WEBVTT - Gorsuch Faces Questions Over Abortion in Senate Hearing (Audio) 0:00:00.040 --> 0:00:02.639 Today is day two of the confirmation hearings of Neil 0:00:02.680 --> 0:00:06.000 gorse Is to the United States Supreme Court. Yesterday, the 0:00:06.040 --> 0:00:09.960 opening statements of the senator showed the partisan divide. Republicans 0:00:10.000 --> 0:00:12.760 said gorst was a careful arbiter of the law, while 0:00:12.800 --> 0:00:15.000 the Democrats said he goes out of his way to 0:00:15.080 --> 0:00:19.480 issue rulings in favor of powerful institutions. Today, the Senators 0:00:19.520 --> 0:00:23.840 began their questioning of gorsts illuming question was whether gorstch 0:00:23.880 --> 0:00:27.040 would be independent, which he said time and time again 0:00:27.120 --> 0:00:30.840 he would, even if it meant opposing President Donald Trump. 0:00:31.480 --> 0:00:35.640 I will apply the law faithfully and fearlessly and without 0:00:35.640 --> 0:00:40.000 regard to persons. Time and again. Gorsich also refused to 0:00:40.080 --> 0:00:43.760 comment on pending cases like Trump's Muslim ban, or even 0:00:43.760 --> 0:00:47.599 on well established Supreme Court precedent. I'm not gonna say 0:00:47.640 --> 0:00:51.560 anything here that would give anybody any idea hid rule 0:00:51.640 --> 0:00:53.920 in any case like that that could come before the 0:00:53.960 --> 0:00:57.280 Supreme Court or my court of the Tenth Circuit. Our 0:00:57.320 --> 0:01:01.280 guests are Elizabeth Wider, President of the Constitution Accountability Center, 0:01:01.600 --> 0:01:06.759 and Carry Severno, Chief council at the Judicial Crisis Network. Elizabeth, 0:01:06.840 --> 0:01:10.640 what stood out to you during this morning's hearings. Well, 0:01:10.640 --> 0:01:13.520 I thought one thing that was really interesting happened just 0:01:13.640 --> 0:01:17.320 before the break. There was a question to Judge Gorseuch 0:01:17.400 --> 0:01:21.200 about um these repeated comments made by Donald Trump on 0:01:21.240 --> 0:01:24.320 the campaign trail and then after um he became president 0:01:24.720 --> 0:01:28.840 that he would have as explicit litmus test the willingness 0:01:28.959 --> 0:01:33.840 for his nominee to automatically overrule ro versus Wade. And 0:01:33.880 --> 0:01:36.920 the question was put to Judge Gorsch and he said 0:01:36.959 --> 0:01:38.720 that he would have walked out the door if the 0:01:38.800 --> 0:01:41.039 question had been asked of him. The question was not 0:01:41.240 --> 0:01:44.600 asked of him. Now that's really interesting because the question 0:01:44.640 --> 0:01:47.720 then is, well, Donald Trump said over and over that 0:01:47.760 --> 0:01:49.760 he was going to use this litmus test being willing 0:01:49.800 --> 0:01:53.280 to overturn Roe versus Wade. Does that mean he um, 0:01:53.320 --> 0:01:55.480 you know, decided it wasn't going to be his litmus 0:01:55.520 --> 0:01:57.640 test and private, even though a lot of people voted 0:01:57.680 --> 0:01:59.880 for Trump because of this, or did he pick me 0:02:00.160 --> 0:02:03.720 Gorstch knowing that without asking him the question, his record 0:02:03.760 --> 0:02:05.920 showed that he would be someone who would overturn Roe 0:02:06.000 --> 0:02:07.600 versus Wade. So I think a lot of the people 0:02:07.600 --> 0:02:10.240 who are watching, frankly on either side either because they 0:02:10.240 --> 0:02:12.960 want row overturned, or because they desperately want to keep 0:02:13.040 --> 0:02:16.200 the constitutional right to abortion that women have enjoyed and 0:02:16.240 --> 0:02:19.440 which enables them to be full economic participants and full 0:02:19.480 --> 0:02:21.840 equal citizens in this country. A lot of people, I 0:02:21.840 --> 0:02:24.400 think are looking very closely at that question to just 0:02:24.440 --> 0:02:28.240 see how do we square these two statements. Carrie. We 0:02:28.360 --> 0:02:31.919 know that Judge gorse which was chosen from a list 0:02:32.000 --> 0:02:36.760 given by a federal the Federalist Society, would anyone on 