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Speaker 1: It's been almost one year since the death of Justice

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Speaker 1: anton In Scalia, but the conservative icon's presence was felt

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Speaker 1: in the East Room of the White House as President

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Speaker 1: Trump announced his nominee for the Supreme Court, Neil Gorcich,

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Speaker 1: a forty nine year old Federal Appeals Court judge in Denver,

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Speaker 1: a conservative in the mold of Justice Scalia. In accepting

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Speaker 1: the nomination, Gorstch called Justice Scalia a lion of the law,

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Speaker 1: and one part of his speech spoke volumes I respect

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Speaker 1: to the fact that in our legal order, it is

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Speaker 1: for Congress and not the courts, to write new laws.

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Speaker 1: It is the role of judges to apply, not alter,

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Speaker 1: the work of the people's representatives. A judge who likes

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Speaker 1: every outcome he reaches is very likely a bad judge,

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Speaker 1: stretching for results he prefers rather than those the law demands.

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Speaker 1: His words echoed Justice Scalia's view of the limited role

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Speaker 1: for the courts that fits in with his originalist approach

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Speaker 1: to interpreting the law. I don't like those consequences, and

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Speaker 1: they're for I should interpret it, not to do that.

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Speaker 1: I don't think that's the job of a of a judge.

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Speaker 1: The the the only objective criteria are the words that

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Speaker 1: Congress adopted and once you get away from trying to

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Speaker 1: give them their fairest meaning you're you're in trouble. If confirmed,

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Speaker 1: Gorst would restore the five to four split between conservatives

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Speaker 1: and liberals on the Court. Our guests are Willie j

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Speaker 1: a partner at Goodwin, a former clerk for Justice Scalia

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Speaker 1: and former assistant to the Solicitor General. And Neil Deppens,

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Speaker 1: a professor at William and Mary Law School and the

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Speaker 1: director of the school's Institute of the Bill of Rights.

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Speaker 1: Neil tell us about Gorst's background, Well, Gorsuch was groomed,

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Speaker 1: if you will, as many conservative justices like Justice Alito

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Speaker 1: and Robert's Reform were groomed by working in the Justice

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Speaker 1: Department with ties to the Federalist Society. Uh working his

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Speaker 1: way so speak up the ranks of those credentials and

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Speaker 1: becoming a temp circuit judge and a very good time

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Speaker 1: circuit judge. But his background um is sort of a

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Speaker 1: classic background for the type of person that President Trump

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Speaker 1: was looking for, a well credential conservative. Will are you

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Speaker 1: clerk for Justice Scalia? The President said um that he

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Speaker 1: wanted to replace Justice Scalia with someone who was a

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Speaker 1: lot like Justice Scalia, presumably somebody who's had an originalist

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Speaker 1: interpretation philosophy for the Constitution and for statutes. Has he

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Speaker 1: succeeded here in his nomination? Is Judge Gorcich basically a

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Speaker 1: younger version of Justice Scalia? Well, I don't think you

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Speaker 1: can always tell exactly what a lower court judge is

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Speaker 1: going to be like as a justice, because the roles

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Speaker 1: are somewhat different. Indeed, you can't necessary You couldn't necessarily

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Speaker 1: tell what Justice Scalio was going to be like by

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Speaker 1: looking at what Judge Scalio was like as a as

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Speaker 1: a lower court judge. But I do think that, uh,

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Speaker 1: Judge gorse is a lively writer. He's someone who is

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Speaker 1: committed to certain principles of judging that are neutral principles

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Speaker 1: that apply across the board and don't point towards planeffs

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Speaker 1: or defendants or government or private citizens. But that constrain

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Speaker 1: the role of the judge. Just as the quote from

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Speaker 1: Justice Scalia that you played at the beginning of the

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Speaker 1: segment captures and is is he a judge who has

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Speaker 1: stood out neil among Appellett judges across the country. He

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Speaker 1: has been on the tense circuit. Have his opinions been

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Speaker 1: noted or has he stood out in some way? Um?

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Speaker 1: He has both for what he has done and for

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Speaker 1: what he has not done. H. What he has not

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Speaker 1: done is got it in the middle of abortion and

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Speaker 1: some other lists of issues. UH that, like Judge prior

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Speaker 1: from the this circuit might have created a lot of

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Speaker 1: controversy about him. The controversy about Judge Gore such is

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Speaker 1: the fact that the Senate did not confirm Merrick Garland.

