[Congressional Record Volume 163, Number 17 (Wednesday, February 1, 2017)]
[Senate]
[Pages S554-S556]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Nomination of Neil Gorsuch
Mr. BLUNT. Mr. President, I am proud to have a chance to speak in
support of your fellow Coloradan, Neil Gorsuch, President Trump's
nominee to be an Associate Justice of the Supreme Court.
Clearly, we all understand this is an important decision and an
important institution. The Supreme Court is the only Court specified in
the Constitution and often the final arbiter of how the Constitution
and the law is to be applied. In the history of the Court, in the
history of the country, only 112 individuals have had the honor to
serve on the Supreme Court. As we debate the qualifications and
qualities of the person who has been nominated, and I hope to see
confirmed as the 113th person to serve as an Associate Justice or a
Justice on the Court, it is really vital we understand that we have a
nominee who has a deep understanding and appreciation of the role of
the Court and the role the Court plays in our democracy.
Judge Gorsuch embodies these principles through a lifetime of
service, and he has really prepared himself in many unique ways for
this moment. He graduated from Columbia University, where he was
elected to Phi Beta Kappa and earned his law degree from Harvard Law
School. After law school, Judge Gorsuch served as a Supreme Court clerk
to two different Justices, Justice Byron White and Justice Anthony
Kennedy. It has been pointed out that if Judge Gorsuch is confirmed to
serve on the Court, he will be the first person ever to serve with
someone for whom he clerked, and hopefully he and Justice Kennedy will
have an opportunity to serve together.
After clerking on the Court, he went on to a successful career in
private law
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practice, spending 10 years litigating a broad range of complex trials
and appeals.
In 2004, just in case his Harvard law degree wasn't enough, as a
Marshall scholar, he received a doctorate in philosophy from Oxford
University.
At every point in his preparation, it has been understood he was at
the top of that preparatory activity. He has served his country in the
Justice Department, working as the Principal Deputy Associate Attorney
General. In 2006, 10 years ago, President George W. Bush nominated him
to serve on the Tenth Circuit Court of Appeals. At the time of his
nomination, the American Bar Association gave him a unanimous ``well
qualified'' rating, the highest rating. The Senate then confirmed his
nomination unanimously by a voice vote.
Today I believe the Senate has 11 Democrats serving with us who were
part of that unanimous process. In his decade on the Tenth U.S. Circuit
Court of Appeals bench, Judge Gorsuch has demonstrated a steadfast
commitment to upholding the rule of law and interpreting the
Constitution as its authors intended.
I am confident he will continue to adhere to the Constitution, apply
the rule of law, and not legislate from the bench. I think he
understands, as Justice Scalia did, that the job of a Justice of the
Supreme Court is not to decide what the law should be or what the
Constitution, in their opinion, should say but decide what the law is
and what the Constitution does say.
His keen intellect and devotion to law are very well understood and
appreciated throughout the legal profession. He has the integrity, the
professional qualifications, and the judicial temperament to serve on
the Nation's highest Court.
Mr. President, I ask unanimous consent to have printed in the Record
an editorial from earlier this week.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Denver Post, Jan. 26, 2017]
Trump Would Do Well to Consider Neil Gorsuch for Supreme Court
(By the Editorial Board)
Then-U.S. Sen. Ken Salazar, right, introduces Neil Gorsuch
at his nomination hearing to the U.S. Court of Appeals for
the 10th Circuit on June 21, 2006. Gorsuch is being
considered as a possibly replacement for the late U.S.
Supreme Court justice Antonin Scalia.
President Donald Trump is on the verge of making his most
enduring appointment to date and we are encouraged by one of
the names on his list to replace former Supreme Court Justice
Antonin Scalia.
Neil Gorsuch is a federal judge in Denver with Western
roots and a reputation for being a brilliant legal mind and
talented writer. Those who have followed Gorsuch's career say
that from his bench in the U.S. 10th Circuit Court of Appeals
he has applied the law fairly and consistently, even issuing
provocative challenges to the Supreme Court to consider his
rulings.
Liberals who dreamed of a less-conservative Merrick Garland
on the court will undoubtedly gasp at a suggestion that
Gorsuch would be a good addition to a court that has been
shorthanded for more than a year.
Gorsuch is most widely known for ruling in the Hobby Lobby
contraception case before it reached the Supreme Court in
2014. His controversial decision was upheld in a 5-4 vote.
Gorsuch wrote in the case that those with ``sincerely held
religious beliefs'' should not be forced to participate in
something ``their religion teaches them to be gravely
wrong.''