0:02:36.840 --> 0:02:40.920 that list be on that list if they weren't conservative 0:02:41.160 --> 0:02:45.440 and against Roe v. Wade? Well, the list was chosen 0:02:45.520 --> 0:02:49.200 with an eye to finding judges who have a judicial 0:02:49.200 --> 0:02:52.200 philosophy in the line of justice s glean in his 0:02:52.280 --> 0:02:54.480 mold to someone who's going to have an originalist approach 0:02:54.520 --> 0:02:57.520 to the Constitution, looking at the text, looking at the 0:02:57.520 --> 0:03:00.720 original understanding of that text, way that the Constitution or 0:03:00.760 --> 0:03:03.280 all of its amendments the time of their passage, Um 0:03:03.480 --> 0:03:05.800 debt someone who is going to be a textualist when 0:03:05.840 --> 0:03:08.480 it comes to statutory interpretation. So um, I think all 0:03:08.480 --> 0:03:13.880 of the list that bards thus far, and so that's 0:03:13.880 --> 0:03:16.600 what Judge Gorsech stands for as well. And I think 0:03:16.639 --> 0:03:19.640 another thing that that has been repeatedly mentioned as someone 0:03:19.639 --> 0:03:22.600 who who has the courage of their convictions. That means 0:03:22.600 --> 0:03:25.240 even when they think it will be popular use Um. 0:03:25.240 --> 0:03:27.480 And we've seen many of those cases that Gorsuch has 0:03:27.520 --> 0:03:30.040 had to try come up today, even when there may 0:03:30.040 --> 0:03:32.280 be sympathetic litigants on the side that you don't think 0:03:32.360 --> 0:03:35.920 legally has the winning argument. Um, that someone who's going 0:03:35.960 --> 0:03:38.800 to stand up for those principles and still come up 0:03:38.840 --> 0:03:41.280 with the correct legal result even if they're whether there's 0:03:41.280 --> 0:03:45.040 political pressure, media pressure, or simply just going wow, this 0:03:45.160 --> 0:03:46.880 law is a bad law. But as Gorsuch has said, 0:03:47.040 --> 0:03:48.920 you know, you're not always gonna like the laws as 0:03:49.000 --> 0:03:51.080 they stand. Your job as a judge is to apply 0:03:51.240 --> 0:03:56.680 the law. Elizabeth Um. It's been said that unlike Justice 0:03:56.720 --> 0:03:59.640 Scalia his right he in the beginning, he was very 0:03:59.720 --> 0:04:03.080 much compare to Justice Scalia when he was first introduced, 0:04:03.200 --> 0:04:07.840 especially by President Trump, but that he varies from originalism 0:04:07.840 --> 0:04:12.960 in his writings. Well, he certainly claims to be Um, 0:04:13.000 --> 0:04:15.800 you know, and and his supporters have put forth the 0:04:15.880 --> 0:04:18.159 idea that he is an originalist as a reason to 0:04:18.279 --> 0:04:22.320 support him, that he's a textualist and originalist Um. And 0:04:22.880 --> 0:04:25.680 a lot of people find that concerning because they look 0:04:25.720 --> 0:04:29.360 at what Justice Scalia did with his so called originalism 0:04:29.440 --> 0:04:34.560 and finding against protections for women, people of color, LGBTQ 0:04:34.680 --> 0:04:36.960 Americans and are concerned by that. I will say that 0:04:37.040 --> 0:04:41.160 my organization, Constitutional Accountability Center UM, we consider ourselves to 0:04:41.200 --> 0:04:43.839 be uh focused on the text and history of the 0:04:43.839 --> 0:04:46.680 Constitution and find that it if you'd actually do the 0:04:46.680 --> 0:04:49.520 scholarship and do the work, it points to more often 0:04:49.520 --> 0:04:52.720 than not progressive results. So we actually did a report 0:04:52.920 --> 0:04:55.400 on Judge gore such as record looking at it and 0:04:55.440 --> 0:04:57.120 put out a report which you can find on our 0:04:57.160 --> 0:05:01.640 website at the U S Constitution dot org that suggest that, uh, well, 0:05:01.720 --> 0:05:04.680 at the very least, we have concerns that Judge Gorsuch 0:05:04.800 --> 0:05:07.440 might be more of a selective originalist where he focuses 0:05:07.480 --> 0:05:11.120 on the text and history of certain provisions. He talked 0:05:11.200 --> 0:05:14.120 this morning about the Fourth Amendment protection against search and seizure, 