justice roberts: justice gorsuch? justice gorsuch: good morning, counsel. your colleagues on the other sides suggest the federal circuit did not give sufficient deference to the jury's finding of fair use and i would like to follow up on that. fact specific questions like fair use that are multi factor balancing kind of reviewed for substantial evidence in the record. that is not what the federal circuit here did. particularly when the questions are kind of novel and legal rules have yet to crystallize and form around them. circuitld the federal not have used that traditional standard of review? my first answer is the same as the answer to justice gorsuch, it did when it was conducting its analysis of those page numbers that i mentioned. >> let's suppose that is not how i read the federal circuit decision. let's suppose i agree with you, i think you have said elsewhere that they properly reviewed -- case fordn't we remand consideration under a more deferential standard we would normally apply to jury findings and general verdicts? mr. rosenkranz: this court

how could anybody in their right mind believe that judge gorsuch wasn't as qualified as sotomayor and kagan? howcould anybody understand she's not just qualified, she's incredibly qualified ? but those qualifications apparently don't matter anymore. it's about tryingto create a situation for your favorite . politically.i don't know where this ends or how it ends but i do know this: after listening to the excerpt of vice president biden's explanation about court packing i am more confused than ever . one thing i can say is that the real energy in the democratic party is to pack the court. is to expand it from nine to whatever number they need to make it liberal and as two of my good friends, senator feinstein, what happened to her by showing an active human kindness tells you what all you need to know about what a senator who gets in the way of the agenda they have for our nation beginning with the court. the day we start changing the number after every election to make it the way we would like politically, partisan wise is the end of the independence of the court. lots at stake in thi

tried it before and it didn't succeed, try to on gorsuch and it did. the message was, in effect, nobody who nominates president trump is going to get 60 votes for the supreme court. no matter how qualified. of course, speaking of qualifications, justice gorsuch qualifications were simply beyond question. someone who has gone on to issue some rulings, by the way, with these guys over here like. it shows you predicting the supreme court justice is going to rule on has been hazardous guess most of the time. their apocalyptic trust, productions about what is going to happen with nominees of republican presidents has been consistent going back to john paul, every single one of them will be a disaster for women and minorities and all the rest, none of which of course ever materialize. republicans applied and extended what senate democrats have begun in 2013, they've left out the supreme court from being dealt with as a simple majority.ealt so we decided we are going to return to where the judicial calendar was by practice, just a few years ago, it was always

of course, speaking of qualifications, justice gorsuch qualificationson were on questi.eone who has gone on to issue rulings, by the way, that these guys over here like. it shows you predicting what a supreme court justice is going to rule on has been a hazardous gas most of the time. their apocalyptic facts about predictions about what's going to happen nominees of republican presidents been consistent going back, every single one will be a disaster for all of them, none of which of course ever materializes. so republicans apply and extend but senate democrats have begun in 2013, they left out the supreme court from being dealt with as a simple majority. we decided we are going to return to where the judicial calendar was, it was always dealt with with a simple majority. the thomas nomination proved it. until our friends on the o other side decided to start a new custom, within the rules but a move.t' as a result of the threshold being lowered for the supreme court, we are back to where we were as recently as c thomas, executive calendar is dealt with with a simple majo

first, neil gorsuch. a few democrats crossed over for his nomination.hen you watch the confirmation process he went through, how does it say in the context we've been talking about? ilya: it is hard to separate the gorsuch nomination itself from what happened the year before when justice scalia died in february 2016. there had not in an election year vacancy ends 1968, the fortis elevation. these arguments about whether the senate had a duty to act and all of this sort of thing. mary garland was nominated -- merrick garland was nominated. won theblicans had senate, and they said there should be a rubber match for the people to decide who should make the pick. it was a gamble that ultimately mitch mcconnell won, risky one, i think more people expected trump to lose, and hillary clinton could have nominated someone less moderate than garland. and the unusual nature of donald trump's candidacy, the resistance to his presidency on going to this day, you have the garlands nomination. partisan ever filibuster of a supreme court nominee. knew thismer probably

