[Congressional Record Volume 163, Number 51 (Thursday, March 23, 2017)]
[Senate]
[Pages S1963-S1965]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Neil Gorsuch

  Mr. President, it is with great disappointment that I rise to address 
the treatment of Judge Neil Gorsuch by my colleagues on the other side 
of the aisle.
  Today marks the close of his confirmation hearing, which began on 
Monday. This hearing was extraordinarily thorough, examining just about 
every facet of his record and his life.
  The nominee himself delivered an outstanding performance, enduring 
more than 20 hours of intense questioning over 2 very long days. He 
displayed an impressive command of the law and the kind of intelligence 
one expects of someone with such stellar credentials. He showed the 
proper understanding of the role of a judge in our constitutional 
system of self-government: to apply, not make, the law. He demonstrated 
this crucial quality both in his affirmative answers and in the times 
he had appropriately refused to prejudge issues that might come before 
him. Throughout, his demeanor was serious, thoughtful, and humble. 
These qualities have defined his service as a judge for the last decade 
and will serve him well on the U.S. Supreme Court.
  As for my fellow Senators, many of them approached this hearing the 
right way, posing questions that gave us real insight into the 
nominee's record and judicial philosophy. Thanks to their hard work, 
Judge Gorsuch has now been vetted as extensively as any nominee to come 
before the Senate in the whole length of my service here. I thank them 
for their careful work and good judgment.
  In particular, I want to single out my friend and colleague Senator 
Grassley. As chairman of the Judiciary Committee, he was charged with 
the monumental task of planning and executing the whole endeavor. He 
performed admirably, and we all owe him our sincere gratitude. He is 
one of the best people here, and he is totally honest and decent.
  Regretfully, I feel compelled to contrast that responsible approach 
of many of my colleagues with the actions of a number on the other side 
of the aisle. Frankly, some of the treatment of Judge Gorsuch has made 
me ill. In him, we have a man who is superbly qualified and who quite 
obviously understands how his job is to say what the law is, not what 
he wishes it might be. In fact, I do not believe any fair examination 
of the whole of his

[[Page S1964]]

record on the bench can reasonably yield any meaningful clues as to 
what his policy views are. He is the kind of nominee whom, in an ideal 
world, we should be able to confirm by universal acclamation. Yet that 
is not the sort of treatment we are seeing--far from it.
  Instead, we see a desperate campaign being waged against him to 
derail his nomination at all costs. This is the sort of approach that 
has long been advocated for by many far-left activists intent on 
attacking in their belligerent ways and stacking the courts with 
ideologues committed to imposing liberal policies without respect for 
what the law and the Constitution actually command.
  As someone with great respect for all of my colleagues--even those 
with whom I often disagree--I had hoped they would resist the siren 
song of their activist base and give Judge Gorsuch a fair shake. 
Unfortunately, I see many of them falling prey to the temptations of 
this scorched-earth approach. Whatever their motivation--be it the 
outcome of the Garland nomination, the apparent unwillingness to accept 
the results of the election, or the desire for judges to push their 
political agenda--many of them appear willing to employ tactics they 
used to recognize, rightly, as inappropriate and even dangerous. In 
doing so, they threaten to inflict lasting damage on the judiciary, the 
Senate, and our politics more broadly.
  Consider their demand that Judge Gorsuch answer politically charged 
hypotheticals about potential future cases. For decades, nominees of 
both parties have refused to comply, so much so that the practice is 
then referred to as the ``Ginsburg standard,'' after current Justice 
Ginsburg, and they had been quite right to do so. To offer an advisory 
opinion that is inconsistent with the Constitution's allocation of 
powers--which give judges the authority to decide only actual cases and 
controversies, not offer broad advisory opinions--is inconsistent with 
the core characteristic of the judicial process, which considers issues 
in the particular legal and factual context of an individual case and 
gives parties the opportunity to make their arguments in full, and it 
asks judges to prejudice themselves when they should be arbiters, 
raising serious due process concerns for future litigants who deserve a 
fair hearing.
