rights cases, some discriminatin cases, just a few years ago, the -- theangola prison case where he had been in solitary confinement since 1972. those are quitedifferent kinds of cases, though than what we had been doing, voting rights cases over the years for minority plaintiffs. host: let's start with peyton mccrary. tell us a bitabout the process for preparing for a drop your how does it differ from your academic work that you have done --the process for preparing fora trial. how does it differ? peyton: interestinglyit does not different as much as one might think from academic work. the courts have along followeda set of guidelines set by the supreme court in 1977 for how one investigates theintent question using circumstantial evidence.it happens that that is the way historians and political scientists have always analyzed political decision-making. andso, what we are doing is essentially what we do inthe scholarly world, except that it is going to be presented in a particular venue where aparticular law isat issue, particular decision, and it is more limited in scope than the rese

or a sexual violence case, a discrimination case, an asbestos poisoning case. it will be far more difficult for people to get justice in their state courts. and apparently, the interests of he large corporate polluters and inflicters of injury are so important that we are willing to trample the basic principles of our constitutional design which is these kinds of cases go into state court and we reserve the federal courts for complicated questions of federal law and real cases of diversity jurisdiction. not cases where they try to eliminate the in-state defendant. and with that, i yield back, mr. speaker. the chair: the gentleman yields back the balance of his time. the gentleman from texas. mr. farenthold: this really is about trying to stop bringing phony cases in. you are bringing phony defendants in. and we have to stop this. it's not often that we have the opportunity to protect innocent local folks and businesses from costly and meritless lawsuits. this is an opportunity to reign in forum shopping and trial lawyers and hold them to good faith. we could pa

like i said, that case was 9-0. can you tell me if that case was decided correctly? >> respectfully, senator, i give you the same answer. >> okay. those are relatively recent cases. let's talk about cases that's been around for a while. gideon wainwright. it was decided 50 years or more. it says a criminal defendant has a right to an appointed attorney if he can't afford one. everyone who watches cop tv shows know that this law -- does that make a difference? can you tell me if you agree with the principle of gideon? is it the same answer? the same reason? >> mr. chairman, it certainly say seminal decision of the united states supreme court. no question about it. a very old decision of the supreme court now. it's been reaffirmed many times. there's a lot of reliance built around it. so i can talk to you about the factors that a good judge considers in analyzing precedent and the weight due of precedent. but i'm not in a position to tell you whether i personally like or dislike any precedent. that's not relevant to my job. gideon is a seminal precedent and it deserves

a case. i decide the way described in the hearing based on the arguments, the constitutional statute and president. but there's still something about the informality of a personal meeting that it gives us an opportunity to talk and talk is important in the decisionmaking process. >> to think it is changed in the minds? >> i do. there were six unexpected vote . >> made it please the court on behalf of the plaintiff like to start the case with the very same flag that is that issue in this case they allege the mississippi flag constituted a symbolic cavernous speech like the plaintiff in this case they alleged the flag unconstitutionally expressed a preference for one due processes over another but the only difference was the plaintiff was of muslim on the basis he believed to indoors christianity that the confederate battle flag portion somehow constituted a religious christian symbol to be precise and he objected to that. the district court proceeded to decide the case on merits without any ex

in case after case after case judge gorsuch applied the law fairly and even-handedly. yes, it's true on occasionally cases you three or four you heard about over the last few few days. so the notion that judge gorsuch is not capable of being an even handedly fair judge the kind of judge that mrs. phillips and jesse deserved is absolutely wrong. he is a judge's judge. he will be a credit to our nation and to this body even should be confirmed swiftly. thank you, mr. chairman. >> thank you. >> i'm going to call on senator coons because he has another assignment. >> thank you very much, mr. chairman. i would like it thank this entire panel. i will take just a few minutes and ask two questions if i might. ms. warbelow, over the course of the entire several days of hearings, judge gorsuch repeatedly said he respects precedent and followed law. and i questioned him about casy, lawrence, owe baergafell. and he wrote judges should apply the law as it is focussing forward not backward and look to text, structure and history to decide a what a reasonable reader at the time of th

