[Congressional Record Volume 163, Number 41 (Thursday, March 9, 2017)]
[Senate]
[Pages S1716-S1718]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Nomination of Neil Gorsuch
Mr. GARDNER. Mr. President, I rise to support the nomination of Judge
Neil Gorsuch to the U.S. Supreme Court. Hopefully, we will see his
confirmation in the weeks to come.
As I have come to the floor and talked about before, Judge Gorsuch is
a fourth-generation Coloradan who serves on the Tenth Circuit Court of
Appeals, which is the U.S. circuit court that is housed in Denver, CO.
It is the circuit court that oversees about 20 percent of the land mass
in the States of Colorado, Oklahoma, and places in between. Once he is
confirmed to the Supreme Court, Neil Gorsuch will become the second
Coloradan to have served on the Court.
We have a great history of another Supreme Court Justice who served
on the highest Court. Associate Justice Byron White had the distinction
of being the only Supreme Court Justice to lead the NFL in rushing, and
he was also from Colorado.
If Judge Gorsuch is confirmed, Justice Gorsuch will join Byron White
as another Coloradan on the High Court. Justice Rutledge also received
his bachelor's of law degree from the University of Colorado. So we do
have a great history of Colorado westerners joining our Nation's
highest Court.
Mr. Gorsuch was confirmed to the Tenth Circuit Court a little over 10
years ago--11 years ago--in 2006, by a unanimous voice vote. He was so
popular and so well supported that there was not even a rollcall vote
taken in this Chamber. It was a simple acclamation by a voice vote. In
fact, Gorsuch's nomination hearing was deemed so noncontroversial that
the last time, Senator Graham was the only committee member to attend.
One may ask oneself what made and continues to make Judge Gorsuch
such a mainstream nominee. I do not think we need to look any further
than his original Judiciary Committee questionnaire to see that Judge
Gorsuch possesses the right temperament and the right view of the role
of judges.
I thought it was important that I read this from 11 years ago when
Judge Gorsuch was confirmed to the Tenth Circuit Court. The
questionnaire he filled out for the Judiciary Committee included then-
Neil Gorsuch's--trying to be Judge Gorsuch--response to judicial
activism and what it meant to Neil Gorsuch prior to his confirmation to
the Tenth Circuit Court.
Here is what he replied to the Judiciary Committee in that committee
questionnaire:
The Constitution requires Federal judges to strike a
delicate balance. The separation of powers embodied in our
founding document provides the judiciary with a defined and
limited charter.
Judges must allow the elected branches of government to
flourish and citizens, through their elected representatives,
to make laws appropriate to the facts and circumstances of
the day.
Judges must avoid the temptation to usurp the roles of the
legislative and executive branches and must appreciate the
advantages these democratic institutions have in crafting and
adapting social policy as well as their special authority,
derived from the consent and mandate of the people, to do so.
At the same time, the Founders were anxious to ensure that
the judicial branch never becomes captured by or subservient
to the other branches of government, recognizing
[[Page S1717]]
that a firm and independent judiciary is critical to a well-
functioning democracy.
The Constitution imposes on the judiciary the vital work of
settling disputes, vindicating civil rights and civil
liberties, ensuring equal treatment under the law, and
helping to make real for all citizens the Constitution's
promise of self-government. There may be no firmly fixed
formula on how to strike the balance envisioned by the
Constitution in specific cases, but there are many guideposts
discernible in the best traditions of our judiciary.
A wise judge recognizes that his or her own judgment is
only a weak reed without being fortified by these proven
guides.
For example, a good judge recognizes that many of the
lawyers in cases reaching the court of appeals have lived
with and thought deeply about the legal issues before the
court for months or years. A lawyer in the well is not to be
treated as a cat's paw but as a valuable colleague whose
thinking is to be mined and tested and who, at all times,
deserves to be treated with respect and common courtesy.
A good judge will diligently study counsels' briefs and the
record and seek to digest them fully before argument and then
listen with respectful discernment to the arguments made by
his or her colleagues at the bar.
A good judge will recognize that few questions in the law
are truly novel, that precedents in the vast body of Federal
law reflect the considered judgment of those who have come
before us and embody the settled expectation of those in our
own generation.
A good judge will seek to honor precedent and strive to
avoid its disparagement or displacement.
A good judge will listen to his or her colleagues and
strive to reach consensus with them. Every judge takes the
same judicial oath; every judge brings a different and
valuable perspective to the office.
A good judge will appreciate the different experiences and
perspectives of his or her colleagues and know that reaching
consensus is not always easy but that the process of getting
there often tempers the ultimate result, ensuring that the
ultimate decision reflects the collective wisdom of multiple
individuals of disparate backgrounds who have studied the
issue with care.
Throughout the process of adjudicating an appeal, a good
judge will question not only the positions espoused by the
litigants but also his or her own perceptions and
tentative conclusions as they evolve.
And a good judge will critically examine his or her own
ideas as readily and openly as the ideas advanced by others.
A good judge will never become so wedded to any view of any
case so as to preclude the possibility of changing his or her
mind at any stage--from argument through the completion of a
written opinion.
Pride of position, fear of embarrassment associated with
changing one's mind, along, of course, with personal politics
or policy preferences have no useful role in judging; regular
and healthy doses of self-skepticism and humility about one's
own abilities and conclusions always do.
