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 role.

the second i pointed out one thing that we lack as judges to make good policy decisions as legislators is the ability to compromise. these legislative bodies can put together a compromise. judges, somebody has to win and someone has to lose. it's not a great place to compromise and again, we are not well-equipped to do your work. at the same time, i have pointed out a column by a liberal columnist, a very fine man, and i agree that his side had spent perhaps too much time in court instead of in front of the legislator. i can report to you, having lived longer, as i did report to you in 2006, that the problem lies on both sides of the aisle,

that i've seen lots of people who resort to courts more quickly than perhaps they shoul should. >> some liberal organizations are claiming that in private practice you represented only big corporations. your former law partner who happens to be on the board of directors of the liberal american constitution society has a very different take. in an opinion piece posted in "the washington post," he describes her work as a firm this way. over the course of his career, he has represented both plaintiffs and defendants, he has defended large corporations, but also sued them. he has advocated for the chamber of commerce, but also filed and prevailed -- has prevailed with class actions on behalf of consumers. we should applaud such independence of mind and spirit

in supreme court nominees, unquote. mr. chairman, i submit this to the court to be read to include in the record at this point. >> without objection so ordered. >> is is that an accurate description of your work in private practice? >> it is, and i'm grateful that david is here today with me. i wanted to go to a point where i could represent plaintiffs as well as defendants, not pick one side or the other. i thought that would make me a better lawyer, and it did. we represented small plaintiffs. my very first trial i represented a man who bought a gravel pit and the private owner wouldn't leave. they stole the gravel, and we had to kick him out. they brought a bunch of lawsuits

from we thought malicious process, trying to kick my guy out. we found an old statute that said when you mine another person's property, you get statutory damages. it was quite an uninspected find, it was a hundred-year-old law, no furtive mining statute. we brought suit, we won the claim for conversion and malicious use of process among other things in county court. ed may have been one of the highlights of my career when one of the jurors came up afterwards and said to me, "son, your young perry mason." that was my first trial, senator . i represented large defendants, i represented large plaintiffs as well, along with a very significant team, my partners,

we won what was at that time, i don't know if it still is, it has probably done better now, the largest plaintiff side any verdict had been affirmed in american history. we represented class actions of consumers, some dry holes, some successful. all sorts of clients, individuals, companies, nonprofits, represented pension funds, public employee pension funds, a variety of clients. it was a great and wonderful practice and i loved every minute of it. >> you're a person of great experience. for your young age, i have to say. liberal groups also claim that you favor employers over employees. they suggest that you are actually biased in that direction. in an analysis published in the stanford law review, they came

to a very different conclusion. here's a conclusion. after surveying his labor and employee decisions, it's clear that judge gorsuch does not favor or oppose employees, employers, unions, or the nlrb. his opinions do not show prolabor or antilabor tendencie tendencies. the author says that parties have come before you, can rely on a record of fair analysis to simply rubber-stamping. mr. chairman, i ask that this evidence be included in the record at this point. >> without objection, so ordered. >> judge, is that your goal to focus only on the facts and law and every case? >> sir, i'm heartened by that

article, i haven't read it. to answer your question, when i became a judge, they gave me a gavel, not a rubber-stamp. nobody comes to my court expecting a rubber-stamp. >> that's good. the supreme court recently decided to cases currently from your court that involved something i was instrumental in. i was one of its authors. i talked senator kennedy into coming on board. when clinton signed it on the south lawn, kennedy was the biggest duck in the puddle. he was very proud of that particular bill. it makes it difficult for the government and provides this particular standard to everyone.

this addresses whether the affordable care act -- you are the majority deciding that it applies to both plaintiffs and the cases i birth-control mandate failed to meet standard. opponents of your nomination do not like this result, they accuse you of being antiwoman. that, of course, isn't true at all. any fair person would have to conclude it's not true. your critics simply demand that as a judge, you must follow their political priorities that available availability of birth control is a freedom. i question your decision, is that really a policy dispute that should be addressed by congress and was your job in these cases to impose your or anyone else's priorities or to interpret or apply those statutes only the congress enacted? >> senator, our job there was to

apply the statute as best we could understand its purpose. i think every judge who faced that case, everyone founded a hard case and did their level best. that's all any judge can promise or guarantee. i respect all of my colleagues who addressed that case. >> we respect you for doing so. you wrote about the freedom of religion act this way. perhaps its most important work in protecting unpopular religious beliefs vindicating the nations long-standing aspiration to service a refuge of religious tolerance. in other words, congress enacted to ensure that other things, the

