[Congressional Record Volume 163, Number 58 (Tuesday, April 4, 2017)]
[Senate]
[Pages S2181-S2183]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Neil Gorsuch

  Mr. President, this leads me to the Supreme Court. It is just one of 
so many examples of what is at stake in the nomination of Judge Gorsuch 
to the Supreme Court, which we now debate here on the floor of the 
Senate.
  I was listening to the majority leader earlier this morning, and I 
cannot believe he can stand here on the floor of the U.S. Senate and 
with a straight face say that Democrats are launching the first 
partisan filibuster of a Supreme Court nominee. What the majority 
leader did to Merrick Garland by denying him even a hearing and a vote 
is even worse than a filibuster. For him to accuse Democrats of the 
first partisan filibuster on the Supreme Court belies the facts, belies 
the history, belies the basic truth.
  My friend Representative Adam Schiff said: ``When McConnell deprived 
President Obama of a vote on Garland, it was a nuclear option. The rest 
is fallout.'' Let me repeat that. Adam Schiff put it better than I ever 
could. ``When McConnell deprived President Obama of a vote on Garland, 
it was a nuclear option. The rest is fallout.''
  Even though my friend the majority leader keeps insisting that there 
is no principled reason to vote against Judge Gorsuch, we Democrats 
disagree. First, he has instinctively favored corporate interests over 
average Americans. Second, he has not shown a scintilla of independence 
from President Trump. Third, as my colleague from Illinois elaborated, 
he was handpicked by hard-right special interest groups, not because he 
called balls and strikes. They would not put all of that effort and 
money into a caller of balls and strikes. These are ideologues who want 
to move America far to the right. He was picked by hard-right special 
interest groups because his views are outside the mainstream.
  According to analyses of his record on the Tenth Circuit, which were 
conducted by the New York Times and the Washington Post, by experts on 
the Court, Judge Gorsuch would be one of the most conservative voices 
ever on the Supreme Court should he achieve that.
  The Washington Post:

       Gorsuch's actual voting behavior suggests he is to the 
     right of both Alito and Thomas and by a substantial margin. 
     That would make him the most conservative Justice on the 
     Court in recent memory.

  That is why the Heritage Foundation and the Federalist Society put 
Judge Gorsuch on their list for President Trump.
  As Emily Bazelon of the New York Times put it in a brilliant article 
that I would urge all of my colleagues to read:

       The reality is that Judge Gorsuch embraces a judicial 
     philosophy that would do nothing less than undermine the 
     structure of modern government--including the rules that keep 
     our water clean, regulate the financial markets and protect 
     workers and consumers.

  I ask unanimous consent to have that article printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Apr. 1, 2017]

                  The Government Gorsuch Wants To Undo

                   (By Emily Bazelon and Eric Posner)

       At recent Senate hearings to fill the Supreme Court's open 
     seat, Judge Neil Gorsuch came across as a thoroughly bland 
     and nonthreatening nominee. The idea was to give as little 
     ammunition as possible to opponents when his nomination comes 
     up this week for a vote, one that Senate Democrats may try to 
     upend with a filibuster.
       But the reality is that Judge Gorsuch embraces a judicial 
     philosophy that would do nothing less than undermine the 
     structure of modern government--including the rules that keep 
     our water clean, regulate the financial markets and protect 
     workers and consumers. In strongly opposing the 
     administrative state, Judge Gorsuch is in the company of 
     incendiary figures like the White House adviser Steve Bannon, 
     who has called for its ``deconstruction.'' The Republican-
     dominated House, too, has passed a bill designed to severely 
     curtail the power of federal agencies.
       Businesses have always complained that government 
     regulations increase their costs, and no doubt some 
     regulations are ill-conceived. But a small group of 
     conservative intellectuals have gone much further to argue 
     that the rules that safeguard our welfare and the orderly 
     functioning of the market have been fashioned in a way that's 
     not constitutionally legitimate. This once-fringe cause of 
     the right asserts, as Judge Gorsuch put it in a speech last 
     year, that the administrative state ``poses a grave threat to 
     our values of personal liberty.''
       The 80 years of law that are at stake began with the New 
     Deal. President Franklin D. Roosevelt believed that the Great 
     Depression was caused in part by ruinous competition among 
     companies. In 1933, Congress passed the National Industrial 
     Recovery Act, which

