applicants about family plans? >> senator, those are not my words and i would never have said them. >> i didn't say that, ask if you agree with the statement. >> i'm telling and wayne versus give the state, at that case involved a cancer stricken professor, you wrote an opinion that said eeoc owes deference only to the extent it's raising actually proves persuasive. eeoc is enforcement of pregnancy determination provides as follows. because title vii pivots discrimination based on pregnancy, employers should not make inquiries into whether in applicant or employee intends to become pregnant. the eeoc will generally regard such a case as pregnancy determination where the employer makes an unfavorable job decision about the pregnant worker. you find this instruction to be persuasive? >> there are a lot of rates there. if you're asking me to parse them out and give a legal opinion, a fear that i may

respectfully say i have to study in the course of a judicial case. >> let me bring it right down to the operative words, whether employees should or should not make inquiries into whether an applicant or employee intends to become pregnant. >> senator, sounds or you're asking me about a case or controversy. with all respect, when it comes to cases and controversies, a good judge will listen. socrates said the first virtue of a good judge is to listen courteously and decide impartially. speak i think you know i am asking these questions. >> i don't. >> the reason i am asking about your views on pregnancy of women in the workplace is because two of your former students from legal ethics and professionalism class last spring boat to this committee to say how troubled they were by your comments enable class, it was a gender targeted discussion regarding the hardship to employers of having female employees who may use maternity benefits. one of these students to sign her name publicly to her letter which is a pretty brave thing to do. that student did not just make

this issue up after you were nominated. last night, the university of colorado law school confirmed that she had voiced her concerns with administrators shortly after your april 19th class. also confirmed that the administrators told her they would raise this matter with you, that they never actually did so. when we received information like this which raises questions about your views and conduct unimportant issues, i want to get to the bottom of it. i mentioned it to you yesterday in my opening statement that i would be bringing this up. i just want to ask you to confirm come did you ask your students in class that day to raise their hands if they knew of a woman who had taken maternity benefits from a company and then left the company after having a baby? >> no, senator, and i would be delighted to clear this up. >> please. >> the first i heard of this was the night before my confirmation hearing. i've been teaching legal ethics at the university of colorado for seven or eight years. it's been a great honor and pleasure. i teach from a standard textboo

textbook. every professor -- i don't know if every professor, a number of professors that we can elsewhere use, excellent textbook. one of the chapters in the book confronts lawyers with some harsh realities that they are about to face when they enter the practice of law. as you know and i know, we have an unhappy and unhealthy profession in a lot of ways. lawyers commit suicide at rates far higher than the population. alcoholism, divorce, depression are also at extremely high rates. young lawyers also faced the problem of having enormous debts when they leave law school. that is a huge innovation for them to be able to do public service like you and i are so privileged to be able to do. we talk about those things. there is one problem in the book, and i would be happy to share with you the book in the teacher's manual so you can see for yourself, senator.

which asks the question, and it is directed to young women, because sadly, this is reality they sometimes face, the problem is this: suppose an older partner woman at the firm you are interviewing at asks you if you intend to become pregnant soon. what are your choices of the young person? you can say yes, tell the truth, hypothetical if it is true and not get the job. not be able to pay your debts. you can lie, maybe get the job and say no, that is a choice, too. it is a hard choice. or you can push back in some way, shape, or form. we talk about the pros and the cons in a socratic dialogue so they can think through for themselves how they might answer that very difficult question. senator, i do ask for a show of hands, not about the question

you asked but about the following question, and i ask it of everybody. how many of you have had questions like this asked of you in the employment environment? an inappropriate question about your family planning. i am shocked every year, senator, how many young women raise their hand. it is disturbing to me. i knew this stuff happened when my mom was a young practicing lawyer, graduating law school in the 1960s. at age 20, she had to wait for a year to take the bar. i knew it happened with justice o'connor, could not get a job as a lawyer when she graduated from stanford law school and had to work as a secretary. i am shocked it still happens every year. i get women, not men, raising their hand to that question. thank you for the opportunity to clarify that, senator. >> i want to give you that opportunity. i told you yesterday we would get to the bottom of it and give your chance to tell your side of the story.

