[Congressional Record Volume 163, Number 58 (Tuesday, April 4, 2017)]
[Senate]
[Pages S2184-S2187]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Neil Gorsuch

  Mr. CORNYN. Mr. President, yesterday the Senate Judiciary Committee 
voted out the nomination of Judge Neil Gorsuch to fill the vacancy on 
the Supreme Court left by the death of Justice Scalia. During the 
meeting, as the Presiding Officer knows, our Democratic colleagues 
trotted out the same old tired arguments we have heard time and again 
about Judge Gorsuch.
  In the end, though, none of those arguments hold water, and of course 
many of them aren't even about him. Instead, these arguments reveal how 
our colleagues across the aisle are grasping for reasons to justify an 
unprecedented partisan filibuster of a Supreme Court Justice.
  Some object to the nomination of Judge Gorsuch because they claim he 
refuses to answer specific questions. But I ask: How would any of us 
feel if the judge before whom we might later appear had previously, in 
order to get a confirmation of his nomination, made certain promises of 
how he would judge that case when presented at a future date? We would 
all feel more than a little bit betrayed and even cheated if the judge 
had prejudged our case before he even heard it. The judge is simply 
engaging in a common practice for Supreme Court nominees. They steer 
clear of any questions that may pertain to cases they may have to rule 
on later. It is a matter, as the Presiding Officer knows, of judicial 
ethics, and we wouldn't have it any other way.
  Justice Ruth Bader Ginsburg set this precedent early on. During her 
confirmation hearing in 1993, she said she didn't want to give any 
hints or previews about how she might vote on an issue before her. So 
she politely and respectfully declined. Others followed her example, 
and Judge Gorsuch is, of course, doing precisely the same.
  By any fair review, Judge Gorsuch has a history of 10 years as a 
judge sitting on the Tenth Circuit Court of Appeals out of Denver, CO. 
He has a history of interpreting the law fairly, basing his judgments 
on the law and the facts, without regard to politics and without 
respect to persons.
  That brings me to this argument that somehow he is against the little 
guy. Clearly, a review of the records demonstrates that this is not so. 
But, again, how are judges supposed to perform? Are they supposed to 
see the litigants--the parties to a lawsuit--in their court and say: 
Well, you have a big guy and you have a little guy, and I am always 
going to vote or render a judgment for the little guy without regard to 
the law or the facts?
  I realize that sometimes our colleagues can weave a story that seems 
somewhat sympathetic when it comes to the fact that not everybody is 
guaranteed a win in court. As a matter of fact, when there are two 
parties to a lawsuit, one of those parties is likely to be disappointed 
in the outcome. But that is what judges are there for. That is what 
they are supposed to do. They are supposed to render judgments, without 
regard to personal preferences or politics or without regard to their 
sympathies, let's say, for one of the parties to the lawsuit.
  Judge Gorsuch even said this during his hearing: No one will capture 
me. No one will capture me--meaning that no special interest group or 
faction would derail him from following the law, wherever it may lead. 
That is why Judge Gorsuch is universally respected. That is why he was 
confirmed by voice vote 10 years ago to the Tenth Circuit Court of 
Appeals. No one objected to Judge Gorsuch's confirmation to a lifetime 
appointment on the Tenth Circuit Court of Appeals.
  Again, as the Presiding Officer knows, the Supreme Court of the 
United States only hears about 80 cases, give or take, a year. Most of 
the hard work gets done in our judicial system at the district court 
level and at the circuit court level, and almost all of the cases end 
in circuit courts, like the Tenth Circuit Court of Appeals, on which 
Judge Gorsuch serves. That is not to say that the Supreme Court is not 
important--it is--in resolving conflicts between the circuits or ruling 
on important questions of law to guide all of the judiciary and to 
settle these issues for our country, at least for a time, and maybe 
even permanently when it comes to constitutional interpretation.
  Judge Gorsuch enjoys broad support from across the political 
spectrum, especially from his colleagues and members of the bar.
  For 13 years, I served on the State judiciary in Texas, with 6 years 
as a trial judge and 7 years as a member of the Texas Supreme Court. 