a case that followed on this case was a case called american express versus italian colors further exacerbated the problem. it was an antitrust case and we represented italian colors restaurant. it's a small italian restaurant in oakland, california. like many other small businesses, they were concerned about the ability of credit card companies to write these terms into their contracts and force them into these arrangements that because the credit card companies have so much monopoly power, the merchants don't have much say in what happens. these merchants wanted to challenge american express'monopoly power. what the supreme court said is even if it means that you cannot bring a case like that, even if it means no one rationally put together the resources to bring the case, we're still going to allow a claim like that to be sent out of the court system and into this one on one arbitration system. justice kagan wrote a dissent to justice scalia's opinion in this case and she explained what was going on. she said in this case, the monopolist gets to use its monopoly power to insist on a contrac

wade, a certain view of gun cases. you should not really have litmus tests when you have a candidate because it suggests they wilnook at a case as it com, looking at precedent and the fts, but instead guaranteeing a vote to have their name put forward according to these litmus tests. so we have questions about that and specific questions about his record. host: has judge gorsuch ruled on any of those litmus tests or anything specific to those topics? roe versus wade, he is not explicitly ruled on the phenomenal read for a woman to choose whether or not to have an abortion. involvinged in cases planned parenthood, defunding planned parenthood. with the religious liberty test, he has ruled broadly and vigorously for religious a woman's right to access contraception under the affordable care act, giving women that right to broad access to contraception. host: ultimately, this goes to this idea of how judge gorsuch views the constitution and how you define that. ms. severino, how would you define the approach he would take

it is a case that dealt with the very same flag at issue in this case. like this case the plaintiff alleged that the mississippi flag constituted symbolic speech. the plaintiff alleged the flag unconstitutionally expressed preference for one group of citizens over another. the only difference was the plaintiff was a muslim objected to the flag on the basis that he believed it endorsed christianity, that the confederate battle flag portion of the mississippi flag somehow constituted a religious symbol and he objected to that. the district court and this court proceeded to decide the case on the merits without any expression of concerns about standing. the outcome in that case really can't be reconciled with the denial of standing in this case. here the plaintiff correctly alleges as the fifth circuit court held that the message of that flag is not a religious message. it's a secular message. that's the allegation that is made here. the allegation goes on and specifies what the secular message was in the brigs case but here the allegation is the message is

take the case of mr. jones.2q)ed a plea agreement of ten Ñia5years, and the lawye threaten ed ee"to quit if he to it. it. hen you would be committing perjury, and that is a false statement. and mr.q williams relied on the misinformation ofçójf the attor and lost at trial, and waslp sentenced to life imprisonment withoutokjf patrol. your colleaguesfá were both republican appointees disagreed with you. xdxd prejudice can exist if it led to a pride trial resulting in serious charge charges or the imposition of more serious symptoms. they noted 97% of the federal convictions, 94% of the state tt convictions and in guilty pleas so they must have competent guidance of an attorney in deciding whether to take a plea deal. in light of cooper, telling what you feel about the dissent versus jones. jones. >> senator, under the sixth amendment passed, before you reverse a conviction or plea deal, you have to find two things, first whether there isef any effective assistance. because the supreme court, justice o'connor said w

but because there are cases rejecting our position but there are not cases. this cases is unique in many ways and one way it is unique is that it is a government endorsement of white supremacy. >> but you dropped back to an endorsement but that doesn't seem to be what the constitution is protecting against. >> equal protection clause says states shall not deny equal protection. but there is no equal benefit. your client has worked or does work as a state prosecutor so if you can show a promotion denied or any legal benefit he is not getting equal protection of the law. i don't think mississippi is saying they condone offensive speech and they are denying his feelings and that he feels offended. it is just the law doesn't recognize that to get into court. >> it doesn't say it doesn't either. equal protection. let's suppose the state openly pass a resolution that white supremacy is good and african-americans are inferior. that is all they did. they didn't deny people jobs or housing. but they put it in written form, in documents, adopted unanimously by the legi