you made a point yesterday of talking about your four heroes, and one of them was justice jackson. i went back to look at some of his cases, i just know of him, do not know much about him. i found his dissent in this case which i thought was fascinating because his dissent was not that long. but it had an impact, it was profound. the question, of course, was the military orders in the united states on the treatment of japanese americans. fred korematsu was caught up in it and basically told he had no choice, he had to go off to the internment camp and that whole medical, part and become a military directive was challenged in this case, it was interesting that it was upheld in an opinion by justice black, but among the dissenters was robert jackson.

his dissent, he said some things that i thought were pretty interesting, and i would like to ask your thoughts on them. he gave a constitutional condemnation of what he considered the military's racist exclusion orders, but what he articulated in the second half of the opinion is what i would like to ask you about. he really raised a question about the role of the courts even the supreme court in time of war, and time of fear, when it came to military orders and whether the courts and the constitution were up to it. that is really an amazing challenge to us as a nation, a nation of laws. so what do you think about the role of the court challenging the military or the commander-in-chief in time of war and s senator grant reminded us, many people believe we are at war, i believe you confirmed

that as well. are we up to it in terms of constitutional protection and the role of the court? >> we better be. senator, a wise old judge kind of like judge johnson, you're going to hear from is going to come talk to you from colorado, a hero of mine, known me since i was a tot. he taught me that the test of the rule of law is whether the government can lose in its own courts and accept the judgment of those courts. that doesn't happen everywhere else around the world. we take it for granted in this country. it is a remarkable blessing from our forefathers, and it is a daunting prospect as a judge to have to carry that baton. and to do it on the supreme court of the united states is humbling, that prospect, to me. i pledge to you that i will do

everything i can to uphold the constitution and the laws as a good judge should at all times. >> let me ask you about another case that has been referred to yesterday, many of us left sitting in the truck, about 3:30 in the morning, west chicago, i've driven it many times, it was in january, temperature in the cab was 40 degrees below zero, he had no heater in his cab, dispatcher told him to sit tight, you either drag that trailer with the frozen breaks behind you out onto the highway or you wait, and so he waited for hours and finally, feeling them and life-threatening, he unhitched the trailer and took his tractor to a place for some gas and to warm up and then return to it when they fixed it. seven different judges took a look at those effects and came down on his side except for one,

you. why? >> this is one of those you take home at night. the law said that the man is protected and cannot be fired if he refuses to operate an unsafe vehicle. the facts of the case, at least as i understood them, was that mr. martin chose to operate his vehicle, to drive away, and therefore was not protected by the law. he would be protected if he refused to operate, but he chose to operate. >> you know the distinction, though. the dispatcher told him do not leave unless you drag that trailer. he said i cannot do it. the brakes are frozen, and they went out there in 14 below and unhitched the trailer he thought because he was in danger. when you wrote your dissent in this, you said it was an unpleasant option for him to wait for the repairman to

arrive. >> i said more than that, senator. >> you went on to say that you thought the statute which we thought protected him, you said especially in the ephemeral and generic phrase "health and safety" come he went on to write, after all, what under the sun at least at some level of generality doesn't relate to health and safety? we had a pretty clear legislative intent for a driver who feels he is in danger of his life perhaps, in you dismissed it. the only 1 of 7 judges to say n no. you are fired, buddy. and he was blackballed from trucking because of that. never got the chance to drive a truck again. >> senator, all i can tell you is my job is to apply the law. the law as written. it said he would be protected if he refused to operate. i think by any plain

