[Congressional Record Volume 163, Number 57 (Monday, April 3, 2017)]
[House]
[Pages H2621-H2627]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
{time} 1945
CONFIRMATION OF NEIL GORSUCH TO THE SUPREME COURT
The SPEAKER pro tempore. Under the Speaker's announced policy of
January 3, 2017, the gentlewoman from the District of Columbia (Ms.
Norton) is recognized for 60 minutes as the designee of the minority
leader.
Ms. NORTON. Mr. Speaker, I am very pleased to come to the floor this
evening to coanchor the Congressional Black Caucus hour about the
present nominee to the Supreme Court, Neil Gorsuch.
I am very pleased that my good friend from Texas, Representative
Sheila Jackson Lee, a distinguished member of the Judiciary Committee,
has agreed to coanchor this hour with me.
Mr. Speaker, I am chair of the working group for the Congressional
Black Caucus that looks at nominees for Federal courts. So, I have
buried myself in the record of Neil Gorsuch and wrote the testimony
that we submitted to the Senate.
What I will do is speak for a few minutes generally about the
nominee, and then I will go to my good friend from Texas. I am very
pleased that another good friend, Mr. Don Payne, Jr., is here from the
State of New Jersey, and we will hear from him as well.
Now, just as the Congress has been polarized so has the court been
polarized, if you look at the liberal and conservative blocks in that
way. But, of course, since the death of Supreme Court Justice Antonin
Scalia, there has been a 4-4 split. Justice Anthony Kennedy, who is
still a Member of the Court is not always a predictable conservative,
though he tends to vote with the conservatives.
What has happened in the Senate is entirely predictable, at least
today. In an unprecedented move, the Senate refused to hear from or
even meet the nominee of President Obama. There was almost a full year,
yet the Senate refused to take up that nominee.
What happened today was not payback. If you listened to the
testimony, you would see that there are good reasons why the Senate
Democrats today decided to filibuster Judge Gorsuch.
I want to begin because I am speaking for the Congressional Black
Caucus with his views as they affect African-Americans and, by
definition, others who depend upon the antidiscrimination laws and the
Constitution of the United States.
There is more than enough in the record on race related matters from
Judge Gorsuch's 10th Circuit service to oppose his nomination. But let
me focus for a moment on his pre-court service, which seems to have
predicted what he would do in the court of appeals.
He was a principal deputy to the principal who had jurisdiction over
the Civil Rights Division. We have to pay attention to the fact that
the inspector general, during Judge Gorsuch's time in the Justice
Department, found that the Civil Rights Division, where he had some
oversight, had been politicized in order to stifle civil rights
enforcement. As you might imagine, the Congressional Black Caucus had
to pay attention to that finding by a neutral investigator.
We also are very concerned about how Gorsuch is a Justice Department
Official treated a Georgia election law. As we know, election laws from
the South--of course, there has been a historic decision that has made
the Voting Rights Act far less effective than it was--but certainly
during most of the time of the Act, Southern states had to go through
the Justice Department to
[[Page H2622]]
see if the laws in southern States, that had kept African-Americans
from voting for reasons of race, to see if newly enacted laws affecting
voting rights, in fact, discriminated against African-Americans and
others or not.
A Georgia election law was found by the Civil Rights Division to be
discriminatory. Judge Gorsuch was part of the team that overturned the
Civil Rights Division. That was, of course, challenged in the courts.
And the ruling of the Justice Department that pre-cleared the law--that
said it was all right to go ahead with this law that the Civil Rights
Division had found discriminated against Blacks--the court overturned
that finding of the Justice Department.
It used quite pregnant language. The District Court said that the
Georgia election law was reminiscent of Jim Crow laws. Those words have
special meaning in our history--and I speak not here about African-
Americans alone. But if you have found yourself in the minority on any
issue--it could be a First Amendment issue, it could be a criminal
justice issue--you want a court that will protect your rights, not only
the rights of the majority.
But this nominee has shown a hostility to litigation in the courts
that have been the primary ways we have vindicated constitutional
rights and the rights of minorities of every kind. In a telling op-ed,
this nominee, Mr. Gorsuch, said: ``American liberals have become
addicted to the courtroom, relying on judges and lawyers rather than
elected leaders and the ballot box, as the primary means of effecting
their social agenda.''
What? What else was there? The majority had enforced laws against the
minority--in this case, African-Americans. He conceded that Brown v.
Board of Education the school desegregation decision. But he went on to
say that liberals should ``kick their addiction'' to constitutional
litigation. This is a man who wants to get on the Court whose most
important mission is constitutional litigation.
I submit to you that even the Justice who epitomized conservatism,
Justice Scalia, never showed hostility coming to Court to vindicate the
rights of people who felt themselves to be offended. So in that
respect, I think it is clear that--and this is a very important
respect--Judge Gorsuch is more conservative than Justice Scalia was on
the Court.