[[Page S2182]]

     allowed the president to approve ``fair competition'' 
     standards for different trades and industries. The next year, 
     Roosevelt approved a code for the poultry industry, which, 
     among other things, set a minimum wage and maximum hours for 
     workers, and hygiene requirements for slaughterhouses. Such 
     basic workplace protections and constraints on the free 
     market are now taken for granted.
       But in 1935, after a New York City slaughterhouse operator 
     was convicted of violating the poultry code, the Supreme 
     Court called into question the whole approach of the New 
     Deal, by holding that the N.I.R.A. was an ``unconstitutional 
     delegation by Congress of a legislative power.'' Only 
     Congress can create rules like the poultry code, the justices 
     said. Because Congress did not define ``fair competition,'' 
     leaving the rule-making to the president, the N.I.R.A. 
     violated the Constitution's separation of powers.
       The court's ruling in Schechter Poultry Corp. v. the United 
     States, along with another case decided the same year, are 
     the only instances in which the Supreme Court has ever struck 
     down a federal statute based on this rationale, known as the 
     ``nondelegation doctrine.'' Schechter Poultry's stand against 
     executive-branch rule-making proved to be a legal dead end, 
     and for good reason. As the court has recognized over and 
     over, before and since 1935, Congress is a cumbersome body 
     that moves slowly in the best of times, while the economy is 
     an incredibly dynamic system. For the sake of business as 
     well as labor, the updating of regulations can't wait for 
     Congress to give highly specific and detailed directions.
       The New Deal filled the gap by giving policy-making 
     authority to agencies, including the Securities and Exchange 
     Commission, which protects investors, and the National Labor 
     Relations Board, which oversees collective bargaining between 
     unions and employers. Later came other agencies, including 
     the Environmental Protection Agency, the Occupational Safety 
     and Health Administration (which regulates workplace safety) 
     and the Department of Homeland Security. Still other agencies 
     regulate the broadcast spectrum, keep the national parks 
     open, help farmers and assist Americans who are overseas. 
     Administrative agencies coordinated the response to Sept. 11, 
     kept the Ebola outbreak in check and were instrumental to 
     ending the last financial crisis. They regulate the safety of 
     food, drugs, airplanes and nuclear power plants. The 
     administrative state isn't optional in our complex society. 
     It's indispensable.
       But if the regulatory power of this arm of government is 
     necessary, it also poses a risk that federal agencies, with 
     their large bureaucracies and potential ties to lobbyists, 
     could abuse their power. Congress sought to address that 
     concern in 1946, by passing the Administrative Procedure Act, 
     which ensured a role for the judiciary in overseeing rule-
     making by agencies.
       The system worked well enough for decades, but questions 
     arose when Ronald Reagan came to power promising to 
     deregulate. His E.P.A. sought to weaken a rule, issue by the 
     Carter administration, which called for regulating 
     ``stationary sources'' of air pollution--a broad wording that 
     is open to interpretation. When President Reagan's E.P.A. 
     narrowed the definition of what counted as a ``stationary 
     source'' to allow plants to emit more pollutants, an 
     environmental group challenged the agency. The Supreme Court 
     held in 1984 in Chevron v. Natural Resources Defense Council 
     that the E.P.A. (and any agency) could determine the meaning 
     of ambiguous term in the law. The rule came to be known as 
     Chevron deference: When Congress uses ambiguous language in a 
     statute, courts must defer to an agency's reasonable 