understanding come he operated the vehicle. if congress wishes to revise the law, i wrote this, i said it was an unkind decision. it may have been the wrong decision, bad decision, but my job is to write the law, senator. it is to apply the law. if congress passes a law saying a trucker in those circumstances gets to choose how to operate his vehicle, i will be the first one in line to enforce it. i have been stuck on the highway in my back wyoming in a snowstorm. i know what is involved. i do not make light of it. i take it seriously, but senator, this gets back to what my job is and what it is not. if we are going to pick and choose cases out of 2700, i can point you to so many in which i have found for the plaintiff and in employment action or a firm or an agency for a worker or otherwise. i point you, for example, did you do sports or kc energy west,

crane, simpson versus cu. just a few that come to mind that i scratched down here on a piece of paper. >> judge, we up here are held accountable for our votes. i've been in congress for a while and cast a lot of them. some of them i am not very proud of. i wish i could do it all over again, i have made mistakes. but your accountability is for your decisions as our accountability is for our votes. if we are picking and choosing come is to try to get to the heart of who you are and what you will be if you are given a chance to serve on this supreme court. i would like to go, if i can, for just a moment, to this famous case which you and i discussed at length, hobby lobby. i still struggle all the way through this, and it was a lengthy decision, with trying to make a corporation into a person. boy, did the court spent a lot of time twisting and turning and

trying to find some way to take this to say congress really meant corporations like hobby lobby when they said person. it was dictionary law and so many different aspects of this. what i was troubled by, and i asked you then, i will ask you again. when we are setting out as the court did to protect their religious liberties and freedom of the green family, the corporate owners, and their religious belief about what is right and wrong when it comes to family planning, in the court says, that is what we will decide what the green family decides when it comes to health insurance, you made a decision that thousands of their employees would not have protection of their religious beliefs and their religious choices when it came to family planning. you closed the door to those options in their health insurance, and by taking your position to the next step, to all those who work for closed in corporations in america,

60 million people had their health insurance and their family planning and their religious beliefs denigrated, downsized to the corporate religious belief, whatever that is. did you stop and think when you were making this decision about the impact it would have on the thousands and thousands if not millions of employees if you left it up to the owner of the company to say, as you told me, there is some kind of family planning i like and some i don't like? >> senator, i take every case that comes before me very seriously. i take therested in me in my cut position very grave. i think if you asked the lawyers and judges of the tenth circuit, am i a serious and careful judg judge? i think you will hear that i am. i'm delighted to have an opportunity to talk at about

that decision. as you know, the religious freedom restoration act, congress was dissatisfied with the level of protection afforded by the supreme court under the first amendment to religious exercise. the court in a case called smith versus maryland written by justice scalia said any neutral law of general applicability is fine. that does not offend the first amendment, so laws banning the use of peyote, native americans, tough luck, even though it is essential to their religious exercise. for example. this congress decided that that was insufficient protection for religion. in a bill sponsored by senator hatch, kennedy, schumer when he was in the house, wrote a very, very strict law. it says that any sincerely held religious beliefs cannot be

abridged by the government without a compelling reason, and even then, it has to be narrowly tailored, strict scrutiny, the highest legal standard known in american law. i applied that same law, the companion statutes to muslim prisoners and oklahoma who seek held owl meals, native americans who wish to use an existing sweat lodge in wyoming, in the little sisters of the poor, hobby lobby came to court and said we deserve protections, too. we are a small, family-held company, small number of people who own it, i mean. they exhibit their religious affiliations openly in their business. they pipe increase of christian music, refused to sell alcohol or things that hold alcohol. they closed on sundays though it cost them a lot.

they came to court and said we are entitled to protection too under the law, tough case. we looked at the law, and it says any person with a sincerely held religious belief is basically protected except for strict scrutiny. what does person mean in that statute? congress did not define the term. so what does a judge do? a judge goes to the dictionary act, as you alluded to, senator, the dictionary act as an act prescribed by congress that defines terms when they are not otherwise defined. that is what a good judge does. it does not make it up, it goes to the judge do not dictionary act, in the dictionary act, congress has defined person to include corporations. see you rule out the possibility of some companies being able to exercise religion. we know churches are off-duty men often incorporated, and we know nonprofits like little sisr hospitals can practice religion. in fact, the government in that