little guy would be protected as much as the big one. is it fair to say that the court's decision and hobby lobby and your concurring opinion upheld this purpose and in doing so, effectively promoted religious tolerance? >> i might give you a couple of other examples of the application that i have been involved in that might shed some light on this. it's the same statute that applies, not just to hobby lobby, but also applies to little sisters of the poor and protects their religious exercise and it's also been applied in a case that i sought counsel. our court held, it applied to a muslim prisoner in oklahoma. it's also the same law that protects the rights of the native american prisoner who is denied access to is his prison

sweat lodge, but it protects hi him. i wrote those decisions as well, senator, yes. i wrote the native american is in her case and i participated in an ironic concurrence to the muslim prisoner case. >> thank you for doing so. i also want to give you a chance to respond to a few things that were sent and statements on monday. one of my democratic colleagues said is it important to know whether you are a surrogate for president trump or particular interest groups. are you question marcus mark is pickled no. >> of course not. another senator mentioned just a few -- you never took issue with how they apply the law in those cases. you said that only the results troubled him and as i described monday in my opening statement, i have contrasted judges who focus on the process or arriving on the result with judges who focus on what they were resolved with b. which approach? do you associate with?

>> i think all good judges follow the law wherever it leads. >> my time is up mr. chairman, i'm sorry. >> good to have you back. you know from our earlier discussions, i had told you very frankly, if the republicans would follow the constitution, and practice chief judge would be on the supreme court today. i also respected you for calling chief judge garland when your nomination was announced. i understand you respect him, is that correct? >> very much so. whenever i see his name attached to an opinion, it's when i read

with special care. he's an outstanding judge. >> do you think he was treated fairly by this committee? yes or no? >> as i explained to before, i can get involved in politics. there is judicial canons that prevent me from doing that and i think would be very imprudent of judges to start commenting on political disputes between themselves or the various branch. >> the reason i ask that question, since this committee began public hearings for supreme court nominations, it began in 1960, i wasn't here at that time, but it has never took a vote to impending omni ever until chief garland. i can express a opinion. i think it is shameful, i think it is severely damaged the

reputation of this committee, i think it has severely damaged reputation of senators who concurred with that. we heard anything but the conscience of the nation in that regard, and those who probably hold the hand and swore they would uphold the constitution of the united states did not. it becomes more of a problem because it appears that president outsource your selection to special interest groups and you may not like that terminology, but republican senators have praised the fact that the president had gone into this group and had a list when he was running for office of who we could select from. the list was given not by prepared by him, but by these special interest groups, and

they have an agenda. they are confident you share their agenda. in fact, the first person who interviewed you for this nomination said they saw the nominee who understands things like we do. mr. chairman, i would ask that an article in "the wall street journal" entitled "trumps supreme court whisperer" be included in the record. >> without objection, so ordered. >> and another one, which "the new york times" concerns with case. >> >> without objection so orde. >> the two-part interest groups recommended you to the president, i want you to have a chance to talk about this.

the federalist society and the heritage foundation applauded the citizens united decision which allowed unrestricted corporate money to pour into elections. you suggested the constitution of law should be grounded solely in the original meaning of the text. you said that judges should strive to abide the law as it is, focusing backward, not forward. if we do that, i suppose the first amendment. do you believe that james james madison and the other drafters of the understood the speech to include corporate money to be funneled into campaigns? >> senator , i can tell you tht

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

those cases and different justices came to different conclusions on that. >> nothing in the federalist papers talked about corporate money going into campaigns, is that correct? >> senator , -- >> it's a "yes" or "no." >> i think there's a lot of thought that were relevant that were considered by both concurrent by citizens united. >> nothing about corporate money? >> i don't remember that term, no, senator. >> trust me, there wasn't. >> i trust you. entirely. >> you don't have to. >> not that much? >> i'll let it go. [laughter] in citizens united, justice

kennedy indicated restrictions on donations justified by concerns of quid pro quo corruption. now president trump has said, the reason he made campaign donations wasn't so when he needed something from them, it was there for me. during these campaign contributions by favors, shouldn't congress make the determination by corruption especially when talking about quid pro quo's? >> senator, i think there is lots of room for legislation in this area. the court indicated that if there was proof of corruption could be demonstrated, that a different result may obtain on expenditure limits. >> you don't believe that

