[Congressional Record Volume 163, Number 57 (Monday, April 3, 2017)]
[Senate]
[Pages S2159-S2163]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
OLD VESSELS EXEMPTION ACT
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to the consideration of S. 89, which the clerk will
report.
The bill clerk read as follows:
A bill (S. 89) to amend title 46, United States Code, to
exempt old vessels that only operate within inland waterways
from the fire-retardant materials requirement if the owners
of such vessels make annual structural alterations to at
least 10 percent of the areas of the vessels that are not
constructed of fire-retardant materials and for other
purposes.
The ACTING PRESIDENT pro tempore. Under the previous order, the time
until 5:30 p.m. will be equally divided in the usual form.
If no one yields time, the time will be charged equally.
The Senator from West Virginia.
Nomination of Neil Gorsuch
Mrs. CAPITO. Mr. President, I come to the floor today to express my
strong support for the confirmation of Judge Neil Gorsuch to be the
next Associate Justice of the U.S. Supreme Court. Few individuals over
the last century have impacted the American legal discourse as
profoundly as the late Justice Antonin Scalia.
In the wake of his untimely passing last February, Justice Scalia
left behind a legacy of faithfully applying the law and upholding the
principles of our Constitution. Judge Neil Gorsuch is a worthy
successor to Judge Antonin Scalia.
Judge Gorsuch understands the protections granted in the
Constitution, including the separation of powers, federalism, and the
Bill of Rights. He knows that the Constitution provides Americans with
an indispensable safeguard against government overreach.
His past opinions demonstrate that he will honor constitutional
protections afforded through due process, the right to bear arms, equal
protection under the law, and religious freedom.
Legal experts from across the political spectrum are very much in
agreement with the Gorsuch nomination. The American Bar Association's
Standing Committee on the Federal Judiciary unanimously gave Judge
Gorsuch the highest possible rating of ``well qualified'' for the
Supreme Court. I couldn't agree more.
One of Judge Gorsuch's associates, the chief judge of the Tenth
Circuit who served with Judge Gorsuch, has said about him:
Judge Gorsuch brings to the bench a powerful intellect
combined with a probing and analytical approach to every
issue. He brings to each case a strong commitment to limit
his analysis to that case--its facts, the record, and the law
cited and applicable. He does not use his judicial role as a
vehicle for anything other than deciding the case before him.
President Obama's former Solicitor General Neal Katyal penned an op-
ed in the New York Times supporting Judge Gorsuch and wrote:
I have no doubt that if confirmed, Judge Gorsuch would help
restore confidence in the rule of law.
His years on the bench reveal a commitment to judicial
independence--a record that should give the American people
confidence
[[Page S2160]]
that he will not compromise principle to favor the president
who appointed him.
Those are the words of the Solicitor General who argued on behalf of
President Obama's administration in front of the Supreme Court.
Judge Gorsuch has been through the confirmation process before--as we
have heard many times on this floor--when Senators, some of them in
this body today, approved his nomination to the Court of Appeals for
the Tenth Circuit without opposition.
I was privileged to meet with Judge Gorsuch several weeks ago, and it
was clear to me through our conversation, a thorough examination of his
record, and watching last week's hearing in the Judiciary Committee
that Judge Gorsuch will decide cases fairly, based on our Constitution
and laws. Isn't that the way it should be? This is what West Virginians
expect from a Supreme Court Justice.
Newspapers in my State have recognized this nominee's strong
qualifications of independence and respect for the rule of law. The
Charleston Daily Mail editorialized:
Gorsuch has strong legal credentials and deserves to be
confirmed.
He is the kind of pick that any president should make,
Democrat or Republican, because of his proven qualities
necessary for any justice: a strong understanding and respect
for the nation's founding document, the U.S. Constitution.
The Wheeling Intelligencer and News Register wrote:
During hearings last week, Gorsuch's suitability for a high
court post was made abundantly clear.
He is precisely the type of judge--faithful to the
Constitution not ideology on specific issues--the nation
needs.