pretty much the minute justice gorsuch got on the court, the court finally overturned abood. now we are seeing the same signaling. i mentioned this yesterday. the right of same-sex couples was recognized to marry. justice thomas and justice alito issued a sharply worded case.ent about a issuease refused to marriage licenses to same-sex couples. in 2012,ice alito justice thomas, joined by justice alito, signaled to rollback a supreme court precedent that they believe with their understanding of the constitution. for the right to same-sex marriage even though that right and called it a problem that only the court could fix. judge barrett, you said judges have to wait for cases and cannot have an agenda but here we have an example of sending out signals. take a look at precedent. cite one case where you are also sending out a signal. two court cases. without the right to vote and raising concerns that you view their right to vote to be more limited than the right to own a gun. , in that case, you jointed decision have upheld an abortion clinic buffer zone law. apply the law unde

later, neil gorsuch was confirmed to the supreme court. a matter of a little more than a month ago, lost a trailblazing leader, and justice ruth baderon ginsburg, leaving open another seat on the supreme court that we are not asked to fill. federal 70 also read by alexander hamilton has been referenced many times on there floor this past year end particularly during this debate, wrote about this, the constitution being fundamentalda law that seeks the will of the people and if the courts of the only true guardian, guardians of the constitution the constitution is the highest man-made law that any legislative act to the contrary must be held void for the court, the interpretation of the laws and problems, guardian of the constitution madison was talking about the first congress that he introduced the environment that became what weha call the bill f rights today, he said the courts would consider themselves in a particular manner, according of those rights, would be working against every assumption of power in the legislative or executive,

that allowed republicans to gorsuch and pave the way for trump's second appointee, brett kavanaugh, as016, president obama tapped mary garland to feel the late justice garcia -- merrick garland to fill that lay scalia's seat. it was prevented. either way, senate republican's move quickly. they found the nomination process historically under 70 days on average. and most nominees do make the final cut, since the supreme court's establishment, more than 77% have been confirmed. pretax profits cayman higher than estimated, but the retailer plans to close about 5% of its stores, so record s it has been struggling to restore. we are joined by adam karlsson, chief financial officer of h&m. adam, thank you for joining us. when you look at your online presence, i think online, you what sales, make up 26% of you are selling at the moment. how much will that increase in the coming years? adam k: thank you for having me. statistically we do, but obviously we see now that the last couple of years, the digital shift is still ongoing and potentially accelerating, so we believe that share, over time,

judge gorsuch had written some very aggressive and prominent administrative law decisions as a judgen the u.s. court of appeals for the 10th circuit, and judge kavanaugh obviously as a judge on the d.c. circuit, he was doing administered of law all the time. their interest and expertise in administrative law is part of why they were nominated to the supreme court. by comparison, the seventh circuit does not hear a lot of administrative law cases. judge barrett has heard a ton of civil rights cases, section 93 cases, sentencing cases. administrative law cases do not come up that often. there are not that many challenges to federal agency actions that have ended up in the seventh circuit or have ended up in front of panel she has been on. most of the administrative law cases she has had have dealt with immigration, and here the pattern you see is a very careful effort to scrutinize the actions that the relevant agency took in this case, with the immigration board of appeals and in some case immigration judges and to render a judgment based on what the relevant case law and statutes req

cavanaugh, history and structure, but perhaps more structured in between the robert and gorsuch. slot inke scalia will there, but not like her other colleagues. >> i had forgotten justice blackburn, but harry blackburn added to that list the disappointments of concerted legal -- >> that tells you something. gotnother great question i -- some theorize that justice roberts does not like being in the minority opinion. another conservative judge on the bench tipping the balance, morechief justice roberts reliably conservative. what happens to the chief? >> the chief is a judicial minimalist. that is very clear in his record. it is very consistent in his record. that is the way he approaches most questions. we can debate why that is. my assumption is that until he is somewhat generational, that when he was working, first working as a lawyer, his view of the failings of the supreme court or that it was too aggressive and he favored a more - alexander bickelicker approach, and he carry that through. that is why he doesn't like lower court injunctions, that is why he doesn't like long de

