[Congressional Record Volume 163, Number 27 (Wednesday, February 15, 2017)]
[Senate]
[Pages S1190-S1192]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Neil Gorsuch

  Mr. HATCH. Mr. President, 2 weeks ago, President Trump nominated 
Tenth Circuit judge Neil Gorsuch of Colorado to fill the vacancy left 
by the death of Supreme Court Justice Antonin Scalia. Judge Gorsuch, in 
my opinion, is the ideal choice to fill this seat. He has impeccable 
credentials and a decade-long record on the bench demonstrating a keen 
understanding of the proper role of a judge.
  Given the increasingly contentious nature of the confirmation 
process, it is not surprising that many of my colleagues on the other 
side of the aisle and their special interest group allies are 
stretching to find anything objectionable about Judge Gorsuch, no 
matter how ridiculous.
  Today, I wish to address one of their latest, most outlandish claims: 
that Judge Gorsuch would not serve as an independent check on the 
executive branch. For example, last week in Politico, Senator Schumer, 
the distinguished Senator from New York, declared in an opinion piece: 
``The most important factor in assessing a Supreme Court nominee . . . 
is whether or not the potential justice will be an independent check on 
an executive who may act outside our nation's laws and the 
Constitution.'' Senator Schumer doubled down on these comments in the 
New York Times. There, he argued that it was impossible for him to 
discern Judge Gorsuch's judicial independence when they met in person. 
Why? Because Judge Gorsuch refused to say how he would rule on specific 
issues or how he would review particular government actions. These 
misleading narratives are an irrelevant, wasteful distraction from our 
consideration of Judge Gorsuch's sterling record and the merits of 
confirming him to the Supreme Court.
  Last month, I warned that the left would use these diversion tactics 
in an attempt to discredit the President's nominee. Shortly before 
Judge Gorsuch's nomination was announced, I predicted in an opinion 
piece in the Washington Post that advocates and interest groups would 
want to know how the nominee would decide particular cases before those 
cases ever reached the Court to make sure the nominee is on the right 
team. I was right.
  Our Nation's Founders would have been embarrassed by such questions. 
Instead, the questions we ask should focus on whether the nominee will 
interpret and apply the law faithfully and neutrally no matter what the 
issue is. After all, that is what our Constitution demands.
  Our Founders are not the only ones who would be embarrassed. I have 
been in the Senate for the last dozen Supreme Court confirmations. 
Every nominee we have considered has rightly refused to answer such 
questions. Consider, for example, Justice Ginsburg's response at her 
confirmation hearing. She said:

       A judge sworn to decide impartially can offer no forecasts, 
     no hints, for that would show not only disregard for the 
     specifics of the particular case, it would display disdain 
     for the entire judicial process.

  Just last month in a speech in Arizona, Justice Sotomayor had an even 
stronger warning against asking and answering such questions. She said:

       What you want is for us to tell you how as a judicial 
     nominee we're going to rule on the important issues you find 
     vexing. . . . Any self-respecting judge who comes in with an 
     agenda that would permit that judge to tell you how they will 
     vote is the kind of person you don't want as a judge.

  So let's stop with this nonsense of trying to get Judge Gorsuch to 
prejudge issues that could come before the Court. I hope my colleagues 
appreciate the irony in asking a judge to say how they would rule on 
particular issues in order to prove that the judge is judicially 
independent. I agree with Justice Sotomayor: A nominee who will tell 
you how she would vote is the kind of person you do not want as a 
judge.
  But if judicial independence really is the most important factor, as 
Senator Schumer suggests, then this confirmation process should be the 
easiest one in the Senate's history. Over 11 years on the Tenth 
Circuit, Judge Gorsuch has consistently demonstrated in his judicial 
opinions and other writings that he deeply values the constitutional 
separation of powers between the three branches of the Federal 
Government. Judge Gorsuch understands that the Constitution gives each 
branch distinct roles: Congress makes the laws, the President enforces 
those laws, and the courts interpret those laws and the Constitution. 
The branches may act only according to the powers the Constitution 
grants them, with the remaining powers and rights reserved to the 
States and ultimately to the people.

