[Congressional Record Volume 163, Number 54 (Tuesday, March 28, 2017)]
[Senate]
[Pages S2019-S2023]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Neil Gorsuch

  Mr. President, before I get too distracted by the minority leader's 
opposition to anything and everything, let me comment a little bit on 
the Gorsuch nomination.
  We will meet next week, on April 3, to vote Judge Gorsuch's 
nomination out of the Senate Judiciary Committee, at which time his 
nomination will come to the floor. The world had a chance to see--and 
certainly all of America--during the 20 hours that Judge Gorsuch 
testified before the Judiciary Committee that he is a superb nominee. 
He is a person with a brilliant legal mind. He has an incredible 
educational resume and extensive experience both in the public sector--
working at the Department of Justice--and in private practice and then 
for the last 10 years, of course, serving as a Federal judge on the 
Tenth Circuit Court of Appeals out of Denver.
  I believe he is one of the most qualified nominees in recent history, 
to be sure, and you might have to go back into our early history to 
find somebody on par with Judge Gorsuch in terms of his qualifications 
for this important office. Unfortunately, in spite of this, we are 
seeing the minority leader threatening to filibuster this incredibly 
well-qualified judge. I hope other Democrats will exercise independence 
and do the right thing.
  I was glad to see just yesterday our colleague, the former chairman 
of the Judiciary Committee, the senior Senator from Vermont, say that 
he had a different take. He was quoted in a Vermont newspaper--perhaps 
it is a blog--it is called VTDigger.org. Senator Leahy, the former 
chairman of the Judiciary Committee, said: ``I am not inclined to 
filibuster.''
  Just for the benefit of anybody who might be listening, let me 
distinguish between the use of the filibuster as opposed to voting 
against the nominee.
  It is a fact that there has never been a successful partisan 
filibuster of a Supreme Court nominee in American history--never.
  The only time cloture was denied on a bipartisan basis of a nominee 
to the Supreme Court was in 1968, when Abe Fortas was nominated by 
then-President Lyndon Johnson. Mr. Fortas, then serving as an Associate 
Justice on the Supreme Court of the United States, had a number of 
problems, one of which was that he was still advising President Johnson 
while he was a sitting member of the U.S. Supreme Court. He was 
basically giving political advice from the bench to the President of 
the United States, with whom he had a long-established relationship.
  Then there was a suspicion that Earl Warren, the Chief Justice of the 
United States, had cut a deal with the President such that he would 
resign effective upon the qualifying of his successor. So there wasn't 
any literal vacancy to fill. The President would then nominate Abe 
Fortas, then an Associate Justice, and he would then nominate Homer 
Thornberry, then a judge on the Fifth Circuit Court of Appeals, to fill 
the Fortas Associate Justice slot. There were a couple of embarrassing 
items to Judge Fortas that caused a bipartisan denial of cloture, or 
the cutting off of debate, after which his nomination was withdrawn 
after 4 days of floor debate.

  I mention all of this because sometimes people want to lead you down 
this rabbit trail, claiming that what they are doing is something that 
is well established in our history and in this precedence of the Senate 
when that is absolutely not true. There has never been a partisan 
filibuster of a Supreme Court nominee that has been successful in 
denying that Justice to the Supreme Court's nomination to be 
confirmed--never. What Democrats are threatening to do next week when

[[Page S2020]]

