[Congressional Record Volume 163, Number 54 (Tuesday, March 28, 2017)]
[Senate]
[Pages S2031-S2032]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Neil Gorsuch

  Mr. GARDNER. Mr. President, I wanted to come to the floor again to 
express my strong support for a very mainstream, well-qualified nominee 
for the Supreme Court, Judge Neil Gorsuch.
  Last week, this country got to watch the Senate Judiciary Committee 
carry out days of hearings that questioned and probed Judge Gorsuch's 
legal approach, that questioned his temperament to the bench, his 
suitability to be on our Nation's High Court. I believe every member of 
the Senate Judiciary Committee had at least an hour to question Judge 
Gorsuch, to provide lengthy opening statements, to have an extended 
period of time to have a back-and-forth with Judge Gorsuch in order to 
go over his judicial philosophy--his approach--that he would take with 
him from the Tenth Circuit Court to the Nation's High Court.
  A number of interest groups and personal witnesses were talking about 
whether or not they believe Judge Gorsuch is qualified for the bench, 
and some were highly favorable and spoke very highly of him, and others 
opposed his confirmation. That is what is great about this country--to 
be able to come before our Congress, our government, and to testify for 
or against somebody who will be in that third important branch of 
government, the judicial branch. It is incredibly inspiring to watch 
this process unfold. There were student groups around the country, 
classes and teachers, who were watching the confirmation hearing as a 
project, as an educational experience, as a lesson in civics, 
democracy, and government.
  I mentioned, of course, that Judge Gorsuch is a judge on the Tenth 
Circuit Court today. He is a fourth generation Coloradan. He was 
confirmed to that position in 2006, 11 years ago, unanimously. He was 
confirmed to the Tenth Circuit Court 11 years ago unanimously. Based on 
some of the comments we have heard opposing Judge Gorsuch, it is hard 
to believe that anybody would have supported him unanimously 11 years 
ago--based on the things we have heard from the other side of the aisle 
about him. Judge Gorsuch was confirmed unanimously by 12 current 
Democratic Senators who did not oppose his confirmation 11 years ago 
and who serve in this body today.
  Twelve Democratic Senators serve in this Chamber today who agreed 
with his confirmation or didn't oppose his confirmation 11 years ago. 
In fact, not a single Democrat opposed his nomination--not a single 
one, and his nomination was unanimous--not Minority Leader Schumer, not 
Senator Leahy, not Senator Feinstein, not Senator Durbin, not Senator 
Cantwell, not Senator Carper, not Senator Menendez, not Senator Murray, 
not Senator Nelson, not Senator Reid, not Senator Stabenow, and not 
Senator Wyden. Judge Gorsuch's nomination also was not opposed by then-
Senator Barack Obama. It was not opposed by then-Senator Joe Biden, and 
it was not opposed by then-Senator Hillary Clinton.
  This level of support for the other party's nomination is almost 
unheard of in today's political climate. But now, these very same 
colleagues are vowing to break 230 years of Senate tradition, to 
dispense with 230 years of precedent, and to join a partisan filibuster 
of a nominee who has the right judicial temperament and holds 
mainstream views that are supported by the Constitution.
  Throughout the confirmation hearing process, we heard Judge Gorsuch 
talk about the over 2,000 opinions that he was a part of--2,700 
decisions that he was a part of--and I believe he testified before the 
committee that he joined in the majority in 97 percent of those 
opinions. That is somebody who sounds to me like the person who could 
have received the unanimous support of the Senate--who did receive the 
unanimous support of the Senate, including colleagues who serve with us 
today.
  But, unfortunately, across the aisle, we still haven't heard a reason 
articulated--a compelling rationale--for why this supremely qualified 
nominee should be opposed. Sometimes they will reference a letter from 
a law student at the University of Colorado, or perhaps they will find 
one case out of the 2,700 cases that tugs at the heartstrings but not 
at the law and try to hang their hat on that decision as to why they 
should oppose Judge Gorsuch. To use a baseball analogy, it is a little 
bit like a batting average. You would think that a professional 
baseball player that had a 400 batting average was a pretty doggone 
good baseball player, but that would mean they missed the ball a heck 
of a lot much of the time. It seems to me the argument they are making 
with Judge Gorsuch is that unless he had a perfect batting average and 
never missed a single pitch and had a hit every single time--that is 
the standard, apparently, that our colleagues are looking for. It is a 
standard that no one has ever met in this country before.
  We are looking for mainstream judges with the right temperament and 
the right philosophy, and that is what Judge Gorsuch has proven time 
and again in the Tenth Circuit Court--that temperament that we need on 
the highest Court.
  Our colleagues on the other side of the aisle should abandon their 
threats of a filibuster and allow an up-or-down vote to occur for Judge 
Gorsuch. It is what Senate tradition and precedent requires.
  Today, though, I thought it important to talk about Judge Gorsuch's 
exceptionally strong record on religious liberty. Judge Gorsuch is 
perhaps widely known for his participation in the Tenth Circuit's Hobby 
Lobby case, a decision which involved the protections afforded by the 
Religious Freedom and Restoration Act and which was ultimately affirmed 
by the Supreme Court. In his concurrence, Judge Gorsuch made a number 
of telling pronouncements regarding religious liberty. Regarding the 
case, he wrote that the law in question requires the owners of Hobby 
Lobby to ``violate their religious faith by forcing them to lend an 
impermissible degree of assistance to conduct their religion teaches to 
be gravely wrong.''
  Let me say that again. In Hobby Lobby, Judge Gorsuch wrote that the 
law requires the owners of Hobby Lobby to ``violate their religious 
faith by forcing them to lend an impermissible degree of assistance to 
conduct their religion teaches to be gravely wrong.''
  In determining which religious beliefs are entitled to protection, 
Judge Gorsuch said it doesn't matter if the beliefs are contestable or 
even offensive. It only matters if they are sincerely held--if they are 
sincerely held.
  He went on to stress that ``it is not the place of courts of law to 
question the correctness or the consistency of tenets of religious 
faith, only to protect the exercise of faith.''
  It is these same constitutional principles of religious liberty that 
Judge Gorsuch has also used to protect religious minorities and prison 
inmates.
  In Yellowbear v. Lampert, Judge Gorsuch ruled that a Native American 
prisoner was entitled to the use of a prison sweat lodge under Federal 
law.

[[Page S2032]]

  Judge Gorsuch went on to stress that while prisoners give up many 
liberties, the freedom to sincerely express their religion is not one 
of them. His reasoning was later adopted by the Supreme Court to extend 
similar religious liberty protections to a Muslim prisoner. Judge 
Sotomayor even quoted the opinion of Judge Gorsuch in her concurrence 
in that case.
  From his opinions, it is clear that Judge Gorsuch is a mainstream 
nominee who understands the importance of putting personal beliefs 
aside and applying the law as written. This is why George Washington 
University Law School professor Jonathan Turley argued that Judge 
Gorsuch shouldn't be penalized for his past opinions. As he said, ``the 
jurisprudence reflect, not surprisingly, a jurist who crafts his 
decisions very close to the text of a statute and, in my view, that is 
no vice for a federal judge.''
  It is for the reasons I have cited today and for the reasons we have 
seen over the past week that I am certain Judge Gorsuch will make 
Colorado proud and that his decisions will have a positive impact on 
the Supreme Court and this country for generations to come.
  I look forward to working with my distinguished colleagues on both 
sides of the aisle to expeditiously confirm his nomination and to make 
sure that we uphold the best traditions and the precedent of this 
Senate.
  Mr. President, thank you.
  I yield the floor.

                          ____________________