>> and i read the case. with my limits of time, i want to focus on the concurring opinion. that's what the actual opinion said. you took it a step further to talk about the possibility. you cited an opinion by justice thomas joined by justice scalia saying all limits should be set to strict scrutiny. could you clarify for us, do you think there's any basis for applying strict scrutiny to contributions set across the board? why would you have cited that opinion? >> i'm happy to explain again. so the facts of the case -- that's what i was deciding -- were uneven contribution limits. it was permissible to give more to major party candidates than minor candidates. the law, as you're well aware, senator, under buckley, says the contribution to candidates is a first amendment fundamental

right. it says that. i was quoting buckley, i'm sure, our citing buckley to that effect. the question is what level of scrutiny should we apply to that case. buckley suggests it's something less than strict scrutiny in the first amendment context for contributions. that's the instruction that i as lower court judge have in the first amendment context this. an equal protection challenge. it's not just contributions. it's the inequality of contributions that's the problem here. that this system favors major party candidates over minor party candidates. normally with a fundamental right in equal protection analysis, we apply strict scrutiny. i was faced with a situation where do you take the less scrutiny and put it in the equal protects context or apply the

norm scrutiny context. i had two great opinions -- >> okay. i did read it. >> i'm almost done. >> okay. i understand that. here's the deal. the other judges were happy just decided on the narrow basis, right? so you write the concurrent opinion to bring up this other issue. i think again about justice white, who you have -- is your mentor or was your boss. there's a law review articles from the dean of tulane time and time again, justice white avoided broad theoretical basis where a regular rationale would suffice. >> i'm almost there, senator. so i point out this conflict in the supreme court's directions that i saw. >> okay. all right. >> then i said in our case, byron white. it doesn't matter.

because colorado counts meet even rationale basis tests. forget about whether it's strict scrutiny or something close to justice white. it couldn't meet rationale tests because colorado couldn't articulate any good reason. maybe there's one out there. i don't know. i said they've articulated nothing. >> let's just continue on now with some other cases. it's a bit of a pattern. not a concurring opinion but in the hobby lobby case, you found that corporations were legal persons and could exercise their own religious beliefs. when it comes to campaign finances opens up the possibility that you would strike down this idea of the corporations shouldn't be giving money directly to campaigns. do you think these creatures of statute have the same constitutional rights as living, breathing, human beings? >> senator, hobby lobby had nothing to do with the first amendment of the contusion. >> it was about corporation. >> it was.

under rfra. >> so you don't think that they would have these rights, a corporation would have these rights under the first amendment? >> i don't think hobby lobby speaks to the question of the first amendment. what it speaks to is the religious freedom restoration act and what a person is defined under that act and the dictionary statutes, what words we're supposed to use and what definitions are. senator, in rfra, again, if this body wishes to say only natural persons enjoy rfra rights, that's fine. i'll abite that direction. i'm not here to make policy. i'm here to follow it. >> on to another policy, a chevron case. in your gutierrez concurrence. you wrote the opinion and wrote your own concurring opinion which is better than writing a dissent to your own opinion.

you wrote a concurrence to your this move, if as you i ply in your concurrence, or you don't imply, you say, it could have titanic real-world implications when it comes to rules, 13,500 cases since 1984. in your book you say you don't overturn precedent unless accepted and a firmed by courts and people have reliance on the decision. so my question is, why in -- you're concurring. senator feinstein asks you about the facts of the case. in the concurring opinion, you say "there's an elephant in the room with us today. sorry, guys. i wasn't referring to the republicans. "we have studiously worked our way around it. the fact is chevron and brand x permit bureaucracies to take

huge points of power that seems to square with the constitution of the framer's design. "maybe the time has come to face the behemoth." that sounds like again, you're going a step further and talking about overturning a major precedent. i want to know if that's what you mean, if you think it should be overturned and if you have considered the ramifications of that when justice scalia himself was the original champion of the chevron doctrine. >> senator, all i can do is explain to you why i was concerned about chevron in that case. and i was concerned because, again, we had an undocumented immigrant who was following judicial precedent. >> i really do understand the facts. i want to know why you did a concurring opinion to your own