0:05:14.120 --> 0:05:17.080 and I certainly agree with him when he talked about 0:05:17.080 --> 0:05:21.480 how that is protected and was protected in a case 0:05:21.560 --> 0:05:25.040 from the Supreme Court Jones versus United States. But then 0:05:25.080 --> 0:05:26.760 when we look at his record on, for example, the 0:05:26.800 --> 0:05:29.479 Fourteenth Amendment, which was passed after the Civil War and 0:05:29.560 --> 0:05:34.960 wrote into the Constitution crucial protections for equal equality under 0:05:35.000 --> 0:05:37.599 the law for all persons, due process of law for 0:05:37.640 --> 0:05:40.800 all persons, both citizen and non citizen. And we don't 0:05:40.880 --> 0:05:45.400 see that same um evoking of the drafters of the 0:05:45.400 --> 0:05:48.039 fourteenth Amendment as we see when he books to the 0:05:48.080 --> 0:05:51.800 folks who drafted the Constitution in the eighteenth century. And 0:05:51.839 --> 0:05:53.640 so it's were to have concerns about that. And I 0:05:53.680 --> 0:05:56.680 will note that he felt free. Judge cor Such did 0:05:56.720 --> 0:05:59.880 this morning to answer a question from Senator Hatch about 0:06:00.080 --> 0:06:02.640 indeed this case. I just talked about Jones and the 0:06:02.680 --> 0:06:06.920 Fourth Amendment, talking about how the Fourth Amendment, the meaning 0:06:06.960 --> 0:06:11.760 of it in uh was applied to modern day circumstances 0:06:11.760 --> 0:06:15.960 were dream at the Neil Gorcich nomination hearings. He's nominated 0:06:15.960 --> 0:06:18.680 to fill the seat at the Late Justice and in scale, 0:06:18.680 --> 0:06:20.880 and he's been compared to Scalle at time and again 0:06:21.279 --> 0:06:24.839 during the hearings. Gorsich has steadfastly refused to express his 0:06:24.880 --> 0:06:28.799 opinions about any case decided by the Supreme Court or upcoming. 0:06:29.279 --> 0:06:31.680 He might have been surprised to hear an interview for 0:06:31.720 --> 0:06:36.320 the show Uncommon Knowledge in Justice. Scali has said then 0:06:36.400 --> 0:06:40.280 that since the Supreme Court is essentially rewriting the constitution 0:06:40.480 --> 0:06:44.520 term by term. The old criteria for appointing justices no 0:06:44.640 --> 0:06:48.200 longer applies, and senators should be allowed to find out 0:06:48.279 --> 0:06:51.680 what kind of a new constitution will this nominee right? 0:06:52.839 --> 0:06:54.599 You know, Judge so and so, do you think there's 0:06:54.640 --> 0:06:57.920 a right to whatever his abortion whatever you hate, hate 0:06:58.000 --> 0:07:01.400 or love, you don't. Well, I think it's there, and 0:07:01.480 --> 0:07:03.320 my constituents think it's there, and I'm not going to 0:07:03.400 --> 0:07:06.960 put you on the Supreme That's what's going on, and 0:07:07.080 --> 0:07:09.640 it ought to go on. As much as I hate 0:07:09.640 --> 0:07:12.760 that process, I prefer to the alternative, which is just 0:07:12.880 --> 0:07:16.320 letting the Supreme Court, without any political control, we write 0:07:16.320 --> 0:07:20.440 the constitution term by term. We've been talking to Elizabeth Wider, 0:07:20.560 --> 0:07:24.760 president of the Constitutional Accountability Center, and Carry Severino, chief 0:07:24.800 --> 0:07:28.920 council at the Judicial Crisis Network. Carry. None of the 0:07:29.000 --> 0:07:31.840 justices in the past, I don't know how many years 0:07:31.880 --> 0:07:35.800 have have actually expressed what their opinions are on things. 0:07:35.880 --> 0:07:40.160 And Judge Gorcis followed that today, were you surprised to 0:07:40.200 --> 0:07:44.040 hear what Justice Scale's opinion on that was? Oh? No, 0:07:44.160 --> 0:07:46.840 I've I've I've heard that said before, and I think 0:07:46.840 --> 0:07:49.080 that makes no sense. What he's pointing out is if 0:07:49.120 --> 0:07:51.840 you don't take it as he does, an originalist approach, 0:07:51.880 --> 0:07:54.920 as Judge Gorcish does, where or in a textualist approach, 0:07:54.920 --> 0:07:57.880 where you really do take the law and the Constitution seriously. 