[Congressional Record Volume 163, Number 58 (Tuesday, April 4, 2017)]
[Senate]
[Pages S2180-S2181]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Neil Gorsuch

  Mr. DURBIN. Madam President, there is a poem that I recall, and it 
goes like this:

     When I was going up the stair,
     I met a man who wasn't there.
     He wasn't there again today.
     I wish that man would go away.

  I thought about that poem when I listened to the majority leader's 
speech about how cooperative he has been when it comes to Supreme Court 
nominations. The name he forgot to mention was Merrick Garland--Merrick 
Garland, who was nominated by President Obama to fill the vacancy of 
Justice Antonin Scalia; Merrick Garland, the only Presidential nominee 
to the Supreme Court in the history of the U.S. Senate to be denied a 
hearing and a vote; Merrick Garland, about whom Senator McConnell said: 
I will not only refuse to give him a hearing and a vote, I refuse to 
even see him; Merrick Garland, who was found unanimously ``well 
qualified'' by the American Bar Association; Merrick Garland, the 
person who received bipartisan support for appointment to the DC 
Circuit Court of Appeals, the second highest court in the land.
  So when the majority leader comes to the floor to talk about how 
cooperative he has been with previous Presidents when it comes to 
Supreme Court nominees, he conveniently omits the most obvious reason 
for our problems this week: the unilateral decision by the majority 
leader to preclude any vote on Merrick Garland to fill the vacancy of 
Justice Scalia.
  I know Judge Garland. I have met with him several times. He is a 
balanced, moderate, experienced jurist who should be on the U.S. 
Supreme Court. We should not be entertaining Neil Gorsuch this week; we 
ought to be celebrating the first anniversary of Merrick Garland's 
service on the U.S. Supreme Court. The reason we are not is that 
Senator McConnell and the Senate Republicans refused us that 
opportunity. They said: No, you cannot vote on that.
  Remember their logic? The logic was: Wait a minute. This is the last 
year of President Obama's Presidency. Why should he be able to fill a 
vacancy on the U.S. Supreme Court when we have an election coming soon?
  That is an interesting argument. There are two things I am troubled 
with.
  I do believe President Obama was elected for 4 years in his second 
term, not for 3, which meant he had authority in the fourth year, as he 
did in the third year.
  Secondly, the Republican argument ignores history. It ignores the 
obvious history when we had a situation with President Ronald Reagan, 
in his last year in office, with regard to a vacancy on the U.S. 
Supreme Court. There were Democrats in charge of the Senate and 
Democrats in charge of the Senate Judiciary Committee, and President 
Ronald Reagan, a lameduck President in his last year, nominated Anthony 
Kennedy to serve on the Court. He sent the name to the Democratic 
Senate, and there was a hearing before the Senate Judiciary Committee 
and a vote that sent him to the Court.
  You never hear that story from Senator McConnell. It is because it 
does not fit into his playbook as to why he would wait for a year and 
refuse to give Merrick Garland a hearing and a vote. The reasoning is 
obvious: Clearly he was banking on the possibility that the electorate 
would choose a Republican President--and that is what happened--so that 
a Republican President--in this case, Donald Trump--could fill the 
vacancy, not Barack Obama.
  So when I hear the speeches on the floor by Senator McConnell about 
his bipartisan cooperation, he leaves out an important chapter--the 
last chapter, the one that brought us to this moment in the Senate.
  I look at the situation before us today, and it is a sad situation 
for the Senate--sad in that we have reached the point in which a 
Supreme Court nomination has become so political, more so than at any 
time in history.
  Where did the name ``Neil Gorsuch'' come from for the Supreme Court? 
It came from a list that was prepared by two organizations: the 
Federalist Society and the Heritage Foundation. These are both 
Republican advocacy groups who represent special interests and are 
funded by special interests. They came up with the names and gave them 
to Presidential candidate Donald Trump. It was a list of 21 names. He 
issued them twice--in March and in September of the last campaign 
year--and Neil Gorsuch's name was on the list.
  The Federalist Society was created in 1982. Nominally, it is an 
organization that is committed to originalism.

[[Page S2181]]

In other words, it looks to the clear meaning of the Constitution, what 
the Founding Fathers meant. They say that over and over again: Just 
look to the Constitution and read it, and then we will know what we 
should do. That was in a speech that was given by Edwin Meese, the 
then-Attorney General in 1985, who explained the Federalist Society's 
credo.
  On its face, it sounds at least arguably defensible that there would 
be an organization that is so committed to the Constitution that it 
wants Supreme Court nominees who will follow it as literally as 
possible. Yet, as Justice William Brennan on the Supreme Court said, if 
they think they can find in those musty volumes from back in the 18th 
century all of the answers to all of the questions on the issues we 
face today--here is what he called it--that is arrogance posing as 
humility.
  Yet that is what they said the Federalist Society was all about. If 
that were all the Federalist Society were about, then I guess one could 
argue that they ought to have their day in court, their day in choosing 
someone for the Supreme Court, but it is more than that. When you look 
at those who finance the Federalist Society--and it is a short list 
because they refuse to disclose all their donors--you see the classic 
names of Republican support: the Koch brothers, the Mercer family, the 
Richard Mellon Scaife family foundation, the ones who pop up over and 
over again. Why would these organizations be so determined to pick the 
next nominee to fill the vacancy on the Supreme Court? It is because 
there is so much at stake.
  In a Judiciary Committee hearing, my colleague Sheldon Whitehouse 
went through the box score when it came to the Supreme Court and how 
they ruled when given a choice between special interests and corporate 
elites versus average workers and consumers and families. As Senator 
Whitehouse pointed out graphically, in detail, overwhelmingly, this 
Court has ruled for the special interests. Sixty-nine percent of the 
Roberts' Court's rulings are in favor of the U.S. Chamber of Commerce's 
position on issues, according to one study.
  Why would a special interest organization like the Federalist Society 
care? It wants to keep a good thing going, from its point of view. That 
is why this is a different Supreme Court nominee.
  I yield the floor.