opinion to make this broader sweep and talk about you said the time has come to face the behemoth. you're clearly talking about overturning chevron. >> i'm trying to answer your question the best i can. i was concerned about the due process implications that a rise in cases like mr. gutierrez where an individual who isn't aided by an army of lawyers or lobbyists, can they anticipate changes in law by agencies back and forth willy-nilly. even to the point of overruling judicial precedent. that's a due process concern i raised. raised an equal protection concern about individuals like mr. gutierrez can be singled out by political branch in a way that judges are supposed to protect. i raised a separation of powers concern saying judges should be saying what the law it is. >> as a supreme court justice, if you were to make this

decision to overturn chevron, would you consider the implications on all of the cases in the u.s. and the rules and the uncertainty that it would create? >> goodness, senator, yes. >> would you overturn it? is that what this means when it's time to face -- >> my job is i concede that it was to say, hey, listen, look at the implications, the real-world implications of what we're doing here. >> but you would be the boss if you were the supreme court justice. what rule should replace it? what do you think should replace chevron? >> senator, i don't prejudge it. i can tell you what did preexist it. skidmore deference. an opinion written by justice jackson. that's what preexisted. there was deference before.

we had the administrative state for 50 years. agencies would issue rules and decisions. i don't know what all the consequences would be. i would pledge to you -- i wasn't thinking about being a supreme court justice then. i was identifying an issue for my bosses. if i'm so fortunate as to become a justice, i would try and come at it with as open a mind as a man can muster. i would tell you, i remind you, when i bear in mind, david scintell. when i was with him, he issued a panel opinion at the beginning of my year with him going one way. by the end of the year, wrote for the full court reversing himself. some people think that doesn't show a lack of sufficient steel. i think that shows an open mind and a lack of ego that a judge should bring to bear when he or she puts on the robe. that's what i would commit to you. >> let's go to another piece of

this philosophy. that's originalism. in other words, whether words and phrases in the constitution should be interpreted according to their original public meeting or how the founders and their contemporaries would have understood them. regardless of whether you characterize yourself as an originalist, you applied originalism in several decisions, including in cadova v. copy of albuquerque. you said judges are charged with applying according to its original public meaning, which are the buzz words forage naturalism. criticisms of the principles underlying originalism are not new. in fact, i believe some lines in mccullockv. maryland are still

relevant towards the discussion today. he said that the constitution should endure for ages to come and be adapted to the various crises of human affairs. he continued. to have prescribed the means by which government should and all future time execute its powers would have been to change entirely the character of the instrument and give at this time properties of a legal code. it would have been an un-wise attempt to provide by a mutable rule for if for seen at all must have been seen dimly and which can be best provided as they occur. he added, if we apply this principle of construction to any of the powers of the government, we should find it so pernicious that we shall be compelled to disguard it. do you agree with the point that justice marshall make in mccullough? >> senator, i would certainly agree that the constitution must

endure. and that it's a lot bigger than any of us. it will live in that sense hopefully a great deal longer than any of us. our children's children. it's important to understand law according to the public meaning. words have meaning. >> so you don't agree with mccullough about adapting to the crisis of human affairs? >> no, senator. >> so you do agree. >> i'm trying -- >> i want a yes or no. >> i think it takes -- these are complicated things that take more than a yes or no respectfully. what i would say is the constitution doesn't change. the world around us changes. we have to understand the constitution and apply it in light of our current circumstances. that's what we're trying to do as judges. so for example, one of my favorite cases in this area is jones.

supreme court of the united states is faced with a gps tracking device attached by the place on to a car. is that a search? the court goes back and looks. what qualified as a search. found that that would have qualified as a trespass to channels in a search by the government. so if that would have been offensive 200 years ago, that sort of thing, it has to be offensive now. the constitution is no less protected of the people's liberties now than it was 200 years ago. >> so when the constitution refers 30 some times to his or he when describing the president of the united states, you would see that as well, back then they thought a woman could be president even though wouldn't couldn't vote? >> senator, i'm not looking to take us back to quill pens -- >> if you could answer that question for me. >> of course, women can be president of the united states. i'm the father of two daughters.

