[Congressional Record Volume 163, Number 41 (Thursday, March 9, 2017)]
[Senate]
[Pages S1732-S1733]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Neil Gorsuch

  Mr. President, I rise to speak on the nomination of Neil Gorsuch to 
the U.S. Supreme Court.
  Later this month, Judge Gorsuch will come before the Senate Judiciary 
Committee for his confirmation hearing. I wish to speak today on what 
we can and should expect to happen during that hearing.
  First, some background. This will be the 14th Supreme Court 
confirmation hearing I have participated in. I have seen some truly 
outstanding hearings in which both the nominee and the Senators 
acquitted themselves well. I have also seen some hearings that have 
gone far off the rails, in which some Senators hurled unfounded 
allegations or sought to twist the nominee's clearly distinguished 
record. I am hopeful Judge Gorsuch's hearing will be the former type.
  We have before us a supremely qualified, highly respected, and 
extremely thoughtful nominee. Judge Gorsuch has had a stellar legal 
career, and by all accounts, he is a man of tremendous integrity, 
kindness, and respect. He is the sort of person all Americans should 
want on the Supreme Court. He does not approach cases with preconceived 
outcomes in mind. He seeks to apply the law fairly and impartially in 
line with what the democratically elected representatives who enacted 
the law had in mind. He will be a truly outstanding Justice.
  Judge Gorsuch's hearing will focus on his background, his 
temperament, and his approach to judging. So let's talk a little about 
what we know about Judge Gorsuch. We know he has an outstanding 
academic record. He graduated from Columbia University and Harvard Law 
School and obtained a doctor of philosophy in law from Oxford 
University. We know he had a highly successful legal career before 
becoming a judge.
  He clerked for two Supreme Court Justices before entering private 
practice here in Washington. He made partner in only 2 years, which 
shows how highly his colleagues at the firm thought of him and his 
work.
  Following a decade in private practice, Judge Gorsuch was appointed 
Principal Deputy Associate Attorney General at the Department of 
Justice, where he oversaw the Department's antitrust, civil, and 
environmental tax units.
  In 2006, President Bush nominated Judge Gorsuch to the U.S. Court of 
Appeals for the Tenth circuit--the circuit in which I reside. The 
Senate confirmed Judge Gorsuch unanimously by voice vote a short 2 
months later. At Judge Gorsuch's investiture, then-Senator Ken Salazar, 
who later served as President Obama's Interior Secretary, praised Judge 
Gorsuch's ``sense of fairness and impartiality.'' That fairness and 
impartiality, which was evident to my colleagues even then, was a large 
reason why Judge Gorsuch won confirmation without a single dissenting 
vote.
  Judge Gorsuch's hearing will also affect us on his temperament and 
approach to judging. No one can seriously doubt that Judge Gorsuch has 
an excellent judicial temperament. A recent article in Slate--no 
rightwing paper, by any means--described the judge as ``thoughtful and 
fair-minded, principled, and consistent.''
  The Denver Post, which twice endorsed President Obama for President 
and endorsed Hillary Clinton in this past election, also recently 
endorsed Judge Gorsuch's nomination, saying: ``From his bench in the 
U.S. Tenth Circuit Court of Appeals, he has applied the law fairly and 
consistently.''
  Clearly, Judge Gorsuch has the right temperament to serve on the 
Supreme Court.
  His approach to judging is also spot-on. Judge Gorsuch's opinions 
show that he is not only an excellent writer but also that he 
understands the proper role of a judge in our constitutional system. He 
consistently explains his reasoning by reference to fundamental 
constitutional principles. He does not seek to push the law toward the 
outcomes he favors but instead tries to apply it in harmony with the 
understanding of those who wrote and passed it. In so doing, he shows a 
healthy respect for the legislative process and for the democratically 
elected branches of government.
  As Judge Gorsuch said in a speech shortly after Justice Scalia's 
passing, ``Judges should be in the business of declaring what the law 
is, using traditional tools of interpretation, rather than pronouncing 
the law as they might wish it to be in light of their own political 
views.''
  Judge Gorsuch's opinions demonstrate that he understands 
fundamentally the importance of this principle and that he seeks 
faithfully to apply it in his own judging.
  Against this impressive list of qualifications, Democrats and their 
liberal allies strain mightily to find plausible grounds to oppose 
Judge Gorsuch's nomination. They misread his opinions, misstate his 
reasoning, and in

[[Page S1733]]