gorsuch and kavanaugh were my top recommendations. any republican president looking to nominate somebody to the supreme court would be looking at gorsuch and kavanaugh. these are not exotic pics. during sotomayor and elena kagan in terms of qualifications. so what happened? gorsuch was the first attempt at a partisan filibuster. we had three votes to get to 60 and we couldn't, so we changed the rules for the supreme court like they changed the rules in 2013 for the district court and court of appeals. if we had not, gorsuch would be on the a court and to say that he's not qualified as a joke. it's an insult to him and it says more about you than it does about judge gorsuch. if you can see he's qualified, you are blinded by your hatred bof trump. so he d had to do it because by any other time, gorsuch would have gottend the same type of votes is roberts because he is highly qualified. then comes along kavanaugh. nothing about the t process the. there's no process argument. right at the very end, the last day of the hearing when we thou

and all i can say is that judge gorsuch was filibustered two or three times required as to change the rules. they started this. not me. if the rep to meet would be a 60 vote requirement in the senate today. denying judge gorsuch the votes necessary to go to the floor was just the beginning of the end of a process that it served the country well. how could anybody in the right might believe that judge gorsuch wasn't as qualified as sotomayor and taken? how could anybody in their right mind after listening to judge barrett not understand she's not just qualified, she's incredibly qualified. so qualifications apparently don't matter anymore. it's about trying to create a situation for your favor, politically. i don't know where this answer how it ends but i do know this, after listening to the excerpt of t vice president bidens explanation about court packing, i am more confused than ever. one thing i can say is that the real energy and the democratic party is to pack the court, is to expand from nine to whatever number they need toth make it a liberal. and as to my good friend senator f

both justice gorsuch and kavanaugh had a lot of notes. do not know, those two ivy leaguers cannot keep up. host: our guest will be with us until 8:45. if you want to ask questions you can do so. you can call and post on our twitter feed. our facebook page is available as well if you want, and you can talk to mike davis of the article iii project. when you heard democratic senators particularly talk to judge barrett over concerns about the future of the affordable care act, the future of women's rights, what came across your mind when you saw that line of questioning? guest: i thought it was typical political nonsense that you hear at the supreme court hearings. these judges are going to do what judges do, which is to look at the facts and look at the law, and apply the law to the facts and let the chips fall where they may. it is nonsense to think that judge amy coney barrett, a mother of seven kids including one with down syndrome is on some sort of mission from god to overturn obamacare or any other case. season at the senate judiciary

and brett kavanaugh or neil gorsuch as the swing vote, that is a very conservative court. so i think we are looking at some considerable shifts. ande they will take a term slow down at first. but the history to me suggests when you have a majority that has a very clear ideological direction, the court generally goes in that direction. is the courtesson didn't just sit around and wait. they moved. i would at least guess that we are going to see some significant movements in a way that we haven't seen before in a long time. >> are you rubbing your hands in anticipation? >> i agree with much of what he just said. the chief, having been lauded for occupying the median position on the court, will no longer be there. he may have been left in that position as a response to president trump, so it might well be that, even apart for me to justice, he would have swung a newight -- apart from , he would have swung back right. but i think building some sort of middle coalition with justice kavanaugh or justice gorsuch, or on the losing end of some cases, or making it a six justice majo

gorsuch, but he was appointed, mr. harrison supported the filibuster. supported democratic nominees because they were qualified. mr. harrison has opposed kavanaugh and gorsuch and won't say how he would have voted on barrett. if they followed my lead, the world would be better off. i'm not going to support democratic nominees and watch people like judge kavanaugh have their life destroyed. mr. harrison said the reason he ran against me was how i behaved in kavanaugh. i still up for a friend. for sohe courage to vote meyer and kagan and the determination to stand up for a conservative judge barrett how would you vote on judge barrett? please tell us. mr. harrison: wasn't merrick garland qualify? you voted for him before, why not again? you talked about the president having the power to nominate and it is up to the senate to pass them through and you failed to do it. that is the problem. you have a job that the people of south carolina pay you for and you only do it when you feel it is in your power, the right to do it instead of doing it when you are sup