     interpretation of what the words mean.
       Chevron was not viewed as a left-leaning decision. The 
     Supreme Court decided in favor of the Reagan administration, 
     after all, voting 6 to 0 (three justices did not take part), 
     and spanning the ideological spectrum. After the conservative 
     icon Justice Antonin Scalia reached the Supreme Court, he 
     declared himself a Chevron fan. ``In the long run Chevron 
     will endure,'' Justice Scalia wrote in a 1989 article, 
     ``because it more accurately reflects the reality of 
     government, and thus more adequately serves its needs.''
       That was then. But the Reagan administration's effort to 
     cut back on regulation ran out of steam. It turned out that 
     the public often likes regulation--because it keeps the air 
     and water clean, the workplace safe and the financial system 
     in working order. Deregulation of the financial system led to 
     the savings-and-loans crisis of the 1980s and the financial 
     crisis a decade ago, costing taxpayers billions.
       Businesses, however, have continued to complain that the 
     federal government regulates too much. In the past 20 years, 
     conservative legal scholars have bolstered the red-tape 
     critique with a constitutional one. They argued that only 
     Congress--not agencies--can create rules. This is Schechter 
     Poultry all over again.
       And Judge Gorsuch has forcefully joined in. Last year, in a 
     concurring opinion in an immigration case called Gutierrez-
     Brizuela v. Lynch, he attacked Chevron deference, writing 
     that the rule ``certainly seems to have added prodigious new 
     powers to an already titanic administrative state.'' 
     Remarkably, Judge Gorsuch argued that Chevron--one of the 
     most frequently cited cases in the legal canon--is 
     illegitimate in part because it is out of step with (you 
     guessed it) Schechter Poultry. Never mind that the Supreme 
     Court hasn't since relied on its 1935 attempt to scuttle the 
     New Deal. Nonetheless, Judge Gorsuch wrote that in light of 
     Schechter Poultry, ``you might ask how is it that Chevron--a 
     rule that invests agencies with pretty unfettered power to 
     regulate a lot more than chicken--can evade the chopping 
     block.''
       At his confirmation hearings, Judge Gorsuch hinted that he 
     might vote to overturn Chevron without saying so directly, 
     noting that the administrative state existed long before 
     Chevron was decided in 1984. The implication is that little 
     would change if courts stopped deferring to the E.P.A.'s or 
     the Department of Labor's reading of a statute. Judges would 
     interpret the law. Who could object to that?
       But here's the thing: Judge Gorsuch is skeptical that 
     Congress can use broadly written laws to delegate authority 
     to agencies in the first place. That can mean only that at 
     least portions of such statutes--the source of so many 
     regulations that safeguard Americans' welfare--must be sent 
     back to Congress, to redo or not.
       On the current Supreme Court, only Justice Clarence Thomas 
     seeks to strip power from the administrative state by 
     undercutting Chevron and even reviving the obsolete and 
     discredited nondelegation doctrine, as he explains in 
     opinions approvingly cited by Judge Gorsuch. But President 
     Trump may well appoint additional justices, and the other 
     conservatives on the court have expressed some uneasiness 
     with Chevron, though as yet they are not on board for 
     overturning it. What would happen if agencies could not make 
     rules for the financial industry and for consumer, 
     environmental and workplace protection? Decades of experience 
     in the United States and around the world teach that the 
     administrative state is a necessary part of the modern market 
     economy. With Judge Gorsuch on the Supreme Court, we will be 
     one step closer to testing that premise.