Judge Gorsuch's nomination comes to the floor is unprecedented. It has 
never happened before.
  I am glad to hear some voices of sanity and wisdom from people like 
Senator Leahy, who said he was not inclined to join in that filibuster. 
I also saw that our colleague from West Virginia, Senator Manchin, has 
said he will not filibuster the nominee. It is totally a separate issue 
as to whether they vote to confirm the nominee ultimately because, as 
we all know, in working here in the Senate, in order to get to that up-
or-down vote, you have to get past this cloture vote, which requires 60 
votes, and it has been traditional that we have not even had those 
cloture votes with regard to Supreme Court nominations.
  As a matter of fact, there have only been four of those in our 
history. Two of them were with regard to William Rehnquist when 
nominated as Associate Justice to the Supreme Court and then when he 
was nominated to be Chief Justice of the Supreme Court. With Samuel 
Alito, there was cloture obtained. Ultimately, he won an up-or-down 
vote and got a majority of votes on the Senate floor. Then, of course, 
there was the Fortas nomination, which I mentioned earlier. In none of 
those four cases was there a partisan filibuster that denied an up-or-
down vote to the nominee. Again, the only one that is a little of an 
outlier is the Fortas nomination, which was ultimately withdrawn, so 
the Senate did not have the opportunity to come back and revisit that 
initial failed cloture vote because of the ethical problems that led 
Judge Fortas to resign from the Supreme Court and return to private 
practice.
  Let me talk a minute about the excuses our Democratic colleagues have 
given in opposing Judge Gorsuch.
  First, they said they would fight a nominee who was not in the 
mainstream.
  I believe that out of the 2,700 cases Judge Gorsuch has participated 
in, 97 percent of those have been affirmed on appeal--97 percent. He 
has only been reversed in maybe one case. I believe there was a 
discussion about it. There was even an argument as to whether that was 
an outright reversal. It is very unusual, in my experience, to see a 
judge who enjoys such a tremendous record of affirmance on appeal and 
such a very low record of reversal, particularly for an intermediate 
appellate court like the Tenth Circuit Court of Appeals.
  After they realized this ``out of the mainstream'' argument wouldn't 
work, they then moved the goalpost. Some of my friends on the other 
side of the aisle have implied they might oppose Judge Gorsuch because 
of his refusal to answer questions about issues that could come before 
him on the Court. In doing so, the judge was doing exactly what is 
required by judicial ethics. In other words, how would you feel if the 
judge before whom you appeared had previously said ``If I get 
confirmed, I will never vote in favor of a litigant with this kind of 
case''? Judges do not do that. Judges are not politicians who run for 
office on a platform. In fact, judges are supposed to be the anti-
politician--ruling on the law and the facts. It is not based on a 
personal agenda or a political agenda at all, and our colleagues know 
that.
  This is the same rule that was embraced by Ruth Bader Ginsburg--
someone whom our friends across the aisle admire on the Court. Elena 
Kagan did the same thing in refusing to comment or speculate, saying 
that it would be improper for them to prejudge these cases or to 
campaign, basically, for a lifetime appointment on the Supreme Court. 
Judge Gorsuch did the same thing as Justices Ginsburg and Kagan, and he 
fulfilled his ethical obligations as a sitting judge and preserved the 
independence of the judiciary by keeping an open mind as to cases that 
come before him.
  When they failed to make the case that Judge Gorsuch was somehow out 
of the mainstream, when they failed to make the case that he somehow 
was being nonresponsive in his answering questions by the Judiciary 
Committee, the goalpost moved yet again. Last week, some suggested that 
Judge Gorsuch never ruled in favor of the ``little guy.'' This was 
following a line of arguments peddled by some outside groups who were 
trying to paint Judge Gorsuch as unsympathetic to the litigants who 
appeared in his court.
  Fortunately, Judge Gorsuch set the record straight. He made clear 
that his motivation in each and every case is to follow the law 
wherever it may lead and to reach a decision based on where the law 
stands, not on his personal opinion or emotions. Again, a good judge 
does not judge the litigants but, rather, the case at hand.
  I should point out, as I did with regard to the more than 2,700 cases 
Judge Gorsuch has decided, that virtually all of them have been 
affirmed, meaning that every judge on the panel, including those 
nominated by Democrats, reached the same conclusion that he did, and 
they were approved, or affirmed, by the higher court, certainly not 
reversed.
  I think our colleagues are making a tragic mistake by denying this 
President his nominee for the Supreme Court of the United States. If 
Judge Gorsuch is not good enough for them, they will never vote to 
confirm any nominee from this or any other Republican President of the 
United States. What would happen if that view were to prevail? I think 
we would see the Supreme Court essentially become nonfunctional and 
shut down, and litigants who were hoping to get access to a hearing 
before the Court would have nowhere to turn. It is not acceptable.
  Some of our colleagues remind me of the old story about the child who 
murders his parents and then comes before the court and asks for 
leniency, saying: I am an orphan. This is a situation of their own 
making.
  I really regretted hearing the Democratic leader talk about a case in 
which somehow there was the argument that because the judge followed 
the precedent that then existed but that a future decision in a Supreme 
Court case changed that precedent--that the judge should have 
anticipated it and somehow failed to follow the current precedent 
because the Supreme Court at some later date might change that 
precedent. It makes absolutely no sense.
  So what our colleagues are doing is basically saying that no nominee 
of President Trump's or any Republican nominee is going to get 
confirmed to the Supreme Court because it is going to require 60 votes 
to do so. This would be unprecedented in our Nation's history. I think 
it will be an abuse of the power we have in the Senate of encouraging 
debate, which is the cloture vote, by filibustering this outstanding 
nominee.
  I have said it before and I will say it again: Judge Gorsuch is going 
to have his day on the Senate floor. We are going to have a fulsome 
debate. We are going to give our Democratic colleagues a chance to do 
the right thing and to vote at some point to cut off debate and then 
have an up-or-down vote to confirm the nominee, just as has happened in 
every single case before, with the possible exception of the Fortas 
nomination, which I described earlier, which was ultimately withdrawn 
and the judge resigned because of an ethical scandal.
  I hate to see our colleagues taking us down this path, but they are 
determined to oppose anything and everything these days. We used to say 
there was a difference between campaigning and governing. Basically, 
they are so upset with the outcome of the election that they are 
continuing the political campaign now and making it impossible for us 
to do our work here in the Senate. It is a crying shame.
  I can only hope that cooler heads will prevail and that others in the 
Democratic caucus will listen to Senator Leahy and others who say they 
are not inclined to filibuster. Whether they decide to vote against the 
nominee is entirely up to them, but denying the majority in the Senate 
a chance to vote to confirm the nominee is simply unacceptable, and it 
will not stand.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Mr. President, confirming a Supreme Court nominee is one 
of the Senate's most significant constitutional responsibilities. I 
come