Nothing could be more concerning than a Justice who says: Look, the
preferred way to vindicate your rights is the political process.
Who would disagree with that?
It is the failure of the political process that sends people to the
court.
It shows, it seems to me, little appreciation for the Bill of Rights
itself. The entire Bill of Rights is about the rights of the minority.
And again, the word ``minority'' means any of us could be in that
minority at any given point. You could be in that minority when it
comes to religious rights. You could be in that minority because of a
search and seizure case. You could be in that minority because of a
free speech case. And, yes, you could be in that minority because you
are part of a classic minority group.
That is why the 13th, 14th, and 15th Amendments were added to the
Bill of Rights. The Framers, of course, shared Gorsuch's preference for
the political process. A Constitution is a, small D, democratic
document. But they created a separation of powers government knowing
full well that majoritarian democracy sometimes treads on the rights of
minorities. That is why we have the Supreme Court of the United States
which Mr. Gorsuch seeks a seat.
Mr. Speaker, before I go on to discuss some cases, I yield to the
gentleman from New Jersey, (Mr. Payne), my good friend from New
Jersey's 10th Congressional District.
Mr. PAYNE. Mr. Speaker, I appreciate the gentlewoman from the
District of Columbia's leadership throughout the years on many of these
issues.
Mr. Speaker, confirmation of Judge Gorsuch to the Supreme Court would
be detrimental to the interests of working Americans, particularly
African-Americans and other vulnerable communities.
Just as President Trump's agenda prioritizes special interests, Judge
Gorsuch's record shows that he favors powerful interests and businesses
over regular people. His hostility to class action lawsuits would
threaten protections for workers, especially African-Americans and
other minorities.
What is particularly of concern to me is Gorsuch's opinion in what is
known as the ``frozen trucker'' case. Gorsuch ruled against an African-
American truck driver who, after breaking down in freezing weather,
ignored his supervisor by unhitching the broken trailer from his truck
and driving away in search of assistance.
In freezing cold weather, the truck driver is nearly freezing to
death. He has a truck that won't work with frozen brakes. They are
telling him to move--to use the truck and drive away. If he takes his
truck with frozen brakes, the harm potentially to other citizens is
great. An 18-wheeler truck with no brakes, that doesn't seem logical.
Gorsuch believed that the employee should have followed the orders,
even though the driver's life was at risk. Gorsuch was the sole vote
against the driver, who was put in the position of having to choose
between freezing to death, driving an unsafe vehicle and endangering
the lives of others, or unhitching his trailer and seeking help.
{time} 2000
Judge Gorsuch's record is also troubling when it comes to issues
around police accountability. Gorsuch believes in granting police
qualified immunity, which protects law enforcement from being held
liable for any excessive use of force. Now, this is deeply concerning
given the widespread use of excessive force against African Americans
by police and the increasing number of police shooting deaths of
unarmed African Americans.
This is particularly concerning to me. I come from Newark, New
Jersey, and the police department is being overseen by a Federal
monitor following a 2014 review that determined officers repeatedly
violated citizens' civil rights.
Additionally, Gorsuch's record on civil rights is deeply troubling.
The National Bar Association, our Nation's oldest and largest national
association of predominantly African-American lawyers and judges, notes
that Gorsuch has shown a strong tendency to be biased in favor of
powerful corporate interests and unapologetically biased against
workers and victims of civil and human rights violations.
The confirmation of Gorsuch would threaten the protections and the
rights of African Americans. Gorsuch is in lockstep with the President,
favoring the wealthy over ordinary Americans. This is why I oppose his
confirmation.
Even those who disagree that Gorsuch would bring a biased view to the
Court should see the necessity in delaying consideration of Gorsuch,
given the ongoing controversy over the Trump-Russia connection. It is
inappropriate to rush forward with a lifetime appointment made by a
President who is under investigation by the FBI and trapped in scandal.
The Senate should delay consideration of Gorsuch until an independent
commission investigates Russia's election interference and any ties
between Trump and Russia.
Let me just say that Judge Gorsuch has put on a very good show in
front of the Senate, seeming to be very confident and thoughtful, but
never really answering a lot of the questions that were asked of him.
We feel that this jurist should not sit on the highest court in the
land because of the bias that he has shown against working people and
regular citizens in this country. Justice is supposed to be blind, but
it seems that this jurist has a bias against the American working class
person, the normal Joe, the minority looking for an equal break, and to
have him sit on the highest court in the land would be a grave, grave
mistake.
Ms. NORTON. Mr. Speaker, I thank the gentleman from New Jersey (Mr.
Payne) for those cogent remarks.
I yield to the gentlewoman from Texas (Ms. Jackson Lee).
Ms. JACKSON LEE. Mr. Speaker, I thank the gentleman from New Jersey
(Mr. Payne) for his very careful scrutiny of Judge Gorsuch and for
participating with us tonight.