  Having participated in 14 confirmation hearings for Supreme Court 
nominees, I fully understand the temptation to ask these kinds of 
questions. Indeed, I have seen many Senators of both parties fall prey 
to the temptation, only to have a nominee politely respond about how it 
would be inappropriate to answer.
  It is one thing to make the occasional mistake of this variety and 
move on. I have seen it happen countless times, but that is not what 
happened this week. Instead, I witnessed many of my colleagues devote 
almost their entire half hour rounds to posing these sorts of 
inappropriate questions. When Judge Gorsuch responded appropriately and 
explained his inability to answer--oftentimes with an extensive 
explanation of the rationale for doing so--he was lambasted by some of 
my colleagues for his refusal to engage in this dangerous practice.
  Worse yet, these harsh attacks came from Senators who I have seen 
gladly embrace the very same answer from nominees in the past. What 
they once demanded, they now reject. What they once avoided, they now 
embrace. Simply put, it is hard not to interpret their attacks as 
hypocrisy of the highest order.
  This is a completely illegitimate line of attack on Judge Gorsuch, 
and it should be repudiated forcefully.
  Consider also the way in which some of my colleagues misrepresented 
Judge Gorsuch's record. It involved just a few simple steps. First, 
cherry-pick one of the judge's opinions in which a sympathetic victim 
lost; next, gloss over the legal issues at hand that mandated the 
outcome Judge Gorsuch reached; then, fail to mention how he was often 
joined in these opinions by his colleagues appointed by Presidents 
Clinton and Obama; after that, fail to mention the many times Judge 
Gorsuch ruled in favor of litigants similar to the one who lost in the 
case at hand; finally, make a wild assertion and accusation about how 
that case shows how Judge Gorsuch is biased against ``the little guy.''
  We should call these phony attacks for what they are: bogus attempts 
to mischaracterize his record intentionally.
  Any fair analysis of the record Judge Gorsuch has established on the 
bench can lead to only one conclusion: He is the type of judge who will 
reach the result commanded by the best reading of the law, free from 
any political agenda.
  He follows his oath to do justice without respect to persons. As 
Judge Gorsuch himself rightfully put it, quoting Justice Scalia, ``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. If you like them all the time, you're probably 
doing something wrong.''
  There will always be times when the law produces a result we disagree 
with. That is a simple fact of life. Sometimes that is our fault for 
not writing the law better, but the appropriate response is to change 
the law, not to demand that a judge ignore the law to reach a result we 
like.
  As legislators, it is, by definition, our responsibility to change 
the law to produce better, more just results. If my colleagues think a 
law like the Religious Freedom Restoration Act is producing bad 
results, it is their right to try to change it. They can count on me 
fighting tooth and nail to protect religious liberty, but at least they 
will be doing their job as lawmakers, not shirking it and demanding 
that unelected judges do their dirty work, nor impugning the honor of 
good judges like Judge Gorsuch who refuse to ignore the law on behalf 
of a political agenda.
  In Judge Gorsuch, we have a Supreme Court nominee as fine as I could 
ever imagine. He is the type of man we all should be clamoring to step 
into the late Justice Scalia's big shoes. But instead of the best 
traditions of the advice and consent process that many of us have tried 
to live up to, what is he treated to? Hypocritical attacks on the very 
judicial independence that my colleagues on the other side of the aisle 
claim to prize above all else, misleading attacks that distort his 
record, and now a promise to filibuster his nomination by the minority 
leader. My gosh, what have we come to around here?
  I remember when Justice Ginsburg went through with only three votes 
against her and not much debate, and she refused to answer any of the 
questions that my friends on the other side were demanding of Judge 
Gorsuch and of other Republican judges. Frankly, I stuck up for her and 
felt that was the right thing for her. I have great respect for her 
because of the way she handled those proceedings and others as well. We 
didn't do this in earlier years. It has become so radical around here 
and so political around here that we are besmirching the very people 
who have become the judges in this land and are doing such a good job.