[[Page S2021]]

to the floor today to announce that I shall cast my vote for Judge Neil 
Gorsuch to be a Justice of the U.S. Supreme Court. In making my 
decision, I evaluated Judge Gorsuch's qualifications, experience, 
integrity, and temperament. I questioned him for more than an hour in a 
meeting in my office, evaluated his record, spoke with people who know 
him personally, and reviewed the Judiciary Committee's extensive 
hearing record. While I have not agreed with every decision Judge 
Gorsuch has made, my conclusion is that he is eminently well qualified 
to serve on our Nation's highest Court.
  Judge Gorsuch has sterling academic and legal credentials. In 2006, 
the Senate confirmed this outstanding nominee by a voice vote to his 
current position on the U.S. Court of Appeals. A rollcall vote was 
neither requested nor required.
  Judge Gorsuch's ability as a legal scholar and judge has earned him 
the respect of members of the bar. The American Bar Association 
Standing Committee on the Federal Judiciary has unanimously given him 
its highest possible rating of ``well qualified.'' President Obama's 
former Acting Solicitor General testified before the Judiciary 
Committee in support of Judge Gorsuch, praising him as fair, decent, 
and committed to judicial independence.
  I have also received a letter signed by 49 prominent Maine attorneys 
with diverse political views, urging support for Judge Gorsuch's 
nomination. They wrote:

       Gorsuch's judicial record demonstrates his remarkable 
     intelligence, his keen ability to discern and resolve the 
     central issues at dispute in a legal proceeding . . . and his 
     dedication to the rule of law rather than personal 
     predilections. His judicial record also confirms that he is 
     committed to upholding the Constitution, enforcing the 
     statutes enacted by Congress, and restraining overreach by 
     the executive branch.