And the Martinsburg Journal said:
Gorsuch seems to believe in using the plain language of the
Constitution to decide cases, regardless of his own
preferences.
That--someone who believes only the people not the courts
can change the Constitution--is precisely the type of Supreme
Court justice we Americans need.
The American people benefited from an open and transparent Supreme
Court process that led to Judge Gorsuch being nominated.
During the 2016 Presidential election, both candidates were
transparent about the type of Supreme Court Justice they would appoint
if elected. President Trump released a list of 21 names, a list that
included Judge Gorsuch, and promised voters that he would fill this
Supreme Court vacancy with someone from that list. Voters paid
attention.
According to an NBC News exit poll, 70 percent of voters said the
selection of a Supreme Court Justice was either the most important
factor in their vote for President or an important factor. Let me state
that again--70 percent.
The American people weighed in, and President Trump acted wisely in
selecting Judge Gorsuch. He is a mainstream judge who is well qualified
for the U.S. Supreme Court.
Unfortunately, the Democratic leader has indicated that his party
intends to engage in an unprecedented partisan filibuster of this
nomination. A filibuster of a nominee of this caliber would be a
tremendous mistake, I believe, that would harm the Senate as an
institution. There has never been a Supreme Court nomination that has
been defeated by a partisan filibuster of the type that the Senate
Democrats are telegraphing. It is one thing to vote against a nominee
on whatever grounds a Senator may wish, but it is quite another to
filibuster in an effort to block a nomination that has been submitted
by a duly elected President who has the support of the majority of the
Senate.
Senators have always enjoyed the ability to filibuster nominations.
That ability has remained available because Senators have shown
restraint in applying the power that comes along with requiring
unlimited debate. The clear tradition of the Senate--and this is a body
of tradition, I have learned--over the course of its 230 years of
history is a confirmation by a majority vote. That tradition has been
demonstrated in recent Supreme Court nominations.
President Obama nominated both Sonia Sotomayor and Elena Kagan to the
Supreme Court. Neither Justice Sotomayor nor Justice Kagan faced a
filibuster in the Senate.
President George W. Bush nominated John Roberts as Chief Justice.
There was no filibuster attempt against that nomination.
President Bill Clinton nominated Ruth Bader Ginsburg and Stephen
Breyer to the Supreme Court. Neither faced a filibuster.
President George H.W. Bush nominated David Souter and Clarence Thomas
to the Supreme Court. Neither Justice faced a filibuster even though 48
Senators voted against the Thomas nomination.
One recent Supreme Court nomination did require a cloture vote when a
group of Democrat Senators attempted to block a vote on the nomination
of Justice Alito's nomination, but a large majority of Senators--72, in
fact--invoked cloture, which preserved the bipartisan practice of
rejecting filibusters against Supreme Court nominees. Among those who
rejected the Alito filibuster in 2006 were the two Democratic Senators
from my State--Senator Robert C. Byrd and Senator Jay Rockefeller.
There were 72 Senators who voted to invoke cloture on Justice Alito's
nomination, but only 58 ended up voting for the final confirmation.
The Senate has a very clear history of rejecting the use of the
filibuster on Supreme Court nominations, but there is no justification
for a filibuster on the Gorsuch nomination. Neil Gorsuch is a
mainstream judge with the highest possible rating from the American Bar
Association. He was confirmed by the Senate, without objection, in the
year 2006. His service on the Tenth Circuit Court of Appeals has earned
him the respect of his judicial colleagues, and he has demonstrated the
independence and respect for the law that the American people expect
from a Supreme Court Justice. I hope that at least eight of my
Democratic colleagues will join us regardless of how they, ultimately,
will vote on Judge Gorsuch's confirmation. I hope they will recognize
the need to invoke cloture on this nomination.
The Senate will confirm Judge Gorsuch to the Supreme Court. For the
good of the Nation and for the good of the Senate, there should be no
filibuster of this well-qualified nominee.
I yield the floor.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. SCHUMER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Recognition of the Minority Leader
The Democratic leader is recognized.
Mr. SCHUMER. Mr. President, first, let me thank my friend and
colleague from Nebraska for her indulgence.
