Why does he keep calling it Smith v. Maryland?
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Cornyn raises prayer at football games, asks Gorsuch for his views on religion in the public square and "hostility" to religion.
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"It's a very difficult area, doctrinally," Gorsuch says, b/c of the Establishment Clause and Free Exercise Clause.
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G: "Judges have to mediate to competing and important values." He says SCOTUS has struggled on the Estab Clause, explains Lemon test.
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"Lemon endures." - Neil Gorsuch
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Cornyn: Originalism and textualism! Drink x 2!
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Cornyn: If not the text, what is a judge going to be bound by? Gorsuch: "I hope it wasn't what he had for breakfast."
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"A monkey, a paddle, and the Gettysburg Address: My afternoon at the confirmation hearing of Neil Gorsuch for the Supreme Court."
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Next up: Sen. Whitehouse. He starts by asking about fact-finding by trial courts and whether that is a separation of powers issues.
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Whitehouse similarly asks about the question presented and whether narrow language is a separation of powers issue.
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Whitehouse asks about "dark money." Gorsuch says it's money not spent by a candidate or party. Whitehouse adds that it's unknown source.
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Whitehouse asks about the "campaign" to confirm Gorsuch and what he knows about it. G: "I've heard a lot about it from you, others."
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G: "I know there's a lot of money being spent on both sides." W: "I wouldn't leap to that conclusion just yet."
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W: "Do you know if your friend Mr. Anschutz is contributing?" G: "I don't." W: "Does it matter?"
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Disclosure plays important function, Gorsuch says, but adds that disclosure also "can be used as a weapon to silence people," citing NAACP.
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W: "Do you think that we on this panel out to know who is behind that (the campaign for Gorsuch)?" G: That's a matter of policy.
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Whitehouse says that Gorsuch could ask the funders of the campaign to name themselves. Gorsuch says that's "politics," and up to Congress.
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Whitehouse, on Citizens United: "They got deeply involved in politics." Gorsuch responds that the justices were trying to apply the 1st Am.
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Breaking: With Klobuchar's arrival, we have a woman here. With 13 white men.
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(One man left as I was typing, so, 12 now.)
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Whitehouse asks if G regrets the $ in the confirmation campaign. "Senator, there's a lot about the confirmation process that I regret."
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He goes on to say that Byron White's confirmation hearing lastes 90 minutes & he smoked. Whitehouse presses. "Senator, it is what it is."
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That was weird.
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It is recognized, Gorsuch says, "there may be limits when it chills expression."
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Although Gorsuch earlier said it's in Congress' hands, he now says it ends in ct: "It's a dialogue. It's a separation of powers dialogue."
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This seems important to me. He earlier was pushing back on Whitehouse by saying it was up to Congress, then says it would end up in court.
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Whitehouse asks why group opposed Garland and supported Gorsuch with millions of dollars.
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Gorsuch: "You'd have to ask them." Whitehouse: "I can't because I don't know who they are. It's just a front group."
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We now have 14 white guys and one white woman at this hearing questioning one white man up for a SCOTUS seat. Don't @ me.
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Now up: Sen. Mike Lee.
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