  With respect to the power of the executive branch, Judge Gorsuch has 
a strong record of reining in actions which violate the Constitution 
and the

[[Page S1191]]

law. Perhaps the best example is his opinion in the immigration case 
Gutierrez-Brizuela v. Lynch. There, the Attorney General attempted to 
apply a new agency rule retroactively prohibiting a noncitizen from 
receiving relief under Federal immigration law. Writing for the Tenth 
Circuit, Judge Gorsuch ruled that such action exceeded the executive's 
power to enforce the law.
  In a separate opinion, he noted that there is an elephant in the 
room: the so-called Chevron deference doctrine, which requires courts 
to defer to Federal agency interpretations of the law we pass. He 
expressed constitutional concerns about Chevron deference. Judge 
Gorsuch wrote:

       [T]he fact is Chevron . . . permit[s] executive 
     bureaucracies to swallow huge amounts of core judicial and 
     legislative power and concentrate federal power in a way that 
     seems more than a little difficult to square with the 
     Constitution of the framers' design. Maybe the time has come 
     to face the behemoth.

  Judge Gorsch then proceeded to provide a textbook explanation of the 
proper separation of powers under our Constitution. As he stated, the 
Founders included a strong separation of powers in the Constitution 
because ``[a] government of diffused powers, they knew, is a government 
less capable of invading the liberties of the people.''
  As my colleagues know, I am no fan of Chevron deference. Last 
Congress, I introduced the Separation of Powers Restoration Act to get 
rid of it. As I noted when I introduced the legislation, regulators 
have taken advantage of the courts' deference under Chevron to shoehorn 
the law for their own political agenda, expanding their authority well 
beyond congressional intent. But the Constitution's separation of 
powers makes clear that it is the responsibility of the courts, not the 
bureaucracy, to interpret the law. So I am pleased Judge Gorsuch 
understands that the Constitution requires Federal judges to serve as 
an independent check on how Federal agencies interpret the laws we 
enact.
  Separation of powers is not just about ensuring that the executive 
branch performs its proper role of executing the law; separation of 
powers is also about making sure Federal judges understand their proper 
role under the Constitution. As Chief Justice Marshall famously 
explained in Marbury v. Madison, judges have a constitutional duty to 
say what the law is. Simply put, judges must be faithful interpreters 
of our laws and the Constitution.
  Under our constitutional separation of powers, it is not the role of 
Federal judges to make or change laws by imposing their own policy 
preferences. It is not their role to look beyond the law to consider 
their personal views and feelings. And it is not their role to choose 
winners and losers based on subjective beliefs that favor one group 
over another.
  In my 40 years in the Senate, I have reviewed the record of hundreds 
of nominees for the Federal bench. I don't think I have ever reviewed 
the record of a nominee who better understands his proper role under 
the Constitution than Judge Gorsuch. Consider, for example, Judge 
Gorsuch's touching tribute to Justice Scalia that was published last 
year in the Case Western Reserve Law Review. In that speech, Judge 
Gorsuch eloquently explained how judges should not be in the business 
of ruling in ways that reflect their own political views or policy 
preferences. Judges, after all, are not elected legislators. Instead, 
judges should interpret the law as written. They must start with the 
text of the statute and then utilize the traditional tools of statutory 
interpretations to discern the meaning of any particular law.
  Judge Gorsuch understands, to borrow from Alexander Hamilton, that 
the judiciary should be the least dangerous branch. These aren't just 
words; Judge Gorsuch's judicial record confirms that he lives this 
judicial philosophy of restraint and humility.
  In an essay I published last week on SCOTUSblog, I reviewed a number 
of judicial opinions by Judge Gorsuch that demonstrate his commitment 
to the separation of powers and the proper role of a judge in our 
Federal system. I will not go through all of those cases here, but I 
ask unanimous consent that the essay be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                           [From SCOTUSblog]

   Worried About the Separation of Powers? Then Confirm Judge Gorsuch

                        (By Senator Orrin Hatch)