It gives me great privilege to join with the distinguished
Congresswoman from the District of Columbia (Ms. Norton) to be able to
really articulate
[[Page H2623]]
what is at stake with the potential for Gorsuch to be the ninth member
of the United States Supreme Court.
As I do that, allow me to offer a personal note of sympathy to my
hometown, to the Constable's Office, in the shooting and death of Chief
Clinton Greenwood, to his family for his tragic death, and to
acknowledge the service that he has given in many, many ways as a law
enforcement officer and attorney committed to the implementation of the
law. My sympathy goes to his family and to his colleagues.
I also want to acknowledge the tragedy in Russia and the loss of
life, which indicates how close all of us are around the world and that
we should be committed to the fight against terrorism, wherever it may
be.
If I might, I applaud the Democratic Senators, in this instance, in
the other body to express my appreciation for taking a fight that many
would be critical of. Now, that fight I don't put in the context of
politics or partisanship. I have not heard one Senator who is opposing
Judge Gorsuch and is not supporting or participating in the filibuster
mention one word about the political elections or the process that
occurred in 2016.
I have heard truly deliberative analysis that I think is important to
recount, Congresswoman Norton. I am delighted with the gentlewoman from
the District of Columbia and the distinguished leadership that the
gentlewoman gives us as the chair of the Judicial Nominating Committee
for the Congressional Black Caucus, a position that the gentlewoman has
served ably for years and has resulted in some outstanding jurists
because of her leadership that the Congressional Black Caucus has been
able to advocate for.
During the tenure of President Barack Obama, as the gentlewoman from
the District of Columbia worked very closely on his nominees,
distinguished jurists have been placed on the Federal bench and in the
Supreme Court to no one's complaint. In addition, President Obama
followed protocol and consulted with Members of the other party in the
United States Senate.
Unfortunately, we are now ending this process with the nomination of
Judge Gorsuch by the President of the United States, this President who
announced it as a campaign trick by issuing a list of individuals that
he had not vetted but had been given by those who were bartering: This
is a list, and you will have our support in the election.
My fear is that that is not the context in which distinguished
jurists should be appointed to the Supreme Court. There is no doubt
that this was bait for voters to be able to fall in the column of this
particular individual who now holds the office.
So no criticism should go to my colleagues in the other body who
realize that this is about life-or-death matters. This is about the
millions of Americans who will suffer at the hands of Judge Gorsuch on
the United States Supreme Court. I am more convinced now.
I am grateful for their debate because, as they have debated in a
very detailed, passionate manner, I hope that they have been able to
provide light and education to Americans who may be watching and trying
to understand the ``no'' vote and the ``yes'' vote, the filibuster,
that it is not in any way anyone's political desire to not have the
Supreme Court working on behalf of the American people, adhering to the
high calling and ultimate judgment of the Supreme Court, which is to
recognize settled law and to be able to respect the rights of all
Americans and not skew this Court to the point that some Americans will
be left out in the hall of justice.
Why should my friends in the other body who have taken this
courageous stand yield to false criticism and pontificating and
grandstanding about they have never seen this before, the other persons
who have voted ``yes'' have never seen this before, this is outrageous,
a qualified individual.
I have no angst against the person. He has ascended to the Tenth
Circuit Court of Appeals. He has colleagues who respect him. He showed
himself respectful before the Senate Judiciary Committee; in fact, some
called him charming and engaging. Again, I make mention of the fact
that this is about life and death.
So let me put in the context a very important statement made by
Amanda Bronstad in the National Law Journal article, February 28, 2017:
``Neil Gorsuch `Piercingly Textual' and Often Pro-Defense on Class
Actions and Arbitration.''
``According to a careful review of Gorsuch's decisions, his
textualist approach, more than ideology, is the common theme of his
opinions on class actions, arbitration, and mass torts. And yet, though
some of his decisions have favored plaintiffs, Gorsuch's careful
judicial reasoning and parsing of statutory language has more often led
him to side with the defense,'' leaving most others out in the cold.
In addition, Judge Gorsuch has a disdain for those who seek to
redress their civil rights and other remedies of law.
In a 2015 article published in the conservative National Review,
these are his words:
``American liberals have been addicted to the courtroom, relying on
judges and lawyers rather than elected leaders and the ballot box, as
the primary means of effecting their social agenda on everything from
gay marriage to assisted suicide to the use of vouchers for private
school education.
``This overweening addiction to the courtroom as the place to debate
social policy is bad for the country and bad for the judiciary.''
Well, Judge Gorsuch, let me tell you a thing or two. I grew up in a
segregated America. At my birth, African Americans were treated
unequally in terms of education as well as accommodations, as well as
the right to vote. We couldn't even march in some places in the Deep
South without being shot at, losing our lives, being hosed at, and dogs
making sure that our young kids were intimidated and even bitten.
