[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.