i got hired to do that case. as i was sitting there watching another law firm do jury selection and i'll tell you, my stomach sank because what are they going to do with this thing? i can't even tell you how scary this was because not only did the judge default at the client but the judge was convinced massive obstruction of justice was occurred an enormous suspicion with anyone to do with this client, so it had career ender written all over it. just death to your career. so much so, when the trial ended, the judge considered seriously appointing the other side's lawyer as a special prosecutor under florida law to conduct a criminal investigation of us with the power to indict an why do i tell you that story? because after i got hired, what am i going to do? the other law firm was fired and enormously complicated case. yikes. i got a stop card. can i finish this and then stop. i called neil. he had a plan to go off into government, the department of justice. would have been completely understandable to say, i've

case. when we look at judge gorsuch's record, obviously, it's a very important question of whether he will further entrench that ability of the supreme court to bend over backwards to accommodate big business or whether he will apply the law fairly for all people no matter how much money in your bakt ank account or sit in the corner office or not. cac raised some concerns. we're not opposing but we have some concerns. precisely, on this point of overreading statutory or regulatory language to favor of the business. at the expense of the working american. there's this case that's a great example which has gotten some press where gorsuch dissented from the majority ruling saying the truck ordinary, reasonable, and prudent, trucker on the side of the road. this question. my brakes failed. a load of goods in the truck. it's freezing cold. the company tells me to stay here with the goods and the back of the truck. but i'm like, literally freezing to death. i can't operate my car, my truck safely

i believe it might be a cot case for controversy.ot case for controversy.t case for controversy. case for controversy.case for controversy. i think the proper way it test that question is prescribed process of litigation. >> i assume that you have observed all those rules as a mub of the tenth circuit court of appeals. >> have they been overly burdensome? >> no. >> have they discharged your rules of a judge? >> no, sir. >> would you be able to follow those rules as on the united states supreme court. >> it has nothing to do with my job as a judge. >> would you mitt personally on your own without any legal requirement. >> what i've committed to do is look at law. talk to my colleagues. collegially. then make up my own mind. i will carefully consider that. but senator, i'm not going to make any promises in this process to anyone about actually. and just to be the best judge i can be. >> i hope you are as sper swative as possible after you make up your own mind and hope you will decide these rules makes sense because in again the trust of and the credibility of the court i think the

and that applies to easy cases just as well as it might apply to hard cases.er 770 opinions or at least been involved with that many and heard probably a little less than 3,000 but getting close to that number. so, without talking about hypotheticals there's plenty that we can talk about. i'm going to start by thompson school district versus luke p., luke p. was an autistic student. his parents sued their local colorado school district so that it would pay luke's tuition at a private residential school. the statute at issue dealt with the individuals with disability education act. we call that idea for short. you held that the district didn't have to pay under this statute because all the experts who examined luke found that he was progressing in his public school. judge, where did you get that standard? >> mr. chairman, the standard under idea or as you said the individuals with disabilities and education act, the standard that you have articulated is the standard set by the supreme court in a case called rowley and there are add additional developing that st

case. what i'm suggesting to you is that there are interests here in this area of first amendment disclosure. that's what we're talking about. in my mind, generally. okay? that are competing. on the one hand, in order for informed voters and citizens to be able to make decisions, the supreme court in buckley has validated the interest that this body has in regulating disclosure. >> and in theory, so did the court and citizens united. >> and in theory also citizens united and also recognizing in naacp, for example, that disclosure could be used as a weapon to silence voices. and we have a long history of anonymous speech serving valuable functions in this country. >> so here is a live example right now. we have this $10 million that is being spent on behalf of your confirmation. do you think for instance, that we on this panel ought to know who is behind that and -- well, answer that and then i will go on to a related question. >> senator, that's a policy question for this body. >> also a qu