When I heard that Judge Gorsuch had participated in 2,700 cases on a 
three-judge panel and 97 percent of them were unanimous, that told me 
something special about this judge. It takes hard work to build 
consensus on a multijudge panel, whether it is three judges or nine 
judges, like the Supreme Court. I think what we are going to see out of 
this judge is not somebody who is going to decide cases in a knee-jerk 
fashion but somebody who is going to work really hard to try to build 
consensus on the Supreme Court of the United States.
  That is really important to the Supreme Court's respect as an 
institution of our government. What causes disrespect for our judiciary 
is when judges act like politicians, when they make pledges of how they 
will decide cases ahead of time or they campaign, in essence, for votes 
based on ideological positions.
  Judge Gorsuch is the opposite of that, and that is the kind of judge 
America needs right now in the Supreme Court. That is why later on this

[[Page S2185]]

week, on Friday, Judge Gorsuch will be confirmed.
  In spite of all the evidence in support of the nominee's intellect 
and qualifications, without regard to the bipartisan chorus urging his 
confirmation, the Democratic leader has decided to do everything he can 
to prevent us from even having an up-or-down vote on his nomination. 
Unfortunately, he will be making history in urging his Democratic 
colleagues to engage in a partisan filibuster against a Supreme Court 
justice. In our Nation's long, rich history, there has never been a 
successful partisan filibuster of a Supreme Court nominee. Now, some 
people want to talk about Abe Fortas back in 1968, which was totally 
different. But there has never been a successful partisan filibuster of 
a Supreme Court justice until, apparently, this week on Thursday--not 
one of them.
  Not one of my Republican colleagues mounted a filibuster when 
President Obama nominated Justice Sotomayor or Justice Kagan. Both 
received an up-or-down vote. That is because that has been the 
customary way this Chamber has treated Supreme Court nominees in the 
past. Only four times in our Nation's history has a cloture motion 
actually even been filed. But cloture was always achieved because, on a 
bipartisan basis, enough votes were cast to allow the debate to end and 
then to allow an up-or-down vote on the nominee.
  To show how new this weaponization of the filibuster has become, back 
when Clarence Thomas was confirmed to the Supreme Court of the United 
States, he got 52 votes--52 votes--and was confirmed and now serves on 
the Supreme Court. Back when he was confirmed, no one even dreamed of 
its use. It was theoretically possible, but no one dreamed of the idea 
that someone would raise the threshold for confirmation from a 51-
majority vote to 60.
  Our colleagues have made it quite clear that they don't want to 
support any nominee from this President. So it is not even just about 
Judge Gorsuch. It is about any nominee this President might propose to 
the Supreme Court. And I think what it boils down to is this: Our 
Democratic colleagues haven't gotten over the fact that they lost the 
election. I think it really isn't much more complicated than that. They 
adamantly resisted participating in the legislative process. They dug 
their feet on every Cabinet nomination and now on the Supreme Court 
nomination. All they know is to obstruct because they haven't gotten 
over the fact that Hillary Clinton isn't President of the United 
States.

  They keep bringing up Merrick Garland's name. Judge Garland is a fine 
man, a good judge who serves on the DC Circuit Court of Appeals, but 
you would have to go back to 1888 to find a time when someone was 
nominated in a Presidential election year with divided government and 
where that person was confirmed.
  What we decided to do upon the death of Justice Scalia is to say that 
the Supreme Court is so important that we are going to have a 
referendum on who gets to nominate the next Justice on the Supreme 
Court. Our Democratic friends thought for sure it would be Hillary 
Clinton. When it turned out to be Donald Trump, well, all bets were 
off, and they were in full opposition mode. But we would have respected 
the right of a President Hillary Clinton to fill that nomination 
because that is what we said was at stake in the election. I think it 
had a big impact on whom got elected on November 8 as President of the 
United States and who would fill that vacant seat and any future vacant 
seats on the Supreme Court.