  In my view, these are precisely the qualities that a Supreme Court 
Justice should embody.
  I ask unanimous consent that this letter be printed in the Record 
following my remarks.
  Our personal discussion allowed me to assess the judge's philosophy 
and character. I told him that it was important to me that the 
judiciary remain an independent check on the other two branches of 
government as envisioned by our Founders. Therefore, I asked him 
specifically whether anyone in the administration had asked him how he 
would rule or sought any commitment from him on any issue. He was 
unequivocal that no one in the administration had asked him for such 
promises or to prejudge any issue that could come before him. He went 
on to say that the day a nominee answered how he would rule on a matter 
before it was heard or promised to overturn a legal precedent, that 
would be the end of an independent judiciary.
  During the Judiciary Committee hearings, when Senator Lindsey Graham 
asked him a similar question about whether he was asked to make 
commitments about particular cases or precedents, he gave the same 
answer. In fact, Judge Gorsuch notably said that if someone had asked 
for such a commitment, he would have left the room because it would 
never be appropriate for a judge to make such a commitment, whether 
asked to do so by the White House or a U.S. Senator.
  Neil Gorsuch is not a judge who brings his personal views on any 
policy issues into the courtroom. If it can be said that Judge Gorsuch 
would bring a philosophy to the Supreme Court, it would be his respect 
for the rule of law and his belief that no one is above the law, 
including any President or any Senator.
  I am convinced that Judge Gorsuch does not rule according to his 
personal views, but rather follows the facts and the law wherever they 
lead him, even if he is personally unhappy with the result. To 
paraphrase his answer to one of my questions about putting aside his 
personal views, he said that a judge who is happy with all of his 
rulings is likely not a good judge.
  The reverence that Judge Gorsuch holds for the separation of powers, 
which is at the core of our American democracy, was also evident in our 
discussion. As he reiterated throughout his confirmation hearing, the 
duty to write the laws lies with Congress, not with the courts and not 
with the executive branch. Members of this body should welcome his deep 
respect for that fundamental principle.
  Judge Gorsuch's record demonstrates that he is well within the 
mainstream of judicial thought. He has joined in more than 2,700 
opinions, 97 percent of which were unanimously decided, and he sided 
with the majority 99 percent of the time.
  I asked Judge Gorsuch how he approaches legal precedents. I asked him 
if it would be sufficient to overturn a long-established precedent if 
five current Justices believed that a previous decision was wrongly 
decided. He responded: ``Emphatically no.'' And that, to me, is the 
right approach. He said a good judge always starts with precedent and 
presumes that the precedent is correct.
  During his Judiciary Committee hearing, Judge Gorsuch described 
precedent as ``the anchor of the law'' and ``the starting place for a 
judge.'' He has also coauthored a book on legal precedent with 12 other 
distinguished judges, for which Justice Stephen Breyer wrote the 
introduction.
  Now, there has been considerable discussion over the course of this 
nomination process about the proper role of the courts in our 
constitutional system of government. It is also important for us to 
consider the roles that the executive and legislative branches play in 
the nomination process.
  Under the Constitution, the President has wide discretion when it 
comes to nominations to the Supreme Court. The Senate's role is not to 
ask, Is this the person whom I would have chosen to sit on the bench? 
Rather, the Senate is charged with evaluating each nominee's 
qualifications for serving on the Court.