       Last week, President Donald Trump nominated Judge Neil 
     Gorsuch to replace Justice Antonin Scalia on the U.S. Supreme 
     Court. Judge Gorsuch is an ideal choice to fill this seat: He 
     has impeccable credentials and a decade-long record on the 
     bench demonstrating a keen understanding of the proper role 
     of a judge. Given the increasingly contentious nature of the 
     confirmation process, it is no surprise that many Democrats 
     are stretching to find anything objectionable about Judge 
     Gorsuch, no matter how ridiculous. In the current political 
     environment, they have focused much of their criticism on one 
     particularly strained argument: their claim that Justice 
     Gorsuch would not serve as an independent check on the 
     executive branch.
       Fortunately, we do not have to speculate about how Justice 
     Gorsuch would decide these kinds of cases. Judge Gorsuch has 
     consistently demonstrated in his judicial opinions and other 
     writings that he deeply values the constitutional separation 
     of powers between the three branches of the federal 
     government. Judge Gorsuch understands that the Constitution 
     gives each branch distinct roles: Congress makes the laws, 
     the President enforces those laws, and the courts interpret 
     those laws and the Constitution. The branches may act only 
     according to the powers the Constitution grants them, with 
     the remaining powers and rights reserved to the states and, 
     ultimately, to the people.
       With respect to the power of the executive branch, Judge 
     Gorsuch has a strong record of reining in unlawful overreach. 
     For instance, in Gutierrez-Brizuela v. Lynch, the Attorney 
     General had attempted to apply a new agency rule 
     retroactively to prohibit a noncitizen from receiving relief 
     under federal immigration law. Writing for the U.S. Court of 
     Appeals for the 10th Circuit, Judge Gorsuch concluded that 
     such action exceeded the executive's power to enforce the 
     law. In a separate opinion, he went one step further and 
     expressed concerns about how judge-made doctrines that 
     require judicial deference to federal agency actions--namely, 
     Chevron deference and its progeny--''permit executive 
     bureaucracies to swallow huge amounts of core judicial and 
     legislative power and concentrate federal power in a way that 
     seems more than a little difficult to square with the 
     Constitution of the framers' design.'' Judge Gorsuch then 
     proceeded to provide a textbook explanation of the proper 
     separation of powers between the three branches, concluding 
     that ``[i]t was to avoid dangers like these, dangers the 
     founders had studied and seen realized in their own time, 
     that they pursued the separation of powers. A government of 
     diffused powers, they knew, is a government less capable of 
     invading the liberties of the people.''
       Nor is Judge Gorsuch a supporter of federal judges who go 
     beyond their constitutional role in interpreting the law. As 
     Judge Gorsuch has eloquently explained, ``judges should be in 
     the business of declaring what the law is using the 
     traditional tools of interpretation, rather than pronouncing 
     the law as they might wish it to be in light of their own 
     political views, always with an eye on the outcome, and 
     engaged perhaps in some Benthamite calculation of pleasures 
     and pains along the way.'' It is not judges' role to make or 
     change laws by imposing their own policy preferences instead 
     of what Congress actually passed. It is not their role to 
     look beyond the text of the law to consider their personal 
     views and feelings. And it is not their role to choose 
     winners and losers based on subjective beliefs that favor one 
     group over another. Judge Gorsuch's opinions reinforce his 
     judicial philosophy of restraint and humility and his proper 
     understanding--to borrow from Alexander Hamilton--that the 
     judiciary should be the ``least dangerous'' branch.
       Consider, for example, United States v. Games-Perez. There, 
     the 10th Circuit upheld a conviction for possession of a 
     firearm by a felon. The criminal defendant argued that he was 
     unaware that he was a convicted felon, but the court rejected 
     this argument as foreclosed by the court's prior precedent. 
     Judge Gorsuch penned a separate opinion. He agreed that the 
     court was bound by its own precedent, but he wrote separately 
     to urge the court to reconsider its precedent in light of the 
     plain text of the statute that requires the government to 
     prove the defendant knew he was a convicted felon. As Judge 
     Gorsuch explained, ``we might be better off applying the law 
     Congress wrote than the one [the court] hypothesized. It is a 
     perfectly clear law as it is written, plain in its terms, 
     straightforward in its application.'' He continued: ``Of 
     course, if Congress wishes to revise the plain terms of [the 
     statute], it is free to do so anytime. But there is simply no 
     right or reason for this court to be in that business.''
       Sometimes a judge is asked to consider the proper 
     separation of powers between all three branches. For 
     instance, in Hobby Lobby Stores, Inc. v. Sebelius, the 10th 
     Circuit considered whether certain regulations issued by the 
     U.S. Department of Health and Human Services under the 
     Patient Protection and Affordable Care Act violated the 
     plaintiffs' rights under the Religious Freedom Restoration 
     Act. In particular, the plaintiffs argued that the 
     regulations' health

