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Speaker 1: You're listening to Bloomberg Law. Judge Neil Gorsich goes before

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Speaker 1: a Senate panel next week on his nomination to the

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Speaker 1: Supreme Court. The hearing will mark the first time the

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Speaker 1: public has heard from Gorsis since he stood beside President

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Speaker 1: Trump took up the nomination on January one. Our guest

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Speaker 1: today is one of the senators who will have a

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Speaker 1: chance to ask questions of coursers next week. He is

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Speaker 1: Senator Mike Lee, a Republican from Utah. Senator, Thank you

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Speaker 1: for joining us. Thank you, it's going to be with you.

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Speaker 1: So you you've said Judge gors would make a great

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Speaker 1: Supreme Court justice. Democrats said the same thing about Merrick Garland.

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Speaker 1: Both very well respected, great qualifications. Given that Republicans blocked

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Speaker 1: a vote on Merrick Garland, is there any reason a

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Speaker 1: Democrat should support Neil Gorcich. Well, he's a good judge,

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Speaker 1: and I know people have the same thing to say

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Speaker 1: about Merrick Garland. At the time, there were reasons behind

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Speaker 1: the fact that Merrick Garland didn't get confirmed, including the

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Speaker 1: fact that we were in the final year of President

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Speaker 1: Obama's administration and we were just a few months away

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Speaker 1: from a presidential election that the American people knew would

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Speaker 1: decide important issues regarding the future of our country. So,

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Speaker 1: particularly for those who supported Merrick Garland, I would say

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Speaker 1: to them, take a look at Judge Corse, which this

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Speaker 1: was not his judgment call whether or not Merrick Garland

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Speaker 1: should be confirmed. Take a look at him. Judge him

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Speaker 1: based on his own merits, and I think they'll like

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Speaker 1: what they see. Senatorally, President Trump has disparaged federal judges

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Speaker 1: who have ruled against him. Judge Gorse will undoubtedly be

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Speaker 1: asked about that. What kind of a response do you

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Speaker 1: expect from him? I think he'll give a fair minded

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Speaker 1: judicial answer to a pointing out that there are principles

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Speaker 1: of law and are there to protect the separation of

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Speaker 1: powers between the three branches of the federal government, that

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Speaker 1: we need to do everything we can to respect those

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Speaker 1: boundaries of those limitations before them. Would you like to

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Speaker 1: hear him say something in particular there? I mean you

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Speaker 1: you come from a family that is very steeped in

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Speaker 1: and the legal profession your father was so general, your

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Speaker 1: brother is a judge. Do you do you hope to

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Speaker 1: hear him, uh, you know say that what the President

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Speaker 1: said was out of line. Well, look, he's not there

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Speaker 1: to be the president's coach. He's not there to be

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Speaker 1: the president's critic. He's been nominated not for White House

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Speaker 1: Press Secretary or Kassler or advisor to the President, but

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Speaker 1: for the Supreme Court of the United States. I suspect

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Speaker 1: he'll answer questions that are related to his judicial role

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Speaker 1: or to the role of the courts. Uh. But I

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Speaker 1: also suspect he's going to be somewhat reluctant, understandably to

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Speaker 1: comment on what the President chooses to say in a

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Speaker 1: press conference or in a tweet. Generally, you've said that

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Speaker 1: there will be no legislating from the bench with Judge Gorst.

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Speaker 1: Will you explain what you mean by that. Sure, judges

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Speaker 1: are in place not to set policy, but to say

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Speaker 1: what the law is. Alexander Hamilton explained these principles really well,

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Speaker 1: and federalists number seventy. He explained in essence that you know,

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Speaker 1: you've got the two political branches of the federal government

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Speaker 1: legislative and executive branches, or branches where elected officials stand

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Speaker 1: for election or put in office. The role of the

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Speaker 1: judiciary is different. And that discussed this at length in

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Speaker 1: a book I wrote called Our Lost Constitutions that the

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Speaker 1: role of the judiciary is to not exercise will, but