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

whether it has to do a contribution limits, whether it has to do with expenditure limits or whether it has to do with disclosure requirements. >> if somebody were to out and out by a vote or by a favor, we'd all agree that's corruption, is it not? >> i think justice kennedy would agree with you, yes. >> would you agree with me? >> i follow the law. that's my understanding. >> if i was a prosecutor, would you call that corruption? >> i'll trust you there too, sir. >> i did. influence is in different ways, for example, when you became a judge, you are here in washington and you are working in washington. i understand there were three externally well-qualified

colorado and women attorneys who are on the short-list being considered by the bush white house. the denver post did a profile of these women. at that point, your name was not on that list, at that point, a billionaire conservative donor intervened. he lobbied the white house to appoint you. he made donations to the same interest groups that were on the list of recommended you to president trump. are these areas a concern? >> senator, with respect to my nomination, as i recall, -- >> i'm talking about the circuit. >> yeah, as i recall, all of my clients or an awful lot of them came out of the woodwork to say

nice, supportive things about m me, and he was one and i think there's probably letters in there from a fellow with a gravel pit too. >> which one do you think the white house listen to the most? let's be realistic. >> senator, i think with a probably listen to was the fact that they've seen me in action at the department of justice, that's my guess if you asked me to guess, but that's a guess. i didn't make the decision. >> i raise this because some of these same people fun of the that put you on the list for president trump. president trump, as you know, has attacked judges who dare oppose the constitution. he's gone after -- he's said

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

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

israel, would that be an easy question? >> we have a constitution and it does guarantee free exercise. it also guarantees equal protection of the law and a whole lot else besides. the supreme court upheld that the due process right extends even to undocumented persons in this. i will apply the law, i will apply the law faithfully and fearlessly and without regard to persons. >> how about in regards to religion? >> anyone, any law is going to get a fair and square deal with me. my job as a judge is to treat litigants to appear in front of me as i wished to be treated when i was a lawyer my client, large or small. they were disco made against because they're a large company or a small individual with unpopular beliefs. if that's the kind of judge i've tried to be, and i think that's

my record. >> judge, let me ask you this, do you agree that there should not be a religious test in the united states? >> i need to know more specifics. >> let me give an example. a religious test to serve in the military. >> senator, that would be inappropriate, yes. it's against the law. >> of course, i go right back to the banning of people solely based on religion. not if they form a threat or something, would you ban somebody solely on their religion? >> senator, we have not just the first amendment for exercise in this country. it's very important. we have not just the equal protection guarantee of the 14th amendment, which prohibits determination based on race,

gender, and ethnicity. we also have the freedom registration act which is a bipartisan bill which was supported by kennedy and schumer and that poses an even higher standard on the government then the first amendment when it comes to religious discrimination. it says that if there is any sincerely held religious belief, earnestly held belief, the government must be strict scrutiny for it -- strict scrutiny being the highest known standard in american law. >> the reason i ask these questions, there is no legitimate concern. i hear stories from my grandparents when signs used to say no irish or non-catholic. i'm sure senator feinstein can speak about those of her

religion. president trump promised a muslim man, he still has on his website to this day, his call for a total and complete shutdown of muslims entering the united states. republican congressman recently said the best thing the president can do for his muslim ban is to make sure he has gorsuch on the supreme court before the appeals get to that point. >> senator, a lot of people say a lot of silly things. >> that's saying this congressman wanted you on the court's you could oppose a muslim ban. >> senator, he has no idea how i rule in that case. senator, i'm not going to say anything here that would give anybody any idea how i would rule in any case like that could

come before the supreme court or in my court of the tenth circuit. it would be grossly unpopular for a judge to do that. it would be a separation of powers for someone sitting at this table in order to get confirmed had to make promises or commitments about how they would rule in a case that is currently pending and likely to make its way to the supreme court. >> the president's national security determinations, are those renewable by the court? >> senator, no man is above the law. >> we have asserted that their national security determinations are unreviewable by the courts. i've heard other presidents in the past, i had to disagree whn they say that. do you disagree? >> as a judge, i apply the law

and the law here, i think, is youngstown. i look to justice jackson. and justice jackson wrote a brilliant opinion in youngstown. it's important to know who he was. >> i wrote a paper. >> i know you did, we talked about it. he was a fiercest advocate of executive power as fdr's attorney general. fierce advocate of executive power and when he became a judge, he said the road changes a man or it should. and you go from being an advocate to being a neutral adjudicator. the youngstown system of analysis, when it comes to presidential power and foreign affairs has three categories. one, the president asking with concurrence of congress. that's when the president is acting is great greatest stren.