amy: what happened in that case? >> he went along with the local community and what against the corporation. that was the only dissent in which he did that. he even in those cases that tried to talk about under usually republican questioning where he favored employees -- which he did occasionally -- most always, they tended to be against a municipal corporation. when it is a corporation, a private corporation involved, the kind of corporation he represented in private practice, he very, very consistently votes for the corporation, not the little guy. and that is not what we want on the supreme court. amy: elliot mincberg and kristen clarke, we're going to go to break in a come back to look more at judge gorsuch's record. stay with us. ♪ [music break] amy: this is democracy now!, democracynow.org, the war and peace report. i'm amy goodman. supreme court nominee neil gorsuch is back on capitol hill for a second of questioning before the senate judiciary committee. gorsuch is tapped by president trump. president obama n

he tried cases, small cases. big case. he knew what it was like to have to be the lawyer in the well and how hard it is to have all the answers, how easy it is to ask the questions. >> 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 in cheek, as the highest court in the land. and justice white, for many years, would play in the basketball games, nfl hall of fame football player with a bench of pencil neck law clerks. >> yep. >> and his elbows and fouls were legendary. when i was clerking he was no longer playing. were you lucky enough to get him up on the basketball court? >> he would come up for a game of horse with the clerks, form law clerks and reunions. >> how is his jump shot? >> his best shot at that age -- we are talking in his 70s, late 70s, was from the free-throw l

that's quite a case isn't it?> it is, however in verdugo, the claiming protection was in the united states. the act occurred in mexico. here, we have mister hernandez who was seized in mexico, never in the united states. the border is veryreal and very finite, not alaska . >> but i thought in verdugo, the question was that it occurred wholly inside mexico with the cooperation of the mexican authorities. >> and this court denies to extend that protection. i believe those facts provide or were provided a greater rationale for this court to extend those protections given the fact that the united states planned the acts in the united states with mister verdugo in the united states and the search for mexico, near the seizure, mister hernandez is in mexico, outside the sovereign territory of the united states. there is no de facto jurisdiction of the culvert in this area. it's very dissimilar from blue midian. lou midian had control of, here we know that the culvert , at least as far as keeping it, keeping it up, spendi

the case happened to involve an undocumented immigrant. that is the case i actually dealt with.and there he faced two competing statutes.one said, it can rely on and seek permission to remain in the country. only attorney general in get immediate discretionary relief. the other statutes that he had to wait out of the country 10 years. i will court interpreted the law. the section 706 says we are supposed to. instead the first step to controls. because of his apparent concept between the two. the city can rely on that. then the agency comes in, years later and says we are wrong. chevron, sprinkle some chevron on it. we had to overturn our decision and he has to leave the country. and wait not just 10 years now but 13 or 14 or whatever it was. and to me it raises questions not only about consistency of section 706, the instructions that congress is given us. but due process and fair notice. if the law can change, so easily - not -- presentment to the president. the order specified the lawmaking in the constitution. if a law can change so easily, where is the due process? to the in

in case after case after case hh has applied it his evenhandedly. in the occasional case of three or four day road for the corporate employer but time andy time again, he has ruled for the little guy, the sexually harassed, the disabled, so the notion somehow that he isn't capable of being a fair handed kind of judge mrs. phillips and jesse deserve is wrong. he will be a credit to the nation and this body and should be confirmed swiftly.u, >> i'm going to call on senator coons because he has another assignment. >> i will take a few minutes and ask questions if i might. ms. warbelow, judge gorsuch says he follows precedent and i question the critical casing. he also wrote they should apply the law as it is and looking tod tech, structure and history to decide what they would have understood the law to be. but they just don't look forward, they apply a modern principle to protect the rightht to privacy and marriage. can original as some protect what they now recognized based on the due process law? >> if we pass the pause button at the moment in time