Maybe he fails to remember the four little girls in the 16th Street
Baptist Church in Birmingham, called the bombing in Birmingham, in
1963. Maybe he fails to remember the tragedy of the Edmond Pettus
Bridge or Jimmie Lee Jackson shot dead in the streets of Selma. Or
maybe he doesn't understand Brown v. Board of Education, Roe v. Wade,
Miranda v. Arizona, Gideon v. Wainwright, New York Times v. Sullivan,
Obergefell v. Hodges, and Shelby County v. Holder. These cases are
dealing with issues such as the right to vote, the right to an equal
education, the Fourth Amendment interpretation of the right to be
protected from unreasonable search and seizure, and the First Amendment
right to freedom of the press.
{time} 2015
Maybe he doesn't understand that these cases have brought to America
the image and the recognition of justice. It doesn't seem that he has
that interpretation.
So I just want to read another interpretation of his record by the
Leadership Conference on Civil and Human Rights.
``Judge Gorsuch's decade-long record on the Federal bench, as well as
his writings, speeches, and activities throughout his career,
demonstrate he is a judge with an agenda.''
What a frightening proposition, that he goes to the Supreme Court,
having given the impression that he is just an open book, genuinely
concerned.
``His frequent dissents and concurrences show he is out of the main
stream of legal thought and unwilling to accept the constructs of
binding precedent and stare decisis when they dictate results he
disfavors.''
Stare decisis is something that we learned in law school, but that is
a very appropriate and important basis of decisions.
``If confirmed to the Supreme Court, which is closely divided on many
critical issues, Judge Gorsuch would tip the balance in a direction
that would undermine many of our core rights and legal protections. He
lacks the impartiality and independence the American people expect and
deserve from the Federal bench.''
Let me make one or two other points that I think are so very
important. I hope to put my entire statement into the Record, and we
will be engaging, and I know that my colleague will have further
comments, but I want to make sure that we point back to those who are
criticizing a very courageous stance because they are taking the
stance, my friends in the other body, in the backdrop of all these
accolades and
[[Page H2624]]
how genuine and charming he is. I have said that before.
But he is going against the backdrop of protocol--no engagement with
the Democratic Senators, no adherence to the President, when he was
President-elect, who pledged to the Nation that he would be the
President of all Americans--because it rings hollow to tens of millions
of Americans.
My colleague from New Jersey mentioned the truck driver story. It was
a 2-1 decision. He was dissenting. No person with common sense and
knowledge of the law would reject the understanding that this
individual acted not against the instructions of his employer in
leaving a truck that--by the way, the cargo area of the truck--nothing
was violated, no product was taken, with bad brakes, and in jeopardy of
his life, if he had left the cargo portion of the truck and tried to
drive away on this frozen night, after waiting 3 hours in a cabin where
he was freezing to death, he would have died.
Yet Judge Gorsuch did not think that was important enough to rule in
favor of this African-American who had a 2-1 decision. He thought that
the employer could fire him; and there was no factual basis for that,
that he did something when it was a balmy day, and he just went off
recklessly because he didn't want to be bothered or he was tired or he
was hungry. That was not the case.
That is cruel, Judge Gorsuch. Your conservative ideology and
professed judicial philosophy of original intent has harmed many.
He is not an unbiased judge. At best, he is a younger, more charming
version of Judge Robert Bork, who was rejected 58-42 by the Senate in
1987. So he has a history of ruling against people who have used the
legal system to hold government officials accountable.
The gentleman who was fired was fired, I think, 7 years ago, and has
not been able to find a job yet.
By the way, the truck's heater didn't work.
His words were--Judge Gorsuch dissented and said the employee should
have followed orders, even at the risk of serious injury.
In NLRB v. Community Health Services, Judge Gorsuch again dissented
from a majority opinion that found in favor of employees, where a
hospital was required to award back pay to 13 employees whose hours had
been reduced, in violation of the National Labor Relations Act.
As the ranking member on the Subcommittee on Crime, Terrorism,
Homeland Security and Investigations, we are trying to find the right
kind of balance between police and community. But Judge Gorsuch has
ruled that there is no reason to give police any punishment, such as
the case when an individual used a stun gun and the victim died.
Judge Gorsuch's judicial record on police accountability minimized
the Fourth Amendment protections against warrantless search and
seizure.
I will continue my discussions of Judge Gorsuch. I will come back
again and finish my comments on issues dealing with, again, civil
rights and the rights of women.
I am delighted to cohost and comanage this hour dealing with the
nomination of Judge Gorsuch.
Ms. NORTON. I thank my friend for her comments.
Mr. Speaker, I was the chair, before I came to Congress, in another
life, of the Equal Employment Opportunity Commission, dealing with job
discrimination in our country. I was interested, in my own research on
Judge Gorsuch to find that he has written more opinions in
discrimination cases than other cases.
Now, the Rocky Mountain States of the Tenth Circuit do not have large
numbers of African Americans, but the way in which the Supreme Court
has interpreted antidiscrimination laws doesn't, in fact, basically
differ from one group.