This is the response that then-Neil Gorsuch, prior to his becoming
Judge Gorsuch, gave to the Senate Judiciary Committee and in response
to a questionnaire about judicial activism and about what makes a good
judge in his talking about fidelity to precedent, talking about the
ability to reach a conclusion that may be in disagreement with one's
own personal opinions, making sure that we respect the different
branches of government, making sure that one listens to one's
colleagues who are arguing a case and who have spent years in their
getting to know the case and its every detail, and scrubbing your mind
to question the positions that you thought you had to make sure that
they mesh with the law, not with opinion.
Judge Gorsuch, when he was introduced at the White House when being
nominated by the President, said that a judge who agrees with every
opinion he reaches is probably a bad judge.
The institution we serve has that fidelity to the Constitution that
we must preserve, that we must guard. Guardians of the Constitution,
which judges represent, is something we confirm. It is our job to make
sure the kind of judges we place on courts represent the kind of judge
Neil Gorsuch truly is.
It is this temperament, this fidelity to the Constitution, this
appropriate temperament, and remarkable humility that has made Judge
Gorsuch a consensus pick in the past and, I believe, that could be a
consensus pick in the near future.
It is reflected in the fact that, on February 23, Senator Bennet and
I, along with the Judiciary Committee, received a letter from
Colorado's diverse legal community in support of Judge Gorsuch's
nomination to the Supreme Court.
The letter reads as follows:
As members of the Colorado legal community, we are proud to
support the nomination of Judge Neil Gorsuch to be our next
Supreme Court Justice. We hold a diverse set of political
views as Republicans, Democrats, and Independents. Many of us
have been critical of actions taken by President Trump.
Nonetheless, we all agree that Judge Gorsuch is exceptionally
well qualified to join the Supreme Court. He deserves an up-
or-down vote.
We know Judge Gorsuch to be a person of utmost character.
He is fair, decent, and honest, both as a judge and as a
person. His record shows that he believes strongly in the
independence of the judiciary. Judge Gorsuch has a well-
earned reputation as an excellent jurist. He voted with the
majority in 98% of the cases he heard on the 10th Circuit, a
great portion of which were joined by judges appointed by
Democratic Presidents. Seven of his opinions have been
affirmed by the U.S. Supreme Court--four unanimously--and
none has been reversed.
We ask that Colorado's Senators join together and support
this highly qualified nominee from Colorado. Regardless of
the politics involved in prior confirmation efforts,
including what many consider to be the mistreatment of Judge
Garland's nomination, a filibuster now will do Colorado no
good.
Judge Gorsuch deserves a fair shake in the confirmation
process. Please vote against a filibuster and vote for Judge
Gorsuch's confirmation to the Supreme Court.
This letter from James Lyons is another such letter talking about the
importance of the confirmation of Judge Gorsuch. I couldn't agree more
with this letter and the letter that I read.
Judge Gorsuch is an exceptionally qualified jurist, to use their
words, and he deserves a fair shake in the confirmation process that
includes a timely up-or-down vote.
I ask unanimous consent that this letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
February 7, 2017.
Hon. Chuck Grassley,
Chairman, Committee on the Judiciary,
U.S. Senate.
Dear Senator Grassley: I write this letter in strong
support of the nomination and confirmation of Judge Neil
Gorsuch for Associate Justice of the United States Supreme
Court.
Judge Gorsuch has been known to me professionally for over
twenty years, and his family even longer. In the mid-
nineties, we were counsel together in successfully
representing co-defendants in a major securities matter
involving class action and derivative lawsuits in several
jurisdictions across the country as well as SEC and
Congressional investigations. Over the course of that complex
representation in the following years, I came to observe
first-hand his considerable lawyering skills, intellect,
judgment and temperament. He was one of the finest trial
lawyers with whom it has been my pleasure to be associated in
my career. We also became personal and good friends which
continued during the following years at his firm, later
during his time at the Department of Justice and since
returning to Denver to serve on the bench.
I was delighted by his appointment to the U.S. Court of
Appeals for the Tenth Circuit based here in Denver. (He
honored me by having me be one of two lawyers to introduce
him to the court at his formal investiture.) Over his years
of service on that court, he has distinguished himself with
his work ethic, keen and thorough understanding of the case
under review, his formidable analytical ability, and the
clarity of his opinions. I have read many of his opinions and
watched him in oral argument. He is engaging, courteous to
counsel and demonstrates a full and unusual appreciation for
the human impact of his decisions on the people involved.
These are the qualities of an outstanding jurist.
Judge Gorsuch has been active and an important voice in the
legal community and academy. He has written extensively,
lectured and taught in continuing legal education seminars
and served on the important federal Rules Committee, among
others. He also has found time to sit on student moot courts
and teach both ethics and federal jurisdiction at the
University of Colorado Law School. He is regularly regarded
by his students as one of their very best law professors--
effective, challenging and personable.
Judge Gorsuch's intellect, energy and deep regard for the
Constitution are well known to those of us who have worked
with him and have seen first-hand his commitment to basic
principles. Above all, his independence, fairness and
impartiality are the hallmarks of his career and his well-
earned reputation.
Sincerely,
James M. Lyons.
Mr. GARDNER. Mr. President, I look forward to working with my
colleagues across the aisle to make sure we fill this vacancy on the
Supreme Court with one of this Nation's truly brilliant legal minds.
Mr. President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
[[Page S1718]]
Mr. MORAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Kennedy). Without objection, it is so
ordered.