but the case proceeded. may still be proceeding, for all i know. >> but one way or the other, none of the parties asked for any further proceedings, only you did. >> that's right. >> and did the court decide to grant the hearing? >> very narrowly voted against it, senator. close vote. >> and you dissented? >> i did. >> now, you know rule 35 says, i'm quoting, the hearing is not favored and ordinarily will not be ordered. >> of course. it's an extraordinary thing. we probably hear between zero and three en bancs a year during the course of my time. don't hold me to that. it's somewhere in that range. >> out of your ten plus years, 11 years on the court, how many times have you asked, you yourself, sua sponte, asked for a re-hearing in a case where you were not even on the panel? >> oh, i have done it, senator. i can't tell you how many times sitting here. i just can. but i can tell you i have done it. i can tell you, senator, that about one out of every five enbancs are sua sponte. it's not unusual. >> by thi

argument inoral that case. argument is morning bethune-hill v. , virginia state board of elections. >> mr. chief justice and may it please the court. the district court created out of whole clock a new legal standard that permitted urging you to apply a one-size-fits-all, 55% racial floor to all 12 of its predominantly black districts. virginia applied this 55% rule to move voters in and move voters out of district's on the basis of race, regardless of the differences in voting patterns, theraphy, voting patterns, actual interests of black voters in each of those districts. whichctual conflict test the district court invented for predominance has no basis in this court's jurisprudence. of judiciala sort appealingo visually districts that nevertheless were drawn with a prominent purpose of placing voters within and without based solely on the other of their skin. >> i am not quite sure i understand how you assess dominance, which i think is the challenge here. let's take a hypothetical. let's say you're trying t

this is not even a rattan case because in rattan cases, the state was firing you. here, the state says they have got civil service protections and you cannot fire them. it is an easy case. i will make two points. to is there was an advocacy use the mcdonnell douglas test from title vii to figure out the retaliation standards which is a very bad standard that essentially says if you are a minority and qualified the government has to explain why they did not hire you. judge gorsuch said this created enough problems in the title vii context that we are not going to transport it to the first amendment content -- context. but said we will use the test but only for little if the -- political affiliation this person would've been fired in terms of matter of public concern. relatively straightforward application of rattan. i do not think it suggests how it coincides with scalia absence of civil service protections which is the first amendment say. second was the case where the thentiff complained about conflict of her boss of interest. the boss was contracting with a compa

it was a 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 didn't define the term. so what does a judge do? a judge goes to the dictionary act as you alluded to senator, the dictionary act is an act prescribed by congress that defines terms when they aren't otherwise defined. that's what a good judge does. it doesn't make it up. it goes to the dictionary act, and the dictionary act congress is defined person to include corporation. so you can't rule out the possibility that some companies can exercise religion, and of course, we know churches are often incorporated and we know nonprofits like little sisters or hospitals can practice religion. in fact the government in that case conceded that nonprofit corporations can exercise religion, conceded that. so that's the case we come to the strict scrutiny side. >> i don't want to cut you off. i'm going to get in big

am case it's a 2007 case. called co-park versus administrative review board. a trucker had been fired refusing to drive a truck he considered unsafe. you wrote an opinion in favor of the trucker and awarding attorneys fees sthais that righ? >> senator, your recollection is better than mine on attorneys fees. as i recall the court did award attorneys fees in that case. so, i don't really understand the argument that some are making or the implications some are trying to raise that you were somehow unfair in the trans am case. because after all, in the trans am case, you applied the law, it didn't apply in the way the terminated employee wanted it to apply in that case but you applied it fairly in the other case. also wanted to bring your attention to another case mentioned by some of my colleagues and that's the wong case. case where a professor with cancer wanted to extend her leave, the university said no, and the professor sued. the panel ultimately concluded that the law required her to show that she could

attorney's office has put bob zauzmer on this case. bob was lead prosecutor in the vince fumo case.e's one of the best in the country. the guy's a fantastic lawyer. and he's gonna, you know, uncover everything in this case. he's gonna put it together beautifully if it goes to trial. it's a real uphill struggle here for seth if he thinks he's gonna try this case. >> well, i think what i also find myself looking at is if you look at the playing field, there's so many public officials who have gone down for public corruption. you know there's always somebody watching, somebody listening. and the idea that you're communicating with somebody glibly via text, that's communication that can be saved and followed. >> right. >> it just makes no sense to me. >> well, i will say this. i'll add to the cognitive dissonance. in philadelphia, it's a one-horse town. and where republicans have a one-horse town, this has gone on 65 years or whatever. these guys only answer to this internal democratic chieftain sort of thing. and if they're okay with that, i think as crazy as it is, they forget about t