Explosion in Saint Petersburg, Russia
Before I begin, Mr. President, I want to express our concern here in
the United States for our friends in Saint Petersburg, Russia, in the
wake of an explosion on their subway system this morning. Russia has
been in the news a lot recently, typically in adversarial terms. Today
is a time to remember that, whatever our differences, we wish no ill to
the people of any nation. Our thoughts and prayers are with the
families of the Russians who were killed this morning. We wish a swift
recovery to the injured and hope the perpetrators are soon brought to
justice.
Nomination of Neil Gorsuch
Mr. President, I rise this afternoon on the nomination of Judge Neil
Gorsuch to the Supreme Court, which was just advanced by the Judiciary
Committee.
This afternoon, it has become clear that Judge Gorsuch does not have
the 60 votes that are necessary to end debate on his nomination. So now
the focus is shifting away from the issue of whether Judge Gorsuch will
get 60 votes on the cloture motion and toward the fundamental question
before us: Will the majority leader break the rules of the Senate in
order to get Judge Gorsuch on the bench?
My friend, the majority leader, has said several times that Judge
Gorsuch will be confirmed by the end of this week one way or another.
What he really means when he says that is, if Judge Gorsuch does not
earn 60 votes in the Senate, which is now the likely outcome, the
Republicans must--underline ``must''--exercise the nuclear option to
pass Judge Gorsuch on a simple majority vote.
I think the majority leader reasons that if he says it enough times,
folks
[[Page S2161]]
will start believing it--that he has no choice--but they should not. It
is a premise no one should swallow. The majority leader is setting up a
false choice of supporting Judge Gorsuch or he will have no choice but
to break the rules. Maybe, to the majority leader, the nuclear option
is the only option, but there are many alternatives. The majority
leader makes up his mind independent of what Democrats do on issue
after issue, but on this one, he says he has no choice. Maybe he has no
choice because the rightwing of the Republican Party--organizations
like the Heritage Foundation--will go after him if he does not, but he
certainly has a choice to do the right and courageous thing.
Instead, Republicans are playing the game of ``they started it.''
They say Democrats started this process by changing the rules for lower
court nominees in 2013. They fail to mention the history that led to
that change. The reason that Majority Leader Reid changed the rules was
that Republicans had ramped up the use of the filibuster to historic
proportions.
They filibustered 79 nominees in the first 4 years of President
Obama's Presidency. To put that in perspective, prior to President
Obama, there were 68 filibusters on nominations under all other
Presidents--from George Washington to George Bush. Under President
Obama, exclusively, in the first 4 years of his administration,
Republicans filibustered 79 nominees. They deliberately kept open the
DC Court of Appeals because it has such influence over decisions that
are made by the government.
We all know the hard-right Federalist Society and the hard-right
Heritage Foundation want to limit what government can do. The deal we
made in 2005--a group of Senators, the so-called Gang of 14--allowed
several of the most conservative jurists in the land to become judges
and be confirmed to that circuit court. Yet, when President Obama came
in, our Republican colleagues insisted on holding three seats of that
court open. They, literally, said that they would not allow the seats
to be filled at all by President Obama.
Sound familiar? Merrick Garland knows it is.
At the time, I pleaded several times with Senator Alexander, my dear
friend from Tennessee, to let us vote on some of the judges for the DC
Circuit. I asked him to go to Senator McConnell and say that the
pressure on our side to change the rules after all of these filibusters
was going to be large. Let's avoid it, I said. But Senator McConnell
said no.
Republicans had refused all of our overtures to break the deadlock
that they had imposed. So if the majority leader wants to conduct this
partisan ``they started it'' exercise, I am sure we could trace it all
the way back to the Burr-Hamilton duel.
The fact is that the Republicans blocked Merrick Garland by using the
most unprecedented maneuvers. Now we are likely to block Judge Gorsuch,
and that means neither party has gotten its party's choice in the last
2 years.