  So here is the problem. If Judge Gorsuch is an unacceptable nominee, 
can you imagine any nominee by this President being acceptable to our 
Democratic colleagues? I can't, because Judge Gorsuch is about as good 
as you get when it comes to a nominee. He is exactly the type of person 
we should hope to see nominated to the Supreme Court.
  So it is time for our Democratic colleagues to accept reality and not 
to live in some sort of fantasy land and not to try to punish good 
people like Judge Gorsuch, who has done an outstanding job, because 
they are disappointed in the outcome of the election.
  So here is the bottom line. Our Democratic friends will determine how 
we get to an up-or-down vote on Judge Gorsuch. If they are genuinely 
concerned about the institution of the Senate, they will provide eight 
votes to get cloture to close off debate, they will decline to 
filibuster the judge, and they will allow an up-and-down vote on this 
imminently qualified nominee.
  I am holding out hope that more thoughtful and independent Democrats 
will think better of the Democratic leader's strategy. Several already 
have, and I commend them for it. I hope more will come around to that 
idea, but as I and others have said before, regardless of whether they 
do, Judge Gorsuch will be confirmed. But it is up to the Democrats to 
determine just how we get that done.
  I see a friend from Vermont here. I won't take much longer. I want to 
take about 3 or 4 minutes, maybe 5 minutes, to debunk some of the myths 
about how we got here.
  I have in front of me an article written by Neil Lewis dated May 1, 
2001. The title of this New York Times story is ``Washington Talk; 
Democrats Readying for Judicial Fight.'' It is dated May 1, 2001. That 
was, of course, in the early days of the George W. Bush administration. 
What it says is that 42 of the Senate's 50 Democrats attended a private 
retreat in Farmington, PA, where the principal topic was forging a 
unified party strategy to combat the White House on judicial nominees.
  Mr. Lewis goes on to quote one of the people there who said: ``They 
said it was important for the Senate to change the ground rules'' by 
which judicial nominees were confirmed. And they did as a result of 
that meeting, which was led by Laurence Tribe of Harvard Law School, 
Cass Sunstein of the University of Chicago, and Marcia Greenberger, 
codirector of the National Women's Law Center. Senator Schumer, the 
present Democratic leader, and others, cooked up a new procedural 
hurdle for President George W. Bush's judicial nominees, and we 
remember what happened after that. It became almost routine for our 
Democratic colleagues to filibuster President Bush's nominees.
  Ultimately, there came a meeting of a group called the Gang of 14, 
where there was a deal worked out that some of President Bush's 
judicial nominees were confirmed and others were returned and not 
confirmed. There was a decision made at that time by the Gang of 14, a 
bipartisan group, that there would be no filibuster of judicial 
nominees, absent exceptional circumstances. That was the language that 
they used--``absent exceptional circumstances''--that let us get by 
that obstacle and those filibusters for a time.
  The next major development occurred in 2013, when President Obama 
really wanted to see on the DC Circuit Court of Appeals--the primary 
circuit court that reviewed administrative decisions--more of his 
Democratic nominees on that court. So in a new and unprecedented 
fashion, Senator Harry Reid changed the cloture rules once again--so-
called the Reid Rule. For what purpose? It was a naked power grab. It 
was to pack the DC Circuit Court of Appeals--one of the least busy 
circuit courts in the country--in order to have judges confirmed by 51 
Democratic votes that would rubberstamp President Obama's 
administrative actions during his administration. And sadly, it worked. 
They did just that.
  So in a way, we are coming full circle, back to what the tradition in 
the Senate was before the year 2000, before Democrats went to this 
retreat led by liberal legal activists who cooked up this idea that you 
could filibuster judges, and they tried to impose a requirement of 60 
votes for confirmation when, in fact, the Constitution contemplates a 
majority vote, or 51 votes for confirmation.
  Some have said this represents the end of comity in the Senate. I 
don't believe that. Some have said this threatens the end of the 
legislative filibuster or cloture requirement. I don't believe that 
either. There is a big difference between a nominee by a President that 
is an up-or-down vote--confirm or don't confirm. There is a big 
difference between that and legislation, which by definition is a 
consensus-building process by offering an amendment, by offering other 
suggestions to build that consensus and get it passed.
