DAVID GREENE, HOST:
Supreme Court nominee Neil Gorsuch's confirmation hearing has begun this hour on Capitol Hill. We're going to be following that story all day. Now, some Democrats have been poised for a battle there. Here's Senator Richard Blumenthal of Connecticut telling MSNBC what could cause him to try and stop Gorsuch's nomination.
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RICHARD BLUMENTHAL: We're talking about respect for a well-established, long accepted precedent. Roe v. Wade certainly fits that description. And that kind of out-of-the-mainstream thinking will cause me to filibuster and use every tool that I have at my disposal to block his nomination.
GREENE: Now, as the hearing approached, we reached out to a former colleague of Judge Gorsuch.
STEVE INSKEEP, HOST:
Judge Michael McConnell served with Gorsuch for years on the 10th Circuit Court of Appeals. The former judge estimates they sat together on some 50 cases.
What's a case where you disagreed?
MICHAEL MCCONNELL: One case where we disagreed had to do with a prosecution of the CEO of a large communications firm for insider trading. So the issue in this case was that the district court had at the very last minute not allowed the defendant's expert witness to testify.
INSKEEP: And then the defendant got convicted and appealed?
MCCONNELL: And then the defendant was convicted. And he was depending on his expert witness to explain to the jury an alternative reason why for his stock sales other than the possibility of insider trading. And effectively my opinion was that he was not permitted to make the defense that he's entitled to. Neil took the other view. Neil believed that his lawyers had failed to make a proper foundation for the admission of the testimony. And, you know, rules are rules.
INSKEEP: Does this reveal something of the way that Judge Gorsuch approaches the law?
MCCONNELL: I don't want to read too much into any one case. But I do think that Neil as a strong believer in reading the law to mean exactly what its words say.
INSKEEP: Who actually won the case?
MCCONNELL: His side won. It actually ended up going en banc and was a very close case.
INSKEEP: So you ended up with a dozen judges having to discuss this and a majority of them sided with Judge Gorsuch?
MCCONNELL: That's right.
INSKEEP: So did you argue with him or see him arguing with the other judges?
MCCONNELL: This case was a point of considerable contention within the court. You know, I don't specifically remember arguing with Neil. But we almost certainly did because, you know, it was much on our minds.
INSKEEP: What made this a matter of such passion within the court?
MCCONNELL: Most cases in the 10th Circuit, like most cases around courts of appeals all over the country, are unanimous. Judges take law very seriously. And when there's a disagreement, it can get passionate. Judges tend to be law nerds.
INSKEEP: (Laughter) Does Judge Gorsuch qualify as a law nerd?
MCCONNELL: He certainly does. And he is steeped in the tradition of arguing about the law, caring about the law. He is, if anything, you know, a law nerd's law nerd.
INSKEEP: What have you thought about as you've seen Democrats mount a case against Judge Gorsuch and they've cast him as no friend of the little guy and come up with a number of cases in which people who seem to be in dire need were ruled against in his court?
MCCONNELL: I think any Republican appointee, they would say exactly the same thing. The case I was describing where he and I disagreed, you know, I was on the side of the corporate CEO in an insider trading case. And he was on the other side. He tends to work across party lines. He's undoubtedly conservative, don't get me wrong. But he really is a fair minded, bipartisan - or better yet, nonpartisan - judge.
INSKEEP: This is not at all a hypothetical situation. It seems almost certain that a case is going to come before the court if he's confirmed. And it will involve the president of the United States. Do you believe that he will be willing to defy the president who appointed him if he's on that court?
MCCONNELL: You know, I have absolutely no doubt about that, as I have absolutely no doubt about that for the Democratic appointees. When you don those robes, it changes your perspective. And I think that there is no basis for concern on that score whatsoever. Judges who have come into their maturity under presidents Obama and George W. Bush are probably more acutely aware of the possibilities of executive overreach.
INSKEEP: Oh because the president has been seen as so powerful since 9/11 you mean?
MCCONNELL: I mean that both of our last two presidents pushed the envelope. And I think someone who has developed their, you know, ideas about separation of powers against that reality is very likely to be more alert to the dangers of executive overreach than perhaps someone in less tempestuous times.
INSKEEP: Judge McConnell, thanks very much.
MCCONNELL: Thank you, Steve.
INSKEEP: Former federal appeals judge Michael McConnell is now a law professor at Stanford University.
[POST-BROADCAST CORRECTION: After this piece aired, it was brought to our attention that Judge Michael McConnell misremembered the case he mentioned in the interview.
When asked to describe an example of a case where he and Judge Neil Gorsuch disagreed, McConnell mentioned a case involving Denver telecom CEO Joe Nacchio. In fact, Gorsuch had recused himself from that case.
McConnell apologizes for his memory lapse.]
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