[Congressional Record Volume 163, Number 56 (Thursday, March 30, 2017)]
[Senate]
[Pages S2120-S2121]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF NEIL GORSUCH

  Mr. SCHUMER. Mr. President, as we prepare to consider the nomination 
of Judge Neil Gorsuch for the Supreme Court, I would like to take a 
moment this morning to discuss the false choice Republicans are 
presenting about his confirmation.
  The Republican majority wants everyone to believe that by the end of 
next week one of two things must happen: Either Judge Gorsuch will pass 
with 60 votes or they must exercise the nuclear option and change the 
rules of the Senate so that he can pass on a simple majority vote. As 
Republicans tell it, one inexorably follows from the other. They are 
talking about next week as if they have no choice but to go nuclear if 
Judge Gorsuch doesn't earn 60 votes.
  It is absolutely false. It is complete hokum. This is not some 
inevitable showdown. The Republicans control this body. They can choose 
to go nuclear or not. The ball is entirely in

[[Page S2121]]

their court. In the past, when a President's nominee didn't get enough 
support for confirmation for whatever reason, the President just picked 
another nominee. If it comes to that, that is what this President 
should do. If Judge Gorsuch fails to garner 60 votes, the answer isn't 
to irrevocably change the rules of the Senate, the answer is to change 
the nominee. It is not Gorsuch or bust.
  The Republicans are playing a game of unnecessary and dangerous 
brinksmanship. If it comes to a rules change--and I sincerely hope that 
it does not for the sake of the grand traditions of this body, for the 
sake of the advice and consent clause of the Constitution, but if it 
does--it will be squarely on the shoulders of the Republican Party and 
the Republican leader--a Republican Party that broke 230 years of 
precedent when it refused to even consider President Obama's nominee, 
Chief Judge Merrick Garland, with almost a year left in Obama's 
Presidency. There was no vote--not even a hearing--and Republicans 
accuse Democrats of the first partisan filibuster of a Supreme Court 
nominee? What Republicans did to Merrick Garland was worse than a 
filibuster. They didn't even grant him the basic courtesy of a 
filibuster. Merrick Garland actually was a consensus nominee with 
Republican buy-in for the Supreme Court.
  Second, President Trump totally dispatched with the notion of 
``advice and consent'' by pledging, before he was even elected, to 
nominate a Supreme Court Justice off of a preapproved list of hard-
right, conservative judges put together by the Heritage Foundation and 
the Federalist Society. Contrast that with Bill Clinton, who sought and 
took the advice of the Republican Judiciary Chairman, Orrin Hatch, in 
nominating Justices Ginsburg and Breyer. He did not pick his first 
choice, Bruce Babbitt, because Orrin Hatch said that would be a bad 
idea and could not bring the kind of unity we needed. How about 
Democratic President Obama, who took, again, the advice of Orrin Hatch 
when he picked Merrick Garland. There was bipartisan consultation. That 
is why the process worked. There is none now. The Heritage Foundation 
and the Federalist Society are not simply mainstream organizations, as 
every Republican knows, but they are organizations on the hard-right of 
the Republican side who often threaten Republicans if they don't vote 
the right way--the far-right way. So we are not talking about ``advise 
and consent.'' We are talking about something that was done without any 
consultation and a political move by a President to shore up his base 
with the hard rightwing.
  What President Trump did was worse than simply ignoring article II of 
the Constitution. President Trump actively sought the advice and 
consent of rightwing special interest groups instead of the Senate. 
That is another Supreme Court-related precedent that the Republicans 
discard. Because President Trump made that choice, now Republicans are 
saying they have no choice but to change the rules? It is illogical and 
self-serving. For all the handwringing of my friends on the other side 
of the aisle that they cannot imagine Democrats voting against Judge 
Gorsuch, I would like to remind them that only three of the current 
Senators on the Republican side voted for either of President Obama's 
confirmed nominees. Let me repeat that. Only three of the current 
Senators on the Republican side voted for either one of President 
Obama's confirmed nominees. Most voted for neither, and every single 
one of them lined up to conduct an ``audacious'' partisan blockade of 
Merrick Garland.
  It is true the norms and precedents and traditions have been eroded 
by both sides. We changed the rules for lower court nominees in 2013 
after years of unprecedented obstruction by Republicans on routine 
circuit and district court judges. Still, I am on the record as 
regretting that decision. But this is in an order of magnitude much 
greater than that. This is the Supreme Court. This is the Court that is 
the final arbiter of U.S. law and the Constitution. We Democrats have 
serious principled concerns about Judge Gorsuch, his record, his long 
history of ties to ultraconservative interests, and his almost 
instinctive tendency to side with special power interests over average 
citizens. We have principled concerns about how Judge Gorsuch was 
groomed by hard-right conservative billionaires, like Mr. Phillip 
Anschutz. We have principled concerns about how Judge Gorsuch was 
selected off a preapproved list of conservative judges made by 
organizations who spent three decades campaigning to move our judiciary 
far to the right.
  Judge Gorsuch had a chance to answer these concerns in his hearings. 
We were all waiting and hoping, but our questions were met with 
practiced evasions. He couldn't even answer whether Brown v. Board was 
decided correctly.
  Instead of considering the possibility of another nominee should 
Judge Gorsuch fail to reach 60 votes, our Republican friends are 
threatening to press the big red button for him.
  Again, the Republicans are creating a false choice--Judge Gorsuch or 
the nuclear option--in an attempt to avoid the blame if they change the 
rules, and it just doesn't wash. The Republicans control this body. 
They are in the driver's seat, and they are the only reason that we are 
here today. They held this seat open for over 1 year so that this 
President could install someone handpicked by the Heritage Foundation 
and the Federalist Society--a lifetime appointment for this President, 
whose campaign is under investigation by the FBI for potential ties to 
Russia.
  I just repeat to my Republican colleagues: You don't need to change 
the rules if Judge Gorsuch doesn't get 60 votes. You are not required 
to do so. You just need to change the nominee and do some bipartisan 
consultation as Presidents of both parties have done in the past.

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