We can go back and forth and blame each other, but in the recent
history of the vacancy caused by Justice Scalia's death, we have both
lost. We lost Merrick Garland because of the majority leader's
unprecedented blockade, and Republicans will lose on Judge Gorsuch
because we are doing something we think is reasonable in asking that he
be able to earn 60 votes as so many others have. We think the two are
not equivalent, but in either case, we have both lost.
We are back to square one, and Republicans have total freedom of
choice in this situation. No one is forcing them to break the rules.
They don't have to treat the nuclear option as if it were their first
and only option. It is a false choice.
To my friends on the other side, the answer isn't to change the
rules; the answer is to change the nominee. Presidents of both parties
have done so in the past when Supreme Court picks failed to merit
confirmation. Again, the answer isn't to change the rules; the answer
is to change the nominee.
The majority leader should have the vision and courage to see past
this impasse, and I believe he should seriously consider a different
option. The President, Senate Republicans, and Democrats should sit
down together to come up with a mainstream nominee who can earn
bipartisan support. We are willing to meet with them anywhere, anytime
to discuss a consensus nominee.
Now, I know my colleagues on the other side will say Judge Gorsuch
was a mainstream nominee and Democrats would never support any judge
nominated by President Trump. We disagree. We probably can't support
any nominee whose sole vetting is by the Heritage Foundation and the
Federalist Society. They were the sole gatekeepers for the Scalia
vacancy, and each is well known to be a rightwing, wealthy special
interest group dedicated to moving the bench way to the right. Their
selection of Judge Gorsuch shows it. Both the New York Times and the
Washington Post did analyses done by experts that showed that Judge
Gorsuch would be a very, very conservative--many would say rightwing--
Justice on the bench. The New York Times said he would be the second
most conservative Justice on the bench--second only to Justice Thomas--
and more conservative than the late Justice Scalia. The Washington Post
actually said he would be the most conservative Justice on the bench,
based on his record--even more conservative than the very, very
conservative Justice Thomas.
In fact, we Democrats have never let special interest groups be the
gatekeeper. We have never said to any special interest group, as
President Trump did: Give us a list, and we will choose from that list.
That is what Republicans did. We have never done it.
In the past, Presidents have done just what we are suggesting for
selecting Supreme Court Justices. President Bill Clinton sought and
took the advice of Republican Judiciary Committee Chairman Orrin Hatch
in nominating Justices Ginsburg and Breyer instead of Bruce Babbitt.
President Obama took the advice of Republican Senators when he picked
Merrick Garland--a consensus, mainstream nominee.
President Trump, on the other hand, ignored the Senate and only
sought the advice and consent of rightwing special interest groups when
making Supreme Court picks. He was running. He had to shore up his
support on the hard right. So he said: I am outsourcing the entire
selection process to two groups--which, again, are not consensus
groups. They would admit that themselves--the Heritage Foundation and
the Federalist Society. Lo and behold, the process didn't produce a
nominee who could earn 60 votes. By contrast, Justice Ginsburg earned
93 votes and Justice Breyer earned 87.
So we are offering President Trump and our friends on the other side
a way forward. They don't have to break the rules to get a Justice on
the bench. They don't have to break the Senate confirmation process,
fundamentally weakening the constitutional principle of advice and
consent, to get a Justice on the bench. President Trump could simply
consult with Members of both parties to try and come up with a
consensus nominee who could get approved and meet a 60-vote threshold.
The answer, again, isn't to change the rules. It is to change the
nominee.
We Democrats are not going to oppose every Republican nominee. Of
course, we realize a nominee selected this way would not completely
agree with our views, but Judge Gorsuch is so far out of the mainstream
that he isn't able to earn votes to pass the Senate. Even Justices
Roberts and Alito--two very conservative judges--earned a bunch of
Democratic votes, and each got more than 60--one, in his nomination,
and the other, 72 votes in the cloture process.
So the Republicans are free actors. They can choose to go nuclear or
they can sit down with Democrats and find a way forward that preserves
the grand traditions of this body.
The majority leader himself has said the one thing the two leaders
have always agreed upon is to protect the integrity of this
institution. He continued, and this is a direct quote: ``I think we can
stipulate . . . that in the Senate, it takes 60 votes on controversial
matters.''