i hope one turns out to be president. >> that's wonderful. how about like the air force? i agree with you. that's good. so in that case you say we can't take it at its literal words. so the constitution also says congress has authority to oversee the land and naval forces, but there's no mention of the air force. i assume you believe that would include the air force because if they knew an air force existed, they would have included the air force back then. >> senator i think the generals of the air force can rest easy. >> okay. great. how about virginia -- let's keep going here. i'm almost out of time here. in united states v. virginia, the court held that the virginia military institute violated the equal protection clause of the 14th amendment by excluding women. in its dissent, justice scalia stuck to his originalism and criticized the majority saying the decision is not the interpretation of a constitution but the creation of one.

is the interpretation of the equal protection clause in us v. virginia -- >> the majority said the words "equal protection" of the laws. whatever the secret harbored intentions of the writers had an original public meeting is quite radical. significant. that was with the majority of the supreme court of the united states held. >> so would you agree then that when you look at other things, would you be willing to apply this same approach to equal rights for minority groups, women, lgbt, racial minorities? the same statement about the he and his in the constitution, about not having the air force, about the virginia military decision? >> senator, a good judge applies the law without respect to

persons. that's partial of my judicial oath. >> so do you see it as your textualism, the original meaning, that you would apply it to the other contexts that i mentioned? >> senator, i don't take account of the person before me. everyone is equal in the eyes of the law. >> okay. i'm trying to figure this out. for some things, a lot of people that subscribe to this theory, they say it, well, we can have originalism for some cases, but not for others. i call it selective originalism. it seems to me when you look at some of the opinions that use originalism that you have and some don't. i have one -- >> senator if i might respond to that. i'd ask you to take a look at jones again. search of a home using a heat seeking device. take a look at crawford, the right to confront witnesses.

make the booker line written by justice stephens. about the right of an accused to have all of the elements of an offense that increases his sentence tried by a jury of his peers. those are all what one might characterize as originalist opinions protecting individual liberties. >> we can do it on the second round. that will be good. just some minor things here at the end. when a supreme court temporarily blocks a lower court ruling, they need five votes. a courts see fifth has developed where a fifth justice will provide the ruling to stay the lower court ruling even if the justice might not have been inclined to do so. you think the practice of the courtesy fifth is a good thing? >> i haven't studied that. it would presumptuous for me to offer an opinion in a court that i haven't sat upon. >> okay. it may be very relevant when this refugee case comes up. you might want to study up on

it. i'm going to ends here -- i'm going to do a lot of work on antitrust in the next round. senator lee and i have been heading up that subcommittee for a long time. i'm going to end with freedom of press in honor of my dad. he was a newspaper reporter his whole life. i'm especially concerned in today's world where we're seeing these attacks on the media about maintaining the press' role as a watch dog. our founders enshrined freedom of the press in the first amendment. thomas eversaid the first objective to be leave open all avenues to truth and the most effective way to do that is in the freedom of the press. the court issued a landmark ruling in support of first amendment protections for the press by affirming that when newspapers report on public officials, they can say what they want, maybe we don't like that, but they can, unless they say something untrue with actual malice. do you believe under new york

times v. sullivan the first amendment would prevent public officials to sue the media under any standard left demanding actual malice and can you explain to the people here today in those watching on tv what that standard means to you? >> new york times versus sullivan was a landmark decision. it changed pretty dramatically the law of defamation libel in this country. rather than the common law definition of libel, applicable normally for a long time. the supreme court said the first amendment has special meaning and protection. we're talking about the media, the press in covering public officials, public actions. indicated that a higher standard, proof was required in a defamation or libel case. proof of actual malice is required. that's been the law of land for,

gosh, 50, 60 years. i can point you to a case which i've applied it and i think might give you what you're looking for in terms of comfort and how i apply it. bustos versus a&e network. involves a prisoner concerned that he was misrepresented as a member of the arian brotherhood. he claimed he wasn't a member a fellow traveler. sought damages for that. our court declined to grant that relief saying that substantial truths is protected even if it's not strictly true. much more is required by if first amount to state a claim. >> in bransburg v. haynes. could you end by talking about the scope of that decision and whether there's instances where courts should recognize a

