the bureaucracy abide by the law no matter the policy goals liberal or conservative. do you believe there's nothing extreme or ideological when the supreme court said in marbury versus madison it's the province of the judicial department to say what the law is, end quote. >> marbury versus madison is the cornerstone of the law in this country. i don't know anybody who wants to go back and reconsider that. i hope not. >> i feel the same way. last week "the new york times" reported the primary line of attack about you is you are, quote, no friend of the little guy, end quote. we've had that come up time and again in the proceedings in the last few days and a harvard law

professor that calls himself a liberal wrote an opinion piece on the subject that appeared last week on bloomberg.com and said i don't know who decided the democratic critique of a supreme court nominee, judge neil gorsuch would be he doesn't side with the little guy. it's a truly terrible idea. mr. chairman, i ask the column by mr. feldman be placed in the record. >> so ordered. >> there's a solid track record of objective independence and they question whether you would stand up to the current president if he were to exceed his authority under the constitution and laws congress enacted. i ask to enter into the record. >> without objection so ordered.

>> how would you respond to that type of criticism? >> senator, a good judge doesn't give a wit about politics or the political implications of his or her decision besides where the law takes him or her fearlessly. i walk past a bus every day to byron white. my court house is named for byron white. when i do that i think about his absolutely determination just to get it right no matter where it took him. he said it's a job. you do your very best and you go home. that's how i approach things and if you look at my record, senator, respectfully i think it demonstrates that. according to my law clerks again, when do i dissent which

is very rarely i do so in equal numbers judge who happen to be appointed by democrat presidents and republican presidents and i hate to use those words because they're all just to me judges. i don't think of them that way but hi -- my decisions have always been independent regardless who i agree or disagree with and if i rule against the government, my goodness, ask the u.s. attorney's office in colorado i give them a pretty hard time. i make them square their corns, senator hatch. if you want examples i point to karlov and krueger and ruling for the accused. the least amongst us, against the government. >> in 2005 before being appointed to the appeals court

you wrote an op-ed piece where you criticized the reliance of the courts by litigants seeking to achieve policy results they could not achieve through the regular political process. not that long ago there was a consensus courts are not the place to make policy. now you're criticized for the same common sense idea. i want to give you a chance to respond. how does relying on courts to make policy undermine democracy and legit -- legitimacy of the ju judiciary. >> you can't elect us, you can't get rid of us. you're stuck with us. and we don't have the opportunities to talk to people to have hearings like this one

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

you pointed out policies lawyers sought to achieve through litigation. some critics have tried to turn it into one of those gotcha moments claiming you're real qualm was with the again, i want to give you a chance to respond. >> i would say in that article, i would say a couple of things about it. first, as i pointed out and i believe, the court is a very important place for vindication of civil rights and minorities. it's a place where unpopular voices get heard as much as popular voices. democracy and legislator, majorities win. that's not the case and courts. the best argument should prevail. they play an important