he has commander-in-chief power, this body has power to assign more to it in article one. when the congress and the president are in disagreement, that's the other end of the spectrum. the president there is acting with the lowest ebb of his authority. when congress is a silent, that's the gray area in between. that's how a court as opposed to a lawyer or advocate approaches a problem. >> president trump has declared that torture works. he says it would bring a hell of a lot worse than waterboarding. in 2002, a memo from the office of legal counsel said that any

effort combatants would violate the constitution sole vesting of the commander-in-chief in the present. concerning the fact that congress has passed a law on this, what controls? >> we have a convention against torture. and implementing legislation which bans torture. we have an act that bans cruel treatment. we also have an eighth amendment. >> let me ask you this, does the president have the right to authorize torture if it violates the laws that have been passed by congress? >> senator, no man is above the law. >> let me ask you another question. president bush's surveillance

program, when you were working there, resulted in the illegal collection of thousands of americans communication. we felt that was a direct violation of our surveillance laws. justice department attorney john you justified the program. he said statutes passed by congress do not infringe the president's inherent power under the constitution to conduct national security searches. do you believe that president bush's warrantless surveillance program was justified because the president had "inherent power to override our surveillance laws to conduct national secured he searches?" >> judge, as a judge, before i decide to answer a question like that, i would want briefs, an argument, and go through the whole judicial process. i would begin to try to attempt

to offer an off-the-cuff opinion like that. >> let me ask a different way. if congress passed a specific law on surveillance, and if a president said i'm going to violate that law because i'm president, does he have that power? >> no man is above the law, senator . >> senator lee who is here a minute ago, we have attempted to pass an act. we had a clear decree from congress to drive that collection. is your answer still the president does not have the power to supersede that law? >> senator, i can't issue an advisory opinion at at this tae in cases or controversies and how they would come out.

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

you attempted to give president bush the flexibility -- go >> my was that he was long gone from the department long before i ever showed up. by the time i got there, the department and the president were willing to work with congress to try to establish a regime that would govern operations equine terminal. that's my recollection. my role was a lawyer and predominately overseeing litigation filed by others against the government. i had a role as a lawyer, a significant one, but i was not a policymaker, senator. >> you are involved in a hansen versus rumsfeld?

>> sir, hamden, i recall was a decision that passed in the first instance on the treaty act. to the extent that i was involved and providing advice as a lawyer about the detainee treatment act, i'm sure, yes. >> you read the shelby county decision. if you're in the court, which side would you have voted with? >> senator , i admire the varis

ways. you'd be a formidable companion in the courtroom. >> senator feinstein said don't let it go to your head. i'm not. i'm a lawyer from a small town. >> i've heard that story. whenever a lawyer says i'm just a lawyer from a small town, watch out. you have to watch our wallet, because it's gone quickly in my experience. i might have played that line once or twice myself. >> ask these questions because both judge alito and judge roberts answered some precedent questions. are you saying there are no

precedent questions you will answer? >> senator, i'm happy to say shelby is a precedent of the united states supreme court. it's a recent one, it's a controversial one, i understand that. when it's presidential reach will prove to be remains to be seen. for example, as i read it, the decision left room for congress to legislate in this area if it wishes to make new findings and to express a new possible regime for section four and section five coverage. that possibility is live and could yield further litigation, it undoubtedly would. >> are being critical of class actions with duchess school neonate case of walmart duke's case it would be difficult for americans to have their day in court. when you join justice scalia's

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

they win. they had a trial, the jury found for them, and they win. finish the lawsuit. i believe it has been finished and i believe they have finally been paid, though the course has been so long. many of them, it's their children who are getting the money. >> before senator graham, i thought i'd give some directions. we have this vote at noon, it's just one roll call vote and senator graham should finish about 12:00, then we'll adjourn, depending on when your last word is answered his question. somewhere around 1245, i will gavel the committee back into session and you need to be reminded that you shouldn't be offended as members go to vote and you'll have your 30 minutes and i hope that's enough, because i want to keep this

moving. you can be back here around 12: 45 or thereabouts. i'll wait until you get the orders. does not detract from anything? a >> we are okay. >> senator graham. if i go ahead of time, you will adjourn the committee, recessed the committee. >> yes, sir. judge, i want to read a statement here that i associate myself with. i certainly don't want you to have to attest in the abstract, which might determine what your vote or your would be. you have to see that it may well become the supreme court. is that a reasonable standard? >> yes, senator . >> that's what senator lahey said on july 1st, 1993. it was good then, i think it's good now. you're not a political person, i am, so i want to take a bit of a moment here to talk about the