  You can't amend a nominee. All you can do is vote up or down. So I 
don't

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believe restoring the status quo ante--going back before 2000 and 
restoring the 200-year-plus tradition of the Senate where you don't 
filibuster judges--I don't see that as a bad thing. I don't see it as 
the end of the legislative filibuster. It is completely apples and 
oranges.
  It is true that 51 Senators will be able to close off debate and 
confirm Judge Gorsuch, and we will see that happen later this week. It 
also means that the next Democratic President can nominate a Supreme 
Court nominee, and that person will be confirmed by 51 votes. Again, 
this has been the 200-plus-year tradition of the Senate. I don't see 
that as the end of the Senate. I don't see this as somehow damaging our 
country--the restoration of the status quo before 2000, when our 
Democratic colleagues decided to weaponize the filibuster and use it to 
block judges based on this trumped-up idea that 60 votes would be 
required rather than 51.
  I look forward to confirming Judge Gorsuch later this week. He is a 
fine man and a very good judge. He has exactly the sort of record we 
would want to serve on the Court. No, he is not a liberal activist. 
Clearly, Hillary Clinton, if she had been elected, would have nominated 
somebody different. That is one reason why we choose whom we choose for 
our President, because of the kinds of nominations they will make, and 
I must say President Trump has chosen well in Neil Gorsuch.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Flake). The Senator from Vermont.
  Mr. SANDERS. Mr. President, I rise today to oppose the nomination of 
Judge Neil Gorsuch to the Supreme Court of the United States. After 
meeting with Judge Gorsuch and having a long and pleasant conversation, 
after hearing his testimony before the Judiciary Committee, and after 
carefully reviewing his record, I have concluded that I cannot support 
a man with his views for a lifetime seat on the Supreme Court.
  The Supreme Court is the most important judicial body in this 
country. The decisions that it reaches, even on a 5-to-4 vote, have a 
profound impact on all Americans, on our environment, and on our way of 
life. As we decide this week as to how we are going to cast our votes 
regarding Judge Gorsuch, it is important to understand how that vote 
for Judge Gorsuch--for or against him--will impact the lives of the 
people of our country.
  Let me give you just a few examples as to what is at stake. Seven 
years ago, in a 5-to-4 decision, the Supreme Court ruled in a case 
called Citizens United, and in that case, by a 5-to-4 decision, the 
Court said that billionaires and corporations could spend as much money 
as they wanted on the political process. This decision, as all 
Americans know, opened the floodgates of corporate money, of money from 
the billionaire class, such that the wealthiest people in our country 
today can now elect candidates who represent their interests and not 
the interests of ordinary Americans.
  That decision, Citizens United, is undermining American democracy, 
and in my view, it is moving us toward an oligarchic form of society in 
which a handful of the wealthiest people in this country--the Koch 
brothers and others--now have the power not only to control our economy 
but our political life as well. In my view, Citizens United must be 
overturned, and we must move back to a nation where our political 
system is based on one person, one vote, not on the ability of 
billionaires to buy elections.
  Based on my conversation with Judge Gorsuch and a review of his 
record, do I believe that he will vote to overturn Citizens United? 
Absolutely not. Further, I suspect that he will vote to undermine our 
democracy even further by supporting the elimination of all 
restrictions on campaign finance, something which the Republican 
leadership in this body wants.
  What the Republican leadership is striving toward is eliminating all 
campaign finance restrictions, such that billionaires can say to 
somebody: I am going to give you $500 million to run for the U.S. 
Senate from California, and you work for me--no independent 
expenditures. I will select your campaign manager, your speech writer, 
your media adviser, your pollster. You are my employee.
  That is what the Republican leadership here wants. They want to 
undermine all campaign finance laws, and I believe that Judge Gorsuch 
will move this country in that way, a more and more undemocratic way.
  Further, when we talk about the political process, it is important to 
point out that in 2013, again by a 5-to-4 vote, the Supreme Court 
gutted the 1965 historic Voting Rights Act, a law which was passed to 
combat racial discrimination in voting in a number of States. What the 
Court said, finally, is that in the United States, you have the right 
to vote no matter what the color of your skin is, a historic step 
forward in making this country the kind of country that it must become.
