[Congressional Record Volume 163, Number 54 (Tuesday, March 28, 2017)]
[Senate]
[Pages S2039-S2040]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF NEIL GORSUCH

  Ms. HIRONO. Mr. President, during last week's hearing on Donald 
Trump's nominee to the Supreme Court, Neil Gorsuch, I raised serious 
concerns about what is at stake for the future of our country. It is a 
mistake to think that the confirmation process for a lifetime 
appointment to our Nation's highest Court is only about the nominee. It 
isn't.
  The real focus and the real heart of this decision lies in the 
struggles that working families, women, people of color, the 
differently abled, the LGBTQ community, immigrants, students, seniors, 
and our Native people face every single day. These are the everyday 
Americans who will be impacted by the decisions Justice Gorsuch would 
make. These are the people who would have been hurt by Donald Trump and 
the Congressional Republicans in their failed attempt to repeal the 
Affordable Care Act.
  Donald Trump and the Republicans in Congress fought for a plan that 
would callously throw Americans by the tens of millions out in the cold 
without health insurance and would make the lives and health of 
millions more precarious. It was only through the voices of Americans 
who were loud and steadfast in confronting TrumpCare that TrumpCare 
failed. These are the people for whom the need for justice is often 
most urgent. An understanding of these people, their lives, and how 
they would be impacted by the Court is what I found to be missing from 
Judge Gorsuch's view of the law. It is these same voices I am listening 
to now.
  Judge Gorsuch should have been more open with the Judiciary Committee 
about how he would approach the difficult and important cases that come 
before the Supreme Court. But time and again, Judge Gorsuch avoided 
answering questions, telling us his judicial philosophy and his view of 
the law were irrelevant to our consideration of his nomination.
  The well-funded campaign to put Judge Gorsuch on the Supreme Court 
fueled by millions of dollars of money from unnamed donors has 
attempted to create a narrative about Judge Gorsuch and the stakes of 
this nomination. This is a narrative woven with Ivy League credentials 
and endorsements but not revealing at all about Judge Gorsuch's 
judicial philosophy--the heart he would bring to his view of the law.
  During the hearing, many of my Republican colleagues echoed the view 
that credentials are enough and that our real questions about Judge 
Gorsuch's record and philosophy are somehow irrelevant or even 
inappropriate. Certainly, Judge Gorsuch did his part, telling us time 
and again in his words, his views, his writings, and his clearly 
expressed personal views that these writings had no relevance to what 
he would do as a judge. I disagree.
  In my view, there is a great deal of difference between how Judge 
Gorsuch, as Justice Gorsuch, would approach the kinds of tough cases 
that reach the Supreme Court and how, say, a Justice Merrick Garland 
would approach these cases.
  We know that Justice Scalia and Justice Ginsburg, both legendary 
jurists and close friends, would reach dramatically different results 
in cases that matter deeply in the lives of millions--cases like Shelby 
County, like Lilly Ledbetter, like Hobby Lobby, like Roe v. Wade. 
Justice Scalia and Justice Ginsburg differ in how they view important 
cases that came before them. That is why a Justice's judicial 
philosophy is important in our considerations.
  Donald Trump knew this, too, when he set forth his clear litmus test 
for his Supreme Court pick. To paraphrase the President, he wanted a 
Justice who would adhere to a broad view of the Second Amendment, who 
believes corporations are entitled to ``religious freedom'' at the 
expense of the rights of their employees, and who would overturn Roe v. 
Wade, to quote the President, ``automatically.''
  In Judge Gorsuch, Donald Trump selected a nominee who passed his 
litmus test. When we asked Judge Gorsuch about his opinions in specific 
cases like that involving the terrible choice facing Alfonse Maddin 
between freezing to death or being fired, the judge told us we should 
look instead at his whole record. When I examined his whole record, I 
saw too little regard for the real-world impact of his decisions and a 
refusal to look beyond the words to the meaning and intent of the law,