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Speaker 1: There's no independent controversy about Judge go himself. But what

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Speaker 1: he has done is in the area of religious liberty

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Speaker 1: in particular. UM. He UH was involved in the hobby

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Speaker 1: lobby decision, the Little Sisters of the Poor decision recognizing

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Speaker 1: broad religious freedom rights against the backdrop of Affordable Care Act.

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Speaker 1: UH challenges in the scope of protection afforded religious dissenters

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Speaker 1: to the Affordable Care Act and the contraception mandates. So

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Speaker 1: he has, if you will Bona fides with UH, you know,

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Speaker 1: religious liberty interests UM. And he has also taken a

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Speaker 1: narrow view of the judicial role with respect to statutory interpretation.

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Speaker 1: Then followed the leader Judge Scale and letting the statute

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Speaker 1: speak for itself, Willie the religious liberty cases that um

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Speaker 1: that Neil was just referring to Ray sort of an

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Speaker 1: interesting question here, and that you know, I asked about

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Speaker 1: Scalia about Scalia earlier. But in fact the judge who

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Speaker 1: many identify with the religious liberty issues most prominently is

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Speaker 1: Justice Alito, And I'm wondering are we likely to see

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Speaker 1: in Judge Gorsas if he gets confirmed a very strong

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Speaker 1: ally for Justice Alito in Justice Alito's attempts to carve

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Speaker 1: out bigger religious liberty exceptions and laws. The trouble with

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Speaker 1: painting these religious liberty cases with a with a broad

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Speaker 1: brush is that the cases like Hobby Lobby don't involve

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Speaker 1: the Constitution at all. They involve the interpretation of a

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Speaker 1: federal statute, the Religious Freedom Restoration Act, that applies to

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Speaker 1: the federal government and to a very few programs of

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Speaker 1: state governments, um, but doesn't apply across the board, And

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Speaker 1: interpreting that statute doesn't necessarily tell you what a judge

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Speaker 1: or justice would think of the free exercise clause of

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Speaker 1: the Constitution, which applies to every government program at every

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Speaker 1: at every level. And it's important to remember Justice Scalia

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Speaker 1: wrote the Supreme Court's decision taking a fairly narrow view

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Speaker 1: of constitutional religious liberty in the sense of exemptions from

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Speaker 1: generally applicable laws, and the r f R A or

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Speaker 1: Referra was adopted largely to overturn Justice Scalia's decision as

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Speaker 1: a matter of statutel, his stance on federal regulation has

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Speaker 1: been called even more radical than Scalia. In a twenty

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Speaker 1: sixteen opinion, he said federal judges should stop letting administrative

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Speaker 1: agencies have the final word on the meaning of ambiguous

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Speaker 1: statutes like the Clean Air Act. What kind of an

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Speaker 1: effect would that have on the Supreme Court if he

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Speaker 1: is in fact confirmed. Well, that's the direct and the

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Speaker 1: Court is taking. So I think it would bolster the

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Speaker 1: courts movement towards textualism. But that's a battle that's been

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Speaker 1: waged in recent years on the Court, and Justice Kagan

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Speaker 1: herself has recently said that those who favor textual approaches,

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Speaker 1: like Judge Gorsuch, are controlling where the Supreme Court is.

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Speaker 1: So um, I don't necessarily think what he would do

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Speaker 1: would be a radical transformation, but it would sort of

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Speaker 1: bolster that movement. Um and referencing the Affordable Care Act

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Speaker 1: that we were talking about just a second ago. The

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Speaker 1: Supreme Court itself, um in the Burwell case, took an

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Speaker 1: ambiguous statutory thought. We've been talking about Neil Gorsich, the

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Speaker 1: Federal Appellate Court judge from Denver who has been nominated

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Speaker 1: to the Supreme Court. And we've been talking with Willie Jay,

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Speaker 1: a partner Goodwin and a former clerk for Justice Scalia,

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Speaker 1: and Neil Devans, a professor William and Very Law School. Neil,

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Speaker 1: we were talking about the deferential role that some of

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Speaker 1: the justices show, and you were talking about the Affordable

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Speaker 1: Care Act. Why don't you pick up with that? Sure?