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

that it was not a strictly tailored as it could be because the government had provided different accommodations to churches and other religious entities. the greens did not want to have to write down and sign something saying that they were permitting the use of devices they thought violated their religious beliefs. the government had accommodated that with respect to other religious entities and could not provide an x-men nation why it could not do the same thing her here. that is the definition of strict scrutiny. congress can change the law. they can go back to smith versus maryland if they want to, eliminate the act altogether. it could say that only natural persons have rights under the act. it could lower the test on it strict scrutiny to a lower degree of review if it wished. it has all of those options available, senator. if we got it wrong, i am sorry, but we did our level best, and

we were affirmed by the united states supreme court. it is a dialogue like any statutory dialogue between congress and the courts. >> thank you, judge. thank you, mr. chairman. >> senator from texas. >> thank you, mr. chairman pair before i start come yesterday and my statement i mentioned an op-ed in "the new york times" written by neil, my apologies if i can't say his last name, with a name like corn income i'm used to it. >> i get a lot worse. i got a lot worse the other day. >> the title of the op-ed is "why liberals should back neil gorsuch," i am asking for consent to speak in the record with other supported documents. >> without objection, all documents will be included. >> judge, i have a pretty good basic question for you. does a good judge decide who should win then work backward to try to justify the outcome? >> that is the easiest question of the day, senator, thank you.

no. have to correct myself. senator dick durbin, it is not smith versus maryland, that is third-party doctrine, it is an employment division versus meth we are talking about. i apologize to you for that. >> i'm glad to hear you answer my question the way you did. i expected that you would. that seems to be implied in some of the questioning that you are getting. you look at who the litigants are and who you would like to win, the little guy as we have heard, and i will get to that again in a minute, and then go back and try to justify the outcome. i agree with you. that is not what good judges do. i want to return briefly to, i know something you have talked to senator feinstein and durbin about again just to give you every opportunity to make sure this is crystal clear. i remember back when george w. bush was president of the united states, there was a practice of signing statements that went along with his signing

legislation into law that was criticized by some of our friends on the other side of the aisle as somehow undermining congress' intent or the president's own signature enacting a bill into law, so senator feinstein raged did not raise the question back when you work with senator mccain, senator graham on the detainee treatment act, the signing statement that the president ultimately issued with signing that legislation into law. did i characterize that correctly? >> i think so too the best of my recollection. >> the question is this, judge. there were some in the administration who wanted a single statement basically that the president was signing the law, but if you could find an argument that the president did not have to pay attention to the law or perhaps had authorities that were not otherwise laid out in the statute that the president could disregard what congress had passed and what the

president had signed into law. on the other hand, there were those like you in an email who laid out the case for more expensive signing statement. you made the point that on the foreign public relations front allowing us to speak about this development positively rather than grudgingly would be helpful. you said while we appreciate the appropriate limitations in the youthfulness of legislative history, it would be helpful as this provision is litigated which it inevitably would be to have a statement of policy from the executive branch on why this law was enacted, and third, that you said it would help inoculate against the potential of having the administration criticized in the future for not making sufficient changes when, in fact, although bill did was to codify existing law with regard to interrogation practices.

senator mccain made that comment. you at least, i hate to put in these terms, you lost that argument in a sense because the vice president's lawyer prevailed in that argument and they had a single statement in the signing statement basically making reference to -- i would just read it. the executive branch shall construe title x in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch and its commander-in-chief and consistent with the constitutional limitations on judicial power. that is the statement in the signing statement that you sought to make more expansive and accommodate the three concerns that you raised, is not correct? >> senator, your understanding of events is a lot fresher than mine. sitting here, i cannot disagree with anything you have said. >> i understand this was 12 years ago.