The EEOC also has jurisdiction over disability discrimination. For
example, the Court has always indicated that anti-discrimination laws
should be read broadly in order to capture discrimination. Whether we
are talking about the antidiscrimination laws as they affect women or
racial or ethnic minorities or religious minorities, the Supreme Court
simply will not read these laws narrowly.
But that is not how Judge Gorsuch has operated on the Tenth Circuit.
He has given a cramped interpretation of the antidiscrimination laws,
and yet it is interesting to note that, when there is a claim of
discrimination based on religion, he gives a very broad interpretation.
He is perhaps best known for his opinion in the so-called Hobby Lobby
case. This is the case in which he found that a closely held
corporation was within its rights when it refused to adopt the
Affordable Health Care Act's mandate that women and men be granted
contraceptive protection as a part of health insurance. Judge Gorsuch
found that this was a violation of the rights of the closely held
corporation, the first time there has been such a holding.
It is very interesting also to note that right after that, there was
a case called Little Sisters of the Poor. Now, the Little Sisters of
the Poor, unlike the closely held corporation, is, in fact, a religious
organization, and they too said they do not wish to have contraception
be a part of any of the institutions that they govern.
Remember, we had a religious organization there, not a closely held
corporation. The Court found that, to accommodate both women and the
religious scruples of the Little Sisters, the Little Sisters had only
to acknowledge that they did not desire to enforce the contraceptive
mandate, and then it would be taken away from them and would be done by
a third party, by the government. That was allowed as a way to
accommodate the Little Sisters. Judge Gorsuch opposed that and wrote an
opposing opinion.
So to see this difference in the way he treats discrimination,
reading antidiscrimination statutes affecting minorities of every kind
in a narrow fashion; when he finds religious discrimination by statute,
he reads those statutes very broadly.
His technical rulings are of statutes that the Supreme Court has
broadly interpreted, would have made these statutes worthless. You
simply cannot enforce antidiscrimination statutes by treating them as
though they were technical statutes that, for example, govern financial
dealings. And yet this nominee has brought that kind of interpretation
of antidiscrimination statutes.
I was shocked at his holding in Hwang v. Kansas State University,
which illustrates what I am saying. There, a professor brought a case
because her university had refused to follow the guidance of the Equal
Employment Opportunity Commission. She was entitled to a 6-month leave
to accommodate her condition. This is a statute involving disability
rights. She took that 6-month leave and asked to have it extended until
a day certain, not indefinitely, to recover further from cancer and a
bone marrow transplant.
Now, the EEOC guidance said that an additional leave beyond 6 months
was possible as an accommodation to an employee unless there was an
undue hardship. There was no undue hardship.
But this nominee, Judge Gorsuch, found that the ``6 months was more
than enough to comply with the law in nearly every case''--yes, in
nearly every case--but the EEOC guidance said that there obviously
could be extensions. I can think of no case that would call for more of
an extension than a professor who said: I will come back on a date
certain, but I have a cancer diagnosis, and I have had a bone marrow
transplant.
I hope that that case would give some pause to anyone who hears about
it. The nominee has been quite consistent in how he has ruled in the
Tenth Circuit, which gives every reason to believe that he is going to
carry that consistency to the Supreme Court.
I was very interested to see how he ruled on a Planned Parenthood
case where the Governor of Utah had seen these notorious false videos
that purported to show the sale of fetal tissue.
{time} 2030
Now, those videos--every court that has considered those videos have
found that they had nothing to do with Planned Parenthood and what it
actually did. So this matter has been litigated in a number of
circuits. It was litigated in the 10th Circuit in a case called Planned
Parenthood Association of Utah v. Herbert; and the 10th Circuit found,
as the other circuits have, that these videos were not, in fact,
associated with Planned Parenthood--the false videos that surfaced.
[[Page H2625]]
Interestingly, the court, on rehearing, which Judge Gorsuch had
sought, characterized his dissenting opinion as ``mischaracterization
of this litigation and the panel opinion at several turns.''
Here again, we see Judge Gorsuch going out of his way to rule in a
fashion that he sees as necessary to sustain his broad views of
religious claims. I am trying to give you an overview of Judge
Gorsuch's opinions in a number of different areas, and I am mystified
by how he would reach the conclusions he has reached in discrimination
cases.
Here is one that is very revealing: A.F. ex rel Christine B. v.
Espanola Public Schools, where a student was found by Judge Gorsuch not
to be able to sue for violation of the Americans with Disabilities Act
because she had earlier settled a suit for violations of another act,
the so-called IDEA Act.
Well, she has a right under both laws. She would have obviously
raised perhaps different claims, but his view was that she should not
be in court. This closing of the courts must be taken seriously in
evaluating Judge Gorsuch. Because if you can't get into court in the
first place, particularly if you are a member of a minority group, or
for the moment find yourself in the minority on a particular issue,
then you are out of court before you are in court. You have lost before
you cross the threshold.
