[Congressional Record Volume 163, Number 45 (Wednesday, March 15, 2017)]
[Senate]
[Pages S1849-S1851]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF NEIL GORSUCH

  Mr. HATCH. Mr. President, I rise today to once again address the 
nomination of Judge Neil M. Gorsuch to be the next Associate Justice of 
the U.S. Supreme Court.
  I am extraordinarily pleased that the President has nominated such an 
outstanding individual to fill the seat that was held by my friend, the 
late Justice Antonin Scalia, for nearly three decades.
  In the weeks since Judge Gorsuch's nomination, I have done my best to 
make the case that he is exactly the kind of Justice that we need: one 
that will--in the timeless words of Marbury v. Madison--say what the 
law is, not what he wishes the law would be.
  In my view, his outstanding credentials and his understanding of the 
proper role of a judge under our Constitution make him a choice that 
should command universal support. Unfortunately, this feeling does not 
appear to be as broadly shared as it should be.
  Leftwing activists are demanding a scorched-earth approach to Judge 
Gorsuch's nomination, and I am afraid that some of my colleagues on the 
other side of the aisle appear to have been swept up in this fervor. 
Their opposition stems from two different

[[Page S1850]]

sources and has taken two different forms.
  The first cause is the visceral reaction among some to our new 
President. After last year's bitterly fought election campaign, many on 
the left simply refuse to accept the legitimacy of the new 
administration and are dead set on all-out opposition to every 
initiative, every policy, and every nominee of this President. As a 
case in point, we are in mid-March and the President is still waiting 
for the Senate to confirm his Cabinet nominees. This hasn't happened, 
to my knowledge, in the 40 years I have been in the Senate.
  Skeptical of any nominee's willingness to hold the administration 
that nominated him accountable to the law, they are demanding 
assurances about how Judge Gorsuch would rule on the administration's 
most controversial moves.
  The Supreme Court confirmation process should not be treated as just 
another forum to litigate the wisdom and lawfulness of the new 
administration's policies. Not only does such an approach distract from 
the proper focus on the nominee's qualifications and judicial 
philosophy, but it also threatens to undermine the very independence 
Democrats claim to want in a Supreme Court Justice.
  As I have explained in detail as recently as last week, nominees of 
both parties for decades have refused to speculate on cases that may 
come before them in order to not prejudice their potential future 
judgments. Moreover, as a sitting Federal judge, Judge Gorsuch is bound 
by the code of conduct for United States judges, one of the canons of 
which prohibits a judge from making ``public comment on the merits of a 
matter pending or impending in any court.''
  In light of this longstanding, necessary, and, in Judge Gorsuch's 
case, legally mandated practice, I have found it extraordinarily 
disappointing to hear some of my colleagues try to turn on its head 
Judge Gorsuch's admirable efforts to protect his independence. For 
example, the minority leader has repeatedly castigated Judge Gorsuch 
for refusing to take a definitive stand on the legality of the new 
administration's policies, accusing him of ``avoiding answers like the 
plague.''
  For those of us of all political stripes who want a Supreme Court 
Justice who decides cases on the basis of what the law commands, rather 
than whether the result serves a particular political or policy 
agenda--be it Republican or Democrat, conservative or liberal, pro-
Trump or anti-Trump--Judge Gorsuch's refusal to prejudice his approach 
to future cases should be celebrated, not condemned.
  As Justice Sotomayor said recently: ``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.''
  Put more colorfully, there is a plague threatening judicial 
independence; here, this plague takes the form of the minority leader's 
attempt to extract these sorts of inappropriate answers, and Judge 
Gorsuch is wise to avoid that. The minority leader should know better.
  Moreover, we know the minority leader does know better, given his 
many years of service on the Judiciary Committee and, in particular, 
how he acquiesced to the same approach when now-Justices Sotomayor and 
Kagan were presented with similar timely hypotheticals during their 
confirmation processes.
  Sadly, I have little doubt that this line of attack on Judge Gorsuch 
will continue to infect the confirmation process, but we should be 
completely clear and unambiguous about what these attempts to get Judge 
Gorsuch to answer hypothetical questions about the legality of the 
administration's policies represent. They are illegitimate, partisan 
attempts to derail his nomination, cleverly shrouded in a cloak of 
alleged concern about his independence. Americans should not be under 
any illusions that these proper concerns about independence amount to 
anything else.
  To turn to the second source of opposition to Judge Gorsuch's 
nomination, one need only examine this week's New York Times heading, 
which blared: ``Democrats' Line of Attack on Gorsuch: No Friend of the 
Little Guy.''
  This same theme has been repeated by various leftwing interest groups 
and by some of my colleagues here in the Senate. They should be 
ashamed. As I have explained extensively in the past, the judge's 
critics view the judiciary as simply an extension of politics, just 
another forum to relitigate battles that they lost in the policymaking 
process. In their view, the job of a judge is not to apply the law to 
the facts dispassionately, but rather to pick winners and losers on the 
basis of the political popularity of the litigants and the policy 
consequences of the decision.
  While such an approach is antithetical to the role of a judge under 
the Constitution, it has become an entrenched article of faith for most 
of those on the left. As such, they have approached Judge Gorsuch's 
nomination in a predictable manner: cherry-picking and 
mischaracterizing his opinions as evidence of a political agenda with 
total disregard of what the law commanded in each of those cases.
  Simply put, this line of attack on Judge Gorsuch is ludicrous. Any 
reasonable analysis of his opinions shows that his decisions apply to 
laws enacted by the people's elected representatives, without regard to 
his own personal preferences. His approach manifests the Constitution's 
vision of the appropriate role of a judge that has been prominently 
embraced by Justice Scalia: ``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're probably doing something wrong.''
  Today, I want to examine just a few of the cases seized on by Judge 
Gorsuch's liberal critics to demonstrate just how unfounded their 
attacks are. Compass Environmental v. Occupational Safety and Health 
Review Commission involved a Tenth Circuit ruling against a firm for 
failing to provide adequate training to protect its employees from 
electric shock hazards. Judge Gorsuch did indeed rule in the firm's 
favor, but the case did not present the question of whether the company 
should do more to protect its workers. Rather, the case turned on the 
question of whether the Secretary of Labor satisfied the standard of 
showing any evidence to demonstrate that the firm in question was 
providing less training than what is the norm in the industry.
  One need only examine the judge's opinion to understand how that 
specific legal burden was met, reaching the same conclusion as the 
administrative law judge below.
  Next, Riddle v. Hickenlooper touches on one of the liberals' faith 
talking points: the supposed need to regulate political speech in order 
to fight money in politics. While this case has been characterized as 
some invitation for wealthy and large corporations to exert undue 
influence in politics, it actually turned on a rather narrow and 
technical question of whether a $200 disparity in the contribution 
limits for major party and write-in candidates for Colorado's State 
House of Representatives amounted to an equal protection violation.
  Judge Gorsuch joined the majority opinion of his colleagues--an Obama 
appointee, by the way--in agreeing that it did constitute such a 
violation, and then wrote a brief concurrence outlining how unclear 
Supreme Court precedent was on this particular point.
  Moreover, he stated how ``clear'' it was that ``with a little effort, 
Colorado could have achieved its stated policy objectives . . . without 
offending'' the Constitution.
  In essence, Judge Gorsuch adopted a particularly narrow position on a 
relatively minor issue in the grand scheme of campaign finance law, 
meriting none of his opponents' extrapolations about larger issues of 
political speech.
  Finally, several of Judge Gorsuch's writings have called into 
question the so-called Chevron doctrine, under which Federal courts 
defer to administrative agencies' interpretations of the law. His 
opponents have seized on this skepticism to argue that Judge Gorsuch is 
somehow reflexively opposed to regulation. Nothing could be further 
from the truth.
  These critics of Judge Gorsuch should recall that the Chevron 
deference first flourished as a reaction against liberal judges 
overturning the deregulatory actions of the Reagan administration. I 
myself am a skeptic of