you are asked questions initially by senator feinstein without the benefit of actually being able to refresh your memory from reading the emails, but i think we have covered that enough. i hope we have laid that to res rest. i want to talk a little bit about the little guy. and these confirmation hearings, sometimes very complicated and complex issues are dealt with in a rather simple stick in misleading sort of way. first of all, i wanted to talk to you a little bit about an article you wrote in a magazine called "access to affordable justice." i know as somebody who has actually practiced law in the trenches, as you said you have, and you did, you were concerned and writing this article about your concerns for access to

justice for the little guys, , d little gals, i guess. you point out that litigation becomes so expensive and so time-consuming that essentially it was out of reach, justice in our courts of law to resolve legitimate disputes was out of reach for people of modest mean means. could you expand on those concerns you raised in that article? >> i really appreciate this opportunity and venue to be talking about these things. these i care about, and i can talk about as a judge. i wrote that article in conjunction with some input from a lot of wonderful people, so i cannot take a total credit for it. i think them, and you can see why. my point there was threefold. starting with the fact that too few people can get to court with

legitimate grievances today. that is a fact. too few people can get lawyers to help them with their problem. i teach young folks law, leave law school unable to afford their own services. think about that. think about that. and hundreds of thousands of dollars in debt. how do they go beat mainstreet lawyers? how do they help people who need legal services? pointed to three potential sources of problems where maybe we lawyers should look internally. rather than blame others for the problem. there is plenty of blame to go around, i am not a big blame guy, but i am a look inside guide. what do i see in our profession? there are three things i pointed to in that article. first, our own ethical rules. it's a very unusual profession where we are allowed to regulate ourselves. it's quite an insured near a

privilege. it is the legislature, but lawyers basically regulate themselves. and do all of our ethical rules necessarily help our clients or do some of them help us more than they help our clients? i point to some that, for instance, regarding the unauthorized practice of law. why is it that you have to be a lawyer to help parents with disabled children and administered of proceedings to seek relief under idea? that is an example i pointed to. why is it that every time certain companies that provide online legal services for basic things get sued every time they move into a new state? why is it that i can go to walmart and get my hair, teeth, eyes taken care of, but i cannot get a landlord-tenant contract drawn up? those are all the results of our ethical rules. i am not sure whether they are

worth the price we pay for them. it's estimated, i've heard, i cannot verify it, that our ethical rules result in a $10 billion a year surplus to lawyers when clients every year appeared that was one. number two was our own rules of procedure. which yield cases like the one we talked about that took 25 years to resolve. that is wrong. that is wrong. should be able to resolve cases and less time than it takes for my law clerks to be born, raised, and get through law school. in the third thing i pointed to is our legal education system, where we have three years of postgraduate education for everybody who wants to have anything to do with lawyers. the best lawyer in the country in this history came from your state senator durbin and he did not ever go to law school. he always had the best way to

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

of injustice." can you think of many things more unjust for people of modest means in america then being denied access to the courts? because our system is so expensive and time-consuming, they simply cannot afford it. >> i think it's a problem in 80% of the american college of trial lawyers, best lawyers in the country arguably, they certainly think they are -- sorry. when 80% of them say that good claims are priced out of court and 70% of them say that cases are settled based on the litigation costs rather than the merits of litigation, that is a problem run both ways. these are lawyers who operate on both sides. >> you basically either have to be able to pay a lawyer's hourly rate or you have to agree to some contingent fee arrangement,

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

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

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

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

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

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

i did raise it in a second concurrence to raise these questions. i don't know how i would rule if i were a supreme court justice on the question, have to be honest with you because i would want to do what a good judge does, keep an open mind, read the briefs, and i could change my mind. i think of my old boss when i clicked for him. he wrote a panel opinion going runway at the being of the year and by the end of the year, he wrote an opinion for the full court reversing his panel opinion. some people say that as a man who does not have a spine, something like that. i say that as a judge with an open mind. >> speaking for myself, the idea that agencies, unelected bureaucrats, have the latitude to interpret their own legal