reporter's privilege? >> senator, i know those cases come up from time to time. your description of the case is accurate. >> thank you. >> thank you. >> before we recess, i'd like to enter into the record a commentary in the chicago tribune called "crying wolf over neil gorsuch." it turns around concerns over chevron deference. "there's two sides to deference. pro chevron executives will be begging federal courts not to interpret finding of agencies." enter that without objection. we will recess for ten minutes. that means we will reconvene at 3:31. >> shepard: chuck grassley

specific on the time. ten minutes from now. neil gorsuch telling senators that he's made promises on how he would rule in future cases. i'm shepard smith in new york. during the break, judge gorsuch appearing for day two of his confirmation hearings. democratses say they're determined to press him on abortion, guns and his ability to remain independent from president trump. judge gorsuch said he would hang up the robe before letting politics influence him. >> i have no difficulty ruling against or for any party other than based on what the law and the facts and the particular case require. i'm heartened by the support i have received from people that recognize that there's no such thing as a republican judge or a democratic judge. we just have judges. >> shepard: judge gorsuch face as marathon of questioning after

judge antonin scalia died last year. chuck grassley's hearing could last ten hours or more. shannon bream is live with more. good to see you. it's widely believed that he will be confirmed in one way or another. we'll get to the particulars of that a minute. in the big picture, was there anything that happened today so far that might change anybody's mind one way or the other? >> you know what, shep? i don't think any republicans will change their minds. we don't know where a number of democrats are. they have said they'll be open-minded. they have grievances, the fact that president obama's nominee never got to this point. judge merrick garland. they brought that up. but they say they have an open mind about judge gorsuch about his ability to fill the seat. but they had a number of implications and allegations against july gorsuch. he's been able to talk through those and many times he takes those questions and says, i

thank you for the opportunity to let me explain that. so some of the things that they came with today as ammunition against him, potential votes against him, he's been able to put some things in context, explain conversations, things that have been mischaracterized. maybe some of the democrats would have moved slightly more in his direction today feeling more comfortable with the explanations that they've got ten and saying, all right, he has portrayed himself to be fair. he's explained these controversies. maybe i can move forward with some cover and vote for him. in that possible movement, maybe a little bit of that happened today. >> shepard: very interesting. a lot of topics have been covered. maybe you haven't watched it all. one of the topics is torture. tell us how that went down. >> senator dianne feinstein, she was here when judge gorsuch was voted through nunanimously back

in 2006. they said this is different. he's got ten years on the bench and this is a lifetime appointment. she wanted to talk to a number of positions with regard to water boarding and other torture and those kinds of things. judge gorsuch worked under george w. bush. there were documents showed that he was supportive of those things or had written in the margins of a speech or talking points that were given to the then attorney general. he said, you know, i'm happy to answer questions, but i'm familiar with those documents. if you're saying i wrote notes in the margins, i'd want to see that. he worked as a speechwriter at some point. when she pressed him on anti-torture pieces, he said to her, listen, there were two camps within the white house that were very divided on that. i can't tell you the specific things that you're mentioning, the documents and the notations. she said i want to flow what

camp you're in. i want you to know i was always in the camp of those that were trying to support the anti-torture provisions. they said they would provide the documents so he could provide a more full accounting, verify whether they were his notes. we didn't get a solid answer other than the fact that he supported the anti-torture provision. >> shepard: heavy focus on gorsuch's decisions regarding hobby lobby and the little sisters of the poor, when they challenged the contraception mandate. what did he say about that? >> this is one of the things that those on the left have been worried about with him, pro choice groups have brought this up. there was a challenge to the obamacare contraception mandate. his position was upheld by the court in a tight 5-4 decision. they agreed with the decision he and the tenth circuit had. he talked through the religious freedom restoration act and a companion law that says if the government is going to put any

burden on somebody's religious freedom, there's a very high bar on that. so he said all i did is follow the law. i'm not favoring a party. i don't prejudge parties or cases when they come before me. he said my reading of the law working through that is that hobby lobby had a case here. he wrote with the little sisters the group of nuns that challenged that mandate. he said i want you to know that that law has been applied in a muslim prisoner a native american prisoner that wanted to observe their religions while incarcerated. he said i don't think you pick and choose which religion this applies to. so for me, it was appropriate. it was hobby lobby but also appropriate with these prisoners of different faiths acc background, not just mainstream christianity. >> one of the things we heard today, shannon, overriding theme seems to be the judge says he's not giving any indications of anything he voted on in