of your cases of your cases. let me talk about another piece howbsurdity, talking about president trump set some sort of a litmus test. president clinton did that. i don't see whites relevant here. it's not you. you andalking about your qualification. another absurdity that we will see in the next couple of days is the absurdity of people saying that you are sidestepping the questions about cases that may come before you. i think you are following a code .f conduct i appreciate you respecting and living what you say. that is the rule of law and the code of conduct of judges. now i want to get into some specific cases. i guess i will start with freedom of speech. going to read i'm some of theas i want to make sure i get my points right. read some ofto these because i want to make sure i get my points right. i think they first few words mean something very significant and i think you do, too. clearly this amendment is not meant to limit the ability of the federal government to curtail free speech -- it is meant. do

-- well many times the case. we can probably agree on that. if the one of the senators passed a bill and it's not clear, then will it ever westbou be appropriate for a judge to say it's unclear and i'm going to look at legislative history, but i'm going to try to understand what is the problem they were trying to solve? is that ever appropriate? >> i'm not sure what you mean by that, to be honest with you. >> why did they pass the statute? would you ask yourself why did they pass the statute? >> one concern i have with that enterprise is i have a very difficult time get into the head of anyone else and trying to get in the head of 535 of you, plus a president, well frankly, senator, that's often beyond me. >> okay. let me switch to another sw subject. the third amount. quartering troops. there hasn't been a lot of attention on it, but some think it has privacy implications. you have given any thought to that? >> i think it does suggest, hey, my house is off limits to your troops. there's a privacy implication in

like i said, that case was 9-0. can you tell me if that case was decided correctly? >> respectfully, senator, i give you the same answer. >> okay. those are relatively recent cases. let's talk about cases that have been around for a while. let's look at giddy and wainwright. it was decided unanimously, a long time ago, 50 years or more. it says a criminal defendant has a right to an appointed attorney if he can't afford one. everyone who watches cop tv shows know this -- this law. does that make a difference? can you tell me if you agree with the principle of giddy? is it the same answer? the same reason? >> mr. chairman, it certainly is a seminole decision of the united states supreme court, no doubt about it. it is a very old decision of the supreme court now. it has been reaffirmed many times. there is a lot of reliance interest built around it, so i could talk to you about the factors that a good judge considers in analyzing precedent. and the weight due a precedent, but i'm not in a position to tell you whether i personally like or dislike any precedent. that's

cases. because of that concern and i have to say most cases come from oklahoma and our bar was not adequately doing the job. they came to the circuit, they created seminars. they brought the circuit in to hear cases. they met with these lawyers and met them, trained them and had one lawyer said instrumental effect in improving the advocacy of this most important area. thank you. >> thank you, judge. >> members of the committee, thank you for inviting me to testify. i don't think this committee has any task more important than the one it has been engaged in this week. if judge gorsuch is confirmed he will likely play a key role in shaping american law and society. i think it is clear that judge gorsuch has the professional competence to service on the court. i agree that judge gorsuch's service in the bush administration raises important questions about his views on executive power and role of judiciary. at the time judge gorsuch served in the justice department the bush administration was ad

it influences the way in which we see these cases out in the stand your ground cases or as cases of somethinglse whether it is justifiable homicide or something excusable or straight on criminal homicide. so, yes. people who recognize in the jury his eyes they are less likely to be perceived as reasonable and the claims of fear will often plead down or be instructed to use do so. so whether you have the money to hire a great defense attorney has a lot to do with it, so it is that inequality that influences who is going to end up behind bars for basically exercising their right to defend themselves. >> you touched on police brutality and i'm curious about looking at the historical context you've outlined and the idea of property and historical definition and how it kind of gets amplified when the uniform is on and if you can talk about that in the stanford prison experiment and also look at it in terms of the idea of properties changing and the need to protect the public safety, so it becomes this massive thing that one person is protecting and i'm curious what you think about that. >> a lot o