[[Page S1192]]

     insurance mandate for employers violated RFRA's statutory 
     protections on religious freedom by forcing employers to 
     provide health insurance coverage for abortion-
     inducing drugs and devices. Judge Gorsuch's opinion explained 
     why the owners of one of the plaintiff companies were 
     entitled to relief under RFRA. As an initial matter, he noted 
     that the owners' ``religious convictions are contestable'' 
     and that ``[s]ome may even find [their] beliefs offensive,'' 
     but that RFRA ``does perhaps its most important work in 
     protecting unpopular religious beliefs.''
       Judge Gorsuch then turned to the statutory interpretation 
     question at issue and noted that the case was a ``tale of two 
     statutes.'' Wrote Judge Gorsuch: ``The ACA compels the 
     [plaintiffs] to act. RFRA says they need not. We are asked to 
     decide which legislative direction controls.'' To decide 
     which statute controlled, he did not defer to the executive 
     branch's position on the matter. Nor did he seek to impose 
     his own policy preferences. To the contrary, he noted that 
     ``[t]he tiebreaker is found not in our own opinions about 
     good policy but in the laws Congress enacted.'' Because 
     ``Congress structured RFRA to override other legal mandates, 
     including its own statutes, if and when they encroach on 
     religious liberty,'' and ``because the government identifies 
     no explicit exclusion in the ACA to its dictates,'' Judge 
     Gorsuch concluded, RFRA's directive prevailed.
       Even a casual review of Judge Gorsuch's opinions should 
     eliminate any concerns my Senate colleagues may have 
     concerning his commitment to the Constitution's separation of 
     powers. In his opinions, Judge Gorsuch has resisted executive 
     branch efforts to make laws as opposed to merely enforcing 
     those laws as written. Indeed, his opinions and other 
     writings cogently make the case for this approach to 
     separation of powers in a way that finds few rivals on the 
     federal bench and reminds me much of the case Justice Scalia 
     made during his time on the Court. Judge Gorsuch, moreover, 
     has been a model of respect for the proper judicial role, a 
     judicial philosophy under which ``judges seek to interpret 
     texts as reasonable affected parties might have done rather 
     than rewrite texts to suit their own policy preferences.''
       To be sure, that Justice Gorsuch would be a fierce defender 
     of the separation of powers and the rule of law does not mean 
     his rulings will match his policy preferences, much less 
     mine. In fact, in his tribute speech to Justice Scalia last 
     year, Judge Gorsuch embraced Justice Scalia's philosophy of 
     judicial restraint: ``If you're going to be a good and 
     faithful judge, you have to resign yourself to the fact that 
     you're not always going to like the conclusions you reach.'' 
     That is precisely why Judge Gorsuch is the right choice for 
     the Supreme Court.

  Mr. HATCH. To be sure, that Justice Gorsuch would be a fierce 
defender of the separation of powers does not mean his rulings will 
match his policy preferences. As Justice Scalia wisely remarked, good 
and faithful judges will not always like the conclusions they reach in 
interpreting the law. And it certainly does not mean that his rulings 
will match my policy preferences or those of my colleagues. As I have 
repeatedly stated on this floor over decades, that is not the proper 
inquiry when we assess the qualifications of a nominee to the Federal 
bench. Federal judges must be judges, not super-legislators.
  The bottom line is, even a casual review of Judge Gorsuch's opinions 
should eliminate any concerns my colleagues may have concerning Judge 
Gorsuch's commitment to the Constitution's separation of powers. Any 
review would lead to that conclusion. In his opinions, Judge Gorsuch 
has resisted executive branch efforts to make laws as opposed to merely 
enforcing those laws. Judge Gorsuch's opinions and other writings make 
the compelling case for separation of powers in a way that finds few 
rivals on the current Federal bench.
  If my colleagues are truly concerned about the proper separation of 
powers between the three branches of government, there is a simple 
solution: Confirm Judge Gorsuch as an Associate Justice on the United 
States Supreme Court.