particular. that's been a thread. listen to what he said about that today. >> i'm not going to say anything here that would give anybody any idea how i'd rule in any case like that that could come before the supreme court or my court of the tenth circuit. it would be grossly improper. >> shepard: there you go. want the controversy over comments he made while teaching a little class? much was made of this by those on the other side. >> yeah, a student that came forward that said there was some conversation about women in the workplace and women taking advantage of maternity benefits or those kinds of things. she said there was something that judge gorsuch had said when he was teaching the class that she felt was inappropriate, that suggesting that women gained the system in taking advantage of maternity benefits. that is one of those moments that said i'm glad you brought that up. when it was brought to his attention, he said i teach a

legal ethics class. we use a textbook that has examples. one of the examples talks about a young women being interviewed for a job. it's asked whether he plans to become pregnant or have children. whether she would use the relief policies of that corporation. what we do, we discusses the questions and look at it from all sides. i always ask people to raise their hands if they have been subjective to this inappropriate conversation. he said he's stunned that young women are still raising their hands and say it's happening now. he wasn't surprised when his mom was a young later in the 60s that it happened now. apparently there was a second student that has come forward saying i sit by that student. she's misunderstanding what he said. saying that women gained the system. we did talk through all angles of it. it got heated after that. senator durbin pressed him on that questioning. he asked him again some question

about women taking advantage of things in the workplace. judge gorsuch said to him, indidn't say those words. senator durbin didn't said i said you did. i wanted to know where you agreed with him. he said, i'm telling you, i do not. it was forceful, shep. >> shepard: shannon bream covers the court for us. we'll have a complete report tonight on special report with bret baier. judge gorsuch needs support of 60 senators. the republicans have 52 votes. eight democrats need to vote for him. what happens if they don't? well, republicans can then use what is called the nuclear option to get the job done. peter doocy is outside the meeting room. i thought it interesting when lindsey graham of south carolina seemed to have a little talk, sort of a side bar with the democrats saying, look, you put us in this position.

go through that for us. >> he did. the point that senator graham was trying to make, to democrats, if you think that gorsuch is qualified, you should vote for him. graham says that's what he did when president obama put forward his two nominees, kagan and sotomayor even though he disagreed with some of their policies. he said he would hearing about the two levelled by his colleagues, do the research on his own to see if these accusations about either sotomayor or kagan were accurate. he said he did a lot of research and even though they were appointed by a democratic president, he thought their resumes were full enough to go ahead and back them. so he did that twice. he's asking now for democrats to basically return the courtesy, shep. >> shepard: there was a time not very long ago in the grand scheme of things when these sort of things sailed through based

on qualifications. note as much anymore. is the thinking that the republicans will be able to get eight democrats to come over or is there more of a thought that there might actually have to take some action? >> well, it's completely unofficial right now, shep. nobody has come forward. a lot of the democrats won't come forward to say where they're going to come down on gorsuch. however, if they are not going to get eight democrats to come over to their side, there's this nuclear option where the republican senators that control the upper chamber could change the rules so instead of needing 60 votes to get a supreme court justice confirmed, they just lower the level to 51 votes. that is something that president trump has endorsed. he told senator mcconnell at a white house event that be -- he would rather go nuclear than drag gorsuch through a long and ugly process.

mcconnell has been coy about whether he's willing to go nuclear. he said if gorsuch can't get 60 votes, then who could? >> peter, thank you. the hearings continue in just a moment. a quick two-minute break and we're back.

>> shepard: and hearings for neil gorsuch continue. he's the nominee, president trump's nominee to be the next supreme court justice to replace antonin scalia who died last year. ted cruz congratulated him on making it through 1 1/2 days of this. senator cruz picks up the questioning now. >> so let me start with something lighter. and a topic on which i believe you have some familiarity. what is the answer to the ultimate question of life, the universe and everything? [laughter] >> 42. >> thank you, judge. for those that are watching that may be confused at this exchange, can you explain what it is to which we're referencing? >> well, senator, sometimes we have young people who come to court to be sworn in.