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

in this case, the d.a. lays out what -- again, this is not a case where we've come up with some exotic theory about how you could narrow this law. and the d.a. says to the jury, in order to convict, you might not like this law, you might prefer a law that says don't have specific contact on facebook with minor children or a law that says don't say specific things that might entrap teenagers, and this law doesn't say that. it doesn't. but even if you don't agree with it, if you don't like it, the law says you can't access. chief justice roberts: maybe he doesn't say it because it wouldn't work. he doesn't say that the law would be perfectly fine. he says here's an alternative you might like. maybe the legislature didn't enact it because it made the -- concluded that it wouldn't be effective. mr. goldberg: well, your honor, i think it would be effective or ineffective exactly the same way this law is effective or ineffective. the premise -- one of the things that the state argues about effectiveness is that t

judge gorsuch is a case by case by case judge whose dedication is deserving of litigants and the third branch of government. second, judge gorsuch the colleague. on a multi-judge appellate court it is my view that one of the most important characteristics of an effective and efficient court is the level of collegiality among its members. this is not at all about getting along to get along. it is about improving the quality of the work of that court by careful and respectful listening of bearing and divergent views. anticipatanticipated engaging at internal debate about procedurei and cases, and factoring in and listening to a diverse views of each of the other judges. judge gorsuch is such a judge. his attention to the views of his colleagues informs his work. he has an acute sense for identifying those circumstancess where reaching consensus is the highest value. and on the other hand, those decision points where personal convention and reason dictate individual judgment and independent decision-making -- conviction. judge gorsuch believes in the court as an organic and flourishing en

a variety of cases. i'm happy to be here today to tell you what that experience might suggest to you and to the public about the kind of supreme court justice neil gorsuch is likely to be. unlike our president, who is going to be turned out either four years from now or eight neil is only 49 years old. he's in great physical condition. do not let that gray hair dye fool you. he's been applying that since georgetown prep, just so he could be considered for a supreme court nomination. that's how he is. [laughter] obviously the best clue for what kind of justice neil gorsuch will be are in the 800 published opinions he's issued as a judge in the united states court of appeals to the 10th circuit. and with us today are three distinguished former law clerks who are going to describe for what you those opinions tell us about his way of being a judge. i will tell that you we've been fortunate enough, our little firm, to work with two of those three. i'm sorry, we missed out on the and him and third. and neil ha

he would t cases, small cases, big cases.knew what it was like to have to be the lawyer in the well and how hard it is to have all 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. >> well -- >> maybe you were lucky are 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 in cheek as the highest court in the land, and justice white for many years would play in the basketball games, nfl hall of fame football player with a bunch of pens nil necks law clerks. his elbows and fouls were legendary. when i was clerking he was no longer playing. were you lucky to get you have on the basketball court? >> he would play horse with a lot of clerks. >> how is his jump shot. >> his best shot, in that age, 70s, freethrow line back up over his head like that. he could hit it pretty regularly his eye-hand cord nation wa

cases and eight out of ten ide a cases. there's also a consistent pattern of his record on of involving employers. bloomberg analyzed his record found that he wrote for employers of eight out of 12 times. for example, he rolled against the sex discrimination claim brought by ups salesman. ruled against the disability discrimination claim brought by a cancer stricken patient. ruled against an agetw discrimination claim brought by two maintenance workers. rolled against the race discrimination claim brought by an american grocery store employee was called a monkey by his supervisor. ruled against a genderled a disability claim brought by a female county employer. the case of grace wing was particularly troubling to me. she had been a college professor for 15 years. that she was diagnosed with cancer. she needed a bone marrow transplant.weeping at the same time, a flu epidemic was sweeping across the campus.t she asked to extend the leave work from home so she wouldn't be affected. the university denied the request and termina

