[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

[[Page S555]]

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

[[Page S556]]

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.