Speaker 1: Today is day two of the confirmation hearings of Neil
Speaker 1: gorse Is to the United States Supreme Court. Yesterday, the
Speaker 1: opening statements of the senator showed the partisan divide. Republicans
Speaker 1: said gorst was a careful arbiter of the law, while
Speaker 1: the Democrats said he goes out of his way to
Speaker 1: issue rulings in favor of powerful institutions. Today, the Senators
Speaker 1: began their questioning of gorsts illuming question was whether gorstch
Speaker 1: would be independent, which he said time and time again
Speaker 1: he would, even if it meant opposing President Donald Trump.
Speaker 1: I will apply the law faithfully and fearlessly and without
Speaker 1: regard to persons. Time and again. Gorsich also refused to
Speaker 1: comment on pending cases like Trump's Muslim ban, or even
Speaker 1: on well established Supreme Court precedent. I'm not gonna say
Speaker 1: anything here that would give anybody any idea hid rule
Speaker 1: in any case like that that could come before the
Speaker 1: Supreme Court or my court of the Tenth Circuit. Our
Speaker 1: guests are Elizabeth Wider, President of the Constitution Accountability Center,
Speaker 1: and Carry Severno, Chief council at the Judicial Crisis Network. Elizabeth,
Speaker 1: what stood out to you during this morning's hearings. Well,
Speaker 1: I thought one thing that was really interesting happened just
Speaker 1: before the break. There was a question to Judge Gorseuch
Speaker 1: about um these repeated comments made by Donald Trump on
Speaker 1: the campaign trail and then after um he became president
Speaker 1: that he would have as explicit litmus test the willingness
Speaker 1: for his nominee to automatically overrule ro versus Wade. And
Speaker 1: the question was put to Judge Gorsch and he said
Speaker 1: that he would have walked out the door if the
Speaker 1: question had been asked of him. The question was not
Speaker 1: asked of him. Now that's really interesting because the question
Speaker 1: then is, well, Donald Trump said over and over that
Speaker 1: he was going to use this litmus test being willing
Speaker 1: to overturn Roe versus Wade. Does that mean he um,
Speaker 1: you know, decided it wasn't going to be his litmus
Speaker 1: test and private, even though a lot of people voted
Speaker 1: for Trump because of this, or did he pick me
Speaker 1: Gorstch knowing that without asking him the question, his record
Speaker 1: showed that he would be someone who would overturn Roe
Speaker 1: versus Wade. So I think a lot of the people
Speaker 1: who are watching, frankly on either side either because they
Speaker 1: want row overturned, or because they desperately want to keep
Speaker 1: the constitutional right to abortion that women have enjoyed and
Speaker 1: which enables them to be full economic participants and full
Speaker 1: equal citizens in this country. A lot of people, I
Speaker 1: think are looking very closely at that question to just
Speaker 1: see how do we square these two statements. Carrie. We
Speaker 1: know that Judge gorse which was chosen from a list
Speaker 1: given by a federal the Federalist Society, would anyone on
Speaker 1: that list be on that list if they weren't conservative
Speaker 1: and against Roe v. Wade? Well, the list was chosen
Speaker 1: with an eye to finding judges who have a judicial
Speaker 1: philosophy in the line of justice s glean in his
Speaker 1: mold to someone who's going to have an originalist approach
Speaker 1: to the Constitution, looking at the text, looking at the
Speaker 1: original understanding of that text, way that the Constitution or
Speaker 1: all of its amendments the time of their passage, Um
Speaker 1: debt someone who is going to be a textualist when
Speaker 1: it comes to statutory interpretation. So um, I think all
Speaker 1: of the list that bards thus far, and so that's
Speaker 1: what Judge Gorsech stands for as well. And I think
Speaker 1: another thing that that has been repeatedly mentioned as someone
Speaker 1: who who has the courage of their convictions. That means
Speaker 1: even when they think it will be popular use Um.