often my law clerk, a couple of them right there, they haven't enjoyed this privilege yet. they come to court and they're very nervous. the clerk tells us about their career and their record. submits them to the court. i move their admission to the bar, are there any questions from the bench. sort of like this. intimidating. this is a remindser to me what it's like to do down here rather than up there. the last time i had this interaction with senator lee, it was down here and he was up there. at any rate, i sometimes ask them that question to put them at ease. they all know the answer and they all know the answer because they have all red "hitchhiker's guide to the galaxy." if you haven't it, it should. may be my daughter's favorite books. it's a family joke. >> it is a book that i enjoy as

well. it is i think delightful example of the humanity of a judge that we -- that your record has demonstrated. you began your career with the opportunity to serve as a law clerk to byron white. byron white is an extraordinary man. byron white was the only justice that john f. kennedy put on the supreme court. byron white is, i believe -- i'm quite certain the only supreme court justice in history to lead the nfl in rushing. and also to graduate first in his class from yale law school. could you share with this committee what it was like to be a law clerk for byron white and to interact with him every day during your clerkship? >> he really was my childhood

hero. actually to get picked out of the pile, to spend a year with him as senator lee's dad did, that's something that we share in common, too, was and remain as privilege of a lifetime. it has everything to do with why i'm here. i wouldn't have become a judge but for watching his example. the humility with which he approached the job -- i don't mean a phony humility, i mean a real humility. every day. he always said two heads were better than one. he'd sit down in my office, plunk himself down and we would talk about a care and he would say -- he always started with a grant. like hello. so what does the great justice

gorsuch think about this one? and you were expected to have a view about pretty much anything and everything that he asked. he just would sit there and chuckle at you. he would laugh at you. you're wondering what he thought. he never reveal ed his hands. he would walk out of the office and say oh, that's what justice gorsuch thinks. okay. then he would go back and think about it himself. then he would come back in himself. the whole thing would repeat itself as he was working through each case himself. he would want to bounce ideas off of this know-nothing 20 something-year-old kid. that to me taught me everything about what it means to be a judge. the fact that when asked his judicial philosophy in this setting, he said it's to decide cases. i know a lot of people think

that's just mundane or maybe cover, dishonesty in some way. it's not true. it was a humility of the man. he knew that lawyers worked really hard. he had been a lawyer, a work-a-day lawyer for 14 years, i think it was in a law firm. tried cases. small cases, big cases. he knew what it was like to have to be the lawyer and how hard it is to have the answers, how easy it is to ask the questions. >> now, you and i both had the experience of clerking at the supreme court after justice white had ended his time on the basketball court. or maybe you were luckier than i for those who do not know above the supreme court, above the roof of the courtroom is a basketball court, which is referred to tongue and cheek as the highest court in the land.

justice white for many years would play in the basketball games, nfl hall of fame football player with a bunch of pencil neck law clerks. his elbows and fouls were legendary. when i was clerk, he was no longer playing. were you lucky enough to get him up there? >> he would come up for a game of horse with the clerks. >> how was his jump shot? >> his best shot -- we're talking in his 70s, late 70s -- was from the free-throw line back up over his head like that. he could hit it pretty regularly. his eye hand coordination was uncanny. so i remember those reunions at the basketball court would he would come up and stiffly throw it up and sink it. i remember walking through him

in the basement arm and arm. we would walk passed the portraits of all the former supreme court justices, which are down in the ground level. he would ask me, how many of these guys you honestly recognize? i was one of those pencil neck law clerks. the truth is, i thought i knew a lot. the answer was about half. honest answer. he said me, too. he said the truth is, we'll all be forgotten soon enough. me included. i remember saying justice, that's impossible. you're one of the greats. no way you'll be forgotten. his portrait hangs in the basement. >> there is wisdom in that

humility. let's shift to another topic. a topic that has been raised some in this hearing, which is there are some democratic senators on this committee who have raised a challenge to the notion of originalism. and indeed have painted originalism as some quaint and outdated mode of interpreting the constitution. have suggested that their view of the constitution is a living, breathing, changing document, flexible enough to become to accommodate whatever policy outcome the particular judge might desire. the alternative is that a judge is obliged to follow the constitution. the text of the contusion as informed by the original

understanding at the time it was adopted. do you share the democratic attacks that originalism is a some how and updated notion of the constitution for what it says? >> senator, i appreciate the opportunity. i want to say a few things. first is that sometimes we in our discourse today, our civil discourse use labels as a way to not engage with other people, to treat and divide us and them. as a judge i don't think that is a very fair or appropriate or useful way to engage in discourse. so i'm worried about using labels and the ways that are sometimes an excuse for engagement with the ideas.