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Chevron and have led the fight to overturn it with my Separation of 
Powers Restoration Act. But as the name of my legislation suggests, 
overturning Chevron is about restoring the constitutional allocation of 
powers between the three branches, maintaining fidelity to the text of 
the Administrative Procedure Act, and ensuring that the bureaucracy 
abides by the law no matter its policy goals.
  These are a few of Judge Gorsuch's opinions that have been most 
prominently mischaracterized as driven by a political agenda, when in 
reality their results are demanded by the law. Sadly, I expect that 
these mischaracterizations and inappropriate demands of Judge Gorsuch 
will continue to appear in this confirmation process. They don't have 
any better arguments, and those arguments are not only flawed, but they 
are wrong and inappropriate.
  Let me quote from a prominent liberal law professor, Harvard's Noah 
Feldman, to sum up how I think we all should feel about this strategy:

       I'm not sure who decided that the Democratic critique of 
     U.S. Supreme Court nominee Judge Neil Gorsuch would be that 
     he doesn't side with the little guy. It's a truly terrible 
     idea. . . . [S]iding with workers against employers isn't a 
     jurisprudential position. It's a political stance. And 
     justices--including progressive justices--shouldn't decide 
     cases based on who the parties are. They should decide cases 
     based on their beliefs about how the law should be 
     interpreted.

  That is a liberal law professor agreeing with me, really, and 
condemning these types of ad hominem attacks by people who know better 
or should know better.
  I urge my colleagues on the other side of the aisle to resist the 
temptation to give in to partisan and ideological pressure to engage in 
these tactics I described earlier, and I hope people will pay attention 
to what I have suggested. These are unworthy of the Senate's role, and 
they are unmerited with respect to such a stellar nominee as Judge 
Gorsuch, a man who is clearly committed to the proper, independent role 
of a judge.
  I urge all of my colleagues to join me in helping to ensure his 
speedy confirmation. This man is a decent, honorable, intelligent man 
who deserves the support of this decent, honorable, intelligent body. 
The arguments of the other side are without merit and, frankly, are 
really abysmal, and I sure hope they will reconsider and vote for this 
man who will be an excellent Justice on the U.S. Supreme Court.
  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. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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