I can't imagine why Judge Gorsuch didn't allow a student to continue
when she had, in frustration, left her school because of violations of
her disability rights. That frustration, as far as he was concerned,
closed the courthouse door to her.
Why would we want to interpret discrimination laws in a fashion that
you can't get into court to make your case?
A particularly cruel case, Compass Environmental v. OSHRC, a case
where Gorsuch wrote the dissent, involved a worker who was electrocuted
and died as a result. The corporation had trained its workers. This
worker happened to be hired after the training had taken place;
therefore, was not aware of all of the safeguards.
The Occupational Safety and Health Review Commission found that the
electrocution of the worker could have been avoided if the corporation,
Compass Environmental, had provided the necessary training. So it cited
Compass and it fined Compass. Gorsuch dissented. He found that the
company had not violated the law. The company hadn't provided the
requisite training. The man was electrocuted, and it is very
instructive what Judge Gorsuch said:
``Administrative agencies enjoy remarkable powers in our
legal order. Their interpretations of ambiguous statutes
control even when everyone thinks Congress really meant
something else.''
He didn't like the administrative ruling, so he dissented and would
have ruled against the family of a man who was electrocuted.
That is not a man I want on the Supreme Court. This is not a man who
knows how to interpret the discrimination statutes which have always
been interpreted broadly by the Federal courts. This is not a man who
should sit on the Supreme Court of the United States.
Mr. Speaker, I now yield to the gentlewoman from Texas (Ms. Jackson
Lee), my good friend who is coanchoring this hour with me, who would
like to say a few words.
Ms. JACKSON LEE. Mr. Speaker, I thank the gentlewoman for again
articulating the really egregious opinions, judicial approach, and
temperament of Judge Gorsuch.
I will conclude my remarks with a focus on the issues of women's
rights as well as some cases dealing with immigration.
Immigration, Mr. Speaker, is a crucial issue that we are addressing
now. In fact, I will cite an incident that happened in our district--or
in my district or in my community just a few days ago, which means, as
we proceed, there may be a number of cases coming to the Federal courts
and the district court because I think, as my colleague has indicated--
both of us have indicated--that the courts are for petitioning. That is
what the courts are for.
It seems that Judge Gorsuch wants to slam the door. And this is a--
how should I say it--a metaphor. It is not a precise comment by the
judge, but annoyed that people have to come and use the courts. As he
has indicated, minorities and women and others want to use the court
for their social agenda.
And for fear of being redundant, I feel moved--my passion is so
strong because, Judge Gorsuch: Have you walked at any moment in your
life in my shoes as a woman and as a minority?
Have you walked in the shoes of the little children who made the
plaintiffs of Brown v. Board of Education of Topeka?
Were you in any way discriminated against with respect to education?
Have you ever been a victim of stop and frisk?
Have you ever been incarcerated for something you did not do?
Have you ever been a woman who had been subjected to sexual
harassment or discrimination?
Do you understand the purpose of title VII?
Do you understand the value of affirmative action both in policy and
in law?
Just a few weeks ago we got an effective and important decision on
affirmative action out of this Supreme Court, in a court that is 4-4.
I don't think that is the case. And I just, again, want to take this
as I cite these cases. I just want to, again, cite Amanda Bronstad,
that some of his decisions may have favored one or two plaintiffs. I am
not going to deny that. But Gorsuch's careful judicial reasoning and
parsing of statutory language has more than often led him to side with
the defense.
That is not the role of a Supreme Court Justice. It is not to side
with anyone. It is to have the view on the basis of the appeal within
the context of precedence and others how a decision should be rendered.
So these are Judge Gorsuch's decisions:
In Strickland v. UPS, Gorsuch dissented from a ruling giving a female
UPS driver a chance to prove sex discrimination, arguing that the
plaintiff had not provided evidence that she was treated less favorably
than her male colleagues, even though in the documents submitted in the
lower court, her coworkers testified and gave written testimony
detailing the level of mistreatment they witnessed her receiving while
employed by UPS.
In Hwang v. Kansas State University involved a professor employed by
Kansas State University who was diagnosed with cancer, and after
treatments, requested an extension of her disability--another woman--
due to a flu outbreak on campus which could potentially compromise her
health. And Judge Gorsuch talked about ``showing up'' as an essential
job function, and that the Rehabilitation Act should not be used as a
safety net for employees who cannot work. I think her request was an
extension, not a forever.
Two women, among others, that he found no reason to be supportive of.
He could not find no legal precedent, nothing that would give him the
ability to make a decision that was within the law and humane, even
though he was in the dissent.
And then in Planned Parenthood Association of Utah v. Herbert, the
Governor of that State, again, he dissented against the court's
majority, impacting women's health, to decline a full court review of
the case--the court's majority decision to decline a full court review
of the case, in which Governor Herbert of Utah stripped Federal funding
away from Planned Parenthood. Neither party requested a full court
review; however, Judge Gorsuch decided to deviate from court practices
and norms to signal his favor of Governor Herbert's decision.