We disagreed with that ruling, saying the Supreme Court
wrongly applied constitutional protections of religious
freedom to a corporation that remained owned by a small group
of like-minded individuals.
We argued that even closely held corporations--primarily
functioning as money-making entities and not religious
institutions--shouldn't be able to opt out of the Affordable
Care Act mandate that insurance cover contraception by citing
First Amendment protections intended for individuals and
churches.
But in considering Gorsuch's body of work and reputation--
and yes, we like his ties to Colorado as well--we hope Trump
gives him the nod.
We are not afraid of a judge who strictly interprets the
Constitution based solely on the language and intent of our
nation's founders, as long as he is willing to be consistent
even when those rulings conflict with his own beliefs.
As Denver Attorney Jason Dunn, who considers himself a
longtime fan of Gorsuch, explains, his views stem ``from a
belief in a separation of powers and in a judicial modesty
that it is not in the role of the courts to make law. Justice
Scalia would put it: If you like every one of your rulings,
you're probably doing it wrong.''
A justice who does his best to interpret the Constitution
or statute and apply the law of the land without prejudice
could go fair to restore faith in the highest court of the
land. That faith has wavered under the manufactured and false
rhetoric from critics that the high court has become a
corrupt body stacked with liberals. And while Democrats will
surely be tempted to criticize the nomination of anyone Trump
appoints, they'd be wise to take the high road and look at
qualifications and legal consistency rather than political
leanings.
Gorsuch, at 49, will have years to whittle away at that
damaging lack of trust. A July 2016 Gallup Poll found that 52
percent of Americans disapproved of the way the Supreme Court
handled its job. The finding is striking, considering the
same poll in 2000 found only 29 percent of Americans
disapproved.
We could do far worse than a thoughtful graduate from
Columbia, Harvard and Oxford universities, who clerked for
two Supreme Court justices and calls Denver home.
Mr. BLUNT. I wish to share a little of that editorial where the
Denver Post says:
We are not afraid of a judge who strictly interprets the
Constitution based solely on the language and intent of our
nation's founders, as long as he is willing to be consistent
even when those rulings conflict with his own beliefs.
As Denver Attorney Jason Dunn, who considers himself a
longtime fan of Gorsuch, explains, his views stem ``from a
belief in a separation of powers and in a judicial modesty
that it is not in the role of the courts to make law. Justice
Scalia would put it: If you like every one of your rulings,
you're probably doing it wrong.''
That is similar to what you and I heard Judge Gorsuch say last night;
that a good judge doesn't rule based on what a judge likes to have
happen but what the law and the Constitution insists does happen.
Going back and continuing just one more paragraph from that Denver
Post editorial:
A Justice who does his best to interpret the Constitution
or statute and apply the law of the land without prejudice
could go far to restore the faith in the highest court of the
land. That faith has wavered under the manufactured and false
rhetoric from critics that the high court has become a
corrupt body stacked with liberals. And while Democrats will
surely be tempted to criticize the nomination of anyone Trump
appoints, they'd be wise to take the high road and look at
qualifications and legal consistency rather than political
leanings.
That is in the middle of that editorial that is now in the Record.
The Supreme Court is one of the most important legacies this
President is likely to leave. I think he made a very well-considered
and right choice in selecting Judge Gorsuch to begin shaping the long-
term view of the Court. I look forward to hearing more from the judge
as this confirmation process moves forward and to seeing him confirmed
as an Associate Justice of the Supreme Court.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, we began public hearings on the Supreme
Court nominees in 1916. Since we began those, the Senate has never
denied a hearing or a vote to a pending Supreme Court nominee--never,
since 1916 until last year.
Last year Senate Republicans waged an unprecedented blockade against
the nomination of Chief Judge Merrick Garland, a fine judge with
impeccable credentials and with strong support from both Republicans
and Democrats, a man who should be on the Supreme Court today. This is
the first time since 1916 that had ever been done. Instead, bowing to
the extreme right of their party, Republicans who knew him and who even
had said publicly before how much they respected him and how he should
be on the Supreme Court refused even to meet with him, let alone accord
him the respect of a confirmation hearing--even though the Constitution
says that we shall advise and consent and even though each one of us
has raised our hand in a solemn oath saying we will uphold the
Constitution.
So this is exactly what happened. The Republicans held hostage a
vacancy on the Supreme Court for a year so that their candidate for
President could choose a nominee. The blockade of the Merrick Garland
nomination was shameful, but I think it is also corrosive for our
system of government. Candidate Donald Trump, who verbally attacked a
sitting Federal judge in what Speaker Ryan called ``a textbook example
of a racist comment,'' encouraged Senate Republicans to ``delay, delay,
delay.'' Candidate Trump then went further. He said he would
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outsource the vetting of potential nominees to far-right organizations,
many of them lobbying organizations, that want to stack the judiciary
with ideological conservatives who are outside the mainstream. He
promised a nominee who would overturn 40 years of jurisprudence
established in Roe v. Wade. With the selection of Judge Gorsuch, it
appears as though he is trying to make good on that promise.