Speaker 1: And we've seen many of those cases that Gorsuch has
Speaker 1: had to try come up today, even when there may
Speaker 1: be sympathetic litigants on the side that you don't think
Speaker 1: legally has the winning argument. Um, that someone who's going
Speaker 1: to stand up for those principles and still come up
Speaker 1: with the correct legal result even if they're whether there's
Speaker 1: political pressure, media pressure, or simply just going wow, this
Speaker 1: law is a bad law. But as Gorsuch has said,
Speaker 1: you know, you're not always gonna like the laws as
Speaker 1: they stand. Your job as a judge is to apply
Speaker 1: the law. Elizabeth Um. It's been said that unlike Justice
Speaker 1: Scalia his right he in the beginning, he was very
Speaker 1: much compare to Justice Scalia when he was first introduced,
Speaker 1: especially by President Trump, but that he varies from originalism
Speaker 1: in his writings. Well, he certainly claims to be Um,
Speaker 1: you know, and and his supporters have put forth the
Speaker 1: idea that he is an originalist as a reason to
Speaker 1: support him, that he's a textualist and originalist Um. And
Speaker 1: a lot of people find that concerning because they look
Speaker 1: at what Justice Scalia did with his so called originalism
Speaker 1: and finding against protections for women, people of color, LGBTQ
Speaker 1: Americans and are concerned by that. I will say that
Speaker 1: my organization, Constitutional Accountability Center UM, we consider ourselves to
Speaker 1: be uh focused on the text and history of the
Speaker 1: Constitution and find that it if you'd actually do the
Speaker 1: scholarship and do the work, it points to more often
Speaker 1: than not progressive results. So we actually did a report
Speaker 1: on Judge gore such as record looking at it and
Speaker 1: put out a report which you can find on our
Speaker 1: website at the U S Constitution dot org that suggest that, uh, well,
Speaker 1: at the very least, we have concerns that Judge Gorsuch
Speaker 1: might be more of a selective originalist where he focuses
Speaker 1: on the text and history of certain provisions. He talked
Speaker 1: this morning about the Fourth Amendment protection against search and seizure,
Speaker 1: and I certainly agree with him when he talked about
Speaker 1: how that is protected and was protected in a case
Speaker 1: from the Supreme Court Jones versus United States. But then
Speaker 1: when we look at his record on, for example, the
Speaker 1: Fourteenth Amendment, which was passed after the Civil War and
Speaker 1: wrote into the Constitution crucial protections for equal equality under
Speaker 1: the law for all persons, due process of law for
Speaker 1: all persons, both citizen and non citizen. And we don't
Speaker 1: see that same um evoking of the drafters of the
Speaker 1: fourteenth Amendment as we see when he books to the
Speaker 1: folks who drafted the Constitution in the eighteenth century. And
Speaker 1: so it's were to have concerns about that. And I
Speaker 1: will note that he felt free. Judge cor Such did
Speaker 1: this morning to answer a question from Senator Hatch about
Speaker 1: indeed this case. I just talked about Jones and the
Speaker 1: Fourth Amendment, talking about how the Fourth Amendment, the meaning
Speaker 1: of it in uh was applied to modern day circumstances
Speaker 1: were dream at the Neil Gorcich nomination hearings. He's nominated
Speaker 1: to fill the seat at the Late Justice and in scale,
Speaker 1: and he's been compared to Scalle at time and again
Speaker 1: during the hearings. Gorsich has steadfastly refused to express his
Speaker 1: opinions about any case decided by the Supreme Court or upcoming.
Speaker 1: He might have been surprised to hear an interview for
Speaker 1: the show Uncommon Knowledge in Justice. Scali has said then
Speaker 1: that since the Supreme Court is essentially rewriting the constitution
Speaker 1: term by term. The old criteria for appointing justices no
Speaker 1: longer applies, and senators should be allowed to find out
Speaker 1: what kind of a new constitution will this nominee right?
Speaker 1: You know, Judge so and so, do you think there's
Speaker 1: a right to whatever his abortion whatever you hate, hate
Speaker 1: or love, you don't. Well, I think it's there, and
Speaker 1: my constituents think it's there, and I'm not going to
Speaker 1: put you on the Supreme That's what's going on, and
Speaker 1: it ought to go on. As much as I hate
Speaker 1: that process, I prefer to the alternative, which is just
Speaker 1: letting the Supreme Court, without any political control, we write
Speaker 1: the constitution term by term. We've been talking to Elizabeth Wider,
Speaker 1: president of the Constitutional Accountability Center, and Carry Severino, chief
Speaker 1: council at the Judicial Crisis Network. Carry. None of the
Speaker 1: justices in the past, I don't know how many years
Speaker 1: have have actually expressed what their opinions are on things.
Speaker 1: And Judge Gorcis followed that today, were you surprised to
Speaker 1: hear what Justice Scale's opinion on that was? Oh? No,
Speaker 1: I've I've I've heard that said before, and I think
Speaker 1: that makes no sense. What he's pointing out is if
Speaker 1: you don't take it as he does, an originalist approach,
Speaker 1: as Judge Gorcish does, where or in a textualist approach,
Speaker 1: where you really do take the law and the Constitution seriously.
Speaker 1: If you are simply frankly, as the Constitution Accountability Center
Speaker 1: does in its report, reading in your own what your
Speaker 1: wishes and dreams into what you think like the fourteen
Speaker 1: to them that, for example, says, then yes, we need
Speaker 1: to know what those are, because if you're going to
Speaker 1: read them into the Constitution as a judge um they
Speaker 1: could didn't send it ought to find out what those are. However,
Speaker 1: if you're going to actually look at what the text says,
Speaker 1: what the understanding was not not what you wanted to
Speaker 1: be in two thousand seventeen, whether you wish the fourteen
Speaker 1: to event included a right to abortion or you know,
Speaker 1: um marriage or a m assistant suicide, all these different
Speaker 1: things they have been listed in the in the Constitution Economy,
Speaker 1: some of these um briefs. But you know, if you
Speaker 1: if you actually believe, let's look at what it said
Speaker 1: they meant when they passed Sup. Fourteen to them that
Speaker 1: that's what originalism is, and I think that's the kind
Speaker 1: of thing that insulates judges from the political um back
Speaker 1: and forth. Here. We shouldn't have to have judges that
Speaker 1: are going to vote according to what they think a
Speaker 1: good political outcome is or what they think the sense
Speaker 1: of the American culture is. They're not They're not posters either.