sometimes majorively. the truth is, i don't think there's a judge alive that doesn't want to know about any legal text with he or she is charged in interprets. something about its original meaning as enacted. and i don't think is an idealogical thing. i look at decisions like jones, which we've talked about. or decisions like kilo, the thermal imaging of a home. is that a search? the supreme court goes back and looks at the original history and says it's equivalent to peeping toms. the constitution is no less protective than it was 200 years ago or when we look at crawford and the right to confront witnesses. not just have pieces of paper flying in evidence that we can't confront reasonably. to cross examine your opponent, fundamental right of the sixth amendment. look back to the original

understanding. that informs us. in the fifth amendment, justice stephens, wrote a very fine examination of the original history of the constitution and said, it's not right that an individual should be sentenced to prison on the basis of facts a jury hasn't found. those are all originalists. if you want to put that label on it, every one of them. look at powell versus mccormack. it's a very careful -- might agree or disagree -- a very careful examination of the original history and understanding of the relevant provisions of the constitution. or heller, second amendment case. justice scalia and justice stephens both, majority and dissent wrote opinions that are

profoundly thoughtful in examines the original history of the constitution. i'm with so many other people who have come before me. justice story, justice black. yes, justice kagan who sitting at this table said we're all originalists in this sense. i believe we are. >> judge, i thank you for that very scholarly answer. you are right. justice kagan gave an answer that had many similar aspects and said we apply what they say, what they meant to do, so in that sense, we are all originalists. you know, you reference the kilo case. i think it does -- it selves well to rebut the caricature of

originalists. how could the framers possibly imagine modern contraptions? thermal images didn't exist in the 1700s. the framers had no idea what it was. so under the caricature that the democrats have suggested, you would assume the originalists in the case would all line up on the side of saying, gosh, the fourth amendment doesn't cover that. yet the kilo case, the majority opinion, 5-4 was written by justice scalia. the leading originalist on the court. it was joined by justice thomas. indeed justice stephens dissented in that case. so i think that case illustrates that any judge doing his or her job a thorough understanding of the original understanding of the language is essential to effectively doing their job. would you share your thoughts

about how the constitution intersects with modern technology? how a 200-plus-year-old document can possibly be applied in a world of internet and technology and changing reality? >> well, just use the discussions we've been having. you go back and you look to the evidence of what it was understood at the time to protect. of course madison didn't know about thermal images or gps tracking devices or dna. or e-mail. no one is looking to take us back to the horse and buggy day or quill pens or to turn back the clock on anything. the point is to apply the law in a way that allows us to be able to say as judges, it's not what

we wish. it's what the law was understood to mean. it has a fixed meaning as madison said. the fixed meaning canon of construction, the constitution should have a fixed meaning. all right? and the judges may disagree over what that is. we disagree once in a while. not as often as some would like to portray. once in a while. our disagreements are not political disagreements. it's over what the law is. that's very important to me. the other thing it does, it's a due process value. we're interpreting the law the way we can charge people with notice of. we're judging them for their past conduct. people lose their liberty, their property on the basis of our interpretations of the law. it should only be fair their interpretations that we can charge them with notice of. similar thing when it comes to statutory interpretation.

what does that text mean? what could a reasonable reader understand that text to mean? my favorite case when i teach this stuff and talk to my law clerks about it is the fish case. the statute read something like -- i won't get it exactly right. when you if you destroy e-mail documents or other tangible objects when you know the cops are after you, you go to jail. what does that mean in the context of a fisherman that knows the coast guard is after him and he has an illegal catch and he throws it overboard? that case went to the united states supreme court. it's a great case. it divided in a way that people don't expect, right? justice ginsberg wrote the majority along with alito saying, fish, this is about

