[Congressional Record Volume 163, Number 43 (Monday, March 13, 2017)]
[Senate]
[Pages S1757-S1758]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Neil Gorsuch

  Mr. President, on another matter, this week is Sunshine Week. It is a 
time when we rededicate ourselves to transparency in government. It is 
important to all of us. We celebrate one of our Nation's most defining 
characteristics: that a government of, for, and by the people does not 
operate in secret. Our democracy depends on an informed public, and it 
is critical that public officials be truthful with the American people; 
yet we are not even 2 months into this Presidency, and it is clear that 
the administration is not meeting that standard.
  The Attorney General has yet to come forward and tell us whether the 
President was telling the truth when he accused President Obama of 
breaking the law and spying on him, and the President's nominees have 
shown a real and stunning indifference to the truth. His nominees to 
lead the Treasury Department, the EPA, HHS, and the Justice Department 
have all misled Congress while testifying under oath.
  I am disturbed that Senate Republicans continue to look the other 
way. At some point, they must put country over party. But as these new 
officials take control of their agencies, I remind them that our laws 
demand an open and transparent government. Last year, Congress took a 
strong step to reaffirm our commitment to an open government. We passed 
the FOIA Improvement Act, which is a bipartisan bill. I coauthored it 
with the deputy Republican leader, Senator Cornyn of Texas. It was the 
most significant reform to the Freedom of Information Act in

[[Page S1758]]

over 50 years. It codified the ``presumption of openness.'' It put the 
force of law behind the notion that sunshine, not secrecy, is the 
default setting of our government. Given what we have seen thus far 
from this administration's nominees, transparency, accountability, and 
open government are more important than ever.
  I hope next week, when the President's Supreme Court nominee will 
appear before the Senate Judiciary Committee, he provides transparent, 
truthful answers to Senators' questions.
  I will insist on real answers from Judge Neil Gorsuch because there 
are real concerns about his record and his judicial philosophy. Judge 
Gorsuch went to some of the world's best universities--Columbia, 
Harvard, Oxford--so it is not surprising that he knows how to make a 
good impression, but that cannot be the standard for a Supreme Court 
nominee. The U.S. Senate cannot simply rubberstamp a nominee because he 
went to the right schools and looks good on TV.
  Neil Gorsuch has been a judge for over 10 years, and it is clear from 
his writings on and off the bench that he has a well-developed judicial 
philosophy. He appears to strongly identify as an originalist, in the 
mold of Justice Scalia or Justice Thomas. It has been more than 25 
years since an originalist was nominated to the Supreme Court, so I 
expect that Senators will want to understand how Judge Gorsuch would 
apply his philosophy to the cases that would come before him, if he is 
confirmed to the Supreme Court. Would he rule in the same way as 
originalists like Justice Scalia, Justice Thomas, and Judge Bork, who 
have been deeply hostile to the individual rights and liberties 
protected by our Constitution? I want to hear directly from him on this 
important question.
  It is one thing for legal academics to debate their preferred 
theories, including originalism. But the Supreme Court is not a 
debating society that deals in abstractions--its decisions affect every 
one of us. Our Federal courts are where Americans go to have their 
rights vindicated, whether against big corporations or the government 
itself. Our Federal courts do not exist so that judges have a place to 
propound their particular philosophies.
  I want to make sure that Judge Gorsuch understands that distinction, 
and I want to understand just how his philosophy would have been 
applied to important cases. For example, how would someone with his 
philosophy have ruled in cases upholding fundamental rights, such as 
Miranda rights, a woman's right to make her own medical decisions, and 
marriage equality?
  We also cannot ignore the fact that Judge Gorsuch was nominated by 
President Trump only after being vetted by extreme interest groups who 
did all of that in secret. They are certainly not transparent. It is 
alarming and unprecedented for a President to outsource the nomination 
process in this way. The President's top adviser then assured attendees 
at a conservative conference that they knew Judge Gorsuch has ``the 
vision of Donald Trump.'' That is the same Donald Trump, of course, who 
called the media the ``enemy of the American people.'' The President 
could not be more wrong.
  As we note during Sunshine Week, our Constitution provides for the 
freedom of the press because a democracy cannot survive without it. 
Citing James Madison, the Supreme Court in New York Times v. Sullivan 
described the ``public discussion of the stewardship of public 
officials'' as ``a fundamental principle of the American form of 
government.''
  It was Supreme Court Justice Louis Brandeis, a staunch believer in 
open government, who famously said that sunlight is the best 
disinfectant. It is often the press that shines the sunlight in dark 
corners where we need it most. It serves as a critical check on our 
government. It shines a light on corruption, exploitation, and excess. 
My parents owned a weekly newspaper before they started their printing 
business. I was brought up to believe in the importance of the First 
Amendment. I question whether a Justice with ``the vision of Donald 
Trump'' would uphold the freedom of the press.
  Sunshine Week's emphasis on transparency will not be just this week; 
it should continue into the hearings next week. The Supreme Court has 
been the least transparent part of our government, and these hearings 
will be one of the only opportunities for the American people to get a 
glimpse into the institution that protects their most essential rights. 
There are real questions about the kind of Justice Neil Gorsuch would 
be. He needs to answer them openly and honestly, not with the kinds of 
dodges and misrepresentations we have heard from other Trump nominees.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded
  The PRESIDING OFFICER. Without objection, it is so ordered.