Speaker 1: Their their lawyers and their judges. They should be applying
Speaker 1: the law as it stands and not trying to rewrite it. Elizabeth,
Speaker 1: do we really learn anything at these hearings anymore? Because
Speaker 1: the judge the judges will not answer questions about the
Speaker 1: content of their rulings or the content of rulings that
Speaker 1: even Roe v. Wade, you know, which is established in
Speaker 1: the law. For so long do we learn anything? Well?
Speaker 1: I think that the nominees should answer some of those
Speaker 1: questions when it comes to cases that um our precedent
Speaker 1: and have been decided. And Judge cor Such actually did
Speaker 1: that with respect to the Fourth Amendment and the Jones
Speaker 1: case from twelve. So I would like to see him
Speaker 1: do that in his answers to questions about the fourteenth
Speaker 1: Amendment and same sex marriage and Oberga Fell. I'd like
Speaker 1: to see him do that about the protection for voting
Speaker 1: in the fifteenth Amendment, which guarantees the right to vote
Speaker 1: free from racial discrimination, and the Shelby County case that
Speaker 1: was decided by the Roberts Court in which they gutted UM,
Speaker 1: one of the central protections of the Voting Rights Act.
Speaker 1: I'd also like to see that with respect to his
Speaker 1: view of the constitutional provisions in the First Amendment of
Speaker 1: free speech and how that relates to citizens United So
Speaker 1: since he's been willing to do it for one case
Speaker 1: and one constitutional provision, I'd like to see it for
Speaker 1: other decided cases and other constitutional provisions that are incredibly important.
Speaker 1: And that's really all we're trying to do is really
Speaker 1: find out how this person views the Constitution, how he
Speaker 1: will be faithful to the Constitution and the law when
Speaker 1: he gets on the bench, and not be beholden to
Speaker 1: any particular political agenda or be beholden to the president
Speaker 1: who put his name forward. So there has been a
Speaker 1: lot of questioning this morning about his independency. Certainly has
Speaker 1: said some of the right things, but you know, there
Speaker 1: are also questions about whether he was willing to stand
Speaker 1: up to assertions of executive power when he worked in
Speaker 1: the George W. Bush administration. So there are a lot
Speaker 1: of questions that are out there. And you know, honestly,
Speaker 1: people from all sides of the ideological spectrum have agreed
Speaker 1: on certain things. Um, we at C a C often
Speaker 1: make common cause with our friends on the conservative and
Speaker 1: libertarian side of the spectrum. So I think Carrie's criticisms
Speaker 1: are a little bit unfair. And some of the things
Speaker 1: she talked about we don't actually even talk about in
Speaker 1: our brief, So I don't think she's read it. But
Speaker 1: let's let's let's let's carry have a chance to respond
Speaker 1: to that. Carrie. Sure, I think he is following the
Speaker 1: same standard that Justice Ginsburg laid out. She refused to
Speaker 1: answer at least seventy different questions on topics that were
Speaker 1: likely to come before the court. All of the Supreme
Speaker 1: Court numbies that have followed her have tried the same line.
Speaker 1: I mean, look, the same people who are asking for
Speaker 1: give me more information about how you would rule on
Speaker 1: these cases would be filing accusal briefs, and rightly so.
Speaker 1: If he did go into detail about how he thought
Speaker 1: this case. Recall when Justice Schole had give a speech
Speaker 1: um talking about his opinion on it. It was the
Speaker 1: pledge of allegiance, and then later had to recuse himself because, yeah,
Speaker 1: he is a judge. You have to be very careful
Speaker 1: not to judge a case. So I think what he's
Speaker 1: doing is not only appropriate but acquired, and it certainly
Speaker 1: fits in the center what every UH justice has done
Speaker 1: so far. UM. I think I do agree that with
Speaker 1: Elizabeth that his statements and judicial independence have been excellent.
Speaker 1: He's been very clear no one is above the law,
Speaker 1: that includes the President of the United States, and I
Speaker 1: think his record shows exceptional, UM willingness to hold the
Speaker 1: executive accountable. So I think that's something that should really
Speaker 1: give a lot of people if they're concerned. We'll have
Speaker 1: to leave it there. I want to thank both of
Speaker 1: you for being on Bloomberg Law. That's Carrie Severino, chief
Speaker 1: council at the Judicial Crisis Network and Elizabeth Wider, President
Speaker 1: of the Constitutional Accountability Center. And coming up, we're going
Speaker 1: to talk about a Supreme Court opinion that actually came
Speaker 1: down today and it was six to two. It is
Speaker 1: about the curbing the president's power to appoint someone to
Speaker 1: fill a top government post.