  I have heard opponents of this nominee criticize him for a variety of 
reasons, including his methodology and charges that he is somehow 
extreme or outside of the mainstream. But I have not heard one Senator 
suggest that Judge Gorsuch lacks the intellectual ability, academic 
credentials, integrity, temperament or experience to serve on the U.S. 
Supreme Court. Yet it is exactly those characteristics that the Senate 
should be evaluating when exercising its advice and consent duty.
  This is especially true when Senators contemplate taking the extreme 
step of filibustering a Supreme Court nomination. As you well know, 
unfortunately, it has become Senate practice of late to filibuster 
almost every question before this body simply as a matter of course. 
But that would be a serious mistake in this case, and it would further 
erode the ability of this great institution to function. In 2005, when 
the Senate was mired in debate over how to proceed on judicial 
nominations, a bipartisan group of 14 Senators proposed a simple and 
reasonable standard. That group--of which I am proud to have been a 
part--declared that for Federal court nominations a Senator should only 
support a filibuster in the case of extraordinary circumstances.
  Since coming to the Senate, I have voted to confirm four Justices to 
the Supreme Court. Two were nominated by a Democratic President, and 
two were nominated by a Republican President. Each was confirmed: Chief 
Justice Roberts by a vote of 78 to 22, Justice Alito by a vote of 58 to 
42, Justice Sotomayor by a vote of 68 to 31, and Justice Kagan by a 
vote of 63 to 37.
  Before I became a Senator, this body confirmed Justice Kennedy, 97 to 
0; Justice Scalia, 98 to 0; Justice Thomas, 52 to 48; Justice Ginsburg, 
96 to 3; and Justice Breyer, 87 to 9.
  Note that two of the current members of the Supreme Court were 
confirmed by fewer than 60 votes, but consistent with the standard that 
we established in 2005, neither one was filibustered.
  Even Robert Bork, whose contentious confirmation hearings are said to 
have been the turning point in the Senate's treatment of Supreme Court 
nominations, was rejected by a simple failure to secure a majority of 
votes--42 yeas to 58 nays--not by a Senate filibuster. In fact, the 
filibuster has been used successfully only once in modern history to 
block a Supreme Court nomination. That was an attempt to elevate 
Justice Abe Fortas to be Chief Justice in 1968, nearly half a century 
ago. In that case, Justice Fortas ended up withdrawing under an ethical 
cloud.

[[Page S2022]]

  The result of the votes on Justice Alito's nomination are also 
illuminating. In 2006 Senators voted to invoke cloture by a vote of 75 
to 25. That is considerably more Senators than those who ultimately 
voted to confirm him, which was accomplished by a vote of 58 to 42. 
Here again, Senators proceeded to a ``yes'' or ``no'' vote on the 
nomination.
  Let me be clear. I do believe strongly that it is appropriate for the 
Senate to use its advice and consent power to examine nominations 
carefully or even to defeat them. In fact, I have voted against 
judicial nominees of three Presidents. But playing politics with 
judicial nominees is profoundly damaging to the Senate's reputation and 
stature. It politicizes our judicial nomination process and threatens 
the independence of our courts, which are supposed to be above partisan 
politics. Perhaps most importantly, it undermines the public's 
confidence in the judiciary.
  Since the Founders protected against the exertion of political 
influence on sitting Justices, the temptation to do everything in one's 
power to pick nominees with the right views is understandably very 
strong. But the more political Supreme Court appointments become, the 
more likely it is that Americans will question the extent to which the 
rule of law is being followed. It erodes confidence in the fair and 
impartial system of justice, and it cultivates a suspicion that judges 
are imposing their personal ideology.
  The Senate has the responsibility to safeguard our Nation against a 
politicized judiciary. The Senate should resist the temptation to 
filibuster a Supreme Court nominee who is unquestionably qualified, the 
temptation to abandon the traditions of comity and cooperation, and the 
temptation to further erode the separation of powers by insisting on 
judicial litmus tests. It is time for the Senate to rise above 
partisanship and to allow each and every Senator to cast an up-or-down 
vote on this nominee.
  This nomination deserves to move forward, as the dozens of 
distinguished Maine attorneys who wrote to me in support of his 
nomination said:

       In sum, during his tenure on the U.S. Court of Appeals, 
     Judge Gorsuch distinguished himself as a judge who follows 
     the law with no regard for politics or outside influence. We 
     could not ask for more in an associate Justice.