0:07:57.920 --> 0:08:00.960 If you are simply frankly, as the Constitution Accountability Center 0:08:01.000 --> 0:08:04.000 does in its report, reading in your own what your 0:08:04.040 --> 0:08:07.000 wishes and dreams into what you think like the fourteen 0:08:07.040 --> 0:08:09.560 to them that, for example, says, then yes, we need 0:08:09.600 --> 0:08:11.120 to know what those are, because if you're going to 0:08:11.160 --> 0:08:14.160 read them into the Constitution as a judge um they 0:08:14.200 --> 0:08:16.400 could didn't send it ought to find out what those are. However, 0:08:16.800 --> 0:08:18.640 if you're going to actually look at what the text says, 0:08:18.720 --> 0:08:21.520 what the understanding was not not what you wanted to 0:08:21.560 --> 0:08:24.560 be in two thousand seventeen, whether you wish the fourteen 0:08:24.600 --> 0:08:27.320 to event included a right to abortion or you know, 0:08:27.840 --> 0:08:32.079 um marriage or a m assistant suicide, all these different 0:08:32.120 --> 0:08:34.640 things they have been listed in the in the Constitution Economy, 0:08:34.679 --> 0:08:37.720 some of these um briefs. But you know, if you 0:08:37.800 --> 0:08:39.480 if you actually believe, let's look at what it said 0:08:39.800 --> 0:08:42.240 they meant when they passed Sup. Fourteen to them that 0:08:42.320 --> 0:08:45.240 that's what originalism is, and I think that's the kind 0:08:45.240 --> 0:08:49.400 of thing that insulates judges from the political um back 0:08:49.480 --> 0:08:52.319 and forth. Here. We shouldn't have to have judges that 0:08:52.360 --> 0:08:54.440 are going to vote according to what they think a 0:08:54.440 --> 0:08:56.959 good political outcome is or what they think the sense 0:08:57.000 --> 0:08:59.880 of the American culture is. They're not They're not posters either. 0:09:00.240 --> 0:09:03.040 Their their lawyers and their judges. They should be applying 0:09:03.080 --> 0:09:06.439 the law as it stands and not trying to rewrite it. Elizabeth, 0:09:06.720 --> 0:09:11.400 do we really learn anything at these hearings anymore? Because 0:09:11.640 --> 0:09:15.640 the judge the judges will not answer questions about the 0:09:15.679 --> 0:09:20.760 content of their rulings or the content of rulings that 0:09:20.840 --> 0:09:24.680 even Roe v. Wade, you know, which is established in 0:09:24.679 --> 0:09:29.160 the law. For so long do we learn anything? Well? 0:09:29.200 --> 0:09:32.719 I think that the nominees should answer some of those 0:09:32.800 --> 0:09:37.080 questions when it comes to cases that um our precedent 0:09:37.120 --> 0:09:39.520 and have been decided. And Judge cor Such actually did 0:09:39.559 --> 0:09:41.920 that with respect to the Fourth Amendment and the Jones 0:09:41.960 --> 0:09:44.520 case from twelve. So I would like to see him 0:09:44.559 --> 0:09:47.199 do that in his answers to questions about the fourteenth 0:09:47.240 --> 0:09:49.880 Amendment and same sex marriage and Oberga Fell. I'd like 0:09:49.920 --> 0:09:52.920 to see him do that about the protection for voting 0:09:53.120 --> 0:09:55.640 in the fifteenth Amendment, which guarantees the right to vote 0:09:55.640 --> 0:09:58.640 free from racial discrimination, and the Shelby County case that 0:09:58.720 --> 0:10:02.400 was decided by the Roberts Court in which they gutted UM, 0:10:02.440 --> 0:10:05.120 one of the central protections of the Voting Rights Act. 0:10:05.120 --> 0:10:07.280 I'd also like to see that with respect to his 0:10:07.360 --> 0:10:09.760 view of the constitutional provisions in the First Amendment of 0:10:09.920 --> 0:10:13.200 free speech and how that relates to citizens United So 0:10:13.240 --> 0:10:15.319 since he's been willing to do it for one case 0:10:15.360 --> 0:10:17.960 and one constitutional provision, I'd like to see it for 0:10:18.000 --> 0:10:22.240 other decided cases and other constitutional provisions that are incredibly important. 