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

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

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

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

of law, judges have to mediate to competing and important values that our society holds dear. the court has struggled and in establishment clause jurisprudence to provide a consistent and comprehensive te. i think that is a fair statemen statement. the current dominant test is called the lemon test, and it asks whether the intent is to establish a religion, promote a religion, whether the effect is to help advance religion, and whether there is too much entanglement between state and religion. it has approved of difficult test according to six justices at least have expressed dissatisfaction with this test, but never at the same time.

so lemon indoors. endures. academics have various thoughts about action i know, and the judges themselves have expressed various sundry ideas. i can tell you as a lower court judge just trying to faithfully do what the supreme court wants us to do, it's a bit of a challenge in this area. we struggle along. >> just as one citizen to another, let me tell you that i think it is a moore and bike william rehnquist said, public y against religion and i think our country is poorer for it. as my final topic in this realm, let me ask a little bit about originalism and textualism. our mutual friend bryan garner mentioned to me that textualism is not the same thing as being eight strict constructionist. i know we use that phrase at least colloquially some, but if

the judge is not going to be bound by the text of the constitution or the text of the statute, what is a judge going to be bounded by? >> senator, i hope it is not what he had for breakfast. when i was a lawyer, all i wanted was a judge who put all of his personal things aside, her personal views, and come to the law and the facts on each case merrily. i do think when we are talking about interpreting the law, there is no better place to start than the text. may be here, i have to blame sister mary rose margaret. she taught me how to read, and she taught me how to diagram a

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

it is a matter of fair notice and due process. the other part again is the separation of powers considerations. if i start importing my feelings, if i treat statutes or laws as workshop inkblot test, i usurped your role. i have taken away the right of self-government by the people for the people. took a drug to the lincoln memorial the other morning before the start of all of this, second inaugural address. there it is. believe in government for the people and by the people. gosh, that is the gettysburg address, isn't it? i read them both. thank you, senator. it is the gettysburg address. the gettysburg address. >> let me ask you.

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

place for fair notice and for separation of powers, i think. >> thank you, judge. >> thank you. >> thank you, mr. chairman. let me ask unanimous consent to put into the record a letter from over 100 groups dated marct they described as judge gorsuch just troubling money and politics record, and eight letter dated march 9th, 2017, urging opposition to judge gorsuch's confirmation and a "new york times" article captioned "neil gorsuch has a web of ties to secretive billionaire." >> without objection, all three documents will be included. >> thank you. before we get into that, since we were talking about separation of powers, could you just reflect on whether the

constraints that an appellate court is obliged to take the findings of fact as lower courts have found them and you cannot indulge in its own fact-finding or affective making, does not have a separation of powers element to it? in terms of constraining the the free range wanderings of a court that could make up its own facts and then go in that direction? >> i have not thought about that to be honest with you. >> how about the question presented? should the supreme court and the question presented tried to keep the question narrow to the case presented so that it is not using an expensive question presented to enable it's up to wander throughout the legal landscape and beyond the constraints of the case? >> senator, it is generally, as you know on the facts, the practice of an appellate court

not to review or overturn the facts of a trial court except in the presence of clear error. >> very rare. >> that's an im had not thoughtn separation of powers, but it is a very important offense about i take seriously. i was a trial lawyer for a long time. >> in terms of constraint to narrow the question, does that have separation of powers overturns as well? >> i give you a similar answer, i don't know about that but it's an important general practice. sometimes there are exceptions where they need to go above, but it is pretty rare. usually, we stick within -- the questions presented are whatever the parties present to us on an intermediate court. they get to choose. we don't get to choose. >> that is part of what separation of powers is about in terms of constraining the judicial branch to actual cases of controversy, correct? >> we generally refrain from examining arguments that have not been adequately developed or made for risk of improvident

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

planning to spend $10 million on tv ads in which they are put own press release describes as a cof campaign of paid advertising, earned media, research, grassros activity and a coalition enterprise adding up to the most robust operation in history of confirmation battles. that sounds pretty political to me. i'm wondering what you know about that. >> i've heard a lot about it, senator, from you, from others. i've heard a lot about it. >> what do you know about it? >> i know there is a lot of money being spent in this bio, as i understand it, both sides. >> no, i would not lead to that conclusion at this point. >> i know what i've read and heard from friends and family and acquaintances. i know what you are -- what you've just indicated. there's a lot of money being spent. >> do you know who is spending