When we confirmed Judge Gorsuch for the Tenth Circuit Court of
Appeals--and I was a Member of the Senate at the time--I knew he was
conservative, but I did not do anything to block him because I hoped he
would not impose his personal beliefs from the bench. In fact, at his
confirmation hearing in 2006, Judge Gorsuch stated that ``precedent is
to be respected and honored.'' He said it is ``unacceptable'' for a
judge to try to impose ``his own personal views, his politics, [or] his
personal preferences.'' Yet, just last year, he tried to do that. He
called for important precedent to be overturned because it did not
align with his personal philosophy.
From my initial review of his record, that I have just begun, I
question whether Judge Gorsuch meets the high standard set by Merrick
Garland, whose decisions everybody would agree were squarely within the
mainstream. And with the ideological litmus test that President Trump
has applied in making this selection, the American people are justified
to wonder whether Judge Gorsuch can truly be an independent Justice. So
I intend to ask him about these and other important issues in the
coming months.
Republicans rolled the dice last year. They subjected the Supreme
Court and the American people to a purely political gamble. They
ignored the Constitution and did something that had never been done
before in this country.
I know President Trump likes to boast that he won the election in a
massive landslide. Well, of course he didn't. Secretary Clinton
received more than 2.8 million more votes from the American people than
President Trump. But more importantly, due to Senate Republicans'
political gambit, the U.S. Supreme Court clearly lost in this election.
This is really no way to treat a coequal branch of government, and it
is certainly not the way to protect the independence of our Federal
judiciary--something that is the bedrock of our Constitution.-
The President's electoral college victory--which was far narrower
than either of President Obama's victories--is hardly a mandate for any
Supreme Court nominee who would turn back the clock on the rights of
women, LGBT Americans, or minorities; or a nominee who would use
theories last seen in the 1930s to undermine all we have accomplished
in the last 80 years. If he follows these right-wing lobbying groups
who helped vet him for the President, if he follows what they want,
then critical programs, like Social Security and Medicare and Medicaid,
key statutes, including the Civil Rights Act, the Voting Rights Act,
and the Clean Air Act, could well be at risk.
So after nearly a year of obstruction--unconstitutional,
unprecedented obstruction--I really don't want to hear Republicans say
we now must rush to confirm Judge Gorsuch. I know the President thinks
they should, but I also wonder how seriously even he takes this. His
announcement yesterday was like he was announcing the winner of a game
show: I brought in these two people, and now here is the winner. We are
talking about the U.S. Supreme Court; treat it with the respect it
deserves.
For all of the Republican talk of Democrats setting the standard with
the confirmations of Justice Sotomayor and Kagan, they ignored the
standard they set in the shameful treatment of Chief Judge Garland. In
fact, I remember when--and I was chairman at the time--when we set the
schedule for the hearings and the vote on Justice Sonia Sotomayor, and
I remember the Republican leader rushing to the floor and saying: Oh,
this is terrible. You are rushing it. You are moving it so fast.
I pointed out that we were setting the schedule to the day--to the
day--the same as we set for Chief Justice John Roberts. So I asked the
obvious question: Are you telling me the schedule was OK for him but
not OK for her? We followed the schedule.
We need time to look at all of these nominees.
I would note, as one who has tried cases in Federal courts, as a
lawyer, and as one who has chaired the Judiciary Committee, I would say
the courts are a vital check on any administration, especially one
that, like this one, has found itself on the losing side of an argument
in Federal court in only its first week--they lost on something that a
first-year law student could have told them they were going to lose.
But with great political fanfare, the President issued an order.
Fortunately, the order was seen for what it was: No Muslims need show
up in our country.
Judge Gorsuch, to be confirmed, has to show that he is willing to
uphold the Constitution even against President Trump, even against the
lobbying groups the President had vetting him.
His record includes a decade on the Federal bench. The Judiciary
Committee must now carefully review his decisions. We have to conduct a
thorough and unsparing examination of his nomination. That is what I
will do, just as I have done for every nominee--everybody currently on
the Supreme Court and many before them. Whether nominated by a
Republican or a Democrat, I did a thorough and unsparing examination of
their nomination. The Senate deserves nothing less. More importantly,
the American people deserve nothing less.
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.