  I agree, and I look forward to the confirmation of Judge Neil Gorsuch 
to be a Justice of the U.S. Supreme Court.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                   March 23, 2017.
     Re: Nomination of Judge Neil Gorsuch.

     Hon. Susan M. Collins,
     U.S. Senator, Dirksen Senate Office Building, Washington, DC.
     Hon. Angus S. King,
     U.S. Senator, Hart Senate Office Building, Washington, DC.
       Dear Senators Collins and King: The undersigned Maine 
     attorneys respectfully request that you support the 
     confirmation of Judge Neil M. Gorsuch as Associate Justice of 
     the United States Supreme Court.
       Our practices are varied by geography, practice area, size 
     of firm, and type of clients we represent. We also hold a 
     diverse set of political views. Nonetheless, we agree that 
     Judge Gorsuch is exceptionally well qualified to join the 
     Supreme Court.
       As members of the Maine legal community, we have an 
     interest in the nomination of Judge Gorsuch. While most of us 
     will never have the opportunity to appear before the United 
     States Supreme Court, each of us has a strong interest in 
     supporting the confirmation of highly qualified jurists who 
     will maintain the Supreme Court's commitment to the rule of 
     law. The precedents established by the Supreme Court affect 
     each of us and the fellow Mainers whom we serve as our 
     clients.
       As you have surely found during the nomination process, 
     Judge Gorsuch is eminently qualified to serve as Associate 
     Justice. His qualifications were recently confirmed by the 
     American Bar Association, which rated him as ``well 
     qualified,'' its highest rating. Judge Gorsuch's judicial 
     record demonstrates his remarkable intelligence, his keen 
     ability to discern and resolve the central issues at dispute 
     in a legal proceeding, his notably clear and concise writing 
     style, and his dedication to the rule of law rather than 
     personal predilections. His judicial record also confirms 
     that he is committed to upholding the Constitution, enforcing 
     the statutes enacted by Congress, and restraining overreach 
     by the Executive Branch. He voted with the majority in 98 
     percent of the cases he heard on the Tenth Circuit, and was 
     frequently joined by judges appointed by Democratic 
     Presidents. Seven of his opinions have been affirmed by the 
     Supreme Court--four unanimously--and none reversed.
       In sum, during his tenure on the U.S. Court of Appeals, 
     Judge Gorsuch distinguished himself as a judge who follows 
     the law with no regard for politics or outside influence. We 
     could not ask for more in an Associate Justice and we ask for 
     your strong support of him and vote of confirmation.
           Sincerely,
       John J. Aromando; Brett D. Baber; Shawn K. Bell; Daniel J. 
     Bernier; Fred W. Bopp III; Timothy J. Bryant; Aaron D. 
     Chadbourne; John W. Chapman; Michael J. Cianchette; Roger A. 
     Clement, Jr.; Randy J. Creswell; Christopher M. Dargie; Avery 
     T. Day; Bryan M. Dench; Thomas R. Doyle; Michael L. Dubois; 
     Joshua D. Dunlap; Charles S. Einsiedler, Jr.
       James R. Erwin; Kenneth W. Fredette; Justin E. French; 
     Benjamin P. Gilman; Kenneth F. Gray; P. Andrew Hamilton; 
     Jeffrey W. Jones; Ralph I. Lancaster, Jr.; Ronald P. Lebel; 
     Tyler J. LeClair; Scott T. Lever; William P. Logan; Holly E. 
     Lusk; Chase S. Martin; Sarah E. Newell; Bradford A. 
     Pattershall; Dixon P. Pike; Gloria A. Pinza.
       Susan J. Pope; Michael R. Poulin; Norman J. Rattey; Daniel 
     P. Riley; Adam J. Shub; Joshua E. Spooner; Robert H. Stier, 
     Jr.; Patrick N. Strawbridge; Alexander R. Willette; Timothy 
     C. Woodcock; Eric J. Wycoff; Sarah S. Zmistowski; Thad B. 
     Zmistowski.