Other women--he continues to show hostility toward women's rights and
his willingness to overlook institutions that discriminate against
women. His record indicates that.
Let me finish with this comment on immigration--and if I might, Mr.
Speaker, how much time is remaining?
The SPEAKER pro tempore (Mr. Dunn). The gentlewoman has 2 minutes
remaining.
Ms. JACKSON LEE. Mr. Speaker, let me finish quickly and let my
colleague from the District of Columbia close.
Let me indicate an immigration case, and he voted to affirm the
district's court granting of summary judgment which blocked a title VII
national origin discrimination case from going to
[[Page H2626]]
trial, despite evidence of animus, unlawful reverification and document
abuse by the employer.
Mr. Speaker, as a senior member of the House Committee on the
Judiciary, Ranking Member of the Judiciary Subcommittee on Crime,
Terrorism, Homeland Security, and Investigations, and member of the
Congressional Voting Rights Caucus, I rise today to express my views
regarding the nomination of Judge Neil Gorsuch to be Associate Justice
of the Supreme Court.
The Supreme Court is the highest court in the land and the final
arbiter of our Constitution and laws, and its rulings can impact the
lives and rights of all Americans as shown in the cases of Brown v.
Board of Education, Roe v. Wade; Miranda v. Arizona; Gideon v.
Wainwright; New York Times v. Sullivan; Obergefell v. Hodges; and
Shelby County v. Holder, to name but a few.
Judge Gorsuch is a judge with an agenda, as demonstrated by his
record on the federal bench, as well as his writings, speeches, and
activities throughout his career.
Judge Gorsuch's frequent dissents and concurrences show he is out of
the mainstream of legal thought and unwilling to accept the constructs
of binding precedent and stare decisis when they dictate results he
disfavors.
Judge Gorsuch's appointment to the Court would tip the balance in a
direction that would undermine many of the core rights and legal
protections Americans cherish.
For the reasons I will discuss in detail, the Senate should reject
his nomination and not consent to his confirmation as the next
Associate Justice of the U.S. Supreme Court.
On Election Night the President-Elect pledged to the nation that he
would be a president to all Americans.
That pledge will ring hollow to tens of millions of Americans in
light of his nomination of Judge Neil M. Gorsuch to be an Associate
Justice of the U.S. Supreme Court.
Perhaps nothing would do more to reassure the American people that
the President is committed to unifying the nation than the nomination
and appointment of a person to be Associate Justice who has a record of
championing and protecting, rather than opposing and undermining, the
precious right to vote; the constitutionally guaranteed right of
privacy, criminal justice reform, and support for reform of the
nation's immigration system so that it is fair and humane.
That is not to be found in the record or character of Judge Gorsuch.
It should not be forgotten that the vacancy at issue was created in
February 2016 by the death of Justice Antonin Scalia and should have
been filled by the confirmation of the eminently qualified Judge
Merrick Garland, Chief Judge of the U.S. Court of Appeals for the D.C.
Circuit.
In fact, the only reason Judge Garland is not now on the Court is
because Republican Senators disregarded a century of precedent and
their constitutional oaths and refused to consider the nomination
because it was made by President Obama.
Judge Gorsuch's conservative ideology and professed judicial
philosophy of ``original intent,'' which more accurately should be
called the doctrine of predetermined result, has been at the core of
his prior legal decisions.
He is not an unbiased judge; at best, he is a younger, more charming
version of Judge Robert Bork, who was rejected 58-42 by the Senate in
1987.
Unlike his predecessors, Presidents Obama, Clinton, Reagan,
Eisenhower among them, the current President did not consult in advance
with the bipartisan leadership of the Senate and its Judiciary
Committee.
Instead, the President selected Judge Gorsuch from the list of names
provided him by the right-wing legal group, the Federalists Society.
Judge Gorsuch's adherence to originalism is alarming and should raise
concerns for all Americans because on a narrowly divided Court, his
could be the deciding vote to dismantle many of the constitutional
safeguards and protections upheld by the Court that have moved the
country forward and made it better.
Judge Gorsuch has a history of ruling against people who have used
the legal system to hold government officials accountable.
He has also used the bench to rule in favor of large corporations
routinely and against the rights of workers.
He has been lenient on those that have used excessive force and
police brutality.
His record demonstrates hostility towards equal opportunity, worker's
rights, women's access to reproductive healthcare services, and
protections for persons with disabilities.
For example, in TransAm Trucking, Inc. v. Administrative Review
Board, the majority held that a trucking company unlawfully fired an
employee in violation of federal whistleblower protections.
The employee, Alphonse Maddin, was a truck driver whose brakes broke
down in the middle of a freezing January night in Illinois.
The truck heater didn't work either, and he got so cold that he
couldn't feel his feet or torso, and he had trouble breathing.