fairness of what's going on in terms of you and judge garland. judge garland was a fine man. i'm sure i would have voted for him. at the time, his nomination came about, we were in the middle of selecting a new president. we were in the last year of president obama's term. some of my democratic colleagues, i want to remind you of some things that people on your site have said. june 25th, 1996, it was an election. there is a suggestion that may be one of the judges on the supreme court would step down before the election in november. this with the chairman of this committee, joe biden said about that possibility then. it would be our pragmatic conclusion that once the political season is underway,

and it is, action on a supreme court nomination must be put off until after the election campaign is over. if someone steps down, i would highly recommend the president not naming someone, not send in a mob, if bush did not send someone up, i would ask the senate to seriously consider not having a hearing on the nominee. that was joe biden, the possibility of the vacancy coming about of somebody stepping down, not dying. once the campaign season was afoot. justice alito passed away in february, there had already been three primaries. the campaign season in my view was afoot. this is what senator reid said in may 2005. the duties of united states senator set forth in the

constitution of the united states, nowhere in that document does it say the senate has a duty to give residential nominee a vote. this is senator schumer. the last july, 2007. we should reverse the presumption of confirmation, we should not confirm any nominee to the supreme court, except an extra ordinary circumstances. that was the last year, president bush's last term. to my democratic colleagues, on november 21st, 2013, you decided when you are in charge of this body by a 52 heaven 48 vote to change the rules of united states senate, the united states executive branch and appointments and all the judges below that of the supreme court. i'm not going to ask you whether you think that was fair or not, because that's not your job. i will say to the public, i

thought it was incredulously unfair. i thought it was a power grab by our democratic colleagues that would change the nature of the judiciary committee the rest of our lives. what you've done is you've made it you can confirm a judge within one party if you have over 50 votes, not having the requirement to reach across the aisle. too big of a vote or two, which is a moderating influence. that is lost forever. for all judges below the supreme court. i was in a gang of 14 that was formed to deal with a wholesale filibuster of all bush nominations. new to the body, i felt it would be bad to change almost 200 years plus president of how we deal with nominations coming from a president. but there was a wholesale filibuster, everything bush. there were 14 of us, i think i'm one of two or three left that believe it was wrong to filibuster supreme court judges

and judges in general because you don't like the outcome of the election. we came up with a standard they should only filibuster an extra ordinary circumstances, which i think is consistent with what hamilton had in mind in terms of role of the senate, that you expect a republican nominee or republican president to pick someone different than the democrat president because that's what the campaigns are all about. i believe that son myron kagan were well in reason of mainstream -- that's why voted for them. now, things are different. i believe that that vote november 21st 2013 forever changed the way the senate works when it comes to executive appointments, judicial nominations. it will do long-term damage to the judiciary as a whole. the most ideological will be

rewarded. we don't have the requirement yet for the supreme court and i hope we never will. time will tell. i'm not optimistic. at the time of that vote, the senate had confirmed 19 of obam obama's judicial nominations. that same time and president bush's a second term, there've been four confirmed. i thought it was politically motivated and when it comes to cries of being unfair, they fall on deaf ears. as to justice garland, fine man. i fully expected trump to lose. he won. i think he deserves the right of every president. that's not just me saying that.

this is what the paper is number 76 set about the requirement. this is what mr. hamilton wrote a very long time ago in 1788. the senate could not be tempted by the preference they might feel to another to reject the one proposed because it cannot assure themselves that the person they might wish to be brought forward by any subsequent nomination. they cannot even be certain that a feature nomination would present a candidate in any degree more acceptable to them. to what purpose then to be require the cooperation of the senate? it would be an excellent check upon a spirit of favoritism in the president. it would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from

personal attachment, or from a view to popularity. that was the check and balance advice and consent rules of the game that were established in 1788. when you look at the justice of the supreme court, it has changed dramatically. many of the judges in the super import were confirmed without a hearing. some, without even a recorded vote. i'm not here to say that my party is without fault in the area of judges, we are not. i'm here to say that in novembe. anyway that i think mr. hamilton would be very disappointed in. it's not that i don't understand, i very much do. when my time came for student myron kagan to appear this