  Ms. COLLINS. I yield the floor.
  Seeing no one seeking recognition, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Flake). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Missouri.
  Mr. BLUNT. Mr. President, I come today to talk about the nomination 
of Judge Neil Gorsuch to serve on the U.S. Supreme Court. Once again, 
throughout the hearings last week, Judge Gorsuch proved that he has the 
knowledge, he has the temperament, and he has the experience to serve 
on our Nation's highest Court. He laid out a clear judicial philosophy 
that adheres to what I think most Americans want to see happen today on 
the Court and what clearly the Framers of the Constitution thought 
would happen.
  In his own words, Judge Gorsuch said: ``I have one client, it's the 
law.'' That is the way the Founders saw the Supreme Court. They didn't 
see it as a legislative body. All good judges had to do was to read the 
law. They didn't have to be happy with the law. They didn't have to 
approve the law. They didn't have to determine that the law and the 
Constitution met their exact standard. They just had to determine what 
the law and the Constitution said. In fact, the first Supreme Court had 
six judges. There was no thought that it was a legislative body that 
had to have a tie-breaking judge so you could legislate.
  They thought six judges were plenty. By the way, they thought they 
needed six circuits. Each of those judges rode a circuit. So even when 
there was an appeal to the Supreme Court, one of the judges had already 
heard the case at the lower level. That judge heard the case again and 
then listened to see if that judge heard anything new, something that 
might change their mind. The other five of them were sitting there with 
the appeal of one of their colleagues, and nobody saw that as a problem 
because the Court wasn't about legislating.
  The Court was about determining what the law should say. Again, Judge 
Gorsuch said: ``I have one client, it's the law.'' It is not the little 
guy. It is not the big guy. It is not the medium-size guy: It is the 
law. He was asked over and over: Are you going to find for the little 
guy or the big guy? Well, that is not the judge's job. The judge's job 
is to read the law so both the little guy and the big guy know when 
they are in court that this is a country where the rule of law matters. 
They know, when they enter into a contract, that if you and your lawyer 
have read the law right, there shouldn't, at the end of the day, be 
very much gray space about what that contract said.
  Throughout his career, Judge Gorsuch has demonstrated his commitment 
to interpret the Constitution as it is written, applying the rule of 
law and not legislating from the bench. ``Judges are not politicians in 
robes.'' I think that may be another Gorsuch comment: ``Judges are not 
politicians in robes.'' If he didn't say it, his career as a judge 
shows that he believes it. Unfortunately, some of my colleagues have 
shown that their deference to the Constitution is not the same when it

[[Page S2023]]

comes to the Senate's role to advise and consent.