Mitch McConnell: In the Senate, it takes 60 votes on controversial
matters. He has long stood for that proposition for the many years I
have been here.
A Supreme Court seat, I believe, meets the majority leader's standard
[[Page S2162]]
for 60 votes. I hope that instead of crippling the Senate in a partisan
way--removing that 60-vote threshold for controversial matters like the
Supreme Court--my Republican friends consider the option of working
together to find a solution we can both accept. It may seem like a
novel concept around here, but that option is always on the table.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Nebraska.
Workplace Advancement Act
Mrs. FISCHER. Mr. President, I rise this afternoon to discuss a true
American value: equal pay for equal work. This is something that we all
believe in, and tomorrow is National Equal Pay Day. It is a meaningful
reminder that equal pay remains among the challenges before us.
Women make the world work. We are breadwinners for our families. We
are also financial planners, nurses, and teachers. We have always been
a powerful force, and our progress has been hard-earned.
Women today are managers, entrepreneurs, public servants, and CEOs,
and our country is stronger for it. But despite these great strides,
there is more work to do to encourage prosperity for America's
families.
For nearly 4 years in this body, I have led discussions about equal
pay. I am encouraged by the interest from the White House on addressing
the workplace challenges that women face today. To that end, I have
reintroduced a proposal I believe will make a real difference for
families. It is called the Workplace Advancement Act.
The idea behind it is fairly universal and straightforward: equal pay
through empowerment. The bill aims to empower employees--especially
women--with information about wages so they can be informed advocates
for their compensation. When it comes to discussing wages in the
workplace, sometimes it can hurt to ask. A culture of silence and fear
of retaliation can keep people in the dark about how their compensation
compares to others. The Workplace Advancement Act would lift that fear,
free up information, and create a more transparent workplace.
A simple principle is at play here. When workers, especially women,
have more information, they can more confidently pursue favorable work
and wage arrangements. Knowledge is power. With this flexibility, women
can better negotiate arrangements that make sense for them. For
example, they might be willing to accept less pay if they can have
Fridays free for doctors' appointments or family time or simply as a
day for self-care.
The Workplace Advancement Act contains language similar to an
Executive order that President Obama issued in 2014. Many congressional
Democrats requested this action, which is actually more limited in
scope than my legislation. Some even praised it. Senator Heinrich
called the action ``a critical step to ensure that every woman has a
fair shot at fairness and economic success.'' Congresswoman Susan Davis
of California said the action was a ``historic step forward.''
Importantly, for employers, the Workplace Advancement Act would not
impose new Federal regulations, and no employer would be compelled to
disclose salary information. It simply prevents retaliatory action
against employees who ask after it.
Fifty-three Republicans and five Democrats in the Senate supported a
version of the Workplace Advancement Act last Congress. With bipartisan
support like this, this bill is possible.
Let's take advantage of this rare moment when we have common ground
on a commonsense and straightforward solution. Let's come together so
we can look families in the eye and say: We heard you. We have heard
you on this issue, and we are going to take action on it.
I yield the floor.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Recognition of the Majority Leader
The majority leader is recognized.
Nomination of Neil Gorsuch
Mr. McCONNELL. Mr. President, this week is an important one for the
American people, for the Supreme Court, and for the Senate. The
Judiciary Committee just reported out Judge Neil Gorsuch's nomination--
the next step in considering the Supreme Court nominee before the full
Senate. It was unfortunate to see our Democratic colleagues on the
committee break with recent precedent and not support this clearly
well-qualified and widely respected Supreme Court nominee.
I would remind colleagues that in addition to simply agreeing to an
up-or-down vote on their nominations on the Senate floor, Republicans
offered each of the last four first-term Supreme Court nominees of
Democratic Presidents Clinton and Obama at least some bipartisan
support in the committee votes. Judge Gorsuch is no less qualified than
those four nominees of Presidents Clinton and Obama, and it is
disappointing he didn't get the same bipartisan support in the
committee today.