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

prejudgment, just a values proposition and one of the considerations that you are to be able to answer without much hesitation. >> senator, what i am prepared to say is i recognize that as a matter of first amendment interest. the supreme court has validated the proposition that disclosure serves important functions in a democracy. at the same time, the supreme court has also acknowledged that those disclosure functions can sometimes themselves have unintended consequences as with the naacp case which i know you are familiar with. >> the confirmation hearing for judge neil gorsuch's will continue on one side of pennsylvania avenue, but on the other side, we have some other news as well. >> we are getting ready for sean spicer's white house briefing. let's listen in. >> press secretary spicer: -- conference members on capitol hill ahead of the house is scheduled but on the american healthcare act which is currently scheduled for thursday. during the meeting, the president reminded members of

the house conference that repealing and replacing obamacare has been a promise that republicans have been making to voters for years. members made it clear that if the voters had made it clear that a vote for a republican in the white house and continued republican majorities in the house and senate that we would repeal and replace this ill-advised aunt legislation. for every member who pledged to the american people they would deliver on their promise, this is really their chance. this is the repeal of obamacare that republicans have been working on for years and that voters have been waiting for some time. on thursday, as the house gathers on the floor and cast their votes for the aca jay, it will be exactly seven years after president obama signed obamacare into law. we are hoping to make this the last anniversary that americans will have to endure obamacare. republicans have been working to repeal and replace dismiss got the neck is guided law ever since and now under president trump we will finally be able to take a step forward towards fundament of mental reform of our healthcare system. i think most americans were

member the lines that were used to sell obamacare seven years ago. if you like your doctor, you can keep your doctor, if you like your health care plan, you will be able to keep your health care plan but for millions of americans, those lines proved to be nothing more than empty promises. plans that their families had relied on for years were suddenly canceled. premiums injected deductibles skyrocketed leaving many who had plans unable to actually use them. and insurers fled the marketplace, nearly one in five americans only have one insurer offering plans under the obamacare exchange. president trump and republicans in congress will keep their promise by reforming the system once and for all. that is exactly what we are doing with the american healthcare act which along with an additional legislative and admitted shade of action part of the three-pronged approach we continue to outline will finally give all americans the healthcare they deserve where market-based competition leads to more affordable, higher quality healthcare opportunities.

this is an ongoing process, and the president has made it clear to congress they should be open to incorporating some of the common sense policy proposals that have been suggested by members on both -- in both chambers who share their commitment to improving the health care system. to that end, the has introduced several technical and policy amendments to the legislation last night which the president acknowledged on capitol hill this morning. they include delivering more immediate relief from obamacare's taxes, accelerating the repeal of these taxes from 2017 rather than from 2018, and ensuring that liens of americans who paid obamacare's penalties or taxes can reclaim their hard earned dollars from the irs. it is making it easier for americans to deduct more of the cost of their medical expenses, protecting life by prohibiting taxpayer dollars from being used to help purchase insurance plans that currently cover abortion, giving states additional flexibility for their medicaid program, covering traditional adults and children populations while maintaining baseline funding for elderly and disabled

for able body adults. freezing obama care's medicade expansion while allowing for responsible, a responsible unwinding -- >> we are continuing to watch sean spicer's white house briefing as members of the senate judiciary committee grill neil gorsuch. we will continue to watch the neil gorsuch hearing and bring you the highlights, but let's listen in to sean spicer now. >> after a return to the white house, the president received his daily intelligence briefing. then the president signed f442, the nasa administration transition authorization act of 2017. acting on another of the president's most ambitious promises to the american people. many may recall in his joint address, the president said, quote, american footprints on distant worlds are not too big of a dream, e