On the recordMarch 14, 2017
I thank Senator Grassley. The Senator's question really cuts to the heart of the issue. It cuts to the heart of the very reasons why we have an independent judiciary and exactly why it is that our system of government that operates under the U.S. Constitution depends so critically on individuals just like Judge Gorsuch. It depends on people like Judge Gorsuch sitting on the Federal bench. There are, I believe, two fundamental differences between the judiciary on the one hand and the two political branches on the other hand; that is, the two branches in which people serve after being elected to office, meaning the legislative branch where we work, and the executive branch headed by the President. First, the legislative and executive powers sweep far more broadly than does the judicial power. Article I enumerates a list of lawmaking powers that are granted to Congress, and article II vests executive power in the President. By comparison, the judiciary's power is far more circumscribed. It is far more limited. The judiciary has the power to decide only a limited and defined set of disputes--those that qualify as cases and controversies under article III of the Constitution. To be clear, in the context of deciding a particular case, the judiciary has the power to invalidate an act put in place by the elected branches of government--the power to say what the law is, as Chief Justice John Marshall explained it in the landmark case Marbury v. Madison. But that power is limited.…