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Speaker 1: Just this complete the thought that with respect to interpreting

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Speaker 1: the Affordable Care Act, the Court has not deferred to agencies,

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Speaker 1: but instead has interpreted the Act on its own terms

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Speaker 1: and said that the Act has meant certain things irrespective

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Speaker 1: of what the agency itself had said. And that's the

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Speaker 1: approach that Justice scalle A champions, and that's the approach

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Speaker 1: the Judge Gore such champions for the Court to figure

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Speaker 1: out the meaning of statutory language on its own and

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Speaker 1: not deferred agencies. So I think Judge Gore Such will

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Speaker 1: be following the lead of Justice schal Lee and following

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Speaker 1: the trend that's developing in the court right now. Willie. Obviously,

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Speaker 1: one of the topics that always gets a lot of

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Speaker 1: attention when there's a nomination of the Supreme Court is

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Speaker 1: abortion and ro versus Wade in the cases that have

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Speaker 1: followed it um And the President was pretty clear during

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Speaker 1: the campaign that he was going to appoint justices who

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Speaker 1: he believed would overturn vote to overturn roe versus Wade.

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Speaker 1: Judge Gorcer's has written a book on assisted suicide and

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Speaker 1: euthanasia in which he talked about his views on the

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Speaker 1: value of life UM and came out against assisted suicide.

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Speaker 1: Does this book or anything else he's written offer us

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Speaker 1: any clues about how he might be thinking about ro

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Speaker 1: versus Wade in those cases. Well, I think that the

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Speaker 1: first and most important aspect of his judicial philosophy that

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Speaker 1: you know would be relevant to that or really any

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Speaker 1: other constitutional case, is that he seems to be applying

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Speaker 1: an originalist approach to understanding the Constitution, where in his

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Speaker 1: own understanding and his own preferences about whether, as a

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Speaker 1: matter of kind of moral philosophy or a good public

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Speaker 1: policy really are irrelevant. So even if this book gives

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Speaker 1: an indication that he thinks that protecting human life is

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Speaker 1: an important value and taking human life is a terrible thing,

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Speaker 1: uh that I don't think that is enough to tell

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Speaker 1: you what, as an originalist he thinks the Constitution has

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Speaker 1: to say on the subject. Neil, Judge Gorcitch has criticized

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Speaker 1: class actions. Has he indicated that he would be sympathetic

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Speaker 1: to business interests? Um? I'm going to agree with what

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Speaker 1: Willy has been saying that it's hard to anticipate where

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Speaker 1: a judge will wind up on these issues. Um. At

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Speaker 1: the same time, there has been a movement on the

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Speaker 1: Court to restrict class actions, and UM, you know, uh,

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Speaker 1: there is reason to suspect that Judge Gorsuch would be

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Speaker 1: sympathetic to that, but not enough to say conclusively that

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Speaker 1: he would be. Well, do you you know, let's just

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Speaker 1: talk about the politics of this. You've been around the

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Speaker 1: Solicitor General's office, You've watched the court for a long time.

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Speaker 1: Do you think there's any chance that the Democrats might

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Speaker 1: not fill a buster here and that they might you know,

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Speaker 1: in fact, some Democrats might sign on with Judge Gorsitch,

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Speaker 1: who does have a respectable record. According to both of you,

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Speaker 1: he certainly has an exemplary record. And I was a

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Speaker 1: staffer for the Senate Judiciary Committee when the current Chief

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Speaker 1: Justice John Roberts was nominated and confirmed UH, and I

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Speaker 1: have to say that this nomination reminds me a lot

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Speaker 1: of about that. UM. You have a nominee with stellar

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Speaker 1: professional characteristics, someone who comes across as a smart, fair, modest,

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Speaker 1: and humble individual. I think he's going to do very

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Speaker 1: well in front of the Judiciary Committee. And at the

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Speaker 1: end of the day, UH, the Democratic Caucus in the

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Speaker 1: Senate split right down the middle on John Roberts. And

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Speaker 1: it's been reported that President Obama, who was then a Senator,

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Speaker 1: even thought about voting for UH then Judge Roberts and

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Speaker 1: had to be talked out of it by his staff.

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Speaker 1: So I think that it's very likely that Judge Gorcer

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Speaker 1: just going to do a very good job in front

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Speaker 1: of the Judiciary Committee, and that opposition, while not going

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Speaker 1: to well, well, it's not going to evaporate, UH, probably

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Speaker 1: will not be strong enough to unite the Democratic Conference

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Speaker 1: in opposition. Thank you both for being on Bloomberg Law.

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Speaker 1: That's Willie J. A partner at Goodwin and Neil Devans,

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Speaker 1: a professor at William and Mary Law School,