Nonetheless, his boss ordered him to wait in the truck until a
repairperson arrived.
After waiting for three hours, Mr. Maddin finally drove off in the
truck and left the trailer behind, in search of assistance.
His employer fired him a week later for violating company policy by
abandoning his load while under dispatch.
The panel majority said the firing was unlawful, but Judge Gorsuch
dissented and said the employee should have followed orders even at the
risk of serious injury.
In NLRB v. Community Health Services, Inc., Judge Gorsuch again
dissented from a majority opinion that found in favor of employees,
where a hospital was required to award back pay to 13 employees whose
hours had been reduced in violation of the National Labor Relations
Act.
Judge Gorsuch's frequent and recurring dissents in workers' rights
cases suggest a refusal to follow binding case law when it leads to
results that favor workers rather than businesses and employers.
In Strickland v. UPS, Gorsuch dissented from a ruling giving a female
UPS driver a chance to prove sex discrimination, arguing that the
plaintiff had not provided evidence that she was treated less favorably
than her male colleagues even though her coworkers testified and gave
written testimony detailing the level of mistreatment they witnessed
her receiving while employed by UPS.
Hwang v. Kansas State University involved a professor employed by
Kansas State University who was diagnosed with cancer, and after
treatments requested an extension for her disability due to a flu
outbreak on the campus, which could potentially compromise her health.
Judge Gorsuch ruled that ``showing up'' for work is an essential job
function and that the Rehabilitation Act should not be used as a safety
net for employees who cannot work.
In Planned Parenthood Association of Utah v. Herbert, Judge Gorsuch
dissented against the court's majority decision to decline a full court
review of the case, in which, Governor Herbert of Utah stripped federal
funding away from Planned Parenthood.
Neither party requested a full court review, however, Judge Gorsuch
desired to deviate from court practices and norms to signal his favor
for Governor Herbert's decision.
This particular case amplifies Judge Gorsuch's inability to remain
impartial when deciding cases that may conflict with his personal
beliefs.
Throughout his tenure as a Judge, Gorsuch's record indicates his
hostility toward women's rights and his willingness to overlook
institutions that discriminate against women.
Women will likely be disproportionately impacted by Judge Gorsuch's
appointment to the United States Supreme Court and any decisions
related to health, labor, and reproductive justice.
Judge Gorsuch's record shows that he believes police officers always
should be granted qualified immunity, allowing police officers and
other government officials to avoid being held accountable for the
excessive use of force.
His record on police immunity aligns with President Trump's belief in
police impunity.
In cases where victims of excessive force did not pose an imminent
threat to police safety, Judge Gorsuch has a tendency to side with
police.
Judge Gorsuch's judicial record on police accountability minimizes
the Fourth Amendment protections against warrantless search and
seizure.
In three separate cases, Gorsuch ruled in favor of police searches of
vehicles without a warrant.
As an Associate Justice of the Supreme Court of the United States,
Judge Gorsuch would be one of the nine individuals tasked with one of
the most critical systems of American democracy.
Because of the decisions rendered by the Supreme Court of the United
States, women have been granted reproductive rights, de jure
segregation and discrimination against African-Americans has been
abolished and their right to vote protected, workers have been granted
security from exploitative labor practices; and marriage equality is
the law of the land.
If confirmed to a evenly divided United States Supreme Court, it is
unlikely that Judge Gorsuch would have a balanced, unbiased view of
important issues.
Judge Gorsuch's extreme judicial philosophy of original intent would
likely lead him to cast decisive, out-of-the mainstream votes that
reverse significant gains in the areas of police accountability, civil
rights and liberties, women's reproductive rights, and workers' rights.
Judge Gorsuch's record in each of these areas should raise concerns
for all Americans.
Opposing Judge Gorsuch is not a difficult decision; for members of
the communities represented by CBC members, it is a matter of survival,
of life and death.
An Associate Justice would be expected to be an independent jurist
capable of rendering
[[Page H2627]]
judicial decisions that prevent executive overreach.
No senator should vote to confirm the nomination of Judge Neil
Gorsuch as Associate Justice if he or she has the slightest doubt that
he possesses the character, qualities, integrity, and commitment to
justice and equality needed for this position.
There is so much to say about Judge Gorsuch, so much to say about the
stance that is being taken by colleagues who are not being political,
who are not talking about the 2016 election, who are simply talking
about the courthouse door being slammed in the face of the most
vulnerable.
I believe that this judge should not ascend to the United States
Supreme Court.
Ms. NORTON. I thank my good friend for helping us document why we
believe this is not the time for this Justice to be on the Supreme
Court.
We recognize that it is not the House of Representatives that decides
this matter, but the Congressional Black Caucus represents 17 million
Americans who will be deeply affected by who sits on this Court. I
appreciate that we have had this full hour to express our views.
Mr. Speaker, I yield back the balance of my time.
____________________