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Speaker 1: exercise judgment, meaning decide what the law actually says, what

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Speaker 1: it is that the political branches have done to set

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Speaker 1: policy and then interpret that policy when the words putting

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Speaker 1: the policy in place are in dispute. So, Senator, you know,

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Speaker 1: one phrase I used to hear a lot from conservatives

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Speaker 1: and Republicans was judicial restraint. And I don't think I

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Speaker 1: heard you say it there. But you know, when you

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Speaker 1: look back at cases like the comicare uh, particularly the

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Speaker 1: first case, uh, the Supreme Court ruling that struck down

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Speaker 1: part of the Voting Rights Act. Um, you know, efforts

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Speaker 1: to knock down gun control legislation. Uh. Do do conservatives

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Speaker 1: still believe that the Supreme Court should be exercising restraint?

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Speaker 1: I don't refer to it that way. In fact, I

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Speaker 1: refer to this in Our Lost Constitution and in any

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Speaker 1: book I wrote called Why John Roberts was Wrong about Healthcare.

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Speaker 1: It's not about restraint versus activism. I think judicial passivism

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Speaker 1: or judicial passivity is every bit as bad as judicial activism.

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Speaker 1: In other words, it's it's no better for a judge

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Speaker 1: to refrain from acting where action is warranted, and it

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Speaker 1: is for a judge to act where no action is warranted.

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Speaker 1: Both are bad. The judge's job is to decide what

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Speaker 1: the law requires, and in instances where the judges called

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Speaker 1: upon to invalidate an unconstitutional law, the judge should do

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Speaker 1: so without fear of being branded an activists. The judge

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Speaker 1: should be equally fearful of being exceptionally excessively passive in

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Speaker 1: deciding questions of law before the judge. Senator Lee. Senator

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Speaker 1: Chuck Schumer has said that where Judge gorcig is particularly

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Speaker 1: vulnerable is his anti work or pro corporate record. What's

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Speaker 1: your reaction to that? If you look through Judge corsich

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Speaker 1: Is actual record. If you spend hours upon hours reading

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Speaker 1: Judge corps such opinions of as I've done, you'll see

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Speaker 1: that there's no consistent theme in his opinions other than

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Speaker 1: deciding them according to what the law requires. What you'll

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Speaker 1: see is that sometimes it's uh the the individual who

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Speaker 1: will win. Sometimes it's a little guys, sometimes it's not.

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Speaker 1: But the only consistent theme in all of his opinions

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Speaker 1: is a very careful, reasoned analysis of the law, utilizing

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Speaker 1: the tools that judge have at their disposal, utilizing the

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Speaker 1: cannons and statute or construction to decide what the law

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Speaker 1: says in a particular case. So I I challenge people

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Speaker 1: who are making uh sweeping arguments about his jurisprudence or

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Speaker 1: about what parties he would tend to favor, to uh

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Speaker 1: discuss what they actually mean by that, because that's not

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Speaker 1: the judge Corsage I see when I've read his opinions

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Speaker 1: a senator only have about thirty seconds left. But I

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Speaker 1: want to ask you about Roe v. Wade. Donald Trump

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Speaker 1: said during the campaign he would appoint pro life justices

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Speaker 1: who would automatically overturn Row. Does that description fit Neil Gorcage. Look,

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Speaker 1: every judge is going to state his or her case

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Speaker 1: when going through the confirmation process. I'm not going to

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Speaker 1: represent what any judge going through the process would do

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Speaker 1: when put on the bench. The point here is not

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Speaker 1: to identify a litmus test, not to identify a set

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Speaker 1: of policies that would be advanced by a judicial nominee,

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Speaker 1: but to identify a jurisprudential approach, one that focuses on

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Speaker 1: the law itself, one that focuses on what the Constitution

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Speaker 1: says rather than what they wish it said. So, Senator

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Speaker 1: I want to thank you very much for joining us

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Speaker 1: on Bloomberg Law talking about the Neil Gorsch nomination