e-mail. no notes. justice kagan and justice scalia wrote a dissent saying fish? that's a tangible object, right? he had notice. you shouldn't have done it. these things don't divide along any kind of ordinary idealogical line. i'm confident who are justices in that case or heller or any of these cases who would as a matter of policy come out differently than they did as a matter of judging. that to me is all the difference in the world. notice doing what we would like, what we think the law is. >> let's turn to another topic. some of my colleagues on the democratic side have raised some questions about the federalist side and have raised it with a tone that suggests that some

nefarious and secret organization. i was waiting to see the question, are you now or have you ever been a member of the ginsberg society. given that context for the sake of candor, i'll self report now. i am and have been a member of the federalist society since i was 21 and a first-year law student when i happily joined. indeed, there are over 60,000 members, law students and lawyers and indeed those just interested in the constitution and the rule of law. one of the things that strike me about the federalist side, the incredible range and diversity of opinions within the federalist side. you have conservatives, libertarians, those with -- who believe in the fidelity of the law and wouldn't ascribe to either of those. so i understand you gave a talk

at a federalist society event at the problems of overcriminalization. can you tell us a bit about that talk? >> yeah. it's fun to go to audiences and challenge them sometimes a bit. i think it's important. as the federalist society, i don't have a card either. i really don't want a back statement for past due dues. but i attend maybe one event a year, something like that. it's all on my forms that you all have. at that speech, i did talk to the society about the problem of overcriminalization as i saw it. on the federal statutory books today, we have approximately 5,000 criminal laws. that doesn't count, of course, all the criminal laws of the

state and local level. congress pours out a lot of new criminal laws all the time. most of those laws are relatively recent vintage. i asked my law clerks to find out, okay, now, how many of those -- how many laws that have criminal penalties in regulations, too? i thought they would come back with a number. apparently they reported back. i trust them. they're smart. they came back and said that scholars have given up trying to count the number. they gave up around 300,000. madison ward, he lived in a time when there were too few written laws so the king could pretty much do as he or she wished. he.

that's the experience he had. he foresaw a world in which we have too many laws to the point that people can't know what the law is. of course, there's the great example of calligula. who posted laws, the abient emporer that posted laws so high that nobody could tell what the law was. better to keep the people on their toes. sorry. that's a problem, too. right? for due process. fair notice. the truth is like so much else in life, we're aiming for the golden mean. not too much, not too little. a point where people have enough fair notice but overwhelmed. that's what i spoke about. >> and i agree with you. it's a significant problem.

one this committee has addressed multiple times. i'm reminded of a legal thinker who said in heaven, there's no law and the lion lies down with the lamb. in heaven, there's nothing but law and due process is meticulously obeyed. living in a situation where the account you just shared, there's over 300,000 potential crimes in a regulatory sense. at some point makes it exceedingly difficult for honest citizens to conduct himself or herself in a way that doesn't run afoul of the law. that is something that should concern all of us. you know, i would note when you gave this speech, would you say it's fair to say that not every one at the federalist society that heard you speech agreed with everything you said? >> goodness, that was the point

of the speech, senator. >> events are structured as debates. sometimes you have sharply contrasting views nor the purpose of intellectual discussion and hopefully thinking and addressing hard problems. >> there's a counter part to the federalist society now. the american constitutional society. one of my friends who is her, sits on the board and does similar work. i think society is debating society. useful. ideas percolating, being shared in a civic way, in a way that we can discuss with one another calmly, coolly, thoughtfully, not yelling at one another, not using labels to dismiss one another. that's what i get out of it. i learn things. >> i would note the federalist society describes its purpose as "it is founded on the principles of the state exists to preserve

freedom. the separation of governmental powers is central to our constitution and it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." i can think of very few people qualified to be a judge who would not agree with those basic pre 16 s -- preceps of our foundation. several of the democrats have focused on corporations and have been critical of the like hobby lobby or citizens united. and have put forth the proposition that corporations are not people and hence cannot have first amendment rights, cannot have free speech rights,

cannot have religious liberty rights. while that may be a perfectly fine debating point in a committee of the united states senate, in a courtroom >> i'm neil cavuto we'll go back to the hearing point to up date what was big sellout. the dow losing 228 point. the bond where a lot of the money was going. to bring it down to 2.43%. a market that same seem -- seems to be participating a slow.name. getting this healthcare rereel and replace thing gown. donald trump was on on capitol hill to stick together on this. if they do not move and move fast, to approve this