[Congressional Record Volume 163, Number 17 (Wednesday, February 1, 2017)]
[Senate]
[Pages S542-S543]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Neil Gorsuch

  Mr. SCHUMER. Madam President, I rise today on a matter of great 
importance to everyone in this body and everyone in America: the future 
of the Supreme Court. Last night, the President nominated Judge Neil 
Gorsuch. We in the Senate have a constitutional duty to examine his 
record robustly, exhaustively, and comprehensively, and then advise and 
consent if we see fit. We have a responsibility to reject if we do not. 
We Democrats will insist on a rigorous but fair process. There will be 
60 votes for confirmation. Any one Member can require it. Many 
Democrats already have.
  And it is the right thing to do.
  On a subject as important as a Supreme Court nomination, bipartisan 
support should be a prerequisite; it should be essential. That is what 
60 votes does.
  This is nothing new. It was a bar met by each of President Obama's 
nominations. In my mind, 60 votes is the appropriate way to go, whether 
there is a Democratic President or a Republican President, Democratic 
Senate or a Republican Senate.
  Because a 60-vote threshold is essential, those who say that at the 
end of this process, there are only two possible results--that the 
Senate will confirm this nominee or the Republicans will use the 
nuclear option to change the rules of the Senate--are dead wrong. That 
is a false choice.
  If this nominee cannot meet the same standard that Republicans 
insisted upon for President Obama's Supreme Court nominees--60 votes in 
the Senate--then the problem lies not with the Senate but with the 
nominee.
  The answer should not be to change the rules of the Senate but to 
change the nominee to someone who can earn 60 votes. Sixty votes 
produces a mainstream candidate, and the need for a mainstream, 
consensus candidate is greater now than ever before because we are in 
new territory in two ways; first, because the Court, under Chief 
Justice Roberts, has shown increasing drift to become a more and more 
pro-business, pro-special interest Court, siding more with corporations 
and employers and special interests over working and average Americans. 
This in an environment where starkly unequal concentrations of wealth 
and ever-increasing corporate power--aided and abetted by the Citizens 
United decision--has skewed the playing field even more decisively 
toward special interests and away from the American citizen. A 
mainstream nominee would help reverse that trend, not exacerbate it; 
and, second, another important reason we are in a new world here, 
making a 60-vote margin even more important than it was before--as 
important as it was before--is this: This administration, at least 
since its outset, seems to have less respect for the rule of law than 
any in recent memory and is challenging the Constitution in an 
unprecedented fashion. So there is a special burden on this nominee to 
be an independent jurist.
  Let's go over each point. First, we have a special responsibility to 
judge whether this nominee will further tip the scales on the Court in 
favor of Big Business and powerful special interests instead of the 
average American because over two decades this Court has shifted 
dangerously in the direction of Big Business and powerful special 
interests.
  According to a study by the Minnesota Law Review, the Roberts Court 
has been the most business-friendly Supreme Court since World War II. 
It is the most corporate Court in over 70 years. It was pro-corporate 
when it frequently favored forced arbitration as a way to settle 
disputes, a process that limits the ability for individuals to form a 
class and collectively go after large corporate interests; it was pro-
corporate when it repeatedly refused to hear legitimate cases where 
individuals have been harmed by faulty products, discriminatory 
practices, or fraud; and it was pro-corporate when it came down with 
one of the worst decisions in the history of the Court: Citizens 
United. By equating money with speech, the Citizens United decision cut 
right at the heart of the most sacred power in our democracy: the 
franchise of our citizens. It has poisoned our politics by allowing 
dark money to cascade into the system, entirely undisclosed.
  With absolutely no precedent, the Roberts Court came up with the 
theory that money necessarily equals speech, and under the First 
Amendment, you are allowed to put your ad on TV 11,000 times to drown 
out all others, especially average Americans. That dampens the power of 
their voices, dilutes the power of their votes. The Citizens United 
decision was the worst decision in 100 years, and it is the embodiment 
of this new era of the corporate special interests Court.
  At a time when massive inequality plagues our economy, dark money 
floods our politics, and faith in institutions is low, this rightward 
shift in the Court is an existential threat to our democracy.
  Now, more than ever, we require a Justice who will move the Court 
back in the direction of the people, not only because that is what the 
law requires but because that is what our system of government 
requires--summed up, of course, by President Lincoln's declaration that 
it is ``a government of, by, and for the people.''
  Second, we must insist upon a strong, mainstream, consensus candidate 
because this Supreme Court will be tried in ways that few Courts have 
been tested since the earliest days of the Republic, when 
constitutional questions abounded, because, again, this administration 
seems to have little regard for the rule of law and is likely to test 
the Constitution in ways it hasn't been challenged for decades.

