Questions for the Record for Senator Patrick Leahy,
Senate Judiciary Committee,
Hearing on the Nomination of The Honorable Neil M. Gorsuch
to be an Associate Justice of the Supreme Court of the United States
March 24, 2017

1.

During your hearing, I asked you whether the First Amendment prohibits the President
from imposing a blanket religious litmus test for entry into this country. I was
disappointed that you refused to answer this basic constitutional question. You instead
stated that this relatively straight-forward tenet of constitutional law “is currently being
litigated actively” and you did not want to discuss further. In my view, this question is
no different than whether the Constitution permits a police officer to compel a
warrantless search of one’s home without an investigative justification. The question
may be litigated at some point, but I suspect you would not hesitate to answer the
question now.
I also asked Jameel Jaffer, who appeared as an outside witness in connection with your
nomination, whether the First Amendment permits a religious litmus test for entry into
this country. He responded with an unequivocal: “Of course not.” Mr. Jaffer then stated
that the “bigger concern” is that you refused to answer this question. I agree.
Does the Constitution allow the President to impose a religious litmus test for entry into
the United States?

2.

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During your hearing, I asked you whether there was any circumstance in which the
President could violate a statute passed by Congress to authorize torture or warrantless
surveillance of Americans. You declined to answer my question. You stated: “[W]e
have courts to decide these cases for a reason, to resolve these disputes.” 1 I am troubled
that you declined to express any opinion about whether the President has the power to
violate laws passed by Congress.
a.

Justice O’Connor famously wrote in her majority opinion in Hamdi v.
Rumsfeld that: “We have long since made clear that a state of war is not a
blank check for the President when it comes to the rights of the Nation’s
citizens.” 2 In a time of war, do you believe that the President has a
“Commander-in-Chief” override to authorize violations of laws passed by
Congress or to immunize violators from prosecution?

b.

In response to my question, you said: “I would approach it as a judge through
the lens of the Youngstown analysis.” To be clear, if confirmed, would you
follow the framework outlined in Justice Jackson’s concurrence in

Gorusch Hearing Transcript Day 3, March 22, 2017, at 48-49.
Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004).

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 Youngstown Sheet & Tube Co. v. Sawyer 3 when deciding cases regarding the
scope of the presidential power in wartime?
3.

In Hamdan v. Rumsfeld, the Supreme Court recognized that the President “may not
disregard limitations the Congress has, in the proper exercise of its own war powers,
placed on his powers.” 4 Do you agree that the Constitution provides Congress with its
own war powers and Congress may exercise these powers to restrict the President – even
in a time of war?

4.

In Hamdan v. Rumsfeld, the Supreme Court also made clear that the Geneva Conventions
applies to all enemy combatants detained by the United States. Do you agree that
Common Article III of the Geneva Conventions applies to those fighting on behalf of
non-state actors in any armed conflict?

5.

Many are concerned that the White House’s denouncement of “judicial supremacy” was
an attempt to signal that the President can ignore judicial orders. And after the
President’s first Muslim ban, there were reports of Federal officials refusing to comply
with court orders.
a.

If a President refuses to comply with a court order, how should the courts
respond?

b.

Is a President who refuses to comply with a court order a threat to our
constitutional system of checks and balances?

6.

In a 2011 interview, Justice Scalia argued that the Equal Protection Clause does not
extend to women. 5 Do you agree with that view? Does the Constitution permit
discrimination against women?

7.

Was Justice Scalia right when he said that the 2003 decision striking down a ban on
consensual sex between men was part of the “homosexual agenda,” which he said was
trying to “eliminat[e] the moral opprobrium that has traditionally attached to homosexual
conduct”? 6

8.

Justice Kennedy spoke for the Supreme Court in Lawrence v. Texas when he wrote:
“liberty presumes an autonomy of self that includes freedom of thought, belief,
expression, and certain intimate conduct,” and that “in our tradition, the State is not
omnipresent in the home.” Do you believe the Constitution protects that personal
autonomy as a fundamental right?

3

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006) (“Whether or not the President has independent power, absent
congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in
proper exercise of its own war powers, placed on his powers.”).
5
http://www.huffingtonpost.com/2011/01/03/scalia-women-discrimination-constitution_n_803813.html
6
Lawrence v. Texas, 539 U.S. 558 (2003) (Scalia, J., dissenting).
4

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 9.

You are a proponent of the view that the Constitution should be interpreted based on the
original public meaning of its text. When faced with a case where precedent points
clearly toward one outcome, but your understanding of the Constitution’s original public
meaning points in the opposite direction, which side wins?

10.

Since I have been voting on Supreme Court nominations, I can think of only three
nominees who were originalists in the same way you have been described: Justice Scalia,
Judge Bork, and Justice Thomas.

11.

a.

How do you compare your approach to interpreting the Constitution to those
jurists?

b.

In what ways does your judicial philosophy differ from theirs?