  This is a travesty of the highest order. Judge Gorsuch is a 
brilliant, decent man who has devoted his life to serving his country. 
He has done exactly what we want as a careful judge for more than a 
decade. What does he get when nominated to the highest Court in the 
land? He gets his name dragged through the mud. He gets baited with 
questions we all know he cannot answer, that nobody can answer. If they 
are not trick questions, they are certainly improper, and then he is 
attacked for not answering. He gets his record mischaracterized and is 
accused of cruelty and hardness of heart. He gets the kind of treatment 
that leads him to regret putting his family through what ought to be a 
dignified process.
  It is time to stop this madness, stop the dishonest attacks. Instead, 
let's have a debate worthy of the world's greatest deliberative body 
and confirm this absolutely outstanding nominee.
  If my friends on the other side would treat somebody as respectable 
and highly prized and praised as Judge Gorsuch and treat them the way 
he was treated in some instances in these hearings, may we bar the door 
on the next nominee of this administration. That will be Armageddon, I 
guess, and we can't let this body descend into that sort of 
catastrophe.
  I will insist on our nominees being people of the highest order, like 
Judge Gorsuch, people who will make us all

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proud, people who will respect both sides but who will enforce the law, 
and people who, when it becomes time to change the law, can properly 
make that decision and have the guts to do it. There aren't many cases 
that have to be changed, however. All I can say is there are some that 
both sides wish would be changed, and on both sides.
  All I can say is this: I hope our colleagues will treat this 
President's nominees with greater respect. I have always tried to treat 
their nominees with great respect, and I helped get them through. 
Justice Ginsburg had only three votes against her, if I recall 
correctly. It was very few votes. There are judges who are now on the 
bench who I couldn't support, but I didn't stop them from having a vote 
up or down. Frankly, there are judges on the Circuit Court of Appeals 
whom we allowed to come up and whom I personally would not have 
approved as a President or otherwise but who were picked properly by 
the Democratic President and who had enough good recommendations on 
their side to sit on the bench. I think that is what has made this 
country a great country--that we understand that there are different 
points of view, not just in politics, but with regard to the law 
itself. And all of us have to understand that and realize that when 
somebody's elected President, that person, whether he or she, deserves 
to have fair consideration of the judicial nominees.
  It is no secret that President Obama put almost 50 percent of the 
Federal bench on the bench, and he had a lot of up-and-down votes on 
them. Yes, there were some notable differences and notable debates, but 
by and large, the President got whomever he wanted. And I have to say 
that in the past, Republican Presidents generally got whomever they 
wanted. But in the intervening number of years since Roe v. Wade, we 
have had nothing but big problems that I think have resulted in the 
denigration of the bench and which should never have occurred.
  I hope my colleagues, all of whom I deeply admire and like, will take 
some of these things into consideration and treat Judge Gorsuch with 
the true and deliberate respect that he deserves. I hope they can bring 
themselves to vote for him because he is truly a wonderful man, a great 
father, a wonderful husband to his wife, a tremendous person from the 
West, a fly fisherman, a fellow whom every one of his law clerks deeply 
loves, and a person who, by any measure, is one of the brightest judges 
in the country today. I can't really think of anybody who would be 
brighter than he is or any better than he is.
  So Donald Trump picked one of the best people, if not the best person 
in America, for this job, and I hope my colleagues on the other side 
will recognize that in spite of their dislike, and sometimes even 
hatred, for Donald Trump, this is important. And it is important that 
we start handling these matters with greater dignity, greater fairness. 
When we really do disagree, fine; let's have a debate and battle on it, 
and let the chips fall where they may. But not all of these deserve to 
be in that category, and certainly Judge Gorsuch does not deserve to be 
in that category. He is an absolutely outstanding person.
  The PRESIDING OFFICER. The Senator from Michigan.