  I am particularly dismayed by the Democratic leader's intention to 
filibuster Judge Gorsuch's nomination. Republicans have never 
filibustered a Democratic nominee, yet colleagues across the aisle 
appear willing to do just that. Such a maneuver would only be an 
affront to our national norms.
  I don't know in the history of the country--I think there was one 
filibuster led by Democrats against a nomination by a Democrat 
President when Lyndon Johnson nominated Abe Fortas to move from 
Associate Justice to the Chief Justice's role. It didn't happen in 1968 
because it was a Presidential year and Justices don't get confirmed in 
the Supreme Court in a Presidential year in vacancies that hadn't even 
occurred yet. No. 2, it was led by Democrats in a Senate that had an 
overwhelming Democratic majority. There has never been a partisan 
filibuster effort involving any Justice on the Supreme Court until 
right now--until right now--and I am disappointed that that is what the 
Democratic leader of the Senate says he wants to do.
  According to Robert David Johnson, a Brooklyn College history 
professor, ``The chances of success'' of a partisan filibuster ``are 
basically zero.'' So my thought would be: Why pursue it?
  Kim Strassel recently wrote in the Wall Street Journal: ``Never in 
U.S. history have we had a successful partisan filibuster of a Supreme 
Court nominee.''
  In the last half century, only three Supreme Court Justices have even 
faced a filibuster. The most recent, Justice Alito, was ultimately 
confirmed when 19 Democrats refused to back the filibuster of his 
nomination. He had the full vote, and he got a majority vote.
  One would think that if Senate Democrats are willing to upend Senate 
tradition to block this nomination, they would have an unassailable 
reason to block it. They would be saying this judge is not qualified. 
This judge hasn't served his time. We don't know what he would do as a 
judge. He has been on the circuit court of appeals for a decade, and 
when looking at case after case, appeal after appeal, we see his 
unbelievably fine record as a judge.
  In announcing his intention to mount this filibuster, the leader of 
the Democrats in the Senate said that Judge Gorsuch ``was unable to 
sufficiently convince me that he'd be an independent check'' on the 
executive branch. The American Bar Association unanimously gave Judge 
Gorsuch's nomination their highest rating. They disagree. As they 
explained, ``based on writings, interviews, and analyses we scrutinized 
to reach our rating, we discerned that Judge Gorsuch believes strongly 
in the independence of the judicial branch of government, and we 
predict that he will be a strong but respectful voice in protecting 
it.''
  This is from the American Bar Association, which many of my 
colleagues on both sides of the aisle have said over and over again is 
the ultimate test of qualification for the Court.
  When I met with the judge last month, he left no doubt in my mind 
that he would uphold the judiciary's unique constitutional role in our 
system of checks and balances.
  Let me go back to the other quote here for a minute. What was it that 
the Senator from New York said? ``Judge Gorsuch was unable to 
sufficiently convince me that he'd be an independent check'' on the 
executive branch. I am not even sure I know where in the Constitution 
that is the job of the judge. The job of the judge is to read the law 
and look at the Constitution. The job of the Congress is to pass the 
law. The job of the President is to sign the law. Unless there is some 
constitutional problem with that law, it is not the judge's job to 
decide whether the law is right or not, unless there is a 
constitutional reason to do that.
  Last week, I mentioned Judge Gorsuch's qualifications for the bench, 
but I think they bear repeating as we enter the next few days. As a 
graduate of Columbia University, a graduate of Harvard Law and Oxford 
University, his academic credentials are at the highest level. Judge 
Gorsuch has served his country admirably as a Supreme Court clerk, 
first for a Democrat on the Court, Byron White, who had been appointed 
by President Kennedy, and for a Republican appointee, Anthony Kennedy, 
appointed by President Reagan. He has been the principal Deputy 
Associate Attorney General of the United States at the Department of 
Justice, and in 2006, George W. Bush nominated him to serve on the 
Tenth Circuit Court of Appeals. The Senate unanimously confirmed his 
position at that time. Every single Democrat--12 of them now serving in 
the Senate who were in office, supported his nomination in 2006. In the 
decade that he served on the Tenth Circuit Court, he has shown 
independence, integrity, and he has shown a mainstream judicial 
philosophy. He has demonstrated a legal capacity that makes him a 
worthy successor to Justice Scalia on the Court. There is no precedent 
for requiring a 60-vote threshold to confirm a Supreme Court Justice, 
and Judge Gorsuch has given this body no reason to demand one now.
  I look forward to supporting his nomination. It will reach the Senate 
floor, I believe, after the Judiciary Committee deals with it early 
next week. I hope by the time we leave here a week from Friday that 
Judge Gorsuch is on his way to join the Supreme Court as an Associate 
Justice. By the way, if he does that, he will be the first Associate 
Justice ever to serve on the Court with a Justice for whom he clerked 
two decades or more ago. When he and Justice Kennedy get a chance to 
serve together--I look forward to seeing that happen.