general paint a picture of a man who simply does not exist. We can 
expect more of this at his confirmation hearing. In particular, we can 
expect to be raised again and again the risible and flatly false claim 
that Judge Gorsuch is outside the ``judicial mainstream.'' These 
arguments against Judge Gorsuch are not persuasive--not even close. We 
see hints of them in the various letters liberal interest groups have 
sent Congress claiming that Judge Gorsuch is a threat to the Republic--
a danger to our very way of life. The over-the-top language these 
groups use only serves to highlight the weakness of their case against 
Judge Gorsuch.
  One such letter called the judge ``an ultra-conservative jurist who 
will undermine our basic freedoms and threaten the independence of the 
Federal judiciary.'' The letter goes on to say that there is ``zero 
evidence that Judge Gorsuch will be an independent check on this 
runaway and dangerous administration.''
  As an initial matter, I would ask: If Judge Gorsuch is such an 
existential threat to the Republic, where were all these groups 10 
years ago when he won confirmation to the Tenth Circuit unanimously? 
Did Judge Gorsuch spend the first 40 years of his life hiding what a 
monster he is, revealing his true self only once safely ensconced on 
the Federal bench?
  The outlandishness of these claims against Judge Gorsuch is made 
clear by the support he has received from prominent liberals, including 
President Obama's own Solicitor General, Neal Katyal. In an op-ed 
published in the New York Times, Neal Katyal praised Judge Gorsuch's 
fairness and decency and said that he had no doubt that, if confirmed, 
Judge Gorsuch would ``help to restore confidence in the rule of law.'' 
Katyal further wrote that Judge Gorsuch's record as a judge reveals a 
commitment to judicial independence, a record that should ``give the 
American people confidence that he will not compromise principle to 
favor the President who appointed him.''
  It bears mention here that Mr. Katyal is no shrinking violet when it 
comes to standing up to the executive branch. He rose to prominence in 
the legal community through his work representing Guantanamo detainees. 
So when he says Judge Gorsuch will not shy away from holding Federal 
officials to account, frankly, his words carry weight.
  Then there is the phrase we are likely to hear invoked again and 
again at Judge Gorsuch's hearing and beyond: ``judicial mainstream.'' 
Liberals will tie themselves in knots claiming that Judge Gorsuch is 
some sort of fringe jurist, that his views place him on the far flank 
of the Federal judiciary. Any honest observer will tell you that these 
claims are complete bunk. President Obama's Solicitor General and 
liberal publications like Slate would not offer praise for Judge 
Gorsuch if he were some kind of a nut.
  In reality, the claims that Judge Gorsuch is outside the mainstream 
boil down to three things: a willful misreading of his decisions, a 
disingenuous attempt to redefine what it means to be mainstream, and an 
inability to count. On the misreading point, opponents of Judge Gorsuch 
claim that his decisions say things that they very clearly do not say 
or stand for propositions that even a generous reading cannot 
substantiate. They say he favors large corporations over employees, 
when really he just believes Federal employment laws mean what they 
say. They say he opposes contraception and family planning, when really 
he just believes religious liberty statutes should be enforced.
  Judge Gorsuch's opponents also cite as examples of his purported 
extremism decisions that liberal Democratic appointees joined or that a 
majority of his colleagues agreed with. They will take a case in which 
more than half--or sometimes all--of the judges who heard the case 
agree with Judge Gorsuch and say the decision was outside the 
mainstream. I don't know about my colleagues, but I always thought that 
being in the mainstream had something to do with being somewhere in the 
vicinity of your peers or colleagues on a given issue. But, apparently, 
that is not what the left means.

  Rather, in their failing campaign against Judge Gorsuch, liberals 
have redefined ``mainstream'' to really mean nothing at all. It has 
become a code word for liberal, for the sorts of results that liberals 
would like to see. But being in the mainstream and being liberal are 
not the same thing, despite Democrats' fondest desires. There is such a 
thing as diversity of thought, which the left used to venerate, at 
least until the confirmation wars and the rise of the conformity cult 
on college campuses.
  So to my colleagues--and to the American people--I say: Do not be 
deceived when liberals say that Judge Gorsuch is outside the 
mainstream. He understands that the proper role of a judge in our 
constitutional system is to interpret the laws in accordance with the 
understanding of those who wrote and ratified those laws. This approach 
to judging leaves lawmaking power to the people's elected 
representatives and confines the judge's role to implementing the 
policy choices selected by those representatives. It is an approach 
consistent with our Constitution, our core values, and democracy 
itself.
  It may be at times that this approach yields results that liberals 
don't like, but that doesn't place it outside the mainstream. It cannot 
be the case that the test of whether a judge is in the mainstream is 
whether that judge reaches consistently liberal results. When the 
people's elected representatives enact into law a conservative policy, 
a judge faithfully applying that law may well reach a conservative 
result. The opposite is true when the people's elected representatives 
enact into law a liberal policy.
  All of this is to say that we cannot judge a nominee solely on the 
basis of whether we like the results he or she reaches. As Justice 
Scalia famously said:

       If you're going to be a good and faithful judge, you have 
     to resign yourself to the fact that you are not always going 
     to like the conclusions you reach. If you like them all the 
     time, you are probably doing something wrong.

  That is an interesting statement by one of the great judges, whom 
Judge Gorsuch will replace.
  Liberals want judges who will always reach liberal results, but that 
is not the role of the judge. It is the role of a legislator, and a 
judge is certainly not a legislator.
  So when you hear liberals say Judge Gorsuch is outside the 
mainstream, recognize that they are talking about results--
specifically, liberal results--and recognize that that is not the 
proper inquiry for a Supreme Court confirmation hearing.
  A Supreme Court confirmation hearing should be about the nominee, the 
nominee's experience, and whether the nominee understands his or her 
properly constrained role as a judge under our Constitution. On all of 
these metrics, Judge Gorsuch is off-the-charts qualified.
  When the good judge comes before the Judiciary Committee, listen to 
the answers he gives. Ask yourself whether what he says is consistent 
with the separation of powers and the system the Framers designed. 
Compare his measured demeanor and thoughtful responses to the 
histrionics you see from his opponents on the left.
  I have full confidence that when the hearing is over and the last 
question has been asked, Judge Gorsuch will have shown the Senate that 
he is unquestionably qualified and fully prepared to serve our Nation 
on the Supreme Court.
  With that, Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Blunt). The Senator from Delaware.
  Mr. CARPER. Mr. President, it is good to be with my colleagues and 
the chair of the Senate Finance Committee. I am pleased to say a few 
words about the President's nominee, Seema Verma, who, if confirmed, 
will lead us at the Centers for Medicare and Medicaid Services. She is 
from Indiana, and folks I know in Indiana have said that she knows a 
lot about Medicaid, but not nearly so much about Medicare, which is a 
cause for some concern.
  If confirmed, let me just say we certainly look forward to working 
with her and with the team she will have around her in that 
responsibility. It is a very tough job, as the Presiding Officer knows.