gorsuch was the first attempt at a partisan filibuster. we had three votes to get 60 and we couldn't, so we changed the rules for the supreme court like they change add the rules in 2013 for the district court and court of appeals. if we had not, gorsuch wouldn't be on the court and to say he is not qualified is a joke, is an insult to him and says more about you than it does judge gorsuch. if you can't see he's qualified, you're blinded by your hatred of trump. hated to do it but had to do it because in any other time gorsuch would have gotten the same type votes as roberts. then comes along kavanaugh. nothing about process there. no process argument. right at the very end, the last day of the hearing when we thought it was all over, you give us a letter that you'd had for weeks, an allegation against the judge. it would have been nice to share it with him so he could tell his side of the story but you chose not to do that. you had it precooked with the press outlets and everything blew up. so all of us on the committee had to decide what

neil gorsuch has emerged as a maverick figure who will demonstrate conservative rulings and right notery conservative rulers -- rulings depending on the topic. then you have justices roberts and brett kavanaugh who are not particularly likely to be won over by arguments about some stands of law but are concerned about the courts institutional legitimacy or reputation. on some topics that would make kavanaugh the middle vote because he does seem to share some of robert's concerns about the court's reputation and image. aboutight give him pause striking down the aca or overturning roe v. wade. then you have someone like neil gorsuch who might be open to a wider range of arguments, but not necessarily as concerned about optics or reputation. we simply do not know where amy coney barrett will sit in the equation. i think the expectation given some of her writings has been she may be more ideologically aligned with thomas and alito, but only time will tell if that turns out to be true. taylor: final question. what is the risk in the next four days something goes wrong. what with the risk t

gorsuch -- the brett kavanaugh nomination disappeared totally into the mud.ow with amy barrett we come back to issue of originalism and interpreting the law. the democrats, it seemed to me, made clear that they are wholly about the courts serving as producing political results that they want whether on abortion, gun control or health care, and that's what this argument about packing the court is all about. with two more justices on that court, you could just as well put chris coons and amy klobuchar on the court. in their words, the supreme court becomes a subsidiary of the politics of nancy pelosi and chuck schumer. i think that was clearly evident at this hearing and something that the american people got a better appreciation of. paul: kim, what do you think the impact of this nomination had been on the election? a couple of joni ernst's and lindsey graham on the committee, both running very tight a races. could this them? >> oh, absolutely. you saw them really trying to performance to this nominee. and in the process making the case to republican voters,

how could anybody believe that judge gorsuch was not as qualified as sotomayor and kagan? how could anybody in their right mind, after listening to judge barrett, understand she is not just qualified, she is incredibly qualified? qualifications apparently don't matter anymore. it is about trying to create a situation favor, politically. i don't know how this ends, i do know this? -- after listening to vice president eitan's explanation about court packing, i am more confused than ever. one thing i can say is that the real energy of the democratic party is to pack the court. is to expanded from nine to whatever number they need to make it liberal. as to my good friend senator feinstein, what happened to her by showing an act of human kindness tells you all you need to know about what awaits a senator who gets in the way of the agenda they have for our nation. beginning with the court. today we start changing them -- the day we start changing the number after every election to make it how we would like politically, artisan-wise, is the end of the independence of the court. a

justice thomas and gorsuch both dissented, and justice gorsuch objected that the majority's reasonablexpectation of privacy was not faithful to the fourth amendment text. gorsuch recente the fourth amendment protects only those searches included in the original text. houses, of persons, places and effects. lism critics of original iis complained that today's laws should not be ruled by the dead hand of the past. can you explain how the fourth amendment can still govern the modern world searches and seizures, and how will it continue to apply to emerging technologies that the founders never could have imagined? judge barrett: sure. general matter, the fourth amendment protects against unreasonable searches and seizures. it doesn't mean that it protects only the kinds of searches and seizures that those who live at the time of the adoption of the bill of rights could have anticipated. surely, they could not have anticipated the internet or cell phones or airplanes, for that matter. one can reason from the kinds of privacy protections that were in place in 1791 when the fourth amendment w

gorsuch included. kavanaugh was a touch point for how this would go and this went back to what was the ordinary approach within the room. sen. blumenthal: i differ a little bit. as you and i have discussed, i think, i think we hit them hard and we hit her with those issues in a courteous way, which we did in brett kavanaugh too, but it turned out to be more confrontational because some of his reactions were therontational and i think orderly process should not be confused with hard-hitting issues. we brought out all of them. i don't think there are any that went unmentioned or unquestioned. sen. durbin: one point, doing at this quickly means that we are uncertain as to whether we have gathered the information which was traditional in a supreme court nomination. some of it is trickling in from other sources. doing at this quickly, i think we sacrifice the complete approach we should have taken. sen. blumenthal: by the way, i asked her. i do not know whether you heard it, but when i went into the documen