  Well, as a result of that 5-to-4 Supreme Court decision in 2013 
gutting the Voting Rights Act, literally days after, we had Republican 
Governors and Republican legislatures all over this country, under the 
guise of fighting voter fraud, passing laws--everybody knows this--
intentionally designed to make it harder for people of color, for poor 
people, for young people, for older people to vote in elections.
  In America in the year 2017, it is not too much to ask that all of 
our people who are eligible to vote be able to vote without harassment, 
without roadblocks, without barriers being placed in front of them.
  I know it is a radical idea, but it is called democracy. It is called 
democracy. It says that if you are eligible to vote, we want you to 
vote. We want you to participate. It says that in America, where we 
have one of the lowest voter turnout rates of any major country on 
Earth, we want more people to be participating in the political 
process, not fewer people. There is nothing I have seen in Judge 
Gorsuch's record or in his recent statements to suggest to me that he 
is prepared to overturn this disastrous decision on the Voting Rights 
Act.
  In 1973, we all know, the Supreme Court decided Rowe v. Wade and 
declared that women have a constitutional right to control their own 
bodies. That decision has been subsequently affirmed by multiple cases 
as recently as last June.
  In his confirmation hearings, Judge Gorsuch refused to state if he 
believed Roe v. Wade was good law and should be upheld. Based on his 
statements and general philosophy, I believe there is a strong 
likelihood that Judge Gorsuch would vote to overturn Roe v. Wade and 
deny the women of this country the constitutional right to control 
their own bodies. This would be an outrage. I do not want to be a party 
to allowing that to happen.
  In addition, under Chief Justice John Roberts, the Supreme Court has 
time and again voted in support of corporate interests and against the 
needs of the working people of our country. After reviewing Judge 
Gorsuch's record, I believe he will continue that trend.
  In a case called TransAm Trucking, Judge Gorsuch argued that a 
trucker was properly fired by his employer for abandoning his cargo at 
the side of the road after his truck broke down and he nearly froze to 
death waiting for help. Judge Gorsuch literally believed that this man 
should have had to choose between his life and his job, and by choosing 
his life--not freezing to death--he deserved to lose his job.
  In another case, Judge Gorsuch ruled that a university was correct to 
fire a professor battling cancer rather than grant her request to 
extend her sick leave. I find these decisions troubling.
  At a time of massive income and wealth inequality, when so many 
working people throughout this country feel powerless at the hands of 
the wealthy and the powerful and their employers, we need a Supreme 
Court Justice who will protect workers' rights and not just worry about 
corporate profits. I fear very much that Judge Gorsuch is not that 
person.
  I listened carefully to what my friend, Senator Cornyn of Texas, had 
to say about this entire process. I have to say that in his remarks 
there was a whole lot of obfuscation because there is a simple reality 
that we are going to have to deal with in the Senate this week. 
Everybody knows, and Senator Cornyn made the point, that under Harry 
Reid, the former Democratic leader, the rules, in fact, were changed. 
They were changed because of an unprecedented level of Republican 
obstructionism, making it impossible for President Obama to get almost 
any of his nominees appointed.

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  Let's not forget that in the midst of that controversial decision--
and it was a controversial decision--the Democratic leader had the 
power also to say that we will waive the 60-vote rule regarding Supreme 
Court nominees. Democrats had the power, and they chose not to exercise 
that power in ending that rule--although, of course, they could have 
done that. I think the reason was that the Democratic leadership 
appropriately and correctly believed that on an issue of such 
magnitude, the appointment of a Supreme Court Justice, it is important 
that there be bipartisan support. But right now, it appears that the 
Republican leadership is going to do what the Democratic leadership did 
not do; that is, waive that rule and get their judge appointed with 51 
votes.
  So I would suggest to the Republican leader that instead of trying to 
push this nominee through with 50-some-odd votes, it might make more 
sense that, rather than changing the rule, change the nominee, and 
bring forth someone who, in fact, can get 60 votes.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. SHAHEEN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.