that case was 9-0. can you tell me if that case was decided correctly?respectfully i'd give the same answer. >> ok. those are relatively recent cases. let's talk about cases that have been around for a while. let's look at giddy and wainwright. it was decided unanimously a long time ago, 50 years or more saying a criminal defendant has a right to an appointed attorney if he can't afford one. everyone who watches cop tv knows this law. does that make a difference? can you tell me if you agree with the principle? is it the same answer? the same reason? >> mr. chairman, it's a seminole decision of the united states supreme court. there's no doubt about it. it's a very old decision of the supreme court now. it's been reaffirmed many times. there's a lot of reliance interest built around it so i can talk to you about the factors that a good judge considers in analyzing precedent and the weight due of precedent but i'm not in a position to tell you whether i personally like or dislike any precedent not relevant to my job. gideon is an is seminole precedent of

any cases. this case is in many ways unique and one of the ways that it's unique, is that it is a government endorsement of white supremacy. i know that we have to prove that at trial. >> you dropped an endorsement the constitution is protectingat against. >> equal protection clause says state shall not deny equal protection. >> but there was no legal benefit, your client has worked or does work as a state prosecutor, so he hasn't -- if you can show a promotion denied to him or any legal benefit then he isn't getting equal protection of the law. i don't think mississippi is saying they condone offensive speech that they're denying his feelings and he feels offended. it's just that the law doesn't say that's cognizeable to get into court. >> it doesn't say it isn't either. let's say the state openly passed a resolution that white supremacy is good and african americans are inferior, that's all they did. they simply did that, they didn't deny people jobs, they didn't deny people housing, they proc

in some cases, decisions made are frustrating to me and in some cases i disagree with themometis strongly. as a lawyer and a citizen and one that is interested in the sport of things i can say with confidence i can stack the judiciary against any system of its kind anywhere in the world, and i can say with absolute confidence that this is the best there is. it is imperfect because humanbe beings by their nature are imperfect but it is really good. it's one of the reasons it is important to defend the integrity even while sometimes disagreeing with the outcome of a particular case. it's one of the reasons why many of my colleagues expressed my concern when the president referred to the judge that issued a ruling they didn't like as a so-called judge and it is understandable why people were concerned about that. thatsn't a statement i would make because i think that it is important to uphold the federald judiciary as a system that is good notwithstanding its imperfections yet i find it interesting, ironic andterestin troubling many of the same people that were the first and the loudest to c

and i think every judge who faced that case, everyone, found it a hard case and did their level best. and that's all any judge can promise or guarantee. i respect all of my colleagues who addressed that case. >> we respect you for doing so. you wrote a concurring opinion in the hobby lobby case. you wrote about the religious freedom restoration act this way. it does perhaps its most important work in protecting unpopular religious beliefs, vindicating the nation's longstanding aspiration to serve as a refuge of religious tol lance, unquote. congress enacted rfra to apply broadly and robustly to ensure that, among other things, the little guy would be protected as much as the big one. is it fair to say that the court's decision in hobby lobby and your concurring opinion upheld this purpose and in doing so effectively promoted religious tolerance? >> i might give you a couple other examples of rfra's application that i've been involved in that might shed some light on this. it's the same statute that applies not just to hobby lobby but also applies to little sisters of the poor and prot

for 50 years this wasn't the case, for this recovery that has been the case.ing out of their stocks and going two into the safety of bonds and that's an important element in putting a top on the market. >> so what you're saying that the dow jones average is roughly 350 points off its all-time high when it was over 21,000. is this the beginning of a leg down? >> the s&p is down, largest daily lost since january. ashley: that's what it's about. stuart: depends on thursday vote -- ashley: that's the beginning of it. stuart: my producer is saying it's only a half percent drop. that is true. >> keep in mind that interest rates going up will probably have a more profound effect in the end. [laughter] peter: that's the one thing that would last. some of those 21 are going to come our way so this vote will occur in the positive. what i am concerned about is if you have a fed that says, we are going to start selling down some of 4 and a half trillion balance sheet because we are through with this sort of ease, what that's going to mean is trillions of dollars of bonds