justice gorsuch and justice kavanaugh said that. do you agree a president must follow a court order, and the supreme court word is final, or is the supreme court's word only final as far as the lower courts are concerned? >> senator, i'm glad to have the opportunity to clarify from our conversation. first, i know that both justices gorsuch and kavanaugh said that no man is above the law, and i agree with that, but i conversed with senator lee yesterday about federalist 78 which says that courts have neither force nor will. in other words, we can't do anything to enforce our own judgments. and so what i meant in the conversation with you is that as a matter of law, the supreme court may have the final word, but the supreme court lacks control over what happens after that. the supreme court and any federal court has no power, no force, and no will, so it relies on the other branches to react to its judgments accordingly. >> i remember as a young law student having lunch our honor society had lunch with members of the supreme court. i

former law clerk to justice neil gorsuch.e, your thoughts as this vote has now passed for amy coney barrett. >> this is a historic victory for president trump. then candidate donald trump in 2016 campaigned on the promise that he would transform the federal judiciary with judges who understood that there are modest but critical role is to follow the law and president trump has done that with justice gorsuch, justice kavanaugh. 53 judges to the critically important federal important federal courts of appeals. now justice amy coney barrett. >> martha: your thoughts on amy coney barrett and what kind of justice she will be. >> she is a phenomenal supreme court justice. we saw this during her hearing. she's exceptionally well-qualified. she's going to bring a very unique perspective to the supreme court, as a mother of seven kids, too adopted from haiti. one with down syndrome. she is number one in her class at notre dame law school. clerk, sprinklered for justice scalia. she's going to bring a nonivy league perspective to the su

it was neil gorsuch who wrote the opinion that said the 1964 civil rights act does cover discrimination on the basis of sexual orientation or transgender status and that was certainly a break from other textualists or originalists but his opinion is a very textualist opinion. so that's an example of where they don't always agree and that's what she's saying as well. on precedent, she also said that just disagreeing with the previous decision is not enough to overrule precedent. she's given the sort of classic answers on abortion or any of these hot button cases that both republican and democratic appointees to the supreme court have always said you have to respect precedent and i have no preconceptions. >> one of the least legal moments of the back and forth so far today was dick durbin and judge barrett on george floyd. i want to play that exchange here. >> have you seen the george floyd video? >> i have. >> what impact did it have on you? >> umm, senator, as you might imagine, given that i have two black children, that was very, very personal for my family. jesse was with the boys on

gorsuch said we don't wear red robes or blue robes. we wear black robes. what they want is activist judges. they made it quite clear, the democratic leader just a few minutes ago made it quite clear. so what they are looking for is a small panel of lawyers with elite education to reason backwards from outcomes and enlighten all the rest of us, enlighten all the rest of us with their morals and political judgments. whether the constitution speaks to the issue or not. they know best for us. no matter what the constitution or the law may say. and, you know, for the last several decades, in many cases, that's what they have gotten. one activist decision after noarg, giving us subjective preferences of one side the course of law. across a variety of social, moral, and policy matters like a healthy society would leave to democratic debate the personal opinion of judges have superseded the will of the people. now, they call that a success, and they want more of it. president obama actually was refreshingly honest about this. he said he wanted to appoint judges wh

justice gorsuch? thate government concedes this work is copyrightable and then set the fair use analysis has to permit the copying here. and i wonder whether it gives him one hand and takes away with the other. analysis forse incommensurable factors that need to be weighed? why did no reasonable jury had concluded that it was fair use here? are you essentially saying that code is copyrightable but really, it is always subject to fair use? >> we're certainly saying it is subject to fair use analysis we argue that the use here was not fair. that,e reason we think the error we think the district court made was that it treated as a factual question what it should have treated as a subsidiary legal assessment. that is, on the question of transformative miss, google argued it is transformative because it is being used on a new platform. oracle will argue it is the same code being used the same purpose. the district court did not decide which of those views was right, it simply said at least one jury could h