  Mr. SCHUMER. There are clearly principled reasons to oppose Judge 
Gorsuch, and enough of us Democrats have reasons to prevent his 
nomination from moving forward on Thursday's cloture vote.
  The question is no longer whether Judge Gorsuch will get enough votes 
on the cloture motion; now the question is, Will the majority leader 
and our friends on the other side break the rules of the Senate to 
approve Judge Gorsuch on a majority vote? That question should be the 
focus of the debate here on the floor, and it should weigh heavily on 
the conscience of every Senator.
  Ultimately, my Republican friends face a simple choice: They can 
fundamentally alter the rules and traditions of this great body or they 
can sit down with us Democrats and the President to come up with a 
mainstream nominee who can earn bipartisan support and pass the Senate.
  No one is making our Republican colleagues change the rules. No one 
is forcing Senator McConnell to change the rules. He is doing it of his 
own volition, just as he prevented Merrick Garland from getting a vote 
of his own volition. Senator McConnell and my Republican colleagues are 
completely free actors in making a choice--a very bad one, in our 
opinion.
  I know my friends on the other side of the aisle are uncomfortable 
with this choice, so they are scrambling for arguments to justify 
breaking the rules. Let me go through a few of these justifications and 
explain why each does not hold up.
  First, many of my Republican colleagues will argue that they can 
break the rules because ``Democrats started it in 2013'' when we 
lowered the bar for lower court nominees and Cabinet appointments.
  Let's talk about that. The reason Majority Leader Reid changed the 
rules was that Republicans had ramped up the use of the filibuster--the 
very filibuster they now decry--to historic proportions. They 
filibustered 79 nominees in the first 5 years of Obama's Presidency. 
Let's put that into perspective. Prior to President Obama, there were 
68 filibusters on nominations under all of the other Presidents 
combined, from George Washington to George Bush. We had 79. Our 
colleagues and Leader McConnell, the filibuster is wrong? There were 
79--more than all of the other Presidents put together. The shoe was on 
a different foot.
  They deliberately kept open three seats on the second most important 
court in the land--the DC Court of Appeals--because it had such 
influence over decisions made by the government. This is the court, 
other than the U.S. Supreme Court, that the Federalist Society and the 
Heritage Foundation hate the most. The deal that a