[[Page S2040]]

even when his decisions lacked commonsense.
  When we asked about decisions where Judge Gorsuch seemed to adopt 
strained interpretations that narrow laws meant to protect worker 
safety, he said simply that he was a judge and he didn't take sides. 
Yet too many times, his narrow interpretations led to decisions that 
were on the side of big corporations and against the side of the little 
guy. When asked to respond, he said that if we didn't like the result, 
if we didn't like his decisions, it was because a statute was too 
limited or unclear, and that Members of Congress should do better.
  We asked Judge Gorsuch about his decision in Hobby Lobby, which found 
an expansive new right to religious liberty for a corporation that 
employed thousands of people. He did not explain how he assessed the 
terrible impact this decision had for thousands of working women at the 
company who would now be denied access to contraceptive coverage.
  When I met with Judge Gorsuch, he told me he had a heart. After 4 
days of hearings, I still don't know what is in his heart. I would have 
liked Judge Gorsuch to have been more open so we could have had a real 
conversation about what the law is and who the courts protect. What we 
got instead were platitudes about the work of the courts that came 
straight from a Norman Rockwell painting.
  I did agree with the judge that article III courts are there to 
protect minority rights. Article III of the Constitution protects the 
independence of the Supreme Court and the lower Federal courts and 
gives enormous authority to judges and Justices to determine how to 
apply the law to the cases before them to protect minority rights.
  It is critical that before we decide to grant Judge Gorsuch a 
lifetime appointment to the Nation's highest Court, the Senate is able 
to gain an understanding of his approach to the law. At our judiciary 
committee hearing, I asked Jeff Perkins, the father of a young boy with 
autism, about the impact of Judge Gorsuch's decision on his son's 
education progress at and outside of his new school. The case involved 
the protections of the Individuals with Disabilities Education Act, or 
IDEA, which Judge Gorsuch's decision narrowed to point that these 
comments under the law were deemed virtually meaningless.
  The new school that Luke Perkins attended made little effort to 
ensure that the skills he developed in school were translating at home. 
As a result, Luke severely regressed. Experts in autism, psychology, 
and occupational therapy testified on Luke's behalf that the school was 
seriously neglecting his needs. An impartial hearing officer, an 
administrative law judge, and Federal district court all agreed Luke's 
regression showed that the school was not providing him with a ``free 
appropriate public education'' as required by the IDEA.

  Judge Gorsuch disagreed and decided the school had ``merely more than 
de minimis'' responsibility to do better for Luke. Jeff Perkins, Luke's 
father, said that he knew Judge Gorsuch's decision would negatively 
impact thousands of families with special needs children like Luke. It 
broke his heart.
  Judge Gorsuch's extraordinarily narrow interpretation of the IDEA was 
rejected unanimously by the U.S. Supreme Court last week. In his 
opinion for the unanimous Court, Chief Justice Roberts concluded that 
the minimal standard determined by Judge Gorsuch was clearly at odds 
with the purpose of the law for children who are not progressing along 
with their peers. Justice Roberts wrote:

       The goals may differ, but every child should have the 
     chance to meet challenging objectives. . . . When all is said 
     and done, a student offered an educational program providing 
     ``merely more than de minimis'' progress from year to year 
     can hardly be said to have been offered an education at all.

  When asked by my colleague, Senator Durbin of Illinois, why the judge 
wanted to ``lower the bar so low'' in his decision, Judge Gorsuch, 
referring to Luke's case, responded:

       If anyone is suggesting that I like a result where an 
     autistic child happens to lose, that's a heartbreaking 
     accusation to me. Heartbreaking. But the fact of the matter 
     is what is bound by certain precedent.

  Heartbreaking or not, Judge Gorsuch still found against the autistic 
child. Thankfully, the Supreme Court disagreed with Judge Gorsuch's 
wrong decision. It was wrong because remedial legislation such as IDEA 
should be broadly interpreted in favor of the group being protected. 
And it was wrong because the courts are not innocent bystanders. Their 
decisions have real-world impacts for thousands or even millions of 
people beyond the parties in a particular case before the Court.
  This is especially true of the Supreme Court, which issues decisions 
that don't just reach those cases in front of them--the frozen trucker, 
women who work at Hobby Lobby faced with lack of critical healthcare. 
They also reach millions of others impacted by interpretations of the 
law made by the Court in those decisions. The Supreme Court does not 
just interpret our laws. The Supreme Court is an affirmation of our 
country's values. The Supreme Court shapes our society.
  When we began the hearings on Judge Gorsuch's nomination, I said the 
Supreme Court vacancy isn't just another position we must fill in our 
Federal judiciary. A Supreme Court vacancy is a solemn obligation we 
must fulfill for the future of our country and for our future 
generations. The central question for me, in looking at Judge Gorsuch 
and his record and listening carefully through 3 days of hearings, is 
whether he would be a Justice for all or Justice for some. Regrettably, 
I do not believe Judge Gorsuch would be a Justice for all of us.
  I will oppose his nomination, and I urge my colleagues to do the 
same. This vacancy is simply too important for the future of America 
and our values to do otherwise.
  I yield back.
  The PRESIDING OFFICER. The Senator from New Mexico.

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