. >> thank you justice gorsuch. >> good morning and then moving past rapidly the primary argument in your brief that the code is an copyrightable and that the one is as computer programs or those instructions to bring about a certain extent could be copyrighted and there it is and that would have the more generally idea so can we move past that rather rapidly? >> i take that as a yes. >> moving straight on to the merger doctrine then i am stuck in a similar place as justice kagan the argument serves more of a more successful rifle because it comes with an elegant successful or a highly adopted solution in the marketplace and then right on the innovation. what we do about the fact that other competitors apple, microsoft have in fact been able to work just fine without engaging in this. >> everyone agrees every platform actually does what we talked about witches re- implement the fire language or platform apple and microsoft use different languages entirely somebody could write it in french. the rules that oracle once is and the essential facility has a real world analog and exclusive

kennedy: justice gorsuch was nominated by president trump and confirmed by the senate. did anybody ask him to recuse himself when president trump's tax returns were before the court? judge barrett: i don't know if any motions were filed. sen. kennedy: do you know who paula jones is? she sued the president of the united states, didn't she? judge barrett: president clinton. sen. kennedy: clinton v. jones, famous case. president clinton nominated justice ginsburg and justice breyer to the united states supreme court. they heard that case. did anybody ask justice ginsburg to recuse herself because president clinton nominated her? judge barrett: i don't know if any motions were filed. sen. kennedy: do you think she should have? judge barrett: that is not something i would opine on. i'm sure she discharged her oath. sen. kennedy: did any of my colleagues ask that justice breyer recuse himself from hearing clinton v. jones because president clinton appointed him? judge barrett: i don't think that has come up. sen. kennedy: i don't think so either. i want to finish this houseke

i asked justice gorsuch -- gorsuch and cavanaugh those questions and they made it clear that a presidentnot refuse to comply with a court order and the supreme court's word is the final word on the matter. and is what justice gorsuch justice kavanaugh said. do you agree that a president must follow a court order and the supreme court's word is only final ast far as the lower courts are concerned? judge barrett: i am glad to have the opportunity to clarify from our conversation. first i know that justice gorsuch and kavanaugh said no man is above the law, and i agree with that. but i can first with senator lee about federalist 78 that said that courts neither have forced norwell, in other words -- nor will, in other words we cannot enforce our own judgments, and what i meant in the conversation with you, that as a matter of law the supreme court may have the final word, that it lacks control about what happens after that. the supreme court and any federal court has no power, force, or will, so it relies on the other branches to react to its judgment accordingly. sen. leahy: i remember the

like brett cavanagh, neil gorsuch, americans are seeing through the democrats attack this time arounde these folks, at the post office they have businesses to grow customers to care for lives to get home to they use stamps.com print discounted postage for any letter any package any time right from your computer get the services of the post office plus ups at up to 62% off get our special tv offer a 4-week trial plus postage and a digital scale go to stamps.com/save and never go to the post office again >> opioids just don't have my mind or couldn't think independently. >> a sexually so that anyone. this whole to we covered has been a calculated and orchestrated political hit. >> there's a great deal about this process i regret. i'm putting my family through this. >> all the president's supreme court nominees forestalled their own during testing confirmation hearings so how is judge barrett stacked up. >> joining us to discuss is the first liberty institute's bethany tom. thank you, appreciate it. >> thank you for having me. >> out the rate this as far as how confirmation hearings a gu

i asked justice gorsuch -- gorsuch and cavanaugh those questions and they made it clear that a president cannot refuse to comply with a court order and the supreme court's word is the final word on the matter. and is what justice gorsuch justice kavanaugh said. do you agree that a president must follow a court order and the supreme court's word is only final ast far as the lower courts are concerned? judge barrett: i am glad to have the opportunity to clarify from our conversation. first i know that justice gorsuch and kavanaugh said no man is above the law, and i agree with that. but i can first with senator lee about federalist 78 that said that courts neither have forced norwell, in other words -- nor will, in other words we cannot enforce our own judgments, and what i meant in the conversation with you, that as a matter of law the supreme court may have the final word, that it lacks control about what happens after that. the supreme court and any federal court has no power, force, or will, so it relies on the other branches to react to its judgment accordingly. sen. leahy: i remember