DAVID GREENE, HOST:
Now, Supreme Court nominees do not come to the table on their own. Before any confirmation hearing begins, they are prepped and briefed and they run through probable questioning from legal experts working on behalf of the president. This morning, Judge Neil Gorsuch begins his third day of hearings before the Senate Judiciary Committee. And one of the people who has worked to prepare him is with us in the studio. It is Leonard Leo. He's executive vice president of the Federalist Society for Law and Public Policy Studies and also an adviser to President Trump.
Thanks so much for coming in. We appreciate it.
LEONARD LEO: Thank you for having me.
GREENE: So what is, to you, the most important part of the preparation process?
LEO: Well, the most important part of the preparation process is really for Judge Gorsuch to review his record and to think very carefully about the state of the law so that when he gets to the Senate Judiciary Committee, he can talk to them and answer their questions.
GREENE: So it's familiarize yourself with yourself (laughter), I mean, it's - in a way.
LEO: That's right. You know, when you've had a 10-year career on the bench and you've participated in over 2,600 cases, there's a lot of stuff to look at.
GREENE: Yeah, that's a lot of paperwork.
LEO: And then there's about 20 to 25 areas of the law that you really just have to get yourself familiar with because you're going to get questions about everything from the big stuff we think about like abortion and religious freedom. But then today you'll get questions from senators like Senator Klobuchar on antitrust. And you just have to be up on all of that stuff. You don't want to look like an idiot.
GREENE: I guess - and that's probably one of the biggest keys, to not look like an idiot. I mean, do you game out what could make him look like an idiot and you say, this is what to avoid; these are the pitfalls?
LEO: The great thing about Judge Gorsuch is he games it out. So he's so smart that - he knows so much about the law. He has a good sense of what he has to be prepared for. But occasionally, you know, we'll tell him - look, these are the kinds of questions that normally get asked, and you should be prepared for them.
GREENE: So one of the amazing things, watching these hearings, is you have a judge who is asked time and time again to offer his opinions on all of these incredibly sensitive issues in the country like gun rights and abortion. I mean, where do you suggest to draw the line? You know, you want to answer the question. You want to look like you're being forthright. But you can't go too far, right?
LEO: I think Judge Ginsburg and Justice Scalia had it right when they were in their confirmation hearings. They basically didn't want to telegraph where they would be on any issue. So they were very willing to talk about anything they had written, and they were very willing to talk about the state of the law, the current state of the law. But beyond that, they weren't going to telegraph what their position was going to be in a future case.
And I think Judge Gorsuch has done a reasonably good job of holding that line. It's hard because he's the kind of man who wants to really be forthcoming. And I'm sure he wants to talk about these issues in a very vibrant way. But he knows he can't because he owes it to future litigants to really not predecide these cases.
GREENE: Can you peel the curtain back a tad and tell me about one moment that stands out in the prep process - where you both were, how many people were in the room?
LEO: Oh, there's no particular thing. I mean, first of all, the prep sessions are a lot more boring than people think.
GREENE: (Laughter) OK.
LEO: They're long. They're tedious. And so there's not much to talk about there. Most of the time is spent with Judge Gorsuch basically holding himself up in a room and reading binders. It's not interesting stuff. Of course before that, there's the Senate courtesy meetings. And that creates a little excitement, you know - the judge walking through Capitol Hill meeting with senators.
GREENE: And you would go with him for all those, right?
LEO: No, I didn't go with him.
GREENE: Oh, you did not. OK.
LEO: No, no.
GREENE: Was there a moment that made you nervous yesterday in those 11 hours?
LEO: I thought the questioning with Senator Durbin got a little bit tense.
LEO: You know...
GREENE: Dick Durbin...
GREENE: ...What was tense about it?
LEO: Well, it was clear that Senator Durbin was trying to pursue a line of questioning in two respects. One, he wanted some commitments on a number of different issues. But secondly, there had been some allegations by a student at the University of Colorado Law School. And, you know, Senator Durbin didn't want to cut right to it but started asking leading questions about it. And you could tell that Judge Gorsuch knew where he was going and wanted to be very honest about what happened but needed to kind of wait for the pitch. And I think that created a tense moment.
GREENE: In the few seconds we have left, a lot of Democrats are very angry that Merrick Garland, President Obama's nominee never actually got a hearing in the committee. Was that part of the prep process? Did you say, you know - look, Judge Gorsuch, you're going have some very angry Democrats on this committee?
LEO: He knew that. He knew that there'd be some angry Democrats from the Garland process. And of course, as we know, you know, Judge Gorsuch has a lot of respect for Judge Garland and knows him and called him in fact recently. So...
GREENE: And said what?
LEO: Just - you know, just called him and said hello and told him that, you know, he was looking forward to his own process. And I don't know what else they talked about, but I know they've been acquainted with each other for some time.
GREENE: That's a phone call I guess all of us would have wanted to be a fly on the wall.
GREENE: Leonard Leo is an adviser to President Trump on the Supreme Court.
Thank you so much for coming in this morning. We appreciate it.
LEO: Oh, my pleasure.
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