Many originalists like Justices Scalia and Thomas, and Judge Bork, have been critical of
decisions like Roe and Griswold that recognized and relied on the right to privacy. They
have argued that it was not explicitly in the Constitution, and so it is not on a par with
specifically enumerated rights such as freedom of speech or trial by jury. But as Justice
Breyer told this Committee, the Ninth Amendment “says do not use that fact of the first
eight to [conclude] that there are no others.” 7
a.

Does the Ninth Amendment mean that the Constitution protects unenumerated
rights, including the right to privacy?

b.

When is it appropriate for the Court to recognize unenumerated rights?

12.

In Shelby County v. Holder, a narrow majority of the Supreme Court struck down a key
provision of the Voting Rights Act. Soon after, several states rushed to exploit that
decision by enacting laws making it harder for minorities to vote. The need for this law
was revealed through 20 hearings, over 90 witnesses, and more than 15,000 pages of
testimony in the House and Senate Judiciary Committees. We found that barriers to
voting persist in our country. And yet, a divided Supreme Court disregarded Congress’s
findings in reaching its decision. As Justice Ginsburg’s dissent in Shelby County noted,
the record supporting the 2006 reauthorization was “extraordinary” and the Court erred
“egregiously by overriding Congress’ decision.” 8 When is it appropriate for the Supreme
Court to substitute its own factual findings for those made by Congress or the lower
courts?

13.

When I asked you about Citizens United and concerns about corruption, you said, “I think
there is lots of room for legislation in this area that the Court has left. The Court indicated
that if, you know, proof of corruption can be demonstrated, that a different result may be
obtained on expenditure limits.” You then added, “And I think there is ample room for
this body to legislate, even in light of Citizens United, whether it has to do with
contribution limits, whether it has to with expenditure limits, or whether it has to do with

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8

Nomination of Stephen G. Breyer, United States Senate Committee on the Judiciary, Hearing Transcript, at 268.
Shelby Cty. v. Holder, 133 S. Ct. 2612, 2652 (2013) (Ginsburg, J., dissenting).

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 disclosure requirements.” However, Citizens United states that “we now conclude that
independent expenditures, including those made by corporations, do not give rise to
corruption or the appearance of corruption.” In the Bullock case in 2012, the same five
justices who decided Citizens United overturned a Montana Supreme Court ruling, and
refused even to consider a record showing that “independent expenditures by
corporations did in fact lead to corruption or the appearance of corruption in Montana.”

14.

a.

What “room for legislation” were you referring to?

b.

What types of expenditure limits would be consistent with Citizens United?
Or did you misstate the holding of Citizens United?

The Supreme Court is a separate and co-equal branch of government, but that does not
mean it is not subject to important Congressional oversight. For example, Congress
appropriates the Court’s budget and requires that justices file financial disclosure reports
annually. But justices are not required to adhere to the same ethics rules as Members of
Congress and the President’s cabinet, this includes adhering to travel and stock
ownership disclosures. This raises legitimate questions about whether Justices are
recusing themselves from cases where they may have outside interests.
a.

Is it a problem in your view that justices are not held to the same disclosure
requirements as Members of Congress?

b.

Does Congress have the authority to fix it?

15.

Justice Kennedy wrote in Planned Parenthood v. Casey that “At the heart of liberty is the
right to define one’s own concept of existence.” 9 You have suggested that the personal
autonomy rights protected by the Constitution include only those rooted in “history and
custom.” In cases that struck down laws discriminating against LGBT Americans,
including the 2015 case upholding marriage equality, Justice Kennedy argued that while
“history and custom guide” the inquiry into what fundamental rights or personal
autonomy are protected, they “do not set its outer boundaries.” 10 If majorities of the
Supreme Court had endorsed your more limited view of fundamental rights, as expressed
in your book, rather than Justice Kennedy’s view, would laws discriminating against
LGBT Americans still be on the books?

16.

In her concurring opinion in United States v. Jones, Justice Sotomayor questioned the
continued applicability of the third-party doctrine with respect to Americans’ electronic
data. She stated that this doctrine of Fourth Amendment jurisprudence is “ill-suited to
the digital age” when “people reveal a great deal of information about themselves to third
parties in the course of carrying out mundane tasks.” Justice Sotomayor argued that
Americans’ digital information “can attain constitutionally protected status only if our
Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.” 11

9

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992).
Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).
11
United States v. Jones, 565 U.S. 400, 417 (2012) (Sotomayor, J., concurring).
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 17.

a.

Do you agree with Justice Sotomayor’s statement?

b.

Do you believe that the third-party doctrine is a logical way to assess Fourth
Amendment protections for Americans’ digital information?