committee, i knew what awaited me if i applied the hamilton standard. partisan people abound on both sides of the aisle. the veracity by which people wanted me to vote no was real apparent. i believe that if strom thurmond can vote for ginsberg and those can vote for scalia, there was a point in time or is expected that you would vote for somebody you would not have chosen, you would use the qualifications of that person. we find ourselves today, confronting a nomination of one of the most qualified people i think president trump could have

chosen from the conservative world. you are not an unfit person. i don't think there's any reason to suggest that you're his favorite. had you ever met president trump personally? >> not until my interview. >> in that interview, did he ever ask you to overrule roe v. wade? >> no, sir. >> what would you have done if he asked a? >> at senator, i would have walked out the door. it's not what judges do. they don't do it at pennsylvania avenue and they shouldn't do it here. >> neil gorsuch is a very hostile appointment. while outside the mainstream of american legal thought.

if you breathe air, drink water, eat food, take medicine, or in any other way, interact with the courts, this is a very bad decision. i won't ask you to respond to what i think is absolute political garbage. statements like that were also directed against justices stoudamire and kagan. i remember stoudamire being called a racist because she gave a speech i was edgy. i remember kagan being called unpatriotic because she made a decision at harvard to kick people off campus. the reason i didn't buy one was a racist and one was unpatriotic is because i took the time to look at the way they lived their lives and i listened to what people had to say who interacted with them all their lives.

to my democratic colleagues, if you take the time to listen to people who have interacted with judges gorsuch draw his entire career, you will find pretty quickly that he's a fine, decent man who has tried to be a good father, a good husband, a good lawyer, and a good judge. if you don't want to take the time, it says more about you than him. all i can say is it is impossible to conclude that what nancy pelosi said about you is anything other than political side because there are no facts to justify it. the aba gave you the most highly qualified rating they could give anybody. i just want you to know that i believe you have lead a life you should be proud of, that you've tried your best to be a good father, a good husband, a good lawyer, and a good judge.

now, let's talk about our interaction along time time ago. >> thank you senator, that was very kind. >> it's something you've earned and not something you need to thank me for. the bottom line is are we at war and your view as a nation? >> senator, all i know is that there are a lot of young men and women out there in harm's way's that we may sit here and have this conversation. >> it will be news to them we are not at war. >> i'm sure that's right. it would be news to a family. i think we are at war. it is not a traditional war. there is no capital to conquer, no air force to shoot down, no navy to sink. there is no taking of berlin and japan.

do you agree there would be hard to determine when the war is over? >> senator, there was a question of the court struggled with. >> we had a lot of conversation about how to proceed forward when you're in the bush administration, is that correct? >> we did. >> when you are in the camp of the youngstown camp that of congress was involved, the president is a stronger, not weaker. >> that's right. >> there are some authorities at the president's commander-in-chief has that cannot be taken away by the congress. there are inherent to the job. is that you also? >> there are certainly people who believe that. >> i am one of them. having said that, because you can have 535 commander-in-chief's, senator mccain and myself were trying to pass legislation that basically codified the practices of the bush administration post

waterboarding. is that a fair summary of the conflict? >> yes, senator, i believe it is. >> there are people in the bush administration who did not want to go down the road that waterboarding was torture. that was not the deal of senator mccain or myself. at the end of the day, the detainee treatment act codified how we treat enemy combatants with practices we can employ with interrogation standards. it also tried to come up with a system of review. i was in the camp that with past wars, i don't remember any german or japanese fighter who didn't have a captain. traditionally, as of the commander-in-chief's job to determine who the enemy force

as? >> there are certainly legal authority suggesting that. >> it's the court's job to determine the procedures in question pass muster? >> that's correct, and this body plays a role too. >> the dilemma was that i believe it was a department offense, the commander-in-chief's job to determine the enemy force because that's their expertise. congress could regulate the naval and land forces and we had a say about how they could do that in the courts have a say about whether it passes constitutional muster. this is generally above that situation. >> that's a separation of powers at work. >> there is a cross current her here. there was an email that you weren't a part of, you were not included, but it says neil and i decided this is not with the

white house wants. we have been given authorization -- they want us to engage to eliminate if possible. dod, not doj has the lead which may be what led the doj l.a.'s confusion the key point for us is that we have the green light to engage. what i was trying to do was preserve the combat status -- the arb concept and allow the courts to judge the work product at the d.c. circuit. they have a judicial review. do you remember that? >> i do. >> okay, and it was settled in the congress for the combat status whether somebody was enemy combatant at the circuit courpp