It now seems apparent that this well-qualified and widely respected
judge will be subject to the first successful partisan filibuster in
the history of the Senate--the first successful partisan filibuster in
the history of the Senate. This is a new low but not entirely
surprising given that the Democratic leader announced before the
nomination was even made that it was hard for him to imagine a nominee
this President would nominate whom he could support. He even went so
far as to say that he would be willing to fight the nomination ``tooth
and nail'' and might even ``keep the seat open'' in perpetuity. It is
not too late for our Democratic colleagues to make the right choice.
This week, the Senate will continue to debate Judge Gorsuch's
nomination here on the floor. This is a matter of great importance,
which is why we are planning to dedicate this week's floor time almost
entirely to continued robust debate of this nomination rather than
double-tracking it with legislative items, as has been done in the
past. Already, several Members from both sides of the aisle have come
to the floor day after day to offer their viewpoints on Judge Gorsuch.
I would encourage Members to take advantage of this time to continue
discussing his excellent credentials, judicial background, and broad
support from across the political spectrum in our country.
Let me remind colleagues the many ways in which Judge Gorsuch has
shown himself to be an outstanding nominee to serve on the High Court.
Judge Gorsuch was unanimously confirmed to his current position as a
Federal judge. Not a single Democrat opposed him then, including
Senators Obama, Clinton, Biden, Leahy, and Schumer. He has participated
in more than 2,700 cases since then. He has been in the majority 99
percent of the time. He has enjoyed the unanimous support of his fellow
judges 97 percent of the time.
The American Bar Association--a group the Democratic leader called
the ``gold standard'' for evaluating judicial nominations--awarded him
its highest possible rating, unanimously ``well qualified.''
He has amassed a wide array of supporters, including Democrats and
Republicans, current and former colleagues, the legal community, and
editorial boards all across our country. They say Gorsuch is eminently
well-qualified. As Judge John Kane, a Carter appointee, put it, ``I'm
not sure we could expect better [than Judge Gorsuch], or that better
presently exists.''
They say that Gorsuch is independent. Neal Katyal, President Obama's
former Acting Solicitor General, said he has ``no doubt that if
confirmed, Judge Gorsuch would help to restore confidence in the rule
of law'' because Gorsuch's ``years on the bench reveal a commitment''--
a commitment--``to judicial independence.''
They say Gorsuch is fair and impartial. The Denver Post editorial
board noted that ``Gorsuch is a brilliant legal mind and talented
writer whom observers praise for his ability to apply the law fairly
and consistently.'' They went on: ``[W]e appreciate his desire to
strictly interpret the Constitution,'' the paper continued, ``based on
the intent of our nation's founders, even when those rulings might
contradict his personal beliefs.''
[[Page S2163]]
They say Gorsuch is highly revered by Democrats and Republicans. As
USA TODAY noted in its editorial endorsing Gorsuch's confirmation just
today, ``He has gotten an array of glowing references, including from
some Democrats and liberals.'' I mentioned some this morning; there are
many more.
Here is just one additional example of how praise for Judge Gorsuch
has bridged the political divide: Despite their ideological
differences, former Colorado Governor Bill Ritter, a Democrat, and
former Colorado attorney general John Suthers, a Republican, agree that
Judge Gorsuch should be confirmed. They said:
Gorsuch's temperament, personal decency and qualifications
are beyond dispute.
It is time to use this confirmation process to examine and
exalt the characteristics of a judge who demonstrates that he
or she is scholarly, compassionate, committed to the law, and
will function as part of a truly independent, apolitical
judiciary. Judge Gorsuch fits that bill.
It reminds us of what David Frederick, a board member of the left-
leaning American Constitution Society and longtime Democrat, recently
said: ``The Senate should confirm [Gorsuch] because there is no
principled reason to vote no.''
``There is no principled reason to vote no.'' He is absolutely right.
So it goes without saying that there is no principled reason to block
an up-or-down vote on this supremely qualified nominee, either.
I look forward to joining my Senate colleagues in supporting Judge
Gorsuch's nomination to the Supreme Court later this week.
Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mrs. Ernst). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. TESTER. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________