[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.