0:10:22.520 --> 0:10:25.000 And that's really all we're trying to do is really 0:10:25.160 --> 0:10:29.960 find out how this person views the Constitution, how he 0:10:30.000 --> 0:10:33.000 will be faithful to the Constitution and the law when 0:10:33.040 --> 0:10:35.080 he gets on the bench, and not be beholden to 0:10:35.120 --> 0:10:39.320 any particular political agenda or be beholden to the president 0:10:39.320 --> 0:10:41.400 who put his name forward. So there has been a 0:10:41.400 --> 0:10:45.520 lot of questioning this morning about his independency. Certainly has 0:10:45.520 --> 0:10:47.760 said some of the right things, but you know, there 0:10:47.760 --> 0:10:50.040 are also questions about whether he was willing to stand 0:10:50.120 --> 0:10:52.920 up to assertions of executive power when he worked in 0:10:52.960 --> 0:10:55.280 the George W. Bush administration. So there are a lot 0:10:55.320 --> 0:10:57.720 of questions that are out there. And you know, honestly, 0:10:57.920 --> 0:11:00.920 people from all sides of the ideological spectrum have agreed 0:11:00.960 --> 0:11:03.520 on certain things. Um, we at C a C often 0:11:03.679 --> 0:11:06.000 make common cause with our friends on the conservative and 0:11:06.000 --> 0:11:08.680 libertarian side of the spectrum. So I think Carrie's criticisms 0:11:08.760 --> 0:11:10.199 are a little bit unfair. And some of the things 0:11:10.200 --> 0:11:11.800 she talked about we don't actually even talk about in 0:11:11.800 --> 0:11:13.360 our brief, So I don't think she's read it. But 0:11:13.760 --> 0:11:16.240 let's let's let's let's carry have a chance to respond 0:11:16.280 --> 0:11:21.040 to that. Carrie. Sure, I think he is following the 0:11:21.120 --> 0:11:24.800 same standard that Justice Ginsburg laid out. She refused to 0:11:24.800 --> 0:11:27.760 answer at least seventy different questions on topics that were 0:11:27.800 --> 0:11:30.200 likely to come before the court. All of the Supreme 0:11:30.240 --> 0:11:34.600 Court numbies that have followed her have tried the same line. 0:11:34.640 --> 0:11:36.520 I mean, look, the same people who are asking for 0:11:36.760 --> 0:11:38.679 give me more information about how you would rule on 0:11:38.720 --> 0:11:42.000 these cases would be filing accusal briefs, and rightly so. 0:11:42.120 --> 0:11:44.880 If he did go into detail about how he thought 0:11:44.960 --> 0:11:47.120 this case. Recall when Justice Schole had give a speech 0:11:47.400 --> 0:11:50.640 um talking about his opinion on it. It was the 0:11:50.679 --> 0:11:53.600 pledge of allegiance, and then later had to recuse himself because, yeah, 0:11:53.800 --> 0:11:55.520 he is a judge. You have to be very careful 0:11:55.840 --> 0:11:58.360 not to judge a case. So I think what he's 0:11:58.400 --> 0:12:01.400 doing is not only appropriate but acquired, and it certainly 0:12:01.400 --> 0:12:05.160 fits in the center what every UH justice has done 0:12:05.200 --> 0:12:07.720 so far. UM. I think I do agree that with 0:12:07.800 --> 0:12:10.720 Elizabeth that his statements and judicial independence have been excellent. 0:12:10.760 --> 0:12:12.760 He's been very clear no one is above the law, 0:12:13.000 --> 0:12:15.160 that includes the President of the United States, and I 0:12:15.200 --> 0:12:20.439 think his record shows exceptional, UM willingness to hold the 0:12:20.520 --> 0:12:22.960 executive accountable. So I think that's something that should really 0:12:23.000 --> 0:12:26.320 give a lot of people if they're concerned. We'll have 0:12:26.440 --> 0:12:28.040 to leave it there. I want to thank both of 0:12:28.080 --> 0:12:30.920 you for being on Bloomberg Law. That's Carrie Severino, chief 0:12:30.920 --> 0:12:34.679 council at the Judicial Crisis Network and Elizabeth Wider, President 0:12:34.720 --> 0:12:38.920 of the Constitutional Accountability Center. And coming up, we're going 0:12:38.960 --> 0:12:42.600 to talk about a Supreme Court opinion that actually came 0:12:42.679 --> 0:12:45.959 down today and it was six to two. It is 0:12:46.000 --> 0:12:49.160 about the curbing the president's power to appoint someone to 0:12:49.200 --> 0:12:50.520 fill a top government post.