[[Page S543]]

  Just 2 weeks in, the new administration has violated our core values, 
challenged the separation of powers, stretched the bounds of statute, 
and tested the very fabric of our Constitution in an unprecedented 
fashion. The President has questioned the integrity of our elections 
without evidence, issued legally and constitutionally dubious Executive 
actions, such as the one on immigration and refugees, and fired his 
Acting Attorney General for maintaining her fidelity to the law, rather 
than pledging obedience to the President. For that, the White House 
accused her of betrayal.
  Acting Attorney General Sally Yates offered her professional legal 
opinion, but because it contradicted the administration's position, she 
was fired, even though the very purpose of the Department of Justice is 
to be an independent check on any administration.
  We are just 13 days into this new administration. How many more of 
these dismissals will take place over the next 4 years?
  This is not even close to normal. Many of us have lived through the 
first few weeks of several administrations of both parties. This is not 
even close to normal.
  Now, more than ever, we need a Supreme Court Justice who is 
independent, who eschews ideology, who will preserve our democracy, 
protect fundamental rights, and will stand up to a President who has 
already shown a willingness to bend the Constitution.
  The Supreme Court is now the bulwark standing between a President 
who, in too many instances, has little regard for the law, for the 
separation of powers, for American ideals, for the power of the 
legislative branch, and for the sanctity of the Nation.
  Now, more than ever, we require a Justice who will fulfill the 
Supreme Court's role in our democracy as a check and balance on the 
other branches of government.
  Because this President has started out in such a fundamentally 
undemocratic way, we have to examine this nominee closely. As to the 
nominee himself, I have serious concerns about how he measures up on 
these two great issues I just described.
  First, Judge Gorsuch has consistently favored corporate interests 
over the rights of working people. He repeatedly sided with insurance 
companies which wanted to deny disability benefits to employees. In 
employment discrimination cases, Bloomberg found he has sided with 
employers a great majority of the time. In one of the few cases he 
sided with an employee, it was a Republican woman who alleged she was 
fired for being a conservative.
  He wrote in an article in 2005 that securities class actions were 
just tools for plaintiffs' lawyers to get ``free ride[s] to fast 
riches,'' ignoring the fact that these lawsuits often bring justice to 
thousands and thousands of people who have no power without the class 
action suit.
  On money and politics, he seems to be in the same company as Justices 
Thomas and Scalia, willing to restrict the most commonsense 
contribution limits.
  It seems President Trump, who has said he would be for the working 
man and woman, has not chosen someone who routinely sides with the 
average American. Instead, it seems he has selected a nominee to the 
Supreme Court who sides with CEOs over citizens.
  Second, Judge Gorsuch lacks a record demonstrating the kind of 
independence the Court desperately needs right now. He has shown a 
tendency to let ideology influence his decisions, criticizing 
``liberals'' for turning to the courts to advance policy. The irony is 
this: Those who blame liberals for legislating through the courts are 
usually activist judges themselves. In recent years, conservative 
judges have proven to be the true activists, completely reimagining the 
scope of the First Amendment through Citizens United, gutting key 
provision of the Voting Rights Act that had lasted for decades and 
decades, and attempting to roll back the established law of the land, 
Roe v. Wade.
  Judge Gorsuch has shown disdain for the use of the courtroom to 
vindicate fundamental rights, a viewpoint that should be anathema to 
anyone in the legal system but is particularly inappropriate for 
somebody who seeks a seat on the highest Court in the land. Because of 
this, women are duly worried about the preservation of their rights and 
equality, as is the LGBT community. With an administration that has 
already challenged fundamental American rights and will do so again, 
the courtroom must be a place where those rights can be vindicated.
  As Senators, we are endowed with an awesome power to judge whether 
this man, Judge Gorsuch, has the right to a title that is higher than 
all the others in our judicial system, the title of ``Justice.''
  Therefore, we must be absolutely certain that this person is a 
strong, mainstream candidate who has respect for the rule of law and 
the application of basic constitutional rights to all Americans, a 
deference to precedent, a nonideological approach to the Court, and the 
resolve to be a bulwark against the constitutional encroaches of this 
administration.
  Judge Neil Gorsuch, throughout his career, has repeatedly sided with 
corporations over working people, demonstrated a hostility toward 
women's rights, and, most troubling, hewed to an ideological approach 
to jurisprudence that makes me skeptical that he can be a strong, 
independent Justice on the Court. Given that record, I have very 
serious doubts that Judge Neil Gorsuch is up to the job.
  The Supreme Court now rests in a delicate balance. We cannot allow it 
to be further captured by corporate influence or bullied by Executive 
overreach.
  The Senate has a responsibility to weigh this nominee with the 
highest level of scrutiny, to have an exhaustive, robust, and 
comprehensive debate on Judge Gorsuch's fitness to be a Supreme Court 
Justice. We Democrats will ensure that it does.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Democratic leader.