[[Page S2183]]

number of Senators made in 2005 allowed several of the most 
conservative judges to be confirmed to that court--very conservative 
people. It left a bad taste in my mouth, and I am sure in my 
colleagues' and in many others.

  But then, when President Obama came in, they insisted on not filling 
any additional seats on the court--which, of course, would have been 
Democratic seats--and eventually held open 3 of the 11 seats on that 
court. They said they would not allow those seats to be filled by 
President Obama--an eerie precedent, which the majority leader repeated 
with Merrick Garland. He didn't want the DC Circuit to have Obama-
appointed, Democratic-appointed nominees; he didn't want that on the 
Supreme Court, so he blocked Merrick Garland. He didn't want it on the 
DC Circuit, so they wouldn't let any of President Obama's nominees come 
to the floor.
  Merrick Garland's nomination was not the first time the majority 
leader held open a judicial seat because it wasn't the President of his 
party, and that was not during an election year.
  At the time, I spoke with my good friend from Tennessee, Senator 
Alexander. I asked him to go to Senator McConnell and tell him that the 
pressure on our side to change these rules--after all of these 
unprecedented numbers of filibusters--was going to be large. I said to 
Senator Alexander: Let's try to avoid it. But Senator McConnell and 
Republicans refused all of our overtures to break the deadlock they 
imposed.
  To be clear, Democrats changed the rules after 1,776 days of 
obstruction on President Obama's nominees. My Republican friends are 
contemplating changing the rules after barely more than 70 days of 
President Trump's administration. We moved to change the rules after 79 
cloture motions had to be filed. They are talking about changing the 
rules after 1 nominee fails to meet the 60-vote threshold.
  So, yes, Democrats changed the rules in 2013, but only to surmount an 
unprecedented slowdown that was crippling the Federal judiciary, and we 
left the 60-vote threshold intact for the Supreme Court deliberately. 
We could have changed it. We had free will then, just as Senator 
McConnell has it now. But we left the 60-vote threshold intact for the 
Supreme Court because we knew and know--just as our Republican friends 
know--that the highest Court in the land is different.
  Unlike with lower courts, Justices on the Supreme Court don't simply 
apply precedents of a higher court; they set the precedents. They have 
the ultimate authority under our constitutional government to interpret 
the law. Justices on the Supreme Court should be mainstream enough to 
garner substantial bipartisan support; hence, why we didn't change the 
rules; hence, why we believe in the 60-vote threshold; and hence, why 
55 or 60 percent of all Americans agree with the 60-vote threshold, 
according to the most recent polls. To me, and I think to most of my 
friends on the Republican side, that is not a good enough reason to 
escalate the argument and break the rules for the Supreme Court.
  Second, as I have mentioned, I have heard my Republican friends 
complain that Democrats are conducting the first partisan filibuster of 
a Supreme Court nominee in history, so that is the reason they can 
justify breaking the rules because Democrats are the ones taking it to 
a new level. Again, I have just two words for my Republican friends: 
Merrick Garland. The Republican majority conducted the first partisan 
filibuster of a Supreme Court pick when their members refused to have 
hearings for Merrick Garland.
  In fact, what the Republicans did was worse than a filibuster. The 
fact is, the Republicans blocked Merrick Garland using the most 
unprecedented of maneuvers. Now we are likely to block Judge Gorsuch 
because we are insisting on a bar of 60 votes.
  We think a 60-vote bar is far more in keeping with tradition than 
what the Republicans did to Merrick Garland. We don't think the two are 
equivalent. Nonetheless, in the history of the Scalia vacancy, both 
sides have lost. We didn't get Merrick Garland; they are not getting 60 
votes on Judge Gorsuch.
  So we are back to square one right now, and the Republicans have 
total freedom of choice in this situation.
  Finally, Republicans have started to argue that because Democrats 
will not confirm Judge Gorsuch, we will not confirm anyone nominated by 
President Trump, so they have to break the rules right now. That is an 
easy one. I am the Democratic leader. I can tell you myself that there 
are mainstream Republican nominees who could earn adequate Democratic 
support.
  And just look at recent history. Justices Roberts and Alito, two 
conservative judges who many of us on the Democratic side probably 
don't agree with, both earned over 60 votes. They got Democratic votes. 
While there was a cloture vote on Justice Alito, he was able to earn 
enough bipartisan support that cloture was invoked with over 70 votes. 
He got only 58 when we voted for him, but the key vote was the cloture 
vote.
  Let's have the President consult Members of both parties--he didn't 
with Gorsuch--and try to come up with a consensus nominee who could 
meet a 60-vote threshold. That is what President Clinton did with my 
friend, the Senator from Utah, in selecting Justices Ginsberg and 
Breyer. It is what President Obama did with Merrick Garland.
  Of course, we realize a nominee selected this way would not agree 
with many of our views. That is true. But President Trump was elected 
President, and he is entitled by the Constitution to nominate. But 
Judge Gorsuch is so far out of the mainstream that the Washington Post 
said his voting record would place him to the right of Justice Thomas. 
He was selected by the Heritage Foundation and the Federalist Society 
without an iota of input from the Senate.
  There is a better way to do this. I know it sometimes may seem like a 
foreign concept in our hyperpolarized politics these days, but there is 
always the option of actually consulting Democrats on a nominee and 
discussing a way forward that both parties can live with. We are 
willing to meet anywhere, anytime.
  So my friends on the other side can dredge up these old wounds and 
shopworn talking points if they choose. If Republicans want to conduct 
a partisan, ``they started it'' exercise, I am sure we could trace this 
all the way back to the Hamilton-Burr duel. But at the end of the day, 
they have to confront a simple choice: Are they willing to break the 
rules of the Senate or can they work with us on a way forward? I, for 
one, hope we can find a way to compromise. Judge Gorsuch was not a 
compromise. He was solely chosen without any consultation. So it is not 
that there is a Merrick equivalency.
  My friend the majority leader said: ``I think we can stipulate that 
in the Senate it takes 60 votes on controversial matters.'' If anything 
is a controversial, important matter, it is a selection for the Supreme 
Court, and Senator McConnell has repeatedly stood for the rightness of 
60 votes on important and controversial issues.
  If Senator McConnell wants to change his view on the 60 votes all of 
a sudden and Republicans decide to go along with him, it will not be 
because Democrats started it, because that is not true. It will not be 
because Democrats will not confirm any President Trump-nominated 
Justice, because that is not true. It will be because they choose to do 
so, and they will have to bear the unfortunate consequences.
  Mr. President, I yield the floor.
  Mr. DURBIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mrs. CAPITO. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.