In connection with your nomination to the U.S. Court of Appeals for the Tenth Circuit in
2006, you were asked a series of questions related to medical aid in dying. Following
your nomination, you published a book entitled, The Future of Assisted Suicide and
Euthanasia, in which you concluded that “the Court’s decisions seem to assure that the
debate over assisted suicide and euthanasia is not yet over – and may have only
begun.” 12
The contents of your book raise questions, especially considering precedent that includes
the Supreme Court’s unanimous decision in Washington v. Glucksberg that deferred to
States on this issue. The Court has stated, “Americans are engaged in an earnest and
profound debate about the morality, legality, and practicality of physician assisted
suicide. Our holding permits this debate to continue, as it should in a democratic
society.” 13 To date, at least six states, including Vermont, have authorized medical aid in
dying, and many more have continued to consider questions related to this issue.

18.

a.

Do you agree with the Supreme Court’s decisions in Washington v.
Glucksberg and Gonzales v. Oregon 14?

b.

Do you believe that questions related to medical aid in dying should be left to
each State?

In Allstate Sweeping v. Black, you joined a unanimous decision rejecting a company’s
hostile work environment claim. That decision stated, “Being offended presupposes
feelings or thoughts that an artificial entity (as opposed to its employees or owners)
cannot experience.” 15 Yet in Hobby Lobby you joined a decision holding that large, forprofit corporations could have religious views, and that those religious views could limit
health insurance access for employees. 16
a.

How do reconcile your divergent views in those cases?

b.

Given that the contraception mandate is a law of general applicability, why
should a woman’s access to contraception be dependent not on the duly
enacted law, but instead on her boss’s views?

12

https://www.washingtonpost.com/news/morning-mix/wp/2017/02/01/neil-gorsuch-wrote-the-book-on-assistedsuicide-heres-what-he-said/?utm_term=.266f9647bee0
13
Washington v. Glucksberg, 521 U.S. 702, 735 (1997).
14
Gonzales v. Oregon, 546 U.S. 243 (2006).
15
Allstate Sweeping v. Black, 706 F.3d 1261, 1268 (10th Cir. 2013) (emphasis in original).
16
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1152 (10th Cir. 2013).

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 19.

In 2010, you wrote a unanimous panel decision in United States v. Pope, in which the
defendant challenged the federal statute making it a felony for those convicted of
misdemeanor domestic violence to own a gun. 17 You upheld a dismissal of the case on
procedural grounds, yet you made it abundantly clear in your opinion that you considered
it an open question whether the government can legally prevent those who commit
domestic violence from owning guns. Last year, in Voisine v. United States, the Supreme
Court held that even those guilty of reckless domestic violence can be barred from gun
ownership. 18 Do you recognize Voisine as settled law? Or do you think it is still an open
question whether domestic violence offenders can own guns?

20.

In 2013, Congress passed the Leahy-Crapo Violence Against Women Reauthorization
Act. Consistent with a 1978 Supreme Court decision, we granted jurisdiction to Native
American tribal courts to try domestic and sexual offenses that occur on tribal land. That
now means non-Indian abusers are no longer able to slip between jurisdictional cracks
with impunity. They will be held accountable where they commit the offense. And we
crafted the law to ensure that such defendants will have the same due process rights they
have under the Constitution. In United States v. Lara, the Court held that that “the
Constitution authorizes Congress to permit tribes, as an exercise of their inherent tribal
authority, to prosecute non-member Indians.” In light of the Supreme Court’s decision in
Lara, do you believe that it is unconstitutional for tribal courts to have jurisdiction over
non-Indians even where Congress authorizes such jurisdiction?

21.

On behalf of Senator Ron Wyden:
In your 2006 book The Future of Assisted Suicide and Euthanasia, you argue that the
Supreme Court’s decision in Gonzales v. Oregon did not settle whether Oregon’s Death
with Dignity law violates the Constitution’s equal protection guarantee.
Our Constitution guarantees the people fundamental rights, the full scope of which, as
Justice Harlan once wrote, “cannot be found in or limited by the precise terms of the
specific guarantees elsewhere provided in the Constitution.” This exact concept is
written into the Bill of Rights itself. The Ninth Amendment says: “The enumeration in
the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people.” Those fundamental rights guaranteed by the Constitution were
never intended to be limited to the specific terms of the first eight amendments to the Bill
of Rights. The existence of additional fundamental rights not enumerated in the first
eight amendments to the Constitution have also been re-affirmed by the Supreme Court.

17
18

a.

Is it your view that our Constitution grants individuals the right to make
decisions about their own lives and families without interference from the
state?

b.

Your record over the last ten years suggests that your personal beliefs often
bleed into your legal analysis. Your decisions suggest that you are not able to

United States v. Pope, 613 F.3d 1255 (10th Cir. 2010).
Voisine v. United States, 136 S. Ct. 2272, 2277 (2016).

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 act independently of the conservative causes that you support. If a case were
to come before you, would you be able to consider it without bias?
c.

As you stated in your book, do you believe that Oregon’s law fails to provide
equal protection because it is not reasonable to rest legal distinctions between
the terminally ill and the healthy on professional medical judgments about
quality of life and life expectancy?
If so, please elaborate on why you currently believe these judgments cannot
form the basis of a reasonable legal distinction between the terminally ill and
the healthy. If not, please explain how your views have evolved since 2006.

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